author: Wiseman, J.

text:
    Bennett, Appellee, v. The Dayton Memorial Park & Cemetery Assn. et al., Appellees; Walker, Appellant.

      (No. 2070
    Decided March 16, 1950.)

      Mr. Howard P. Williamson, for appellee Clifford R. Bennett.

      Messrs. Cowdeñ, Pfarrer & Crew, for appellees The Dayton Memorial Park & Cemetery Association and others.

      Messrs. Myers, Mills, Boesch & Cline, for appellant.
   Wiseman, J.

This case is submitted to this court on motion of the defendant, The Winters National Bank & Trust Company of Dayton, to strike from the files the bill of exceptions heretofore filed by George R. Walker, appellant, on three grounds:

First, the bill of exceptions was not allowed and signed by the referee and returned with his report to the Common Pleas Court, as required by law.

Second, the bill of exceptions was not allowed and signed by the referee within the time required by law.

Third, the bill of exceptions was not before the Common Pleas Court at the time of the entry of judgment on the report of the referee, from which judgment this appeal is taken.

The transcript of the docket and journal entries shows that the referee was appointed July 3, 1943, and that the referee, after extended hearings, filed with the trial court a report of separate findings of fact and conclusions of law on February 6, 1948. To the report Qf the referee the appellant, George R. Walker, filed a motion for a jiew trial and exceptions, which were overruled in December 1948. On July 1, .1949, the Court of Common Pleas rendered final judgment on the report of the referee. Prom that judgment this appeal is taken.

The appeal of George R. Walker was dismissed as an appeal on questions of law and fact and retained as an appeal on questions of law in an entry filed in this court on November 25, 1949. In that entry, in compliance with the provisions of Section 11564, General Code, 30 days from the date of the entry was fixed as the time within which to file a bill of exceptions. The bill of exceptions was filed in the trial court on December 13, 1949, and was later signed and approved by both the referee and the trial judge. The bill was filed in this court on December 27, 1949.

In the entry appointing the referee the court ordered the referee to have the testimony of the witnesses reduced to writing, but did not require the referee to report the testimony to the trial court. The failure of the referee to file a bill of exceptions with his report may be due to the fact that the order appointing the referee did not expressly require it. However, whether the order of the trial court required it or not, the statutory requirements must be met before the bill may be regarded as a valid bill and one which may be considered by this court.

Is the bill properly before this court, and may the court consider it in determining the issues raised by this appeal? When a matter is referred, the proper procedure to be followed by the referee with respect to a bill of exceptions is set forth in Section 11484, General Code, which provides:

“The referees shall sign any true exceptions taken to an order or decision by them made in the case, and return it with their report to the court which made the reference.”

In the instant case, the hill of exceptions was not returned by the referee with his report to the court. The bill was not returned to the court until six months after final judgment was rendered. Manifestly, the contents of the bill were never before the trial court before final judgment was entered. The court, was confined to a consideration of the report of findings of fact and conclusions of law' of the referee. The court was required to accept the facts found by the referee and determine whether, on the basis of the facts found, the referee had properly applied the law in arriving at his decision.

Appellant contends that the trial court considered the evidence taken before the referee. Whether the trial court was informed as to certain items of evidence is not disclosed by the record. The record shows clearly and conclusively that the bill was not before the court prior to entering final judgment. Moreover, the judgment entry of the trial court recites that the matter was submitted to the court on the report of the referee. The referee’s report is a part of the record and will be considered by this court.

It is axiomatic that in an appeal on questions of law the reviewing court may consider only that which was considered by the trial court and nothing more. 2 Ohio Jurisprudence (App.,Rev., Pt. I), 296, Section 150. Inasmuch as the trial court did not have before it. the bill of exceptions and could not have considered its contents, this court may not consider it. A reviewing court may not consider the contents of a bill of exceptions filed by the referee when it appears that the bill was not returned to the trial court until after final judgment was rendered by the trial court on the report of the referee. The record in this case shows clearly the underlying réason for the statutory requirement that the referee return the bill of exceptions to the court with his report; otherwise the court, in rendering final judgment, may consider only the report of the referee, and, in' that event, it necessarily follows that the reviewing court, in reviewing the final judgment, may consider only the report of the referee.

We find no reported case in Ohio deciding this pre-' cise question. However, a few cases are reported which are helpful in determining the' questions presented. In State, ex rel. Klorer, v. Fimple, Judge, 91 Ohio St., 99, 110 N. E., 253, which was a mandamus action, the relatrix sought an order requiring the trial judge to allow and sign a bill of exceptions in a matter which had been referred. No bill of exceptions was returned by the referee. The court held that only the referee could allow a bill of exceptions. On page 102, the court discusses the effect of the failure of the referee to file a bill:

“The only provision for a bill of exceptions in cases so tried is in Section 11484, General Code, that ‘the referees shall sign any true exceptions taken to an order or decision by them made in the case, and return it with their report to the court.’ This provision is obviously necessary to bring before the court questions arising before a referee who reports only his conclusiQns of fact and law, his conclusions of fact having the effect of a special verdict, for in such case without a bill signed by him neither the propriety of his procedure nor the correctness of his conclusions of fact could be determined by the court.” (Emphasis ours.)

Again, on page 102, the court stated:

‘ ‘ The function of a bill of exceptions is to bring upon the record matters material to further judicial inquiry which would not otherwise appear. The trial judge here naturally and properly answers that he has no personal knowledge respecting the proceedings before the referee. For information upon that subject he was confined to the referee’s report. That report was before him as the sole basis of his action in overruling exceptions and in rendering judgment. It is equally available to the Court of Appeals. It is to be observed that in this case the report of the referee was confirmed and judgment rendered upon it and upon it alone. There could, therefore, have been no evidence whatever before the Court of Common Pleas that was not embraced in the report of the referee, already a part of the record.” (Emphasis ours.)

In Mennel Milling Co. v. Slosser, 140 Ohio St., 445, 45 N. E. (2d), 306, the above case was cited with approval.

In Bryan v. Woodmansee, 25 C. C. (N. S.), 481, 28 C. D., 450, the bill of exceptions was signed by the trial judge but not by the referee. A motion to strike the bill of exceptions from the files was sustained on the ground that the bill should have been allowed by the referee. See, also, Guthrie & Sons v. Angosta Milling Co., 17 C. C., 256, 9 C. D., 739, holding that the bill must be allowed by the referee.

Since the bill must be allowed by the referee and not by the trial court, the fact that the bill in the instant case was signed and approved by the trial judge has no legal significance. The bill was finally allowed and signed by the referee. But the fault lies in- the fact that it was not allowed and returned seasonably with the report to the trial court and in time to be considered by the trial court. The order of this court fixing the time within which a bill of exceptions may be filed did not assume that a legal bill of exceptions was obtainable. If the referee had filed a bill with his report, as the statute requires, the trial court then would have had the questions raised therein before it before rendering a final judgment, and a bill of exceptions would now be obtainable and could be considered by this court.

The proper procedure to be followed by the referee in such matters is stated in Fields v. Jones, 26 N. P. (N. S.), 445.

In 35 Ohio Jurisprudence, 135, Section 51, it is stated that “the bill of exceptions must be filed with the referee’s report, and not afterwards.”

The motion to strike the bill of exceptions from the files is hereby sustained.

Motion sustained.

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


source: Caselaw Access Project

author: Skeel, P. J.

license: Public Domain

text:
    The State, ex rel. Macko, v. Westropp, Judge.
    (No. 21875
    Decided May 1, 1950.)

      Mr. B. B. Murad, for relator.

      Mr. Lee G. Howley, director of law, and Mr. Bobt. J. Seltzer, for respondent.
   Skeel, P. J.

The relator brings this cause as an original action in this court, seeking a writ of mandamus directing the respondent, as judge of the Municipal Court of Cleveland, to entertain a motion filed in the Municipal Court of Cleveland seeking a reduction of the amount of bail fixed by the respondent in a criminal action commenced in that court'against this relator.

The relator was charged with the crime of automobile stealing, and upon such charge he came before the respondent upon preliminary hearing on April 5, 1950. Upon hearing, the respondent found there was probable cause to believe that the crime of automobile stealing had been committed and there was likewise probable cause to believe that relator was guilty of such crime, and committed the case to the Court of Common Pleas of Cuyahoga County for the consideration of the grand jury of that county.

After the hearing in the Municipal Court above set forth, the transcript of the proceedings was filed with the clerk of Common Pleas Court of Cuyahoga County, Criminal Branch, on April 13,1950. Thereafter a motion was filed in the Municipal Court of Cleveland which was assigned for trial before this respondent.

The respondent as judge of the Municipal Court of Cleveland refused to entertain such motion for the reason that the court had lost jurisdiction of the relator.

The sole question here present is: After a bind-over to the Common Pleas Court in a felony case, does the Municipal Court of Cleveland retain jurisdiction of the defendant to pass on a motion seeking a reduction of the amount of bail set at the time of the preliminary hearing?

The answer must be in the negative. Once a committing magistrate upon hearing, or waiver of such hearing, commits the defendant to the consideration of the grand jury of the county and the transcript of the-case is filed with the clerk of the Court of Common Pleas of the county, the Court of Common Pleas is then vested with jurisdiction to hear all preliminary matters that may thereafter arise, such as a motion to reduce the amount of the bail fixed by the committing magistrate. It must logically follow that the jurisdiction of the Municipal Court of Cleveland of the person of such defendant is,' after the filing of such transcript, entirely lost.

In the case of State v. Morrow, 90 Ohio St., 202, 107 N. E., 515, it was held:

“A case is pending in the Common Pleas Court, within the meaning of the general schedule to the amendments of 1912 to the Constitution of Ohio, when there is filed in that court a transcript of the criminal docket of the examining magistrate by whom the accused has been committed to the jail of the county or recognized to appear before that court to answer the charge in- the affidavit filed with such magistrate. ”' • And on pages 207 and 208 the court said:

“The prosecution was instituted according to the regular course of proceedings, and the filing of the transcript from the docket of the justice of the peace in the Common Pleas Court vested that court with jurisdiction to hear and determine all questions arising therein, -independent of whether an indictment was returned or otherwise. The return of the indictment is but an incident in the progress of the prosecution. The prosecution is commenced in the Common Pleas Court by filing the transcript from the magistrate’s court.”

