author: Guernsey, J.

text:
    Horvitz, Appellant, v. Sours, Dir. of Dept. of Highways, et al., Appellees.

      (No. 3557
    Decided August 7, 1943.)

      Mr-. David Ralph Herts, for appellant.

      Mr. Thomas J. Herbert, attorney general, and Mr.

      Charles Williams, for appellee Hal Gr. Sours, director of the Department of Highways.

      Messrs. Miller é Hornbech, for appellees Lombardo Brothers Construction Company and The Herkner Construction Company.
   Guernsey, J.

This is an appeal upon questions of law from a judgment of the Court of Common Pleas of Franklin county, Ohio, in an action wherein the appellant, S. A. Horvitz, a taxpayer, for himself and in behalf of the taxpayers of the state of Ohio, was plaintiff, and the appellees Hal G. Sours, Director of the Department of Highways, state of Ohio, and others were defendants.

The action is one to enjoin the Director of the Department of Highways of the state of Ohio, certain other state officials, Lombardo Brothers Construction Company as' principal contractor, and The Herkner Construction Company as subcontractor from carrying out and performing a contract entered into between the Director of Highways, Lombardo Brothers Construction Company as principal contractor, and The Herkner Construction Company as subcontractor, for the construction of a portion of a highway improvement known and designated as Willow Freeway Highway Project.

Upon the trial of this cause in the Common Pleas Court, the court found in favor of the defendants and dismissed plaintiff’s petition at his costs, and this is the judgment from which this appeal is taken.

During the years 1938 to 1941, the Department of Highways constructed a major project, known as the Cloverleaf Improvement, wherein an overhead was constructed carrying the Brecksville road (U. 8. route, 21) over the Cleveland-Canton road (State route, 17) at a point approximately seven miles south of Cleveland, the cost of this project being approximately $800,000.

For a number of years ifihas been contemplated by the state highway department and other public authorities to construct a highway from the vicinity of the Cloverleaf to Cleveland to serve as a radial artery and as an entryway from the south to the metropolitan area of Cleveland, such project having the support of the commissioners of Cuyahoga county, the city of Cleveland and the federal Bureau of Public Roads. This entire project has been known as the Willow Freeway, it being contemplated that such road should be constructed as a limited access road, a much needed improvement for the benefit of the public. This line of improvement is a part of the strategic network of defense roads, as established by the United States Government.

On November 19, 1941, the Congress of the United States passed an act, designated as “The Defense Highway Act of 1941,” which supplemented the Federal Aid Road Act passed in 1916, the latter having-been supplemented by an act passed May 27, 1941, and which authorized the construction of roads urgently needed for the national defense during the national emergency declared by the President, and Congress appropriated $25,000,000 for such purpose.

The road under consideration herein is a part of the system designated by the federal government. Late in 1941 the Director of Highways prepared plans and specifications for the construction of a portion of Willow Freeway extending north from the Cloverleaf and under the tracks of the New York Central Railway to a point terminating at the right of way of the Newburg- and South Shore railroad, such project extending a distance of 1.681 miles, the estimated cost of which was $1,395,680.19.

In connection with the construction of this project, the commissioners .of Cuyahoga county agreed to acquire the right of way to Harvard avenue, being the city limits, approximately one-lialf mile north of the limits of the present improvement, and did so acquire such right of way at a cost of more than $1,000,000. The plans of the proposed improvement under consideration in the contract herein were approved by Robert E. Willems, resident district deputy director of highways, from district No. 12, which includes Cuyahoga county; Murray D. Shaffer, chief engineer of the bureau of location and right-of-wáy of the Department of Highways; W. S'. Hindman, chief engineer of the bureau of bridges and railroad grade separation; Glen R. Logue, first assistant and chief engineer; the commissioners of Cuyahoga county, and Hal G. Sours, Director of Highways. The plans were later approved by the United States Bureau of Public Roads. The estimates were made public, the project advertised as required by statute and bids were opened at the time stated in the advertising. Only one bid was submitted, which was $51,000 under the estimated cost.

About a week after the opening of the bid, to wit, on January 13, 1942, the Director of Highways awarded the contract to Lombardo Brothers Construction Company which duly executed a bond to secure the performance thereof, in the sum of $600,000.

The special provisions, as established by the Bureau of Public Roads, were attached to and made part of the proposal. Such regulations permitted the subletting of a contract provided the subcontractor named in the proposal was a contractor of recognized standing. The proposal contained a blank space for the designation of a subcontractor, who was to perform certain branches of the work, and also contained a provision that all blank spaces should be filled in with ink.

In the proposal proper which was submitted by Lombardo Brothers Construction Company, there was no designation of a subcontractor in the blank space provided, but the proposal was accompanied by a letter from The Herkner Construction Company, wherein such company agreed to construct certain items of the work as a subcontractor.

The Director of Highways waived the requirement that such subcontractor should be designated in the main proposal, and approved The Herkner Construction Company as a subcontractor. Such approval was concurred in by the Bureau of Public Roads.

' The proposal contained a further provision that no contractor should be relieved of his obligation to perform the contract in the event of a failure of a subcontractor to perform the same.

At the time the proposal was submitted, certificates of prequalification had been issued by the Director of Highways to the Lombardo Brothers Construction Company and The Herkner Construction Company.

The contractor immediately entered upon the site of the improvement and proceeded with the performance of the contract.

A priority rating designated, as ££A-4” was granted on the project by the War Production Board.

The contractor had completed a large project in Painesville and, since the awarding of the contract under consideration herein, had received large quantities of steel under such rating. The Director of Highways was sure that the materials necessary for the work could be obtained under the rating granted.

Upon the subject as to the future construction of the entire Willow Freeway Project, it appears that for many reasons it was impractical to construct the whole project at one time. One of the reasons was the great cost and the difficulty in securing any particular contractor who would be in position to construct the entire job. Tbe plans are being prepared for the construction of the future sections of the project.

Director Sours, in answer to questions with reference to the future intention of constructing the Freeway, stated:

“We propose to follow-it immediately with the letting of a second short section which will complete it to Harvard avenue to be followed at the same time with the paving of the first section.”

Messrs. Sours, Logue and Chaney of the Department of Highways testified that the present construction was the logical step to undertake in connection with the project as a whole, and that it was the practical thing to do at this time in view of all the conditions.

Plaintiff, in his original petition, set forth four causes of action, the first of which was devoted to a charge that the Director of Highways had abused his discretion in proceeding with the construction of the project.

In the second cause of action, plaintiff complained that the contract was awarded upon a single bid.

In the third cause of action, plaintiff charged collusion or attempted bribery by an agent of the Lombardo Brothers Construction Company.

In the fourth cause of action, he complained of the manner in which the subcontractor was approved.

Later, an amended petition was filed in which a fifth cause of action was inserted complaining that the Director of Highways did not have the Department of Industrial Relations determine the prevailing rates of wages, etc., as required by law.

During the progress of the trial in the Common Pleas Court, the plaintiff, over the objection of the defendants, amended his petition by interlineation, setting forth another cause of action in which he contended that the contractor and the subcontractor were not prequalified as provided by law.

As hereinbefore stated, the court, upon the trial of the cause, denied the injunction and dismissed the amended petition.

A motion for new trial filed by plaintiff was overruled, and appeal bond was fixed at $150,000. Plaintiff filed no application or motion to have the amount of the bond modified.

Other facts in evidence will be discussed in the consideration of the various assignments of error.

Plaintiff, appellant herein, summarizes his assignments of error and general contentions with reference thereto, as follows:

1: The appeal bond of one hundred and fifty thous- and dollars ($150,000) as required by the Court of Common Pleas is so exorbitantly excessive as to require at a minimum that this court remand to the lower court with instructions to fix bond in reasonable and proper*amount. •

2. The injunction should be granted as prayed because the contract is “illegal and void” in that it was awarded to contractors and a sub-contractor who had not been qualified previously therefor by the Director of Highways in accordance with mandatory requirements of Section 1206-1 et seq., G-eneral Code.

3. The injunction should be granted as prayed because the contract is illegal and void in that no schedule of the prevailing rates of wages determined at the request of the Department of Highways by the Department of Industrial Relations within ninety days of the award of the contract, was attached to and made a part of the specifications and printed on the bidding blanks, as required by and provided in Section 17-4 et seq., General Code.

4. The injunction should be granted as prayed because the contract is “illegal and void” in that it was awarded in violation of ■ Section 1206, General Code, which requires competitive bidding, for this contractor was granted certain advantages which were denied specifically to prospective bidders, and was granted still other advantages which were never offered to all.

These contentions will be considered in the order mentioned.

1. As hereinbefore stated, the plaintiff made no application in the lower court for modification of the order of the court fixing the amount of the bond for appeal upon questions of law and fact, and there is no evidence tending to prove any abuse of discretion of the trial court in fixing the amount of the appeal bond unless such abuse of discretion may be inferred from the facts in evidence on the merits of the case.

It is disclosed by the record that the contract, the performance of which is sought to be enjoined, involves the expenditure of over $1,344,000 and that the work involved is being done under wartime conditions.

Considering the magnitude of the work and the conditions under which it is being performed, it is apparent that delays in the performance of such work, occasioned by the suspension of the judgment of the Common Pleas Court denying the injunction, .incident to an appeal upon questions of law and fact, would probably cause losses to the contractor and subcontractor, which might even exceed the amount of the appeal bond as fixed, so that it does not appear from the facts in evidence that the bond is excessive or that the court abused its discretion in fixing the amount thereof.

