author: By the Court.

text:
    Wyle et al., Appellees, v. Weber, Appellant.
    (No. 895
    Decided February 5, 1945.)

      Messrs. Williams, Fitton & Pierce, for appellees.

      Mr. John D. Anclreios, for appellant.
   By the Court.

We are of the opinion that the trial court placed the proper construction -upon the terms of the writing evidencing the agreement of the parties to this leasehold. It provided for notice in order to terminate the lease at the end of a year, but did not require this notice to be given other than before expiration of the year. Therefore, the notice given any time before expiration of the year complied with the agreement.

In absence of agreement, the lessee was not entitled to notice. The lease was for a fixed term. In 24 Ohio Jurisprudence, 1253, Section 495, it is said:

“However, where the demise is for a fixed term, and is to end on a day certain, or upon the happening of some particular event, it is the generally accepted rule that no notice to quit is prerequisite to the bringing of ejectment. Moreover, a notice to quit other than the mere filing of the petition is not a necessary prerequisite to an action of ejectment by a landlord against a tenant holding under a periodical tenancy, or under a tenancy from year to year arising from the tenant’s holding over after his term. In the latter case, if the landlord does not choose to accept the proferred tenancy for another year, he is at liberty to treat the occup ant as a trespasser, and may maintain ejectment against Mm without previous notice of Ms intention not to prolong the tenancy.”

The appeal is reduced to an appeal on law, and the judgment is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

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

license: Public Domain

text:
    The State, ex rel. Lemperle, v. McIntosh et al.
    (No. 6415
    Decided July 3, 1944.)

      Mr. John M. McCaslin and Mr. George A. Dornette, for relator.

      Mr. John D. Ellis, city solicitor, and Mr. Ed. F. Alexander, for respondents.
   Matthews, J.

This is an action in mandamus to compel the Board of Trustees of the Police Relief Fund of the City of Cincinnati to restore the relator to the pension list, and to pay him $75 per month from the 1st day of March, 1943. The Court of Common Pleas entered judgment, directing issuance of the peremptory writ prayed for. That is the judgment appealed from.

There is no dispute as to the facts. The relator became a member of the police department on February 17, 1917, as a substitute patrolman. On March 29, 1917, he was appointed as a regular patrolman. Prior to June 1924, he was seriously injured while engaged in the performance of his duties as a policeman, and on June 1, 1924, he was duly declared permanently disabled for further performance of police duties, and his honorable discharge and retirement on that ground was approved on that date.

At the time the relator was appointed as a substitute patrolman, the city of Cincinnati had a police relief fund, established pursuant to state laws which have been amended from time to time, and the present laws are set forth in Section 4616 et seq., G-eneral Code. Since its establishment by the city of Cincinnati, the fund has had a continuous existence.

At the time the relator was placed on the pension roll his status was controlled by Section 43 of the rules and regulations then in force. That section was as follows:

“Any member of the police department, regardless of length of service, who, while in the performance of his official duty and in consequence thereof, either from extraordinary exposure or injuries received, has become permanently disabled, so- as to incapacitate him from performing the duties of his office, when honorably retired by the director óf public safety, shall, upon the approval of the board of trustees of the police relief fund, be paid from said fund a pension of fifty dollars ($50) per month.”

Later, the section was amended to increase the pension to $60, and again amended to increase the pension to $75 per month. The relator drew these monthly sums until March 1, 1943, when refusal to continue to pay was based on the fact that the board had amended the rules and under the amended rules the relator was ineligible.

By the amended rule which was adopted on February 4, 1943, provision was made for suspending payments to members who had been retired for disabilities. It was provided that the board could require such a pensioner who had not attained the age of 60 or who had not completed 25 years of service before retirement, to undergo a medical examination. Should such a pensioner engage in a profitable occupation or should the examining physician certify that he was able to engage in such an occupation and ‘ ‘ the amount earned or earnable” should exceed $175 or his salary as a police officer, whichever was larger, then the pension should bo discontinued. Should his earned or earnable income, together with his pension, exceed that amount, then the pension should be reduced so as to bring the aggregate down to $175 per month, or the amount of his salary at the time of his retirement, whichever should be the larger. Should his earning capacity be changed, provision was made for modification of the pension to conform to the change.