For the foregoing reasons the writ is denied.

Writ denied.

McNamee and Hurd, JJ., concur.


author: MoClintook, J.

text:
    Fisher, Appellant, v. Hering, Appellee.
    (No. 649
    Decided January 22, 1948.)

      Mr. Jacob Wagenhals, for appellant.

      Mr. J. H. Gongwer, for appellee.
   MoClintook, J.

.This action was begun in the Court of Common Pleas of Richland County by Henry J. Fisher against Karl W. Hering. The petition alleges briefly that Peg. Elliott was employed as a waitress at a restaurant known as the Elms at 294 South Diamond street, Mansfield, where food and liquor were served; that Henry J. Fisher entered the Elms, sat at the bar, remained there several hours and drank a number of whiskies; that the bar was across the west end of the room; that the south portion of the room was filled with tables and chairs; that during the time Henry Fisher was at the bar Peg Elliott was serving people at the tables and was not serving any of the customers sitting at the bar; and that during the evening Peg Elliott had occasion to go back to the bar and Henry J. Fisher accused her of shortchanging some of his friends two nights before.

The claim in the petition is that she shortchanged one person of $6.80 out of $10 and another person $1.80; that, after he accused Peg Elliott of shortchanging his friends, Peg Elliott struck plaintiff; that he and the stool on which he was seated fell over backwards; that plaintiff suffered a broken leg; and that Peg Elliott was acting in the scope of her employment and for the business of her master in making the assault upon the plaintiff..

To this petition an answer was filed which in substance admits the allegations of the petition as to ownership of the restaurant, and so forth; that, at the time mentioned in the petition, Peg Elliott was employed by defendant as a waitress; and that plaintiff was seated at the bar in defendant’s place of business. The answer denies each and every other allegation of the petition.

The plaintiff introduced the testimony of several witnesses, which was to the effect that Peg Elliott was employed as a waitress; that on the evening of February 15, 1946, Henry J. Fisher entered the Elms and sat at the bar; that she performed the duties of a waitress; that plaintiff was there for about two hours; that plaintiff accused Peg Elliott of shortchanging several of his friends; that she thereupon struck plaintiff in the face with her right hand, with such force and violence that he and the stool fell over backwards, resulting in the fracture of the tibia of his right leg within two or three inches of the ankle joint and the fracture of the fibula of his fight leg near the knee; that the- duties of Peg Elliott were taking -orders for food and drink, obtaining the same from the kitchen and bar, serving them at tables, collecting payment therefor and making change, if necessary; and that the defendant had employed her and gave her instructions at the time she was employed.

In the absence of the defendant, the bartender, "Wolfe, was in charge. The evidence shows also that after this assault, and for some time thereafter, Peg Elliott continued in the employ of the defendant.

At the conclusion of this testimony the defendant moved for an instructed verdict in favor of the defendant, for the reason that there was no evidence sustaining the material allegations of the petition. The court sustained the motion and a verdict in favor of the defendant was returned.

The plaintiff thereupon filed a motion for new trial, which was overruled, and thereafter filed in this court his appeal on questions of law.

Two assignments of error are set forth in the brief of plaintiff. First, that the court erred in sustaining the motion of defendant for a directed verdict, for the reason that the evidence adduced, by plaintiff clearly showed that Peg Elliott was acting within the scope of her employment when she struck plaintiff: Second, that, by reason of the fact that Peg Elliott continued in the employ of the defendant after he learned of this assault, he ratified the acts of Peg Elliott.

In considering the first assignment of error, we note the following:

“The old rule that the master was never liable for the willful or malicious act of his servant is not now the law. He is answerable, if the act was done in his master’s business, and this is the true test of his liability: Richberger v. American Exp. Co., 73 Miss., 161, 55 Am. St. Rep., 522; Bryan v. Adler, 97 Wis., 124, 65 Am. St. Rep., 99; monographic note to Goodloe v. Memphis Rd. Co., 54 Am. St. Rep., 85.” 71 Am. St. Rep., 736.

< í * * * a verdict for the defendant should, on proper motion, be directed, if there is no evidence, or no reasonable inference to be drawn from facts established by the evidence, that the person who caused the injury to the plaintiff was an employee of the defendant, and acting within the scope of his employment, or in the service of the master, when the injury occurred.” 26 Ohio Jurisprudence, 687, Section 684.

“1. A master is not responsible for the wrongful act of his servant, unless that act be done in execution ©f the authority, express or implied, given by the master. Beyond the scope of his employment, the servant is as much a stranger to his master as any third person, and the act of the servant not done in the execution of the service for which he was engaged cannot be regarded as the act of the master.

“2. Where the plaintiff after purchasing a ticket as a passenger, applied to the servant of the defendant charged with the duty of checking baggage, to have his baggage checked to his place of destination, and by his importunate conduct and abusive language towards the servant provoked a quarrel, in which the servant, to gratify his personal resentment, struck the plaintiff r Held — -That the wrongful act of the servant in striking the plaintiff cannot be regarded as authorized by the master, nor as an act done in the execution, of the service for which he was engaged by the master. And the fact that the blow was inflicted with a hatchet furnished by the master, to be used for a wholly different purpose in connection with the servant’s business, is immaterial as respects the liability of the master.” Little Miami Rd. Co. v. Wetmore, 19 Ohio St., 110.

Counsel for plaintiff has cited in his brief the case of Nelson Business College Co. v. Lloyd, 60 Ohio St., 448, 54 N. E., 471, and also the case of Stranahan Bros. Catering Co. v. Coit, 55 Ohio St., 398, 45 N. E., 634.

There is clearly a distinction as to the facts in those cases. On page 460 in the Nelson Business College case, the court said:

“In many cases it is clear from the nature of the act, that it is not within the scope of the servant’s employment. This is so in the Wetmore case. There the servant’s duty was to check baggage; and when he made a violent assault on the plaintiff because he had provoked him, he turned aside and made an assault, not in the course of his employment, and for which the master was not liable. But when, as in this case, the act done — the pushing of the table — was, in its nature, within his employment, and the question is, whether it was in fact done in the performance of his service to his master, or was done wholly for the purpose of injuring the plaintiff and none other, it necessarily becomes, under our system of administering justice, a. question to be determined by the trial of the fact.”

The question to be determined from the facts in the instant case, which are undisputed, is whether at the time Peg Elliott made the assault she was acting within the scope of her employment and attending to her master’s business. If she was not, the court was right in directing a verdict in favor of the defendant.

“2. Whether an employee was within the scope of his employment at a given time becomes a question for the jury only when the facts in issue are in dispute; if there is no question of fact to be passed upon, the matter is one of law and should be determined by the court.” Stewart v. Whitford, 22 C. C. (N. S.), 585, 30 C. D., 652.

“A railroad company is not liable for damages resulting from an assault and battery inflicted by its station agent and another upon a third person, when it appears that the difficulty which gave rise to the beating arose out of a personal quarrel, and that the agent, so far as related to his participation therein, was acting upon his individual responsibility and not within the scope of the business of his agency as an employee of the company.” Lynch v. Florida C. & P. Rd. Co 113 Ga., 1105, 39 S. E., 411, 54 L. R. A., 810.

In view of the facts as they are found in the record, and in view of the authorities just cited, it is the opinion of this court that at the time of the assault Peg Elliott was not acting within the scope of her employment or attending to her master’s business, and for that reason the first assignment of error is not well taken.

We consider now-the second assignment of error, in which it is claimed that the defendant ratified the acts of Peg Elliott in continuing her in his employment. Upon examination of the authorities, we find that such continuation of employment did not amount to a ratification.

“In order to constitute one a wrongdoer by ratification, the original act must have been done, or intended to be done, in his interest; otherwise, the animus of the wrongdoer cannot be imputed to him.” Dillingham v. Russell, 73 Tex., 47, 11 S. W., 139, 15 Am. St. Rep., 753, 754.

“It cannot be held as matter of law that the mere retention of a servant who in the course of his employment and while improperly performing an act arising in the line of his duty inflicts a malicious wrong on another operates a ratification of his malicious act and thus fix his evil motive on his employer so as to render him liable in damages. ” Dillingham v. Russell, supra, 48.

“In order to constitute one a wrongdoer by ratification, the original act must have been done in his interest, or been intended to further some purpose of his own. Lord Coke, on this subject, says:

‘ He that' agreeth to a trespass áfter it is done is no trespasser, unless the trespass was done to his use or for his benefit, and then his agreement subsequent amounteth to a commandment.’ ” 1 Cooley on Torts, 241, Section 76.

In conclusion, it is the opinion of this court that neither of the assignments of error as set forth by plaintiff is well taken, and that the court below was correct when it directed a verdict in favor of the defendant. For the reasons herein set forth, the judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

Putnam, P. J., and Montgomery, J., concur.


author: Miller, P. J.

text:
    Cross, Exrx., Appellant, v. Motorists Mutual Insurance Co., Appellee.
    (No. 4238
    Decided September 30, 1949.)

      Messrs. Gumble do Gumble and Mr. Harry Hofheimer, for appellant.

      Messrs. Benoy do Sebastian, for appellee.
   Miller, P. J.

This is an appeal from- a judgment of the Common Pleas Court of Franklin County sustaining a motion for a directed verdict for the defendant at the close of the plaintiff’s case. The action was one to recover for the loss of a trailer under the terms of an insurance policy issued by the defendant-appellee.. The policy contained the following endorsement: “In consideration of the premium charged, it is agreed that the insured trailer will be used principally for vacation purposes and will not be used as a trailer home. ”

The only question presented is whether as a matter of law the trailer was being used as a trailer home at the time it was destroyed by an explosion and fire. If it was, then the judgment is correct and should not be disturbed. The facts do not seem to be in dispute but only the inferences to be derived therefrom.