2. The second contention of plaintiff is that the qualification certificates issued to the contractor and subcontractor, prior to bidding on the contract pursuant to the provisions of the act known as House Bill 281, now designated at Sections 1206 to 1206-9 of the General Code, are void for the reasons hereafter mentioned, and the certificates being void the award of the contract was, under the provisions of Section 1206-1, General Code, “illegal and void.” The reasons he assigns for the certificates being void, are:

a. The applications of the contractor and subcontractor for such certificates of qualification were not “accompanied by satisfactory evidence that the applicant had complied with the conditions of the Act of February 26, 1913, and of all acts amendatory thereof and supplementary thereto and known as the workmen’s compensation law, and is not in default in the payment of premiums due from him under the provisions of such law” as prescribed in Section 1206-3, General Code, one of the sections of the act.

b. The Director of Highways did not personally examine and pass upon the applications of the contractor and subcontractor for qualification, did not personally make the determination that they were qualified, and did not personally execute the qualification certificate issued to each of them.

Under the provisions of the act, the determination required to be made by the director, upon the receipt of the application for qualification by a prospective bidder, is prescribed in the section of the act now designated Section 1206-2 of the General Code, and is “whether the applicant is competent and responsible and possesses the financial resources which satisfy the terms of this act.” This section further prescribes that “if the applicant is found to possess the qualifications prescribed by this act and by the rules and regulations promulgated by the director, the director shall issue to him a certificate of qualification, which shall be valid for the period of one year., or such shorter period of time as the director may prescribe, unless thereafter revoked by the director for cause as hereinafter provided. ’ ’

The only other' provision of the act in any way reflecting upon the qualifications of the applicant and the determination thereof by the director is contained in the section thereof designated as Section 1206-3, General Code, reading as follows:

“No bidder shall be given a certificate of qualification unless his financial statement and the investigation made by the director of highways show that he possesses net current assets or working capital sufficient in the judgment of the director to render it probable that he can satisfactorily execute his contracts and meet his obligations therein incurred, which net current assets or working capital shall in no case be less than ten per cent of the aggregate amount of work set forth in his certificate of qualification.”

There is no evidence of any rule or regulation promulgated by the director prescribing any other or different qualifications.

It will be noted that under the provisions mentioned, compliance by applicant with the workmen’s compensation law is not made a condition of qualification and no determination of such compliance is required to be made by the director. However, it is prescribed in the section of the act now designated as Section 1206-3 of the General Code, that “All applications shall be accompanied by satisfactory evidence that the applicant has complied with the conditions of the act of February 26, 1913, and of all acts amendatory thereof and supplementary thereto and known as the workmen’s compensation law, and is not in default in the payment of premiums due from him under the provisions of such law.”

As compliance with the workmen’s compensation law is not made a condition of qualification and no deter-ruination of sucli compliance is required to be made by the director, it is apparent that the requirement of Section 1206-3, General Code, that applications shall be accompanied by satisfactory evidence of compliance, is merely incidental to the proceedings for such determination, and not of the essence nor essential to the validity thereof, and that such requirement is simply a statutory direction given with a view merely to a proper, orderly and prompt conduct of the business and by the failure to obey which the rights of those interested will not be prejudiced. Such provision is therefore directory and not mandatory. 2 Sutherland Statutory Construction (2 Ed.), 1116.

Such statutory provision being directory and not mandatory, the failure to comply therewith did not render the determination of qualification and the issuance of the certificate thereof void.

Furthermore, even if such requirement is mandatory, there is nothing in the record tending to show that it was not fully complied with. The requirement is that the applications shall be accompanied by “satisfactory evidence.” It is not specified whether such evidence shall be written or oral. The record shows the applications were accompanied by written evidence that the applicants were not in default in the payment of premiums due from them under the provisions of the workmen’s compensation law, and so far as the record shows, the applications may have been accompanied by oral evidence showing applicants had complied with such law in all other respects.

The first reason upon which plaintiff bases his contention that the certificates of qualification are void, is therefore without merit.

We will therefore proceed to consider the second reason upon which plaintiff bases his contention.

The record in this case discloses that one Oscar Miller, a “credit examiner” in the Department of Highways, was entrusted by the Director of Highways with the duties of making examinations of applications for qualification and verifying statements therein contained, of determining whether the applicant is competent and responsible and possesses the qualifications prescribed by the act and the rules and regulations prescribed by the director, and of issuing to the applicant, in the name of the director, and over his rubber stamp signature, a certificate of qualification-; and that he performed such duties with reference to the certificates of qualification issued to the contractor and subcontractor in the instant case.

There is no evidence tending to prove that either the contractor or subcontractor were not, on their respective applications, entitled to the issuance of certificates of qualification in conformity with the terms of such Act.

The sole claim of plaintiff is that under the provisions of the act, nondelegable discretion was vested in the "Director of Highways to make the determinations mentioned and to issue such certificates, and consequently that the determinations by the credit examiner, the issuance of the certificates in the manner they were issued, and the certificates, were wholly void.

In support of this claim he relies upon the rule stated in Mechem on Public Offices and Officers, Section 567, page 369, as follows:

“Wherever these boards and officers are vested with discretion and judgment, to be exercised in behalf of the public, the board or officer must exercise it in person and cannot, unless expressly or impliedly authorized to do so, delegate it to others.”

Many of the provisions of the act in question prescribe and indicate that the discretion to make the determinations and issue the certificates mentioned, is vested in the director, so in applying the rule mentioned, the question to be determined is whether the director is expressly or impliedly authorized to delegate its exercise to others.

Throughout the whole of Chapter 18 of the General Code, relating to the State Highway Department, the expression “the director shall,” or its equivalent, is employed in every instance wherein the Legislature speaks concerning performance of duties within the highway department comprising the entire range of the activities of the department, but such duties are so multifarious that it is obvious it would be impossible for the director to personally perform each and all of them; and by reason of the nature and scope of the duties so enjoined upon the director, it is clear that while the director in terms is charged with performance thereof, it was the intention of the Legislature that he might delegate the performance thereof, including the performance of his duties determining the qualifications of bidders and issuing certificates thereof, to other officers and employees of the department whom he might designate to perform such duties.

This being the case, the director was impliedly authorized to delegate the exercise of discretion and judgment to be exercised on behalf of the public in the matter under discussion, to Miller, the credit examiner, and Miller, being so authorized by the director, properly performed such duties, and his determinations as to the qualifications of the contractor and subcontractor, and the certificates issued to them are valid.

Furthermore, the awarding of the contract by the director was a ratification of such determinations and the issuance of such certificates by Miller, in the name of the director.

For the reasons mentioned, the second ground assigned for the invalidity of the certificates and the awarding of the contract, is without merit.

3. An inspection of the photostatic copies of the specifications and bidders’ blanks attached as exhibits to the bill of exceptions discloses what purports to be a schedule of prevailing rates of wages was attached to and made a part of the .specifications for the work and printed on the bidding blanks, and that the proposal, among other things, provided that:

“The minimum wage to be paid all labor employed in this contract shall be in accordance with the ‘schedule of prevailing hourly wage rates’ ascertained and determined by the Department of Industrial Relations applicable to state highway improvements in accordance with Sections 17-3, 17-4, 17-4a, 17-5 and 17-5a of the General Code of Ohio.”

There is no evidence tending to prove that such schedule is incorrect in any respect.

The gist of plaintiff’s complaint is (a) that the schedule used in the contract constitutes only a determination of “minimum wages set up under collective bargaining agreements and not the prevailing wages, ’ ’ as required by the statute; (b) that the determination was the result of the efforts of Mr. Ehret, an employee of the Department of Industrial Relations, rather than the director of the department.

The evidence is to the general effect that irrespective of the sources from which they were obtained, the rates prescribed in the schedule mentioned were the prevailing rate of wages in effect at the time, as ascertained and determined by the Department of Industrial Relations at the request of the highway department, in conformity with the provisions of Sections 17-3, 17-4, 17-4a, 17-5 and 17-5a of the General Code, which renders nugatory the first ground of complaint under this assignment.

A further complete answer to this ground of complaint, and also the second ground of complaint under this assignment, is that there is no provision of the act now designated as Sections 17-3, 17-4, 17-4a, 17-46, 17-4c, 17-5, 17-5a and 17-6 of the General Code, prescribing that a contract let without complying with the provisions of the Act shall be illegal or void, and by the terms of the act the legal consequences attendant upon noncompliance with the act are prescribed, none of which in any way impinge upon the validity of the contract not let in conformity with the provisions thereof.

This being the case, the statutory rule of construction that the expression of one thing is the exclusion of another., applies, and it cannot be held that the contract in question was void or illegal by reason of noncompliance with the provisions of such Act.

For the reasons mentioned, the third assignment of error is without merit.

4. Under this assignment the plaintiff argues that the contract was awarded without competitive bidding, in that (a) the subcontractor was not named directly in the proposal; and (b) the amount of work to be sublet was greater than that allowed under federal provisions.

The specifications of the Department of Highways provided that proposals must be submitted on proposal forms provided by the Director of Highways, and the proposal in the instant case was submitted on such form. The form, on page 5, provided:

“Preparation of Proposal —

“The blank spaces in the proposal must be filled in correctly where indicated and written in ink.”

Blanks were provided in the form, for the name of the subcontractor, the item numbers to be sublet, the approximate quantities, the unit price, and tire total amounts.

In the proposal submitted by the contractor, the name of the subcontractor, the items to be sublet, the approximate quantities, the unit price, and the total amount of the subcontract were left blank.

The proposal, however, was accompanied by a letter signed by the subcontractor, in which it appears that the subcontractor contemplated receiving from the state directly, payment for $679,179.05 worth of work, or 50.53 per cent of the total contract.

The federal special provisions, which were made a part of the specifications, provide that a contractor proposing to sublet more than twenty per cent of the value of all work shall state in his proposal, the items to be sublet and the name of the proposed subcontract-tor; and that the contractor also must attach to his proposal a certificate by the subcontractor that the subcontractor’s name was used with subcontractor’s knowledge and consent.

•The proposal as originally filed did not .conform with these requirements of the federal special provisions.

Four days after the bid was opened the contractor and subcontractor were permitted by the director to file letters. In these letters the items to be sublet were altered, and the amount of the work to be sublet was reduced to some forty per cent. The letters also changed the manner of payment so as to permit payment to the contractor instead of the subcontractor directly, and the contractor and subcontractor, in writing, both committed themselves to the subcontract.

The contract as let conformed to the requirements of the last sentence of Section 17-4n, General Code, in that it specifically authorized the contractor to sublet the work which he did sublet.

The naming of the subcontractor, the item numbers to be sublet, the approximate quantities, the unit price, and the total amounts in the proposal are not required by any statutory provision, but are simply require-merits based on a rale of the Department of Highways, directory in character.

The federal special provisions mentioned are not statutory requirements but are merely formal rules adopted by the federal agency participating in road improvements of the character of the one in controversy, and are directory in character.

As both the rule of the Department of Highways and the federal special provisions are directory in character and not based on any statutory requirement they were the subjects of waiver by the agencies which promulgated them, and the evidence in this case shows affirmatively that such rule and such provisions were waived.

As the contract was let upon the condition that “Written consent to sublet, assign or otherwise dispose of any portion of the contract shall not be construed to relieve the contractor of any responsibility for the fulfillment of the contract, ’ ’ such waivers could not detrimentally affect the rights of any of the parties concerned, or the rights of any prospective bidder or any taxpayer. •

The federal aid provisions further prescribe that:

“* * * Such item or items of work may be performed by such subcontractor notwithstanding the eighty percent limitation above mentioned. Provided that subcontractor named in the proposal is a contractor of recognized standing, has a record of satisfactory performance, and the work proposed to be sublet does not constitute the major item or items of work embraced in the contract.”

The concurrence of the federal agency in this contract and in its letting constitutes a conclusive determination that the subcontractor named in the proposal is a contractor of recognized standing, has a record of satisfactory performance, and the work proposed to be sublet does not constitute a major item or items of work embraced in the contract.

For the reasons mentioned, the matters complained of by plaintiff under this specification did not in any way affect the competitive character of the bidding-on the contract, and the assignment of error is therefore without merit.

The action being one to enjoin public officers from the commission of acts in excess of-legal authority and requiring the expenditure of public money, the plaintiff, as a taxpayer, regardless of motive, has sufficient interest to maintain it. Green v. State Civil Service Commission, 90 Ohio St., 252, 107 N. E., 531.

Plaintiff makes further assignment of error, not included in his summary of assignments hereinbefore mentioned, to the effect that the letting of the contract at the time it was let constituted an abuse of discretion by the Director of Highways.

Upon this specification he argues that because the improvement covered by the contract was only part of a general improvement, the completion of the work covered by the contract would not permit public use of the improvement until other parts thereof are completed; and that because of the scarcity of materials for such improvement occasioned by war conditions, the Director of Highways abused his discretion in awarding the contract.

The matter of letting the contract at the time it was let was wholly within the discretion of the Director of Highways, and in view of the fact that the improvement was one approved by an agency of the federal government as part of the defense system of highways in this country, and was participated in by such agency, and that priorities therefor were granted by the proper agency of the federal government, it is obvious that the Director of Highways did not abuse his discretion in letting the contract at the time it was let.

Finding no error in any of the respects specified and argued in plaintiff’s brief, the judgment of the Common Pleas Court will be affirmed at costs of plaintiff.

Judgment affirmed.

Barnes, P. J., and Geiger, J., concur.

Guernsey, J., of the Third Appellate District, sitting by designation in the Second Appellate District.


source: Caselaw Access Project

author: Hornbeck, J. G-eiger, J., By the Court.

license: Public Domain

text:
    The State of Ohio, Appellant, v. Gossler et al., Appellees. (Fifty-four cases.)
    (Nos. 3570 to 3623
    Decided July 7, 1943.)

      Mr. Ralph J. Bartlett, prosecuting attorney, and Mr. William C. Bryant, for appellant.

      Messrs. Eagleson & Laylin and Mr. Luther S. Day, for appellees.
   Hornbeck, J.

This is a hearing on motions of the defendants, appellees herein, to dismiss the appeals herein for the reason that “said appeals were not perfected within the time limited by law.”

The appeals in these cases are being prosecuted by the state from judgments of the Common Pleas Court quashing the indictments against the defendants named in the foregoing numbered cases, namely, Nos. 3570 to 3623, inclusive.

The narrow question presented is whether the procedure as to the time within which t-he notice of appeal from the Common Pleas Court to the Court of Appeals shall be given by the state from an adverse appealable order or judgment, is prescribed by Section 13459-4, General Code. If so, then the notices of appeal having been filed within thirty days after the judgment, but more than twenty days thereafter, the latter time being fixed by Section 12223-7, General Code, are within time, and the motions should be overruled; otherwise, they were filed too late and the motions must be sustained.

It is urged by the movants that Section 13459-4, General Code, may not be given application, but that Section 12223-7 is the controlling section. It may be noted that, according to the codification under which the sections of the General Code are compiled, Section 12223-7 is found under Part Third, Title Y, with the general heading, “Procedure on Appeal,” beginning with Section 12223-1 and ending with Section 12223-49. These sections, insofar as they are specific in terms, treat of civil procedure, although they are not so designated.

Sections 13459-1 to 13459-14, General Code, are found in Chapter 38 of “Criminal Procedure,” but Chapter 38 was made merely to conform to the new appellate practice act effective January 1, 1936. That act (116 Ohio Laws, 104 to 130, inclusive) was comprehensive in scope and included not only those sections which were enacted anew and carried into Title V, “Procedure on Appeal,” but amended sections thereunder, and amended sections now carried in Chapter 38 under “Criminal Procedure.” So that, the mere fact that a section of the appellate code is found in Title Y, “Procedure on Appeal,” does not preclude the application of the terms of such statutes to criminal procedure, if the language therein, in the light of the whole appellate act requires that such application be made.

As a matter of course, we start with the assumption that appellate procedure in criminal cases would be found under those sections compiled and codified under criminal procedure.

Section 13459-1, General Code, the first section in Chapter 38 on appeals under Criminal Procedure, was not changed by the Appellate Procedure Act effective January 1, 1936, but was a part of the Criminal Procedure Act passed April 1, 1929. This section is broad enough in purpose to include appeals to the Court of Appeals in criminal cases, either by a defendant who has been convicted and sentenced or by the state, if an appealable judgment or final order has been entered against it in the trial court. The statute provides :

“In a criminal case, including a conviction for the violation of an ordinance of a municipal corporation, * * * a judgment or final order of a court or officer inferior to the Court of Appeals, may be reviewed in the Court of Appeals * * *.” (Emphasis ours.)

This section was in effect when Eastman v. State, 131 Ohio St., 1, 1 N. E. (2d), 140, was decided, which held that the Court of Appeals has jurisdictional power, under Section 6, Article iy, Ohio Constitution, which may not be delimited by statute, to review not only civil judgments but criminal judgments except when the latter involves the element of former jeopardy under Section 10, Article I, Ohio Constitution. The state has the right to prosecute appeal from a judgment in a criminal case, as defined in the preceding sentence. The decision in the Eastman case is grounded upon the constitutional authority granted to the Court of Appeals to review judgments of lower courts and gives no consideration whatever to Section 13459-1, General Code.

The right of the state to an appeal both by statute and by the Constitution is recognized, and it is so conceded by the defendants. We examine the sections of the Code succeeding Section 13459-1, to determine what provision has been set up to implement the state’s right of appeal. If the method of effectuating the state’s right of appeal from an appealable order in a criminal case is not set up by statute, then there is no way by which the right may be assured.

Section 13459-2, General Code, contains no subject matter which could have application to an appeal by the state of Ohio.

Section. 13459-3, General Code, provides:

“The proceedings to review such judgment or final order, shall be by appeal which shall be instituted by filing notice of appeal with the court rendering such judgment or order and with filing a copy thereof in the appellate court where leave to appeal must be obtained * * (Emphasis ours.)

The quoted portion of this section, and all that follows thereafter, which we have not quoted, is broad enough to include an appeal from a judgment against the state of Ohio.

Section 13459-4, General Code, is the section which fixes the time within which the notice of appeal shall' be filed and which must be controlling as to the appeal here, if it can by any of its terms be given application. It provides:

' “Such appeal, unless otherwise provided, may be . filed as a matter of right within thirty days after sentence and judgment. * * *” (Emphasis ours.)

The judicial act which causes the statute to run is the sentence and judgment. The term, “such appeal”, refers to an appeal from a judgment or final order, made in a criminal case (Section 13459-1, General Code), of a court or officer inferior to the Court of Appeals and, thus far, could be construed to evince a purpose to include an appealable judgment or final order against the state of Ohio. “Unless otherwise provided,” may be given application in the instant case only if Section 13459-4 does not control, and, if so found, an appeal will be assured to the state only if there is a provision for notice of appeal in a criminal case under Section 12223-7. The defendants insist that the latter section so provides and is controlling here. We, of course, need only to determine if Section 13459-4 may be given application in this case:

The language from which much of the difficulty arises in the instant appeal is “after sentence and judgment,” as employed in Section 13459-4. If this language be given strict construction, then it must be said that the order in the instant case will not be included, because in no concept of the words can the order be designated as a sentence, although it is an appealable judgment.