Briefly, the record discloses that the insured and his family had lived in Cambridge, Ohio, for two years where he had been employed by The Continental Can Company. Upon receiving notice that he was going to be transferred to some other undesignated location the home in Cambridge was sold in November 1945, and the wife and daughter went to California in the trailer, parking it in the Plantation Trailer Park in Los Angeles, California, where it remained until it was destroyed on June 9, 1946. There it was connected to-the gas line, water line and electric line. The wheels were jacked up off the ground in order to protect the tires. As the trailer was not being used on the highway, no license had been purchased for 1946 from either the state of Ohio or California.

During the month of December, Mrs. Cross, the wife of the insured, worked for a period of three wéeks in Los Angeles. She and the daughter lived in the trailer during.the entire period of time it was parked in the trailer camp prior to the time of the fire, with the exception of several weeks when she visited her husband who had been transferred to Chicago. At the time of the fire the husband was visiting her in California and was fatally burned in the trailer fire. Mrs. Cross'was called as a witness and testified that she and the daughter were on vacation in the trailer; that they were there, only temporarily and it was never intended to become permanent; and that it was not their home and that they were trying to sell the trailer, having been offered $1,800 which was deemed inadequate.

Now did the trial court err in holding from these facts that reasonable minds could arrive at only one conclusion, i. e., that the trailer was being used as a “trailer home” in violation of one of the restrictions in the policy? We are of the opinion that it did. Since it is admitted that the defendant prepared the policy, any ambiguous provision must be construed strictly against the defendant and liberally in favor of the plaintiff. The defendant urges that under California law and the case of Aetna Life Ins. Co. v. Aird, 108 F. (2d), 136, 125 A. L. R., 1436, the trailer became a building instead of a vehicle. Even conceding this, and upon which we do not express an opinion, this fact alone would not make it a trailer home. We are cited to only one Ohio case defining as follows the word, “home,” that being Nelson v. Nelson, 19 Ohio, 282:

“The term home, generally means nothing more than the place where a person has his habitation — his place of residence. The habitation or home may be, and often is, at one place, and the means of support at another; there is no necessary connection between them.”

Upon an examination of the words, “habitation” and “residence,” in Webster’s New International Dictionary (2 Ed.), we note that in their stricter sense these words denote a certain sense of permanency. It defines “habitation” as “place of abode; settled dwelling; residence; house.” Then under the synonyms we find listed “habitation, dwelling, residence, domicile, home. * * # Residence denotes a settled or permanent home.” The word, “home,” is also defined in 40 Corpus Juris Secundum, 418, as follows:

“A relative term, whose meaning must often necessarily depend on the intent as determined by the context ; and which may be, and is, often used in different senses # It has been defined as meaning domicile * * *; a dwelling house, or dwelling place; * * * the house in which one lives, especially the house in which one lives with his family, the habitual abode of one’s family; the place of constant or permanent residence * * *'; the place where one and his family habitually dwell, which they may leave for temporary purposes, and to which they return when the occasion for absence no longer exists; the place where one permanently resides and to which he intends to return when away from it; * * * some permanent abode or residence where the person residing intends to remain.”

In examining the context of the restriction in the policy the idea of permanency is definitely suggested, as it permits its use for living purposes while on vacation. It is a matter of common knowledge that trailers are used for living purposes, and permitting its use while on vacation would necessarily infer that it could be used for living quarters. The word, “vacation,” in its ordinary sense suggests a temporary status. We are, therefore, of the opinion that the restrictive clause in the policy means that the trailer may be used as a temporary home while on vacation, but not as a permanent home. This was a factual question which should have been submitted to the jury for its determination, as different inferences could reasonably have been drawn from the evidence submitted.

The judgment is reversed and the cause remanded.

Judgment reversed.

Hornbeck and Wiseman, JJ., concur.


author: Per Curiam.

text:
    City of Cincinnati, Appellee, v. Lindsay, Appellant.
    (No. 7257
    Decided May 15, 1950.)

      Mr. Henry M. Bruestle, Mr. Robert J. Paul and Mr. Don Burkholder, for appellee.

      Mr. Melvin Schaengold, for appellant.
   Per Curiam.

This is an appeal on questions of law from a judgment of conviction in the Municipal Court of Cincinnati.

The appellant advances two principal assignments of error: (1) The judgment is against the weight of the evidence, and (2) the ordinance under which the defendant was convicted is unconstitutional.

As to the first assignment of error, the court finds no justification for the claim that the judgment is against the weight of the evidence.

The record discloses that the second assignment of error involves a question for the first time raised in this court, to wit, the constitutionality of the ordinance. The trial court, the Court of Common Pleas and this court had jurisdiction to determine such constitutionality. A reviewing court is not required to determine such constitutionality where the defendant has not raised such affirmative defense in the trial and appellate courts. 2 Ohio Jurisprudence, 299, 869, Sections 150, 502. See, also, Village of Clarington v. Althar, 122 Ohio St., 608, 174 N. E., 251; Cuthbertson v. State, 106 Ohio St., 658, 140 N. E., 941.

It is difficult to see how this court could reverse a judgment of the Court of Common Pleas, which court affirmed the judgment of the Municipal Court, for errors in ruling upon a 'question which was never presented to either court. The unconstitutionality of a statute is an affirmative defense, and must be asserted in order to be considered even in a criminal case.

It is claimed also that Section 13448-4, General Code, requires a reversal. Again, the record shows that the rights, if any, of the defendant under such statute were never presented to the trial court or the Court of Common Pleas.

Under such circumstances, the judgment of the Court of Common Pleas, affirming the judgment of the Municipal Court, is affirmed.

Judgment affirmed.

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


text:
    Perkins, Appellant, v. Benguet Consolidated Mining Co. et al., Appellees. (Two cases.)
    (Nos. 181 and 182
    Decided January 27, 1950.)

      Messrs. Gorman, Silversteen & Davis, for appellant.

      Messrs. Ely, White & Davidson, Messrs. Nichols, Speidel & Nichols and Mr. Luden E. Mercier, for appellees.
   Per Curiam.

Two actions were commenced in the Court of Common Pleas of Clermont County. Service of summons was made in each case upon the defendant corporation, hereinafter called defendant, by delivering to John W. Haussermann a copy of such summons. He was so served as “parent, president and general manager, controlling member and the duly authorized representative in the United States ’ ’ of the defendant.

Motions to quash,, with proper reservation as to appearance, were filed and sustained by the trial court. From such ruling of the trial court, appeals on questions of law have been taken by the plaintiff and are now herein cohsidered.

Essentially, two main issues are presented to this court:

(a) Is the defendant a foreign corporation within the purview of the law of Ohio?

(b) If so, was the defendant doing business in Clermont county at the time summons was made upon Haussermann?

No difficulty is encountered in returning an affir'ma- / tive answer to the first query. It appears to be clearly demonstrated by the record that the defendant is, a corporation organized and existing under the laws of the Philippines, and, therefore, comes within the provisions of Section 8625-2, General Code, defining the terms, “foreign corporation” and “state.”

The articles of incorporation and the applicable Philippine law sustain this conclusion.

The second query is not so easily disposed of and involves consideration of many authorities, which, at least, seem to be conflicting.

The facts upon which plaintiff predicates her claim that the defendant was in this state and doing business in Clermont county are as follows:

(1) The defendant “opened accounts in The First National Bank of Cincinnati and the New Richmond National Bank of New Richmond, Ohio (Clermont county),.in January and April of 1942, respectively, in the name of its president John W. Haussermann.”

(2) “The accounts remained open for five years until April 1947.” “Considerable activity was revealed throughout the entire period of their existence, but particularly in the last eighteen months. ’ ’

(3) “No one but John W. Haussermann ever possessed the authority to draw on these accounts.”

(4) “Neither bank has in its possession any authority, either by way of corporate resolution or otherwise, for the establishment of these accounts.”

(5) “A directors’ meeting of the Benguet Consolidated Mining Company was held at Pond Run Farm, the New Richmond home of Haussermann on January 23, 1946, at which meeting authority was given to the First National Bank to act as transfer agent for the transfer of shares of the Benguet company stock.”

(6) “The First National Bank so acted as transfer agent from that date on. ’ ’

(7) “The bank is a true transfer agent to the extent that no separate authority nor individual correspondence is required from the principal office of the company in Manila to effect the transfer of shares of stock.”

(8) An office was maintained in a New Richmond bank building — which it was claimed was not used for any purpose in connection with the bank.

(9) Two secretaries were employed by Haussermann in such office.

(10) Haussermann was seen daily at such office.

(11) Haussermann admits possession of the Perkins’ stock — now in dispute in these actions.

(12) Deposits of defendant’s funds were'made from Haussermann’s office in local banks.

(13) Defendant “had applied for and secured a foreign funds’ control commission license for the expenditure of twenty-two thousand ($22,000) dollars for office rent and salaries in the United States.”

(14) Correspondence by Haussermann with local banks — pertaining to “handling and payment of the various funds and credits on deposit * * * directing of forwarding drafts on New Richmond bank to various individuals and companies throughout Ohio and the United States. ’ ’

(15) Haussermann signed “purchase orders for various supplies and machinery which were to be shipped to the company’s mines in the Philippines.”

(16) Haussermann signed checks for obligations of the company thus incurred.

(17) “In the registration statements filed with the Securities Exchange Commission, he styles himself the president, general manager, and the duly authorized representative of the Benguet Consolidated Mining Co. in the United States.”

(18) “At a directors’ meeting held as late as January 28, 1946, at Haussermann’s house, The First National Bank of Cincinnati was designated as transfer agent for Benguet and no separate authority from Manila or elsewhere is necessary to effect a transfer of shares.”