At this juncture, we are met with the case of State v. Grisafulli, 135 Ohio St., 87, 19 N. E. (2d), 645, and, particularly, the first paragraph of the syllabus thereof :

“Section 12223-7, General Code, providing that an appeal to the Supreme Court must be perfected within twenty days, is without application to felony cases.”

This language of that paragraph of the syllabus is taken from the first paragraph of Judge Zimmerman’s opinion. If, then, this pronouncement be given inferential application to this case, if the state cannot, under Section 13459-4, perfect its appeal upon the notice there provided, there is no provision in the General Code whereby the state may be assured of the right of appeal recognized in Eastman v. State, supra. Reading the syllabus of the Grisafulli case in the light of the facts, it is authority only for the proposition that where a defendant seeks to appeal to the Supreme Court from the affirmance of his conviction the procedure is controlled by Section 13459-7. The attention of the court in the Grisafulli case was focused upon Grisafulli’s rights which were challenged by the motion of the state to dismiss his appeal as of right, and it may be that the court inadvertently used general language without giving any specific attention to the situation whieh would arise if the state had sought .to perfect an appeal to the Court of Appeals from a judgment against it in the Common Pleas Court. We cannot dismiss lightly the two observations of Judge Zimmerman, one of which is carried into the syllabus, namely, that Section 12223-7 does not apply to felony cases, and the other, that Section 13459-7, a part of the Code of Criminal Procedure, is controlling in appeals to the Supreme Court in felony cases. The Grisafulli case, in. and of itself, is not such authority as would enable us to hold that the state in this case is protected in its procedure by Section 13459-4, if we are remanded to. strict construction of the terms “sentence” and “judgment” as found in the section.

38 Words and Phrases, 601, refers to and cites many cases wherein it has been held that a sentence is the judgment of a court and that “judgment” is synonymous with the word “sentence” and that final judgment in a criminal case is the sentence. These definitions all relate to cases where there was a sentence, which would not pertain to a case wherein the state failed, although the order in such situation might be final and appealable.

In this connection Shelley v. State, 123 Ohio St., 28, 173 N. E., 730, is interesting. Shelley was convicted and sentenced, which action was journalized. He filed a motion for new trial' which was overruled and judgment then entered for fine and costs. Shelley prosecuted appeal within time after the last- entry but too late if the entry pronouncing sentence controlled. The court held that the petition in error was filed within time. The procedure was under the section of the General Code then effective, Section 6212-20, which in part provided:

“Such petition in error must be filed within thirty days after the judgment complained of * * V’ (Emphasis ours.)

The difference in the language in the foregoing section and in Section 13459-4 is apparent, but it is difficult to bring the opinion into harmony with the almost unanimous line of authority that sentence , and judgment are synonymous.

Section 12223-1 et seq., General Code, are found in Part Third of the General Code, designated “Remedial,” under Title V, Procedure on Appeal; and- Sections 13459-1 to 13459-4, inclusive, are found in the Code, under Part Fourth, Penal, Title II, Criminal Procedure, Chapter 38. As to Part Third and Part Fourth of the Code, it is provided (Sections 10213 and 12368, General Code) that, in the interpretation of such parts of the Code, “and” may be read “or”, and “or” read “and”, if the sense requires it. This is in conformity with the general rule of statutory construction. 37 Ohio Jurisprudence, 582, Section. 320; Elliott Grocer Co. v. Field’s Pure Food Market, Inc., 286 Mich., 112, 281 N. W., 557; People v. Harrison, 194 Mich., 363, 160 N. W., 623; City of Knoxville v. Gervin, 169 Tenn., 532, 89 S. W. (2d), 348, 103 A. L. R., 877; Liberty Mutual Ins. Co. v. Jones, 344 Mo., 932, 130 S. W. (2d), 945, 125 A. L. R., 1149; 59 Corpus Juris, 986, Section 584.

Such an interpretation would assure the state an appeal under our Code of Criminal Procedure, and should be adopted if the whole of the act will permit.

We have tried to envision a situation arising after conviction in a criminal case wherein there could be a final judgment and no sentence. Such a judgment, it* would appear, might be entered where a defendant had been convicted of an offense which permitted of his probation. But the lawmakers have anticipated this situation and, inferentially at least, have indicated that the order made by the court, as to a defendant after conviction and at the time of probation, is not a final order unless so made by legislative enactment. Section 13452-9, General Code, anticipates the question and provides:

“For the purpose of proceedings in error, the order suspending the imposition of sentence and placing the defendant on probation authorized by this chapter, shall be deemed the final order from which such proceedings may be prosecuted.”

This section was not amended to conform with the new appellate review act of 1936, but in probability, would by the terms of the act, Section 12223-1, General Code, be construed as an appeal on questions of law.

The court in Commonwealth, ex rel. Paige, v. Smith, Warden, 130 Pa. Super., 536, 198 A., 812, held that basically, the order suspending sentence in a criminal case was not a sentence but an interlocutory order but, under certain enabling statutes of the state, the defendant would have an appeal. In Miller v. Aderhold, Warden, 288 U. S., 206, 210, 77 L. Ed., 702, 53 S. Ct., 325, Justice Sutherland states:

“In a criminal case final judgment means sentence. # * # ? >

In Ohio, appellate review is provided from judgments and final orders only, which lends support to the theory that the Legislature in the use of “sentence and judgment” in Section 13459-4 was merely using a term signifying final order or judgment.

We give some attention to the sections following Section 13459-4. Section 13459-5 provides: *

“Before the filing of such notice of appeal or the motion for leave where leave must first be obtained a copy thereof must be served upon the prosecuting attorney. Such notice shall contain a description of the judgment as to identify it, and when leave to file is sought of the time and place of hearing.” (Emphasis ours.)

If the provision, that “a copy thereof” be served upon the prosecuting attorney, .includes a copy of the notice of appeal the section would cast much doubt upon the question whether any of the foregoing sections contemplated a notice of appeal being given by the state from a judgment against it. It would be incongruous for the prosecuting attorney to serve a notice on himself. It is probable that the provision, that “a copy thereof” be served upon the pi-osecuting attorney, means a copy of the motion for leave to file the appeal when such leave is necessary. We can conceive of no situation where the state would have any grounds for leave to file a notice .of appeal after 30 days from an adverse judgment.

Likewise, Section 13459-6 is somewhat disconcerting because no order therein mentioned would be contemplated on an appeal by the state and, also, because, in the first sentence, in addition to the orders which the reviewing court may make, it is further provided in the conjunctive “and order the accused to be discharged or grant a new trial.” This section, however, could not in terms limit or define the extent to which the Court of Appeals might exercise its jurisdiction conferred by the Constitution.

Section 13459-14 provides that:

“Whenever a court superior to the trial court, renders judgment adverse to the state in a criminal case or proceeding, the state may institute an appeal to reverse such judgment in the next higher court, by either the prosecuting attorney or attorney general. * # * ? ?

That section does not provide for a review in the Court of Appeals from a judgment of the trial court in a felony and presents a somewhat anomalous situation in that it is unusual and somewhat difficult of explanation that those who framed the law would not make some specific provision for effectuating such an appeal by the state. Section 13459-14 has been on the statute books for many years, not only since the Criminal Procedure Act of 1929, but long prior thereto, as have many of the other sections carried into the new appellate Code, changed only to conform to the new type of appeal.

In 1885, the Supreme Court held, in Wagner v. State, 42 Ohio St., 537, that the state had no right of appeal from an order sustaining a motion to quash an indictment. The decision points out that the powers of the District Court to reverse for error in such cases were broader than the power conferred upon the Supreme Court.

In 1927, the Court of Appeals of Pike County, in State v. Blair, 24 Ohio App., 413, 157 N. E., 801, Judge Mauck writing the opinion, held that:

“Judgment discharging accused on demurrer to indictment may be reviewed by state on proceeding in error, and if indictment is sufficient judgment may be reversed and defendant tried on merits.”

The language of the applicable sections of the Code as to proceedings in error were substantially the same as those we now consider.

Judge Mauck further makes comment appropriate to the instant case:

“That it is desirable that the state enjoy the right to review such a judgment as that involved herein is apparent. If the indictment is sufficient, and the trial court is in error in sustaining the demurrer, there is certainly no good reason why the state should not have the right to try out the facts in issue and vindicate its laws, if the accused has violated them; otherwise the error of the trial judge may result in an arbitrary denial of the state’s right to prosecute one properly and adequately charged by a grand jury of law breaking. State v. Bouknight, 55 S. C., 353, 33 S. E., 451 * *

We frankly concede that the question’ here under consideration is not free from doubt, but, in view of the trend of decisions as to the right of the state to prosecute an appeal from an adverse appealable order and the knowledge of the lawmakers of this fact when the new appellate Code was enacted, it is our judgment that the language of the section under consideration, Section 13459-4, General Code, permits the interpretation that the state is given 30 days from the adverse judgment or final order within which to file its appeal’. This interpretation may be given the section either by construing “sentence and judgment” as meaning judgment or final order and as synonymous with “judgment” as employed in former Section 6212-20, General Code, or by reading “and” in the section as “or.”

The motions to dismiss the appeals will be overruled.

Motions overruled.

Barnes, P. J., concurs.

G-eiger, J.,

dissenting. I find myself unable to concur 'with the majority of the court. This I regret. I shall set out the reasons for my dissent as briefly as possible. I shall not enter into any lengthy argument with the majority on those principles advanced in their opinion.

Briefly, the matter before the Common Pleas Court was a motion to quash the indictments against the defendants herein. The grand jury, in the first count, charged that the defendants, with intent to defraud the city of Columbus, made and presented to the auditor a false bill for certain sums for -natural gas, which bill was false in that the city had not used the volume and value of the natural gas set forth in the bill; the defendants by means of adulterating the gas by the injection of certain quantities of inert gas, supplied to consumers and to the city, not the product of natural gas, but gas wholly lacking in heat units, and were thereby guilty of violation of the statute.

The second count of the indictment charges the defendants with receiving payment from the treasurer of the city upon the aforesaid false bill as set forth in the first count. The court, under date of February 8, 1943, decreed that the motions of the defendants to quash the indictments be sustained, and the indictments quashed, and ordered that the defendants be discharged and the proceedings dismissed as to them.

It is agreed by all parties that whatever order may have been made in reference to one defendant as appears in the docket and journal entry, relates to all other defendants involved in this matter.

On March 6, 1943, notice of appeal was filed by the prosecuting attorney as to all defendants and the matter now-comes before this court upon a motion of the defendants to dismiss the appeal on the ground that the same was not filed within the time prescribed by statute.

The majority correctly states the factual matters in relation to said appeal, and asserts- that the “narrow question presented is whether the procedure as to the time within which the notice of appeal shall be given by the state of Ohio is prescribed by Section 13459-4, General Code.” The defendants assert that Section 13459-4 does not apply, but that Section 12223-7 is the controlling section.

Section 12223-7 is found under the title, “Procedure on Appeal,” which treats of civil procedure, although not so designated. Section 13459-1 et seq. — found in the title relating to criminal procedure.

The entry providing that the indictments be quashed and the defendants dismissed is a final order under Section 12223-2, so that we are not now obliged to consider whether the order of the court is final.

We have had the question before us in this case as to whether a former appeal was from a final order.

Section 13459-4, which the prosecuting attorney urges is controlling in this matter, is as follows:

“Such appeal, unless otherwise provided, may be filed as a matter of right within thirty days after sentence and judgment * # *.”

Section 12223-7, in the general chapter upon procedure on appeal, provides:

“The period of time after the entry of the order, judgment, decree, or other matter for review within which the appeal shall be perfected, unless otherwise provided by law, is as follows:

“1. In appeals to the Supreme Court, to Courts of Appeals, * * * within twenty (20) days * *

This is the section which defendants claim requires that the appeal be filed within twenty days, which was not done.

The majority of the court starts with the assumption that the appellate procedure in criminal cases will be under those sections codified under criminal procedure. The majority, after pointing to the fact that Section 13459-4 is the section prescribing the time within which the notice of appeal shall be filed and which must be controlling, if applicable, states:

“The language from which the difficulty arises on the instant appeal is ‘after sentence and judgment’.”

“If this language be given strict construction, then it must be said that the order of judgment in the instant case will not be included within the words ‘sentence’ and ‘judgment,’ because in no conception of the words can the order here under consideration be designated as a sentence.”

The court then cites the case of State v. Grisafulli, 135 Ohio St., 87, 19 N. E. (2d), 645, the first paragraph of the syllabus of which, reads:

“Section 12223-7, General Code, providing that an appeal to the Supreme Court must be perfected within twenty days, is without application to felony cases.”

In passing, we point to the fact that the only comment upon the matter involved in paragraph one of the syllabus, is the statement of Zimmerman, J.:

“In allowing the appellant’s motion for leave to appeal and in overruling the motion of the state to dismiss the appeal as of right, this court reached the conclusion that Section 12223-7, General Code, does not apply to felony cases, and is still of the same opinion. Section 13459-7, General Code, a part of the Code of Criminal Procedure, is controlling. ’ ’

Section 13459-7 relates exclusively to an appeal sought to be filed in the Supreme Court and has no specific reference to an appeal filed in the Court of Appeals. We concede that the same reasoning relating to an appeal to the Supreme Court would probably control appeals to the Court of Appeals.

Section 12223-7, relating to the time for perfecting an appeal, provides that appeals to the Court of Appeals shall be perfected within twenty days.

Section 13459-4, found in the chapter on appeals in criminal procedure, provides that the appeal may be filed within thirty days after sentence and judgment. In the case at bar there has been no sentence, the only judgment being that sustaining the motion to quash the indictments and dismissing the defendants. If it be true that the appeal in a criminal case may be taken within thirty days after sentence and judgment, we are forced to seek some reason for permitting an appeal where there has been no sentence. The majority of the court advances the ingenious theory, which in proper cases has judicial support, that the word “and” may be read “or.” This would permit the reading of Section 13459-4, as follows: “Such appeal may be filed as a matter of right within thirty days after sentence or judgment.”

It is broadly asserted by the majority that otherwise in many cases there could be no appeal by the state on important questions for the reason that no “sentence” had been imposed, and this case is urged as an illustration of a failure to preserve to the state its right to an appeal unless the word “and” may be used interchangeably with the word “or.”

We know of no reason why in criminal procedure any right other than that provided by the statute should be given to the state to perfect an appeal affecting the rights of a defendant. It is proper, of course, that the defendant have a right to appeal from all final orders adversely affecting his interest, but there is no rule by which the same favor may be granted to the state. It is true that in the case of Eastman v. State, 131 Ohio St., 1, 1 N. E. (2d), 140, it is held that under the provisions of Article IY of the Constitution of Ohio, the Court of Appeals has appellate jurisdiction to review judgments of the Court of Common Pleas, and that these jurisdictional provisions are equally applicable to civil and criminal cases with the exception named.

Weygandt, C. J., delivering the opinion of the court, in speaking of the constitutional provision controlling appeals, said:

“This language contains no intimation of a distinction between civil and criminal cases, and is so simple, unambiguous and comprehensive as to require no construction. ’ ’

We might well apply the Chief Justice’s comment upon the fact that the constitutional provision is so simple as to require no construction, to the provision of Section 13459-4 that “such appeal * * * may be filed as a matter of right within thirty days after sentence and judgment.” (Italics mine.) Certainly there could be no plainer language than the statement that the appeal may be made as of right within thirty days after sentence and judgment. We can profitably consider the sections found in the chapter in reference to sentence and proceedings thereunder, to ascertain what is meant by the phrase “sentence and judgment.” Those sections are Section 13451-1 et seq. The first section provides that before sentence is pronounced the defendant must be informed by the court of the verdict of the jury and asked whether he has anything to say why judgment should not be pronounced against him.

Section 13451-4 provides:

“If the defendant does not show sufficient cause why judgment should not be pronounced, the court shall pronounce the judgment provided by law.”

Of course no sentence can be .imposed unless there is prior conviction.

I recognize the strength of the opinion of the majority, but cannot bring myself to concede that in a criminal case there is any obligation upon the part of a court to so interpret a statute as to permit the state to secure an appeal where the same is not clearly indicated. The very theory of the criminal law is that the defendant should not be unnecessarily harassed and, of course, should not be put twice in jeopardy. We all know that it frequently occurs that justice is outraged by an acquittal of a defendant who should have been convicted, but the state has no recourse in such a case to appeal or to secure a new trial. So in a case such as is involved in the present controversy, where the defendant has not been sentenced, the state has no right to appeal. It may be possible that the Legislature had overlooked this situation, but it was equally possible that the .Legislature was of the opinion that until there had been a conviction there should be no appeal by the state to a higher court. It may be said that the thirty day provision for an appeal, applying as it does to the right of the state to appeal, can be of no efficacy unless there has been a sentence. That is true, but what of it? It simply amounts to stating that if the defendant has been acquitted he shall not be further harassed. If the state has failed to convict, the defendant shall not be harassed by a proceeding-on appeal. This seems to be a very logical position for the Legislature to have assumed.

On Application for rehearing.

(Decided July 27, 1943.)

By the Court.

A question has been submitted on application of defendants for rehearing.

The application is extended and in the main a reiteration of the claims made by the defendants in their original briefs, and a discussion of some new aspects of the case provoked by our opinion and there considered at length. The only additional authority cited is State v. Simmons, 49 Ohio St., 305, 31 N. E., 34, which, in our judgment, has no application to the factual situation presented in the instant appeal.

The Simmons case arose in 1891, construed Section 7356, Revised Statutes, and held that this controlling section made no provision for an error proceeding to the Circuit Court on behalf of the state after a demurrer to an indictment had been sustained and the defendant discharged by the Court of Common Pleas. The case of Eastman v. State, 131 Ohio St., 1, 1 N. E. (2d), 140, was decided in 1936, construed the right of the state to an appeal in a criminal case, under the Constitution of 1912, in a situation like unto that presented in State v. Simmons, supra, and supported the jurisdiction of the Court of Appeals to entertain the appeal. Both- of these decisions treat of the jurisdiction of the reviewing court. Of course, the Eastman case is controlling.

Although we indicated in our original opinion the scope and effect of State v. Grisafulli, 135 Ohio St., 87, 19 N. E. (2d), 645, we reiterate that we cannot overlook the fact that the Supreme Court there had under consideration Section 12223-7, G-eneral Code, the identical section of the Code under which, if the contention of the defendants in this case is well made, the state must be controlled in its procedure on appeal. The court without qualification carried the proposition into the syllabus that Section 12223-7, General Code, is without application to felony cases. The instant cases must be classified as felony cases.