(19) “Haussermann maintains an office in the New Richmond Bank Building.”

(20) “He employs two secretaries in that office.”

(21) “Considerable correspondence about Benguet was carried on from this office concerning foreign funds control commission license, handling and payments of funds, forwarding drafts and the like. ’ ’

(22) “Here in New Richmond, Haussermann■ admitted he signed purchase orders for supplies and machinery and signed checks for the payment of them. ”

(23) “Haussermann received as a salary as president and general manager of the company in 1945 the sum of $12,000, and $12,000 as president and general manager of Balatoc.”

(24) “Albert, assistant secretary, Jean M. Gorrdon, assistant to the president, who was in New Richmond, and Francis O. Haussermann all were paid salaries in 1946. ”

(25) “Officer’s salary, office rent, secretarial help and the like were all paid for by the activities Haussermann carried on in New Richmond.”

On the other hand, the defendant points to the following evidence, claimed to sustain the conclusion that the defendant was not in Clermont county and did not “do business” therein:

(1) The defendant is a corporation created and existing under the laws of the Philippines and engaged in i he business of mining gold and silver there.

(2) The corporation, as such, has never maintained an office in the state of Ohio.

(3) It has never sold any gold or silver in Ohio.

(4) “No production of gold or silver having taken place because of the war since December 1941 to the date of these suits.”

(5) John Haussermann lived in the Philippines since 1898.

(6) He is the company’s president and general manager, and has been such for many years.

(7) He organized the company in 1903.

(8) “He came to Ohio in May, 1941, to attend to personal family matters with reservations to return to the Philippines in September, 1941. ’ ’

(9) He was prevented from so returning to the Philippines by war restrictions which cancelled his reservations of September, October and November, 1941.

(10) He made continuous efforts to secure passage to the Philippines from December 1945 to January

1947, and succeeded in securing a reservation in August 1947.

(11) During the time when he was thus forced to stay in the United States, he made his home on his farm in Clermont county.

(12) During the period from 1942 to the date of these suits “he lived there less than half of the time.”

(13) Since 1906 he has had “what he calls an office for a loafing place in New Richmond, Ohio, every time he came to the United States on vacation.”

(14) He built a building “to house the First National Bank of New Richmond, of which he was president, and in the lease to the bank, he reserved an office for himself for his loafing place.”

(15) “In which office no business people pertaining to Benguet ever came.”

(16) “He did some banking business pertaining to the bank in that office, and the townsfolk of New Richmond visited with him there.”

(17) During his stay in the United States in the war years “when it was impossible to communicate with the Philippines he did what he could to protect the shipments of machinery, supplies and equipment which were returned to the east and west coasts because he was the only one in the United States who could do so.”

(18) “In 1942 as a war expediency and because of the Foreign Funds Control Law, he transferred the company’s funds from a California bank to accounts in his name in the First National Bank of Cincinnati, and in the New Richmond Bank.”

(19) It is stipulated that these funds in Clermont county were the property of the defendant, hence, under Section Í1276, General Code, the venue of the action is properly laid in Clermont county.

(20) “Benguet’s surfáce properties at the mines in the Philippines were all destroyed during the war; and when the war was over, and in 1946, Benguet began rebuilding its properties in the Philippines, which required the purchase of machinery, supplies and equipment. Benguet had no funds in the Philippines but did have those funds in the two Ohio banks. The Philippines had no machinery, supplies and equipment, and all of this had to be purchased in the United States. To transfer the funds in the Ohio banks to the Philippines, and then from the Philippines to the United States would have entailed an expense for exchange. ’ ’

,(21) “This machinery, supplies and equipment was [sic] all negotiated for and purchase by Benguet’s purchasing agent in San Francisco, on the direction of the company’s chief of staff in Manila; and Judge Haussermann never negotiated for or purchased a single piece of machinery, supplies or equipment.”

(22) “None of these items of machinery, supplies and equipment were purchased from any Ohio concern by the company’s purchasing agent.”

(23) “The suppliers mostly always insisted on the formal orders being signed by a company official, and, accordingly, after Benguet’s purchasing agent had negotiated for and purchased the items, she would prepare the formal orders for the same and send them to Judge Haussermann for signature.”

(24) “This began in March, 1946 — and he would then do the purely ministerial act of signing the orders wherever he might happen to be, whether in New Richmond, New York, Washington, Chicago, San Francisco or elsewhere wherever the mail reached him. ’ ’

(25) “Checks on the Ohio banks were also signed by him — and all o'f these checks save those for his salary, and for a while that of an assistant secretary of the company, were drawn in the. amount, and to the order, as directed by the company’s chief of staff and by Benguet’s purchasing agent.”

(26) “Two or- three, out of nine, meetings of the board of directors were held at Judge Haussermann’s home at New. Richmond, Ohio, the others having been held at Washington, New York, San Francisco and otherwise than at New Richmond, Ohio.”

(27) “During the war years, three out of the five directors of Benguet were interned in the Philippines by the Japanese.”

(28) “In May, 1945, John W. Haussermann, Jr., son of Judge Haussermann, was elected a director to replace a director who had been killed by the Japanese ' in December, 1944. ’ ’

(29) “Benguet’s secretary returned to the United States from internment by the Japanese in May, 1945.”

(30) “In 1946, a large shareholder (Allen & Company of New York) wanted to dispose of over 700,000 shares of Benguet, and Judge Haussermann, on behalf of Benguet and to assist this shareholder, supplied to the Securities and Exchange Commission all of the information pertaining to Benguet which was demanded by the exchange before authorizing the listing and sale.”

Does' such evidence show that the defendant,- as a foreign corporation, was in Ohio and doing business therein?

It is claimed by plaintiff that the term, ‘ ‘ doing business,” has differing significance according to the subject matter of the proceeding in which the term is involved. Beach v. Kerr Turbine Co., 243 F., 706, is cited in support of this contention. In the opinion at page 708, after citation of a number of authorities, it is stated:

‘ ‘I have examined all of these cases and many others. In my opinion, they are not controlling; in fact, they do not bear on the exact point under consideration. Several of them involve statutes which forbid a foreign corporation to do business within a state without complying with state laws, and in some instances prohibiting action on the contracts if such compliance has not been had. Others involve state statutes forbidding or regulating the doing of business within their limits, or imposing local taxes upon interstate commerce.

i l # * #

“The question involved in this action, however, seems to me to be different, and is controlled by other considerations. It does not follow that statutes fixing the conditions under which a foreign corporation may engage in business in a state are to have the same construction as statutes permitting a foreign corporation to be served in a state where it may be found. In the former it is, of course, a more or less continuing course of business which is meant to be regulated, whereas in the latter the object sought is only to give notice to a corporation of a pending action. The tendency is to hold that whatever is reasonably effective for this purpose is a good service.”

In this connection, see Tauza v. Susquehanna Coal Co., 220 N. Y., 259, 115 N. E., 915; International Shoe Co. v. Washington, 326 U. S., 310, 316.

In International Harvester Co. v. Kentucky, 234 U. S., 579, 58 L. Ed., 1479, 34 S. Ct., 944, the International Harvester Company was indicted in Kentucky for violation of the antitrust laws of Kentucky. The question of process upon the defendant was in issue.

In the opinion at page 582 it is stated:

“This case presents the question of the sufficiency of the service of process on an alleged agent of the International Harvester Company in a criminal proceeding * * ,

In the headnotes as reported in 234 U. S., 579, it is stated:

“It is essential to .the rendition of a personal judgment' against a corporation that it be doing business within the state; but each case must depend upon its own facts to show that this essential requirement of jurisdiction exists.

‘‘ The presence of a corporation within a state necessary to the service of process is shown when it appears ■ that the corporation is there carrying on business in such sense as to manifest its presence within the state, although the business may be entirely interstate in its character.

‘ ‘ The fact that the business carried on by a corpora - tion is entirely interstate in its character does not render the corporation immune from the ordinary process of the courts of the state. ’ ’

In Tauza v. Susquehanna Coal Co., supra, 267, it is stated: -

“But the problem which now faces us is a different one. It is not a problem of statutory construction. It is one of jurisdiction, of private international law (Dicey Conflict of Laws, pp. 38, 155). We are to say, not whether the business is such that the corporation may be prevented from being here, but whether its business is such that it is here. If in fact it is here, if it is here, not occasionally or casually, but with a fair measure of permanence and continuity, then, whether its business is interstate or local, it is within the jurisdiction of our courts (International Harvester Co. v. Kentucky, supra, at p. 587). To hold that a state cannot burden interstate commerce, or pass laws which regulate it, ‘is a long way, from holding that the ordinary process of the courts may not reach corporations carrying on business within the state which is wholly of an interstate commerce character’ (234 U. S. at p. 588). The nature and extent of business contemplated by licensing statutes is one thing. The nature and extent of business requisite to satisfy the rules of private international law may be quite another thing. In saying this we concede the binding force of the decision of the Supreme Court in Riverside & Dan River Cotton Mills v. Menefee (237 U. S., 189) and kindred cases (Bagdon v. Philadelphia & Reading C. & I. Co., 217 N. Y., 432, 438; Pomeroy v. Hocking Valley Ry. Co., 218 N. Y., 530). Unless a foreign corporation is engaged in business within the state, it is not brought within the state by the presence of its agents. But there is no precise test of the nature or extent of the business that must be done. All that is requisite is that enough be done to enable us to say that the corporation is here (St. Louis S. W. Ry. Co. of Texas v. Alexander, 227 U. S., 218; Washington-Virginia Ry. Co. v. Real Estate Trust Co. of Philadelphia, 238 U. S., 185; Int. Harvester Co. v. Ky., supra; Pomeroy v. Hocking Valley Ry. Co., supra). If it is here it may be served (Halsbury, L. C., in La Compagnie Generale Transatlantique v. Law, L. R. [1899 A. C.] 431).”