It is our judgment, that the state either had the procedural right to file its notice of appeal under Section 13459-4, General Code, or no statutory authority is granted to file such notice. We concede that the question is close, hut are still of the opinion as announced in our original decision. The application for rehearing will, therefore, be overruled.

Application denied.

Barnes, P. J., and Hornbeck, J., concur.

Geiger, J., dissents.


author: Hildebrant, J.

text:
    Thomin et al., Appellants, v. Norwood Sash & Door Mfg. Co., Appellee.
    (No. 882
    Decided November 10, 1944.)

      Mr. William D. Schaeffer and Messrs. Williams, Fit-ton & Pierce, for appellants.

      Messrs. Baden & Fiehrer, for appellee.
   Hildebrant, J.

Defendant company, dealing in millwork, lumber and builders’ supplies of numerous kinds, entered into a written lease with plaintiff containing tbe following rental clause, to wit:

“Yielding and paying tberefor, during the said term, as rent for each month and for tbe'said premises a sum equal to one and one-balf (1%%) of the lessee’s gross receipts from tbe lessee’s sales made during such month on said premises * *

Plaintiff’s claim for rent is disputed as being improperly computed by including sales in tbe gross receipts not properly coming within tbe terms of tbe lease as being made on tbe premises. At tbe close of plaintiff’s evidence, tbe court directed a verdict for tbe defendant and tbe appeal is here on questions of law from tbe judgment entered thereon.

An. examination of the evidence is, therefore, necessary to a decision herein, in order to determine whether the action of the trial court in directing a verdict was in accordance with the rules laid down in Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St., 469, 189 N. E., 246, the third and fourth paragraphs of the syllabus of which are as follows:

“Upon motion to direct a verdict the party against whom the motion, is made is entitled to have the evidence construed most strongly in his favor. But if upon any essential issue, after giving the evidence such favorable construction, reasonable minds can come to but one conclusion and that conclusion is adverse to such party, the judge should direct a verdict against him.

“Where from the evidence reasonable minds may reach different conclusions upon any question of fact, such question of fact is for the jury. The test is not whether the trial judge would set aside a verdict on the weight of the evidence.”

The bookkeeper for both parties testified to performing her duties under the direction of defendant and gave a detailed statement as to the methods of operation of the Hamilton yard, the making of daily, weekly, and monthly reports and as to the breakdown of the various items detailing information as to point from which deliveries were made and other information. Two bank books bearing the legend “Norwood Sash & Door Mfg. Co. Hamilton Yard” were introduced in evidence, and the bookkeeper testified:

“Q. I will ask you to tell me what these are? A. Deposit books.

“Q. Deposit books for what? A. For the money that we took in from the Hamilton yard. * * *

“Q. What was the source of the money that is represented by these deposits? A. That was the money that we took in from what was sold.

“Q. Does this or does this not include the lumber you received from — lumber that was delivered from Norwood? A. It does.

“Q. Includes that? A. Yes.

“Q. In other words, it totals the lumber — the receipts from the lumber that was delivered from Nor-wood and from Hamilton, that right? A. Yes, sir.”

The record further shows defendant had a representative in Hamilton and the territory surrounding the city prior to establishing the Hamilton yard, who continued to work outside the office in much the same manner as before and that sales were made to customers calling at the Hamilton yard in person, telephoning the yard, or telephoning the sales representative an order, or requesting a representative to call, or as a result of voluntary calls by the representative. Deliveries were made both from Norwood and the Hamilton yard, but all such orders were handled through the Hamilton yard and payment made there, and made up all of the monies which went into the bank accounts bearing the legend stated above.

From the above state of the record, and construing the evidence- most favorably to the plaintiff, this court finds that reasonable persons might reasonably reach different conclusions as to what sales producing the gross receipts deposited to the account of the Nor-wood Sash & Door Manufacturing Company, Hamilton yard, were comprehended by the rental clause in the lease.

It was, therefore, error for the trial court to instruct a verdict for defendant at the close of plaintiff’s evidence and the judgment in this cause is reversed and the case remanded for further proceedings according to law.

Judgment reversed. •

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


author: By the Court.

text:
    The Fifth-Third Union Trust Co., Trustee, Appellant, v. Rawson et al., Appellees. The Fifth-Third Union Trust Co., Trustee, Appellee, v. Rawson, Appellant, et al., Appellees.
    (Nos. 6405 and 6406
    Decided July 10, 1944.)

      Messrs. Graydon, Head $ Ritchey, for appellant The Fifth-Third Union Trust Company.

      Mr. Wm. R. Collins, for appellant and appellee Hobart Rawson.

      Messrs. Paxton <£ Seasongood, for appellees Rawson Davis, Franklin Davis and Mary Frances Davis Pettiss.

      Messrs. Clark & Robinson, for appellee Deborah Rawson.

      Messrs. "Cors, Scherer & Hair, for appellees Josephine Rawson and Estate of Nina F. Rawson.

      Messrs. Gusweiler & Gusweiler and Mr. A. Brown, for appellee Frances D. G. Andrews.
   By the Court.

These appeals on questions of law are from the same judgment of the Court of Common Pleas of Hamilton county, sustaining a demurrer to the petition and supplemental petition, and dismissing such petitions for fatal defect of parties defendant, the plaintiff not having desired to plead further. The appeals have been consolidated.

The action was initiated by the plaintiff as trustee under the will of Frances Helen Rawson, deceased, the prayer being that the court instruct such trustee in what manner to proceed in the presence of certain questions affecting the allocation of a charge for Ohio inheritance tax.

As the matter was presented to the Court of Common Pleas upon demurrer to the petition and supplemental petition, those pleadings only need be considered.

It is the contention of the appellees that the petition and supplemental petition do not state a cause of action and that the matters upon which instruction is sought are the subject of a former full adjudication by the Court of Common Pleas.

The action here involved is authorized by the provisions of Section 10504-66, General Code, as amended and effective June 26, 1939, which reads as follows:

“Any fiduciary may maintain an action in the Probate Court or Court of Common Pleas against the creditors, legatee's, distributees or other parties, asking the direction or judgment of the court in any matter respecting the trust, estate or property to be administered, and the rights of the parties in interest, in the manner, and as fully, as formerly was entertained in courts of equity.”

The practical effect of the action of the trial court was to say to the trustee: “You were previously told what to do — and this court will not repeat its instructions.”

It has always seemed in such cases, as in the case of declaratory judgments, that even if such is the case, little harm is done by repeáting instructions, if such repetition be necessary; and that the principles of res judicata have no practical or reasonable application. There are few instances, if any, where demurrers to petitions involving those proceedings should be sustained.

The pleadings involved are the petition, supplemental petition, and demurrer thereto. Attached to the 'petition is a copy of the will of testatrix and a copy of the decree of the Court of Common Pleas in the first proceeding. The supplemental petition contains allegations affecting merely the succession of various parties involved and contains no allegations affecting the merits of this proceeding. We will consider the petition.

From the petition, it appears that the executor of the testatrix brought an action in the Court of Common Pleas of Hamilton county to construe the will. All the parties in the instant proceeding were either parties or are successors in interest to parties in that proceeding.

One of the sixteen questions propounded by the executor to the court involved the proper charge of the inheritance tax which, in order to save the legatees added penalty, the. executor had promptly paid, from funds realized by the sale of securities in the estate. This question, number twelve in the original petition filed in 1931, and the instructions of the court are set forth in the petition in the instant proceeding, as follows :

“Upon the twelfth question presented, vis: When contribution is secured from the various legatees and devisees under the will of Frances Helen Rawson, deceased, and their representatives, for the refunder of the Ohio inheritance tax paid by the executor for their account, will the fund thus realized go into the residuary estate or shall it be allocated to the various bequests.

“The court finds that when contribution is secured from the various legatees and devisees and their representatives for the refunder of the Ohio inheritance tax paid by the executor, that the same shall be credited to and become part of the residuary estate, but that interest should not be added to the proportionate part with which each legatee is to be charged, and the principal amount shall be used insofar as possible, (o restore to the estate any of the specifically devised property which has been sold to pay debts, bequests, inheritance, taxes or expenses of administration.”

The court further decreed in paragraph 6, that:

‘ ‘ Contribution shall be secured from the various legatees and devisees under the will of Frances Helen Rawson, deceased, and their representatives for the refunder of the Ohio inheritance tax paid by the executor for their respective accounts, but interest shall not be added to the proportionate part with which each legatee is to be charged, and no interest shall be collected from the date of the payment by the executor until final contribution is made, and the proceeds of said refunder shall be used, insofar as possible, to restore to the estate the equivalent of any securities that may have been sold by the executor for the payment of debts, taxes or expenses.”

Paragraph 7 of the decree is:

“All securities sold by the executor for the payment of debts, taxes, and expenses, including securities called or maturing, or any liquidating dividends of corporations in liquidation, or the equivalent thereof, the proceeds which have been used by the executor for the payment of debts, taxes, and expenses, shall be restored to the estate out of income, before the executor files his final account and turns the property over to the trustee.”

Now it appears that the executor did not require contribution from the various legatees and devisees in order to restore the securities of the estate which it had sold to pay the tax, as ordered by the Court of Common Pleas, but, on the contrary, restored such securities by using the income of the estate. At the time of the filing of the instant action, such securities had been completely restored. Not only was this true, but the executor had fully completed its duty as such and under the terms of the will had made distribution to the plaintiff trustee as of December 31, 1940, and since that time the trustee has been administering the estate.

Certain bequests have been paid by the trustee and deductions for inheritance tax made. The trustee was about to pay the bequest to Hobart Rawson, one of the appellants, and make a deduction therefrom for inheritance tax, when Rawson served the trustee with notice requiring the trustee to file an action for instructions thereon. The instant proceeding was filed in conformity to such request.

Several clauses in the will of testatrix, a copy of which is attached to the petition, are pertinent to the question here presented.

“Said trustee shall, out of the income derived from said estate, pay the various bequests hereinafter set out in the order in which they are named, paying first the bequest first named, paying second the bequest next named, and so continue until all are paid.

“As soon as all of the said bequests shall have been full(y) paid this trust shall be ended, provided that five (5) years have elapsed, for I desire said trustees to hold said property in trust for five years in any event, but if the income of my estate shall pay off all said legacies before the expiration of said five (5) years, then the income thereafter received from said estate shall go to my grand-nieces and grand-nephews, the children of my niece, Carrie Rawson Davis, as provided in item fourth, paragraph 5th, of this will. * * *

“5th. All the rest and residue of my estate of every kind and description and wherever situate, including any mortgage loans or lapsed legacies, also pictures, books, furniture, bric-a-brac, and jewels (excepting therefrom such articles as I specify on a memorandum signed by me) shall be sold by said trustees and the proceeds of sale shall be by them distributed equally between my grand-nieces and grand-nephews, to-wit: Mary Frances Davis, Rosebud Davis, Raw-son Davis and Franklin Davis, the children of my niece, Carrie Rawson Davis.”

The questions presented- by the trustees are as follows :

“1. Do the provisions of the decree of this court entered on June 16, 1936 in the case of The First National Bank of Cincinnati, Ohio, Executor under the Last Will and Testament and Codicil of Frances Helen Rawson, deceased, v. Hobart Rawson, et al., No. A-40346, with respect to securing contribution from various legatees and devisees under the will of Frances Helen Rawson, deceased, and their representatives for the refunder of the Ohio inheritance tax paid by the executor for their respective accounts, apply to plaintiff as trustee under said will?

“2. If question No. 1 is answered in the affirmative, shall plaintiff credit such contribution to the residuary estate, and if it should not be so credited, what disposition should plaintiff make of such contribution?

“3. If question No. 1 is answered in the affirmative, shall plaintiff secure such contribution in full from all the legatees and devisees, and if it is not required to secure such contribution in full, what contribution should it secure, inasmuch as the executor, prior to making distribution to plaintiff, restored out of income all of the assets of the estate with the exception of the cash on hand at the death of testatrix ? ’

It is the conclusion of this court that the Court of Common Pleas erred in sustaining the demurrer and dismissing the petition and supplemental petition. In view of the existence of a new party plaintiff, the provisions of the statute heretofore noted and the occurring of new incidents since the former decree of the Court of Common Pleas, the principle of res judicata has no application to the instant action as such.

It seems apparent that the questions here presented rest upon an entirely different state of facts from those before the Court of Common Pleas at the former proceeding, and in fact upon a state of facts not even contemplated by that court. That court ordered the executor to restore the securities sold to pay the tax, by securing contribution from the specific legatees and devisees, who are primarily liable for the tax. The executor did not do this, but, instead, restored the securities out of income.

Upon contribution being secured, the bequest to such residuary legatees will be properly restored to the dimensions anticipated by the testatrix and the court, it having been decreased by the draft upon the income in lieu of contribution. The specific legatees have had the use of the money; they are now required to contribute.

The trustee stands in the same position as the executor with respect to carrying out the former order of the court, the execution of which was delayed until the transfer of the estate to the trustee.

The answer, therefore, to question No. 1 is that the former order of the court, applicable to the executor, does apply to the plaintiff, trustee.

The answer to question No. 2 is, that the contributions or deductions from specific legacies shall be credited and paid in full to the residuary legatees.

The answer to question No. 3 is found in the fact that the fund created by the payment or deduction of contributions is specifically ordered by the former decree of the Court of Common Pleas to be paid to the residuary legatees. It is now too late to question the force of this order, and its correctness need not now be considered. The answer to this question is, therefore, that the full amount of the contributions is to be paid to the residuary legatees. To such extent is the former decree of the Court of Common Pleas res judicata, not to the instant proceeding, but of any action or proceeding seeking to set aside the effect of such decree. The instant proceeding is not inconsistent with the previous order of the Court of Common Pleas, but entirely appropriate in seeking instructions as to the carrying out of such order in view of the occurrence of circumstances subsequent thereto.

As the effect of the action of the Court of Common Pleas in the instant proceeding, in sustaining the demurrer to the petition for instructions, was to refuse to exercise jurisdiction, this court does not consider it has the power to render the judgment which the Court of Common Pleas should have rendered, no judgment having, in effect, been rendered giving the instructions requested. Had erroneous instructions been given, this court might then have been in a position to adopt a different course. Kimball v. Kimball Brothers, Inc., 143 Ohio St., 500.

The judgment of the Court of Common Pleas is reversed and the cause is remanded to that court, with instructions to overrule the demurrer to the petition and supplemental petitions and to further proceed in accordance with law and this opinion.

Judgment reversed.

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


author: Ross, P. J.

text:
    Lutz, Appellant, v. Lutz et al., Appellees, et al.
    (No. 6431
    Decided October 16, 1944.)

      Mr. John C. Hermann, for appellee Dorothy N. Lutz.

      Mr. Frederick L. Hoffman and Mr. Bernard J. Gil-day, for appellant.
   Ross, P. J.

This is an appeal on questions of law from the Court of Common Pleas of Hamilton county. A motion has been made in this court to strike the bill of exceptions filed in that court and in this court, for the reason that same was prematurely filed in the trial court. It appears from the record that on January 13, 1944, the trial court made certain findings of fact and reached certain conclusions of law, all of which were duly entered upon the journal of the court.

On the same day, a motion for new trial was filed by the appellant.

On February 1, 1944, a notice of appeal on questions of law was filed, and, on February 18, 1944, a bill of exceptions was filed, being signed and allowed by the trial judge on March 1, 1944.' The case being heard on appeal in this court, it was determined at that time that no final order had been made in the trial court and the appeal was dismissed. Thereafter, on May 18, 1944, the trial court overruled the motion for. new trial and entered its decree from which the present appeal has been taken, notice thereof having been filed in the trial court on May 20, 1944.

The bill of exceptions was not refilod thereafter.

It is the claim of the appellee that the bill of exceptions, to be effective as such, must be filed after the overruling of the motion for new trial and that the bill of exceptions, having been filed in this case before such action of the court, was prematurely filed, and that it is ineffective as a bill of exceptions in this case and should be stricken from the files.

The historical development of legislation providing a time for the filing of a bill of exceptions is interesting and instructive.

In 1853, a Code of Civil Procedure was enacted by the Legislature, the same appearing in 51 Ohio Laws, 57. Prom that act, it appears at least that the exceptions must have been reduced to writing during the-term in which the case was tried, and that the bill must be filed during such term. 51 Ohio Laws, 104, Sections 291, 294. This is made apparent by the amendment to Section 5301, Revised Statutes, enacted in 1876, appearing in 73 Ohio Laws, 140, which provided:

“In all causes- pending in the Coui’t of Common Pleas, or either of the superior courts in this state, either party shall have the right to except to the opinion of the court on a motion to direct a non-suit, to arrest the testimony from the jury, and also, in all cases of a motion for a new trial by reason of any supposed misdirection of the court to the jury, or by reason that the verdict, or in case the jury be waived, that the finding of the court may be supposed to be against law or evidence, so that said case may be removed by petition in error, and when a party to a suit in either of the aforesaid courts alleges an exception to the opinion or order or judgment of such court, it shall be the duty of •the judge or judges of said court, concurring in such judgment, opinion or order, if required by such party, during the progress of the case, to sign and seal a bill containing such exception or exceptions, before the case proceeds; or, if the party consents, the signing and sealing of such bill of exceptions may be suspended until after the trial is closed, and said bill of exceptions shall be signed during the term, or within thirty days thereafter, and such bill of exceptions, when signed and sealed, shall, if the party desires it, be made a part of the record in such suit, and when signed and sealed after the close of the term, shall be entered on the record as of the term at which said trial of the case took place, and for this purpose the minutes and records of the court may be kept open by the clerk thereof, until thirty days after the close of the term.”

Thereafter, the section was again amended to provide that the filing of the bill of exceptions should be “within thirty days from the end of the term at which the verdict is rendered, or the finding of the court is made.” 84 Ohio Laws, 69; 85 Ohio Laws, 181.

Again the section was amended to provide that “the party excepting must reduce his exceptions to writing and present the same to the trial judge or judges for allowance within forty days after the end of the term at which the verdict is rendered or the finding of the court is made, or where a motion for a new trial is made and not decided by the court, at the same term of court, at which the verdict is rendered or the decision made within forty (40) days from the end of the term, at which such motion is decided * * *.”

Thereafter*. the provision was changed to read that the filing must be made “within fifty days after the overruling of the motion for a new trial, or the decision of the court where a motion for a new trial is not necessary.” 89 Ohio Laws, 125; 90 Ohio Laws, 203; 91 Ohio Laws, 141; 94 Ohio Laws, 338.

Still later, the section was amended to require that the party excepting must “file the same in the cause within forty days after the overruling of the motion for a new trial, or the decision of the court, where a motion for a new trial is not filed.” 96 Ohio Laws, 16.

In 1904, the Legislature again changed the section to require' that the bill of exceptions should be filed “not later than forty days after the overruling of the motion for a new trial, or the decision of the court, where the motion for a new trial is not filed.” 97 Ohio Laws, 461.