In 20 Corpus Juris Secundum, 45, “Corporations, Section 1828, it is stated:

“Statutes regulating foreign corporations apply only when they are doing business within the state, and a distinction exists between the doing of business so as to be amenable to service of process and the doing of business so as to be subject to regulartory statutes.”

At page 151, Section 1920, ibid., it is stated:

‘ ‘ The nice question as to what constitutes doing business in the state so as to render a foreign corporation suable must be determined largely from the facts of each case rather than by an all-embracing rule.

“The determination of the question whether a foreign corporation is doing business within a state so as to be subject to suit therein is often a matter of difficulty and of extreme nicety. In determining the question the courts have enunciated certain general principles hereinafter discussed and have stated generally that the foreign corporation must have entered the domestic state for the purpose of carrying on its business there, and that the transaction of business must be such that the corporation is for the time being within the state in which it is sued. Nevertheless, no all-embracing rule as to what is ‘ doing business ’ has been laid down. The question is one of fact, and it is to be determined largely according to the facts of each individual case rather than by the application of fixed, definite, and precise rule.

‘ ‘ The question whether a foreign corporation is doing business in the state in such a sense as to make it amenable to the jurisdiction of the courts thereof is not one of local law or of statutory construction; it is one of jurisdiction, or general law, or private international law, and in the last analysis is one of due process of law under the Constitution of the United States. However, to some extent at least, a state has the power to say what will constitute corporate presence within its borders.” (Emphasis added.)

Later on, in the same section, it is stated :

“ * * * the corporation may be doing business within the state so as to render it subject to the jurisdiction thereof, even though the business done is interstate rather than local. Indeed, where a state has enacted two statutes relating to suits against foreign corporations, the effect of one of which is to make foreign corporations transacting local business in the state domestic corporations as to such business and subject to the same remedies in the courts of the state, the other stattute will be construed to be limited in its application to foreign corporations transacting interstate commerce business in the state.”

At page 153, Section 1920&, ibid., it is stated:

“The character and extent of the business done must warrant the inference that the foreign corporation has subjected itself to the jurisdiction of the state. The business must have some continuity but it may be done by an unlicensed corporation or by a withdrawing corporation. ’ ’

And later, in the same section, it is stated:

“The business which a foreign corporation is conducting in the state, in order to give the courts of the state jurisdiction over it by proper service of process, must be a part of the business for which it ivas organised, or at least a part of the usual and ordinary business in which it is engaged. Nevertheless it is not necessary that the. transactions in the state of the foreign corporation shall be the performance of those particular acts which constitute the characteristic feature of the business for which it was organized.” (Emphasis added.)

At page 168, Section 1920e, ibid., it is stated:

“It cannot be said to be clear whether or not transactions by a foreign corporation’s agent involving the transfer of its stock in the state constitute a doing of business therein. ’ ’

And later, in the same section, it is stated:

“The mere fact that a foreign corporation doing all of its business outside the state has acted as transfer agent for a sale of securities within the state will not bring it into the state for purposes of jurisdiction of a suit against it.”

At page 371, Section 377, ibid., it is stated:

“As heretofore observed, a foreign corporation may be held to be doing business in the state in such a sense as to bring it within a statute relating to the venue of suits or to render it amenable to the jurisdiction and process of the local courts * * *.”

See, also, ibid., Section 361, page 335, as to “what constitutes” doing business in a state; Section 363, page 341, “For Purposes of Jurisdiction and Service of Process”; Section 364, page 344, and Section 365, page 346, dealing with particular transactions.

See, also, 13 Words and Phrases, 126, “Doing Business.”

In St. Louis Southwestern Ry. Co. v. Alexander, 227 U. S., 218, 57 L. Ed., 486, 33 S. Ct., 245, it was held:

“In order to hold a corporation personally liable in a foreign jurisdiction it must appear that the corporation was within the jurisdiction and that process was duly served upon one of its authorized agents.

‘ ‘ A corporation is not amenable to service of process in a foreign jurisdiction unless it is transacting business therein to such an extent as to subject itself to the jurisdiction and laws thereof.

“Under the Carmack amendment the initial carrier is not liable to suit in a foreign district unless it - is carrying on business in the sense which would render other foreign corporations amenable to process.

“No all embracing rule has been laid down as to what constitutes the manner of doing business by a foreign corporation to subject it to process in a given jurisdiction. Each case must be determined by its own facts.

“The business done by a foreign corporation must be such in character and extent as to warrant the inference that it has subjected itself to the jurisdiction.”

It must be apparent that no useful purpose would be served by comparing or considering the host of authorities to be found upon this question. Enough has been noted herein to .indicate the general rules applicable and that essentially a factual issue is presented to the trier of facts, which in the cases before the court was the trial judge.

The trial judge upon such consideration of the evidence presented found in favor of the defendant upon the motion to quash. It cannot be said that his conclusion was contrary to law, or that, as a matter of law, he was in error in finding that the motions to quash should be sustained. His judgment is before this court, predicated upon the evidence before him. The record does not sustain the claim of the plaintiff that the judge was in error, either upon the law or the facts. In this connection, the conclusion of Bell, J., of the Common Pleas Court of Hamilton County, is before the court urged as an authority by the plaintiff. The ■record presented to the trial judge in Clermont county, although it included the record before Bell, J., was more extensive than that presented to the Hamilton •county court. Bell, J., was the trier of the facts presented to him in the action before the Hamilton county court. This court is not reviewing either the law or the facts considered by the Hamilton county court, and nothing said herein is to be considered as a pronouncement upon the judgment of such court. The judgment of that court is not before this court for review. .

Other claims have been advanced by the plaintiff and considered among these is the claim that the defendant is estopped to assert now that it is a foreign corporation. The factual predicate for this claim is not present in the record. There is no basis for this claim requiring this court to find for the plaintiff.

The record does not justify the claim that there has been a general entry of appearance by the defendant.

The extensive record and elaborate briefs presented to this court have required deliberate consideration of the issues of law and fact involved in the respective contentions of the parties.

The conclusion is that.no error prejudicial to the plaintiff appears affirmatively in the record and that, therefore, the judgments of the trial court on the motions to quash must be and are affirmed.

Judgments affirmed.

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


author: Carpenter, J.

text:
    Pierce et al., Appellees, v. VanGunten, Appellant.
    (No. 4377
    Decided June 6, 1949.)

      Messrs. Spengler, Nathanson, Hebenstreit $ Reyman and Mr. Benjamin Durfee, Jr., for appellees.

      Mr. A. E. J. Doman, for appellant.
   Carpenter, J.

This appeal on questions of law is from an order appointing a receiver pendente Hie to collect rents of property of which the plaintiffs are the owners and lessors and the defendant, the lessee. That was a “final order” and may be reviewed. Forest City Investment Co. v. Haas, 110 Ohio St., 188, 143 N. E., 549.

As appears from plaintiffs’ petition, the basis of plaintiffs’ action is that the defendant sublet a part of the leased premises without the written consent of the plaintiffs in violation of a covenant in the lease that the lessee “will not * * * sublet the premises * * * or any part of the same without the written consent of the lessors.”

Another provision of the lease empowered the lessors; if the lessee “fails to keep and perform * * * any of the covenants * * of the lease * * *, to enter said premises and again have, repossess and enjoy the same * * * and thereupon this lease *■ * shall cease, terminate and be void without prejudice, however, to the right of the lessor to recover from the said lessee all rent due up to the time of such entry.”

The petition alleged further that the defendant sublet the premises without the plaintiffs’ consent; that, by reason thereof, they notified the defendant that they had cancelled the lease as of January 1, 1949, and requested immediate possession of the premises; and that defendant keeps them out of possession, and has collected rents from the sublessee.

The prayer was “for judgment .for the possession of said property, for cancellation of said lease as of January 1,1949; for judgment for the reasonable value of the use of the propérty from January 1, 1949, to the date of possession; and for the appointment of a receiver to collect any and all rents from all occupants, including sublessees, for the benefit of the plaintiffs

With the petition, plaintiffs filed a motion for the appointment of a receiver “to collect and preserve the rents and profits of the premises * * *.”

With the consent of defendant, hearing on this motion was had March 11, 1949,. before process had been served upon her or she had answered. That hearing consisted solely of a colloquy between court and counsel for the parties, in the course of which it was admitted that defendant had sublet most of the leased premises and was receiving $400 a month rent from the subtenants, and that written consent to the sublease had not been given by the plaintiffs. However, defendant contended that they had orally consented to the subletting, thereby modifying the terms of the lease in that respect. It was admitted by plaintiffs that the rent required to be paid under the lease had been paid by the lessee to March 1 and had been tendered for March.

The defendant contends that on this record the appointment of the receiver was error prejudicial to her.

The only statutory authority to support' the court’s action must be found in Section 11894 (6), General Code, which provides that courts may appoint a receiver “in causes pending * * *. In all other cases in which receivers heretofore have been appointed by the usages of equity.”

Conceding that the defendant had breached the lease, did the facts pleaded in the petition and those disclosed in the informal hearing justify the appointment of the receiver?

The test of such a pendente lite appointment was well expressed by the Chief Justice in Gordon, Secy. of Banking, v. Washington, 295 U. S., 30, 39, 79 L. Ed., 1282, 55 S. Ct., 584, as follows:

“Even when the bill of complaint states a cause of action in equity, the summary remedy by receivership, with the attendant burdensome expense, should be resorted to only on a plain showing of some threatened loss or injury to the property, which the receivership would avoid.”

To the same effect are Clark on Receivers (2 Ed.), 185, Section 149; Gray, Atty. Genl., v. Council of Newark, 9 Del. Ch., 171, 79 A., 739; and 34 Ohio Jurisprudence, 954, 955, Sections 13 and 14.

The prayer of the petition asked for (a) judgment for possession of the property, (b) cancellation of the lease as of January 1, 1949, (c) judgment for the reasonable value of tbe use of tbe property from January 1, 1949,' to possession, and (d) a receiver to collect all rents from all occupants, including sublessees.

The receiver could not aid the (a) or (b) items. As to them, it is not contended that the final judgment will not be self-executing. The rent under the lease was paid or tendered, and it does not appear that there was any danger of default in its payment. The plaintiffs asked only a receivership pendente lite to. collect the rent payable by the subtenants to the defendant. Under the facts pleaded in the petition, the plaintiffs were not entitled to that rent, and their prayer did not ask it. The prayer was for “judgment for the reasonable value of the use of the property from January 1, 1949, to the date of possession, ” in other words, for a simple money judgment against the defendant.

There is no claim that the defendant.is insolvent or for any other reason that she cannot or will not pay any judgment which may be entered.

Under this state of the record, there was no occasion for the appointment of the receiver and the order doing so is reversed and the receiver discharged.

Judgment reversed.

Conn and Fess, JJ., concur.


author: Conn, J.

text:
    Seligman, Appellant, v. The Toledo Moving Pictures Operators Union, Local 228, et al., Appellees.
    (No. 4244
    Decided July 17, 1947.)

      Mr. Harry Friberg and Mr. M. L. Okun, for appellant.

      Mr. Edwin J. Lynch, for appellees.
   Conn, J.

Plaintiff filed his petition in the Court of Common Pleas for an injunction against defendants, seeking to restrain and enjoin them from interfering with plaintiff in securing a position as a motion picture machine operator within the jurisdiction of defendant local union and, further, that defendants be required to accord plaintiff all the rights of membership in the defendant union and that he may recover actual and exemplary damages. However, no evidence of pecuniary damage and the amount thereof having been offered by plaintiff and there having been no discussion of same in brief or oral argument, no order can be made in reference thereto and the jarayer of the petition for damages is denied.

From the. finding and judgment of the Common Pleas Court dismi ssing plaintiff’s petition, he filed his appeal in this court on questions of law and fact, which was submitted here on the transcript of the evidence and proceedings in that court.

The issues in the case are raised on the petition of plaintiff, the answers of defendants containing special 'and general denials and a second defense of the statute of limitations, and a supplemental petition and reply of plaintiff.

Plaintiff’s petition is somewhat verbose and contains much evidentiary matter, but it may be gleaned therefrom that plaintiff was born and reared in Toledo,' Ohio, and has resided in that city practically all his life; that The Toledo Moving Picture Machine Operators Union, Local No. 228, referred to herein as local union, was organized about December 15, 1912, under a charter granted by The International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, referred to herein as international alliance; that the local union has a contract with all the motion picture exhibitors in Toledo and vicinity, whereby it has a monopoly over the furnishing and supplying of labor for the operation of moving picture machines; that the local union has a “complete monopoly over the furnishing and supply of labor for the operation of motion picture machines; that it is impossible for any person qualified to perform the work required in the operation of moving picture projectors to secure a position in the city of Toledo and vicinity without the approval of said local No. 228.”

Plaintiff alleges that in 1916 he was employed in Toledo as a moving picture machine operator, with the approval of the local union; that he requested membership in the local union on numerous occasions, but was refused; that in 1920, the local union removed plaintiff from his work in Toledo and in 1921, in order to secure union status and continue to earn a living in Toledo, he became a member of the international alliance and local union No. 598, at Marion, Ohio, and later transferred his membership to local union No. 371, located at Defiance, Ohio; that plaintiff was again employed in Toledo through the local union with some interruptions, until October 22, 1942, when plaintiff was notified by the business agent of the local union that he would no longer be permitted to work as a moving picture machine operator within the jurisdiction of the local union; that no charges of any kind were ever preferred against plaintiff by defendants; and that plaintiff’s removal was not caused by any act of plaintiff or his then employer.

It is alleged further that subsequently plaintiff brought to the attention of the international alliance the action' taken by the local union; that a representative of the international alliance came to Toledo and met with the executive board of the local union and thereafter, on December 16, 1942, ,plaintiff was advised by the local union that he should report to the business' agent and he would be given work; and that he did so report but was refused employment and has not been permitted to work in the jurisdiction of the local union since October 22, 1942.

The evidence offered by plaintiff substantially establishes the averments of his petition as above set forth. It appears also from the evidence that plaintiff desired to become a member of the local union and made repeated efforts to obtain such membership, but his efforts were futile; and that the jurisdiction of the local union embraces Toledo and the territory half way to each of the adjacent locals of Monroe, Michigan, and Marion, Ohio.

The evidence discloses also that a representative of the international alliance had several conferences with the officers and executive committee of the local union and that his recommendation that plaintiff be permitted to work in Toledo was accepted and adopted by the local union and thereupon it notified plaintiff that he would be permitted to work in Toledo. However, it appears that the local union failed to give effect to its previous action and plaintiff was not thereafter permitted to work in Toledo as a moving picture machine operator.

At the conclusion of plaintiff’s evidence, defendant moved that plaintiff’s petition be dismissed “because the evidence discloses that there was no action taken by this plaintiff before the different tribunals of the local and the international alliance, which is a condition precedent to the bringing of any lawsuit in any civil court.”

The defense in this case is predicated on the proposition that plaintiff is not entitled to relief in equity because he did not first exhaust his remedies within the organization, as provided by its constitution and bylaws, and centers on the claim that this action was prematurely brought.

The constitution and bylaws of the international allianee provide that all charges against a member of the alliance shall be made in writing “in the form of a. sworn affidavit” and filed in duplicate with the secretary of the local union. It is provided further that an appeal may be taken, first, from the decision of the local union to the international president of the alliance ; second, from the decision of the president to the general executive board; third, from the ruling of the general executive board to the alliance in convention assembled and “the latter body shall be the tribunal of ultimate judgment.”

There are further provisions to the effect that all members of the international alliance agree that the decisions of these tribunals shall be conclusive and members consent to be disciplined in the manner provided by the constitution and bylaws “and under no circumstances to resort to the civil courts until all the remedies therein provided shall have been exhausted”; and that charges against an affiliated local union shall be made in writing in the form of an affidavit in duplicate and filed with the international president and appeals may be taken from his decision in the same manner as above provided in cases where charges are made against members of the alliance.

It is provided also that whenever the membership of an affiliated union falls below seven, its charter is automatically revoked, and upon dissolution of a local union the members of such local union “occupy the position of members at large, obligated to observe the laws of this alliance governing indiyidual members.”

It is well settled that members of a labor union are bound by the provisions of its constitution and bylaws, for the determination of issues arising within the union, so long as they are reasonable and not in contravention of law, and that the members thereof must conform thereto “and must exhaust all remedies within, the association and before such regularly constituted tribunals.” ,24 Ohio Jurisprudence, 632, Section 22; International Union of Steam & Operating Engineers v. Owens, 119 Ohio St., 94; 162 N. E., 386; 31 American Jurisprudence, 864, Section 66; Restatement of Law of Torts, Section 811; 41 Illinois Law Review, 433; 47 Columbia Law Review, 33, 44; 160 A. L. R., 918, 920.

The judges of this court, sitting by designation, in Boblitt v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co., 73 Ohio App., 339, 56 N. E. (2d), 348, recognized this well established principle of law.

In the instant cáse, the constitution and bylaws of the local union provide that an application for membership must first be approved by five members of the local union signing same, and upon .presentation be approved by a vote of at least two-thirds of the members of the local union; and also provides that application for transfer of membership from one local union to another must be approved by a majority of the members of the local union .

As pointed out above, the evidence shows that plaintiff made repeated efforts to become a member of the local union and without success, including requests for transfer card from the Defiance local, which were also refused; that some time shortly thereafter the membership of the Defiance local union had fallen below seven and its charter automatically revoked, and thereupon plaintiff became a member-at-large of the international alliance and has maintained his membership as such in good standing.

On October 22, 1942, when plaintiff was notified that he would no longer be permitted to work within the jurisdiction of the local union, he was not a member of any local union but was a member-at-large in good standing of the international alliance, as stated above. No charges were filed against plaintiff at this time or later, from which an appeal could.he taken by him.

Following the issuance of the order of the local union on October 22, 1942, plaintiff wrote a letter to international alliance, bringing to its attention the action-taken by the local union. This communication was acted on by the international alliance and a representative was sent to Toledo, who met with the officers and' executive board of the local union and a decision was reached whereby such action was taken by the- local union, the effect of which was to revoke the former order and restore plaintiff to his prior status.

It seems quite clear that the international alliance,, pursuant to its constitution and bylaws, could have properly ignored plaintiff’s complaint by reason of its informality and failure to comply with the constitution and bylaws, and, on the other hand, defendant local union, for the same reason, could have legally refused to participate in any proceeding based upon that complaint. After participating in the proceedings predicated on plaintiff’s informal charge, defendant local union had two courses open from which it could choose the procedure it desired to follow. It could have complied with the finding and conclusions or it could have appealed therefrom, pursuant to the constitution and bylaws of the international alliance. It did neither. Under the facts in this case, can the defendant local union now maintain the defense that plaintiff has failed to first seek his remedy within the constitution and bylaws of the international alliance? We think it can not.

Under the law of waiver, “a person may waive all personal rights or privileges to which he is individually entitled, whether secured by contract, conferred 'by statute, or guaranteed by the Constitution, provided the waiver does not constitute a violation of public policy.” 40 Ohio Jurisprudence, 1235, Section 3.

Furthermore, the procedure followed, in which the local union voluntarily participated, may be regarded as substantially the equivalent of the formal provisions referred to and, if so, plaintiff’s action would not be premature. Baltimore & Ohio Railroad Co. v. Stankard, 56 Ohio St., 224, 46 N. E., 577.

It appears from the evidence that the local union for a number of years had what is known as “closed shop” agreements with all the moving picture theatres in Toledo and vicinity, excepting two which were “family propositions,” and that this situation obtained at the time plaintiff was notified that he would not be permitted to work within the jurisdiction of the local union, and also at the time the petition in this case was .filed.