Section 11564, General Code, now provides :

“When the decision is not entered on the record, or the grounds of the objection do not sufficiently appear in the entry, or the objection is to the decision of the court on a motion to direct non-suit, or to arrest the evidence from the jury, or for a new trial for misdirection to the jury, or because the verdict, or if a jury is waived, the finding of the court is against the law and the evidence, or on the admission or rejection of evidence, the party excepting must reduce his objections to writing, and file them in the cause, not later than forty (40) days after the overruling of the motion for a new trial, or the decision of the court, when the motion for a new trial is not filed. Provided, whenever an appeal is taken on questions of law and fact and the Court of Appeals determines that the case cannot be heard upon the facts and no bill of exceptions has been filed in the cause, that the Court of Appeals shall fix the time, not to exceed thirty days, for the preparation and settlement of a bill of exceptions. And provided further that where a motion is filed in the Supreme Court for an order compelling the Court of Appeals to certify its record or when error proceedings as of right are instituted and a motion is filed to dismiss the error proceedings, the bill of exceptions shall be filed in the Court of Appeals, not later than twenty days from allowing such motion to certify, or overruling the motion to dismiss the error proceedings as of right.” 116 Ohio Laws, 104, effective January 1, 1936.

In all this legislation it is evident that the lawmakers were seeking a satisfactory date or time to close the period in which a bill of exceptions might lawfully be filed.

Nowhere is there any indication that a time was sought before which the bill might not lawfully be filed. Certainly, the section as it now reads merely fixes a time after which the bill may not be so filed.

The appellee relies upon Toledo & Ohio Central Ry. Co. v. Marsh, 17 C. C., 379, 9 C. D., 548. At page 383 of the opinion, however, it is stated:

“The statute providing for presenting and allowing bills of exceptions and fixing the time within which the same shall be done, determines the period to be within fifty days after the overruling of the motion for new trial or the decision of the court when a motion for new trial is not necessary. So that it would appear that the steps to save for review, those matters to which the character of error can only be imparted by the trial court in its adverse adjudication of the motion for new trial or in its decision, must be taken after the decision is made or the motion is overruled, otherwise the matter has not been finally determined and the error does not exist, and it would follow surely that an exception to an error that has not been committed saves nothing as in this case; it contemplates trouble that may never present itself, and a mistake that the chances are at least even will never be made. ’ ’ (Italics added.)

The bill is effective for other purposes than that of indicating the action of the court upon a motion for new trial. Id.

Our conclusion is that Section 11564, G-eneral Code, provides only a time after which a bill of exceptions may not lawfully be filed; and that our Code of Civil Procedure contains no provision fixing a time before which a bill of exceptions may not lawfully be filed.

The incident, the overruling of the motion for a new trial, is merely a reference point selected for the purpose of denoting the time from which the closing date of the limitation is computed. As indicated by the quotations, supra, other times and incidents were so selected. The reference point and closing date do not constitute a period in which the filing shall occur. These two points of time merely define the last period in which filing may occur. Such closing dates of limitation have varied from time to time, including the end of the term, fifty days after term, and now forty days after action upon the motion.

Obviously, the bill can not relate to errors occurring subsequent to the date of its filing.

The motion to strike is overruled.

Motion overruled.

Hildebrant and Matthews, JJ., concur in the syllabus and opinion.


author: Stevens, P. J.

text:
    The State of Ohio, Appellee, v. Westfall et al., Appellants. (Two cases.)
    (Nos. 3616 and 3617
    Decided February 9, 1944.)

      Mr. Alva J. Russell, prosecuting attorney, and Mr. Bernard J. Roetsel, for the motion.

      Mr. Ernest W. Teodosio and Mr. Stanley Denlinger, contra in case No. 3616.

      Mr. 0. H. Gorvington and Mr. Stanley Denlinger, contra in case No. 3617.
   Stevens, P. J.

These two cases were consolidated for hearing by order of this court.

The defendants were tried together before the Court of Common Pleas and found guilty of assault and battery. After sentence and judgment, two appeals were taken, one (No. 3616) for part of the defendants, theretofore represented by one attorney, and the other (No. 3617) for the remainder of the defendants, theretofore represented by another attorney. At that time all of the appellants engaged the services of another attorney.

There has been filed in this court a motion by the state to strike the bill of exceptions from the files, for the réason that said bill was not allowed and signed by the trial judge. The bill of exceptions was certified by the official court reporter.

There has also been filed in this court a motion by counsel for appellants Westfall, Gleason and Riggs, asking that the bill of exceptions be remanded to the trial court for correction and signature by the trial judge.

The other appellants — Akers, Burns, Oissne, Straugh and Debord — contend that the certification by the court reporter is the only approval necessary, but say that, in the event this contention be not sustained, they join in the motion of the first-mentioned appellants:

The motion of the state raises the question of the necessity of the trial judge’s allowing and signing a bill of exceptions in a criminal case.

It must be remembered that criminal procedure in this state'is regulated entirely by statute. Weaver v. State, 120 Ohio St., 44, 45, 165 N. E., 573.

Section 13445-1, General Code, in part provides:

“If a defendant feels himself aggrieved by a decision of the court, he may present his bill of exceptions or objections thereto which the court-shall sign * * V’ (Italics ours.)

Section 13445-2, General Code, in part provides:

“On the filing of a bill of exceptions or objections * * * [certain procedure shall be followed, ánd then] the clerk shall transmit said bill with all objections and amendments filed thereto, to the trial judge. Except as herein provided the rules established for taking bills of exception in civil cases shall govern in criminal cases. * * *”

Section 11571, General Code, provides:

“It shall not be necessary to cause an entry to be made upon the journal of the court of the settling, allowance, and signing of a bill of exceptions. The signature of the trial judge, or the other judge acting for him, in allowing, settling and signing it shall be sufficient evidence of such fact. Provided, however, that the signature of such judge may be dispensed with by agreement of the parties and when all the parties, individually or by their attorneys of record stipulate that the bill of exceptions is a true bill of exceptions, it shall be filed and considered as such without the signature of the judge. And provided, further, in cases tried in courts of record that the certificate of the official court reporter attached to the transcript of the testimony shall be sufficient verification of the bill of exceptions and the signature of the judge shall not be necessary unless within ten days after notice to the adverse party of the filing of such bill of exceptions that said adverse party file objection or amendment to such bill, in which case the said bill shall be submitted to the court for settlement as hereinbefore provided. And provided, further, that a bill of exceptions shall not be necessary in a case in which the entry of judgment shows that the case was tried on an agreed statement of facts and such agreed statement was filed with the papers in the case.”

It is apparent that Section 11571, General Code, makes no express mention of the right of the official court reporter to certify a bill of exceptions in a criminal case. Such omission is significant when considered in connection with the express requirement of Section 13445-1, General Code, a section dealing with bills of exceptions in criminal cases, which in terms requires the bill to be signed by the court.

There being no express statutory authorization for the official court reporter to certify a bill of exceptions in a criminal case, and there being the express requirement that a bill of exceptions in a criminal case be signed by the court, we conclude that there exists in the official court reporter no authority to certify a bill of exceptions in a criminal case. That authority is vested by statute solely in the court, and a mandatory duty is enjoined upon the court to sign a bill of exceptions when properly presented.

We come next to a consideration of the question as to whether the bill of exceptions, not having been signed by the court, may now be corrected upon application duly made therefor.

There appears to be no statutory time limitation within which a bill of exceptions, filed within the time limited by statute, may be corrected. In fact, a bill of exceptions in a criminal case has been remanded for correction by the Supreme Court of Ohio, and corrected by the trial court, after the case had been argued and submitted in the Supreme Court. Clark v. State, 119 Ohio St., 162, 162 N. E., 429. See, also, Trumpler, Admr., v. Royer, 18 Ohio App., 151; O’Neill v. Bartlett, 53 Ohio App., 508, 5 N. E. (2d); 794.

The statute (Section 11572-a, General Code) provides :

‘‘ When justice requires it, upon notice to all parties, an omission in a bill of exceptions, occurring through accident or error, may be corrected by the reviewing • court, or it máy be remanded to the trial court for such correction. ’ ’

It seems clear that the failure of the trial court to allow and sign the bill of exceptions under consideration was the result of an erroneous belief on the part ' of the clerk of courts that the certificate of the official reporter was all that was required to make the document filed-a true bill; hence said clerk’s refusal to present said bill of exceptions to the trial court for signature.

Such being the case, there was an omission in the bill, occurring through error, and this case is thus brought within the purview of the above remedial statute.

The statutes dealing with bills of exceptions treat the document filed with the clerk of courts, as a bill of exceptions, even before it has been approved and signed by the court.

So, in this case, we are of the opinion that this purported bill of exceptions is, for the purpose of amendment, a bill of exceptions, susceptible of correction in conformity with the provisions of Section 11572-a, General Code.

Where a clerk of courts erroneously fails or refuses to transmit a bill of exceptions in a criminal case to the trial court for allowance and signature, said court is not thereafter disabled to sign said bill, but may properly do so, even after term, and this is especially true where said signing is required by order of a reviewing court.

It is accordingly ordered that this bill of exceptions be remanded to the clerk of courts, with instructions that it be submitted to the trial court for correction, and, when corrected to conform to the proceedings had before said court, or when, by the court, found to be a correct bill of said proceedings, said court is instructed to sign the bill of exceptions, in accordance with the provisions of the statutes.

Motion to strike bill of exceptions from the files, overruled. Motion to remand bill to trial court for correction, sustained.

Judgment accordmgly.

Washburn and Doyle, JJ., concur.