Plaintiff contends that where a union holds a closed shop agreement in its industry, it can not at the same time restrict its membership, for the reason that to do so would be against public policy and would be illegal and void.

We have not been able to find any reported case in this state where this proposition has been considered, and none has been cited. However, there are cases outside Ohio and cited in plaintiff’s brief which appear to sustain his contention. Among these are the following: Wilson v. Newspaper & Mail Deliverers Union of New York & Vicinity, 123 N. J. Eq., 347, 197 A., 720; James v. Marinship Corp., 25 Cal. (2d), 721, 155 P. (2d), 329; Williams v. International Boilermakers Union, 27 Cal. (2d), 586, 165 P. (2d), 903; Thompson v. Moore Drydock Co., 27 Cal. (2d), 595, 165 P. (2d), 901.

In the case of Wilson v. Newspaper etc. Union, supra, the plaintiff Wilson for a number of years had been in the employ of Newark News Dealers Supply Company in its magazine mailing department. Thereafter the company entered into a. contract to employ only members of the union in most branches of its business, including the magazine mailing department. Wilson and three other employees in that department applied for membership in the union and were rejected. Thereafter they were discharged and their places filled by union men. Wilson obtained a review by the union but was finally denied membership solely because ‘ ‘ the books of the union were closed to new membership by reason of the fact that many members in good standing of the union were unemployed. ’ ’

The court held that the “union must either surrender its monopoly or else admit to membership all qualified persons who desired to carry on the trade. ’ ’

We quote from the opinion of the court in'the Wilson case the clear and obvious conclusion reached therein, as follows:

“Everyone must be left free to pursue his lawful calling; that is fundamental. It seems to me necessarily to follow that the union must either surrender its monopoly or else admit to membership all qualified persons who desire to carry on the trade of magazine mailers. Otherwise such persons are, by the act of the union, deprived of the right to earn a livelihood.

i Í * * #

“A union may restrict its membership at pleasure; it may, under certain conditions, lawfully contract with employers that all work shall be given to its members. But it can not do both. ’ ’

We adopt and follow this concise statement of the rule and give it application in the instant case.

The right to labor, to follow a chosen trade or occupation, and to earn a livelihood for oneself and those dependent on him, is a property right within the benign protection of the bill of rights of the Ohio Constitution, and of the Constitution of the United States, and the invasion of that right is a legal wrong for which the law provides a remedy.

In the instant case, the action taken by the local union, depriving plaintiff of his right to work and have employment in the field where he is trained and learned through years of labor, is arbitrary, unreasonable, violative of plaintiff’s constitutional rights and contrary to public policy.

It follows that plaintiff is entitled to an order restraining and enjoining defendant local union from interfering with plaintiff in securing a position and working as a moving picture operator within the city of Toledo and vicinity.

Judgment for plaintiff.

Stuart and Carpenter, JJ., concur.


text:
    City of Columbus, Appellee, v. Gantner, Appellant.
    (No. 4396
    Decided September 20, 1950.)

      Mr. Bichard W. Gordon, city attorney, and Mr. Glenn E. Kemp, for appellee.

      Mr. W. S. Lyman, for appellant.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Municipal Court of Columbus, convicting the defendant, appellant, of the offense of having on his person and in his possession a memorandum of a wager, some sheets and other devices for recording wagers upon a contest of speed, to wit, horse racing, contrary to the ordinance of the city of Columbus.

■ The defendant assigns as error that the trial court erred in overruling defendant’s motion to quash the affidavit and to suppress the evidence and in overruling defendant’s motion for new trial.

The contention of the defendant is based on the premise that the court did not have jurisdiction, that the evidence was illegally obtained and that the arrest was illegal. The gist of defendant’s contention is that the police officers of the city of Columbus may not make an arrest on the Statehouse grounds for an alleged violation of an ordinance of the city of Columbus.

The defendant cites in support of his contention Section 154-41, General Code, Avhich prescribes the authority of the Department of Public Works of the state of Ohio. The pertinent part of this section reads as follows :

“* * * The department shall keep the Statehouse, grounds and appurtenances constantly' protected and in order, except that the legislative halls shall be under the control of the General Assembly. A competent number of employees of the department shall be designated as policemen, and as such shall take an oath of office, wear a proper uniform and a badge of office, have the same authority to make arrests as policemen of cities, and shall deliver all persons arrested by them to the police authorities of the city of Columbus to be dealt with as those arrested by the police of said city. ’ ’

The defendant contends that under this section ex-elusive jurisdiction over the Statehouse grounds is given to the Department of Public Works. We do not agree. This section does not deprive the city of Columbus of the exercise of police regulations over the Statehouse grounds which lie within the territorial limits of the municipality. This section provides for additional police protection to the Statehouse, the grounds and appurtenances. In the enactment of this section the Legislature did not intend to deprive the city of Columbus of its proper exercise of all powers of local self-government and its authority to enforce within its limits such local police regulations as are not in conflict with general laws, granted to it under Section 3 of Article XVIII of the Ohio Constitution.

The provisions of Section 14222, General Code, under which the land on which the Statehouse is located was conveyed to the state of Ohio and accepted by the state, does not carve out of the territorial limits of the city of Columbus a portion thereof over which the city of Columbus may not exercise its powers of local self-government and enforce its police regulations. The arrest was legal, the court had jurisdiction and the motions to quash the affidavit and suppress the evidence and for a new trial were properly overruled.

Judgment affirmed.

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


author: Ross, P. J.

text:
    Fields, Appellant, v. Fields et al., Appellees.
    (No. 21768
    Decided April 19, 1950.)

      Mr. M. H. Dixon, for appellant.

      Mr. Irwin Greene, for appellee.
   Ross, P. J.

An appeal on questions of law and fact was originally filed from an order of the Court of Common Pleas of Cuyahoga County fixing alimony pendente lite. This ajjpeal was reduced to an appeal on questions of law.

An examination of the record is conclusive in showing that there was no abuse of discretion by the trial court in making the order from which such appeal was taken. This court has been informed that a motion to dismiss the latter appeal on the ground that no final order or judgment is involved was passed upon by the Court of Appeals of the Eighth Appellate District and the motion overruled. Such motion was not renewed before this court. However, if this court has no jurisdiction to entertain such an appeal, it becomes the duty of this court, sua sponte, to dismiss such, an appeal.

It is the conclusion of this court that it has no such jurisdiction, for the reason that no final order or judgment was entered or rendered in the trial court. Jurisdiction on appeal may not be conferred by consent or waiver. The appeal on questions of law must, therefore, be dismissed!

It is recognized in so holding that the conclusion is in conflict with the judgment of the Court of Appeals of the Ninth Appellate District in the case of Taylor v. Taylor, 74 Ohio App., 191, 57 N. E. (2d), 191, and with the action of the Court of Appeals of the Eighth Appellate District in the instant case, and this case will, therefore, be certified to the Supreme Court for such conflict. This court reaches its conclusions for the following reasons:

An act, being “an act concerning divorce and alimony” passed March 6,1840 (38 Ohio Laws, 37, Chapter 305, Revised Statutes [1853], 1 Curwen, 602), was repealed March 11, 1853 (51 Ohio Laws, 377), and' new provision made for this action. Revised Statutes (1854), 3 Curwen, 2167, designated Chapter 1252.

Under the former act, jurisdiction was placed in the Supreme Court, in the latter, in the Courts of Common Pleas.

In 3 Curwen, 1938 (1854), 51 Ohio Laws, 57, will be found an act of the General Assembly passed March 11, 1853. This act is entitled “An Act to Establish A Code of Civil Procedure.” Section 604 of this act (3 Curwen, 2036, 51 Ohio Laws, 161), entitled, “Code Not to Control Special Proceedings,” provides that “until the Legislature shall otherwise provide, this Code shall not affect proceedings on habeas corpus, quo warranto, or to assess damages for private property taken for public uses; nor proceedings under the statutes for the settlement of estates of'deceased persons; nor proceedings under statutes relating to dower, divorce,, or alimony, or to establish, or to set aside a will; nor proceedings under statutes relating to apprentices, arbitration, bastardy, insolvent debtors; nor any special statutory remedy not heretofore obtained by action; but such proceedings may be prosecuted under the Code, whenever it is applicable.” (Emphasis added.)

Going back to section 3 of this same act (3 Curwen, 1939, 51 Ohio Laws, 57), we find:

“The distinction between actions at law and suits in equity, and the forms of all such actions and suits, heretofore existing, are abolished; and in their place, there shall be, hereafter, but one form of action, which shall be called a civil action.”

Section 512 of this same act (3 Curwen, 2021, 51 Ohio Laws, 145) is:

‘ ‘ An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, is, a final order which may be vacated, modified, or reversed, as provided in this title. ’ ’

It is clear, therefore, that, under the Code so in effect in 1854, an action for divorce or alimony or both would have been considered special proceedings and an order made therein affecting a substantial right, such as an order for alimony pendente lite, would have been a final order under Section 512, supra.

This Code of Civil Procedure took effect by its terms .July 1, 1853 (3 Curwen, 2040, 51 Ohio Laws, 166, Section 614).

In Swan & Critchfield Statutes (1868) we still find the provision that the general provisions of the Code are not applicable to certain special proceedings, including divorce and alimony, until the Legislature shall provide otherwise. (2 Swan & Critchfield Statutes [1868], 1131, Section 604.)

It would seem that the view that actions for divorce and alimony were special proceedings under the Code of Civil Procedure of 1853 is sustained by Ex parte Collier, 6 Ohio St., 55, 61.

In 1878 the General Assembly passed an act “to revise and consolidate the laws relating to civil procedure in courts of common pleas and- superior courts, in district courts on appeal and also the laws relating to procedure in error, mandamus, and quo warranto. ’' This act was Senate Bill No. 115 and can be found in 75 Ohio Laws, 597. Title I of the act bore the heading, “Procedure in the Courts of Common Pleas and Superior Courts, and in District Courts on Appeal.” The heading also carried designation of the following divisions:

“Division I. General and Preliminary Provisions.

“Division II. Commencement of Actions — Jurisdiction — Issue.

“Division III. Trial.

‘£ Division IV. Judgment.

“Division V. Enforcement of Judgment.

1 ‘ Division VI. Provisional Remedies.

£ £ Division VII. Special Proceedings.

“Division VIII. Repeals.”

Turning to the heading, Division VII, at page 726 of 75 Ohio Laws, under the title, “ Special Proceedings,” the following chapters appear:

‘ ‘ Chapter 1. Amercement.

Chapter 2. Appropriation of Property.

£ Chapter 3. Arbitration.

“ Chapter 4. Bastardy.

“Chapter 5. Contempts of Court.

‘ ‘ Chapter 6. Divorce and Alimony.

“ Chapter 7. Dower.

“Chapter 8. Habeas Corpus.

£ Chapter 9. Partition.

“Chapter 10. Real Actions.

“Chapter 11. Replevin.

“Chapter 12. Sureties — Rights and Remedies of.

“Chapter 13. Taxes and Assessments — Relief against Illegal.

“ Chapter 14. To Change Name.

“ Chapter 15. To Contest Will.

'‘Chapter 16. To Cure Certain Defects, Errors, and Omissions.

“Chapter 17. To Perpetuate Testimony..

“Chapter 18. Water-Craft.

“Chapter 19. Wreck-Masters.”

Now it appears from such category of actions that many other civil actions in addition to action for divorce and alimony, now clearly recognized as not properly falling within the designation of “special proceedings,” are included in this list, such as “partition” and ‘ ‘ replevin. ’ ’

This act was incorporated in the Revised Statutes of Ohio (1879) as Section 4947 et seq.

Section 6707, Revised Statutes, is the same as Section 512 of 3 Curwen’s Statutes, 2021, 51 Ohio Laws, 145, and divorce and alimony is carried under Title I, Division 7, Chapter 6, as special proceedings. (3 Curwen, 2804, Section 5689 et seq.)

In an act passed by the General Assembly February 14, 1910, the first General Code of Ohio came into existence. By such codification an entirely different classification of actions and proceedings was adopted. By reference to the titles of part third (the same as now in force) it will be found that, under “Title IV — Procedure in Common Pleas Court,” Division II covers ‘ civil actions ’ ’; that Division VII covers ‘ ‘ special actions”; that Division IX covers “special proceedings”; and that, under “Division VII — Special Actions,” Chapter III is devoted to “divorce and alimony,” commencing with Section 11979. Under “Division II — '-Civil Actions,” it is provided that “an action is an ordinary proceeding in a court of justice, involving process, pleadings, and ending in a judg,ment or decree, by which a party prosecutes another for the redress of a legal wrong, enforcement of a legal right, or the punishment of a public offense.” This definition obviously includes both civil and criminal actions and prosecutions.

Under this division appear Chapter 1, dealing with the “form of action,” Chapter 2, dealing with “parties to action,” Chapter 3, providing “where .the action shall be brought,” Chapter 4, covering the “commencement of the action” and Chapter 5, relating to “pleadings.”

Although Division VII, Chapter 3, dealing with divorce and alimony^ has many separate provisions as to pleading, process and parties, on the other hand, many provisions of Division II, ‘ ‘ civil actions, ’ ’ are directly applicable to actions of divorce and alimony, as, for instance, service upon the defendant when a minor, Section 11291, General Code; the provisions for service by publication, Section 11984, General Code; provisions as to lis pendens, Sections 11300 to 11301, General Code; provisions as to pleadings, Section 11302 et seq., General Code; the provisions as to trial, Section 11376 et seq., General Code; provisions as to dismissal of an action; and Sections 11247, 11249, 11250, 11252 and 11322, General Code, dealing with minors as parties.

Section 11586, General Code, was applied in Caprita v. Caprita, 145 Ohio St., 5, 10, 60 N. E. (2d), 471, where Smith v. Smith, 103 Ohio St., 391, 133 N. E., 792, is cited to the same effect in an action for divorce.

In Weeden v. Weeden, 116 Ohio St., 524, 156 N. E., 908, the Supreme Court applied the law in a divorce and alimony action, applicable to ordinary actions. On page 528 it is stated:

‘ ‘ That certain special statutory provisions do govern in divorce cases alone is an elementary proposition of law, and also it is elementary that matrimonial actions are neither in a precise sense actions at law nor suits in equity, but are statutory actions in which both jurisdiction and practice depend on the statute. However, it is the general rule that where the statute is silent, practice usually follows the rule in equity (19 Corpus Juris, page 22, Section 23), under which rule the contention of plaintiff in error.would be overruled.

“Since the enactment of Article IV, Section 6, of the Constitution, in its present form, and since the interpretation of that article by this court in various adjudications relating to divorce actions, we feel that the specific question here presented is no longer open, and that we are not compelled to resort to the rules of general divorce practice in other states to sustain our position. Plaintiff in error’s entire contention falls because judicial decisions do exist providing procedure for the review of a divorce case.”

It seems apparent therefore that the General Assembly, although recognizing that certain causes had certain peculiar features requiring allocation under the title, “special actions,” considered such causes to be what are generally denominated as actions — which is the term used in Section 12223-2, General Code. It is also apparent that the General Assembly definitely removed the actions of “divorce and alimony” from the limitations found in the earlier statutes applicable to such actions, and designedly removed them from the classification of special proceedings, as formerly covered. It is also to be here noted that such change had occurred before the adoption of the 1912 amendment of Section 6, Article IV of the Ohio Constitution, which became effective the 18th day of January 1913. Hence, it must be presumed that the framers of the 1912 amendment of Section 6, Article IV of the Ohio Constitution, in using the term, judgments, therein must have had before them the changes in the allocation of actions for divorce and alimony from the category of “special proceedings” to “special actions.”

In Chandler & Taylor Co. v. Southern Pacific Co., 104 Ohio St., 188, 135 N. E., 620, the Supreme Court in the first paragraph of the' syllabus stated: “The term [judgment] comprehends all decrees and final orders rendered by a court of competent jurisdiction and which determine the rights of parties affected thereby.” (Emphasis added.)

It must be apparent that an order for temporary alimony or alimony pendente lite does not determine the rights of the parties to the action. Such order is subject to modification at any time and, as indicated by its nature, is inherently temporary and of a wholly provisional nature. If, in the absence of abuse of discretion, courts entertaining actions for divorce and alimony, either or both, were to be faced with appeals on questions of law when such orders were made, the beneficial results following the provision for such relief would be greatly limited.

The identical question is considered in 2 Ohio Jurisprudence, 237, Section 116, where it is stated that, an order pendente lite has been held to be a final order. A decision cited is that of King v. King, 38 Ohio St., 370, decided in 1882, when, as pointed out hereinbefore, the law definitely placed this action as a “ special proceeding.”

In Ruthrauff v. Ruthrauff, 15 Ohio App., 214, it is stated in the opinion at page 217: ‘ ‘It is admitted that the allowance of temporary alimony is a final order which may be reviewed on error.” In the opinion are cited Reed v. Reed, 17 Ohio St., 563, and King v. King, 38 Ohio St., 370, which cases were predicated upon the then existent law definitely classifying “divorce and alimony” as special proceedings.

In Taylor v. Taylor, 74 Ohio App., 191, 57 N. E. (2d), 931, the court cited no supporting authorities for its conclusions.

In Maxwell v. Maxwell, 7 Ohio Law Abs., 7, apparently the appeal was from a judgment in contempt as well as from an order for alimony pendente lite. In any event, no authority is cited in support' of the contention that such an order is sufficient to support an appeal on questions of law. The only case cited in the opinion is Weeden v. Weeden, supra, as authority for placing an action for divorce and alimony in the category of ordinary actions.

In Brady v. Brady, 47 Ohio Law Abs., 73, 69 N. E. (2d), 477, the court again relying on the early Ohio cases took for granted that an order allowing alimony pendente lite is a final order, and cited, also, Ruthrauff v. Ruthrauff, 15 Ohio App., 214, considered supra, and Thomas v. Thomas, 18 C. C. (N. S.), 368, in which the court cited no authority for its conclusion sustaining an appeal from an order pendente lite.

The case of Smith v. Smith, 25 Ohio Opinions, 321, a nisi prius decision, is not helpful. It presents an embarrassing situation in that apparently from the statement in the opinion this court sustained an appeal on questions of law and affirmed an order for alimony pendente lite. It is gratifying to remember that the refusal by the Supreme Court of a motion to certify in this case is not conclusive as to its opinion upon the subject of the motion.

In the case of Book v. Book, 59 Wyo., 423, 141 P. (2d), 546, and reported with an elaborate footnote in 167 A. L. R., 352, the Supreme Court of Wyoming had before it the identical question (among.others) herein presented. It appears that the Wyoming statute defining a final order is pro tanto identical with our own, Section 12223-2, General Code. That court held that a divorce and alimony action was not a special proceeding. That court took note of King v. King, 38 Ohio St., 370, 167 A. L. R., 357, which was predicated upon the provisions of the Ohio act in 75 Ohio Laws, 726. Apparently the change made in 1910 by bur General Assembly was not brought to the attention of the Wyoming court. That court noted, also, the case of Reed v. Reed, 17 Ohio St., 563, 564, which merely places the action of alimony by reason of the early law as a special proceeding not amenable to general law by virtue of the excluding statute hereinbefore set out.

This court is in full agreement with the conclusions of the Supreme Court of Wyoming in construing the law now similar to our own. In the note the cases-pro and con upon this question áre collected.

This court considers this question of sufficient importance to justify consideration hy the Supreme Court and advances this reason for what is possibly an overextended opinion.

An entry may be presented dismissing the appeal on questions of law and providing for certification because of conflict, as herein before noted.

Judgment accordingly.

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

Ross, P. J., Hildebrant and Matthews, JJ., of the First Appellate District, sitting by designation in the Eighth Appellate District.