On January 31, 1944, while this action was pending in the Common Pleas Court the rules were amended again, so as to make the amendment of February 4, 1943, which was applicable only to disability pensioners, applicable to all pensioners under tbe age of 60.

It is conceded tbat tbe relator is now and ever since bis retirement bas been unable to perform tbe duties of a police officer, because of tbe disability wbicb resulted in bis retirement. It is also conceded tbat be was and is employed in a private occupation and is earning more than $175 per month.

Tbe trial court found tbat Rule 43-c, as originally enacted was arbitrary, unreasonable and discriminatory, because it applied only to disability pensioners who bad been retired before tbe effective date of Section 4628-1, General Code (tbe vested rights section), wbicb was May 26, 1937, and because it excluded consideration of unearned income in determining tbe status of tbe member as a pensioner, and tbat tbe amendment of Rule 43-c removed only one arbitrary distinction — tbe distinction between disability pensioners and others. Rule 43-c was therefore declared unlawful and inoperative, and tbe writ was issued to enforce payment in accordance with tbe rule as it existed before tbe adoption of Rule 43-c.

We are not required in this action to consider to what extent, if any, Section 4628-1, General Code, confers a vested right upon pensioners of the police fund, and the extent to wbicb it restricts tbe power under Section 4628, General Code, of tbe board to make rules and regulations applicable to pensions already granted “for distribution of tbe fund, including tbe qualifications of those to whom any portion of tbe fund shall be paid.” Section 4628-1, General Code, by its terms applies only to pensions thereafter granted, wbicb prevents its application to tbe relator’s pension, as it was granted before tbe effective date of Section 4628-1, General Code.

Relator’s counsel cite Holmes v. State, ex rel. Delaney, 93 Ohio St., 480, 113 N. E., 1070, in which the judgment was affirmed on “grounds stated in the opinion of the Court of Appeals (5 Ohio App., 1) State, ex rel. Little, v. Carter, 111 Ohio St., 526, 146 N. E., 56; State, ex rel. Dieckroegger, v. Conners, 122 Ohio St., 359, 171 N. E., 586; and State, ex rel. Eden, v. Kundts, 127 Ohio St., 276, 188 N. E., 9,-as supporting his contention that the rules in force at the time of retirement cannot be altered to the pensioner’s detriment, and say that these cases have never been overruled. It is true that they have never been overruled, but it is not true that they decide the point for which they are cited. Not one decided that the rules were immutable. In those cases the court was engaged in interpreting existing rules and not in determining the extent of the power to change them. This is clearly pointed out in the case of Mell et al., Trustees, v. State, ex rel. Fritz, 130 Ohio St., 306, at 308 and 309 (199 N. E., 72), from which we quote:

“The Court of Appeals of Summit county denied the existence of such right and cited in support of its position Holmes et al., Trustees, v. State, ex rel. Delaney, 93 Ohio St., 480, 113 N. E., 1070; State, ex rel. Dieckroegger, v. Conners, 122 Ohio St., 359, at page 366, 171 N. E., 586; and State, ex rel. Eden, v. Kundts et al., Trustees, 127 Ohio St., 276, 188 N. E., 9. However, we do not deem the above cases authority for the determination of the issue here raised. We are here concerned with the right of the board to increase or decrease pensions of those already receiving them, which question was neither raised, discussed, nor determined in the' cases above mentioned. As counsel for the board point out, the, case of Holmes et al., Trustees, v. State, ex rel. Delaney, supra, concerned itself with the question of the right to revpke and suspend entirely the pension paid to a retired policeman, and this court held that the board had no such authority in view of the rules and regulations then existing. No rules were then in effect giving the board the right to thus suspend the pension and the act was consequently unauthorized. In the instant case, the board of trustees did act pursuant to existing rules and regulations governing the question of increasing or reducing the amounts of pensions.
“In the case of State, ex rel. Dieckroegger, v. Conners, supra, the rules of the board entitled the retiring police officer to a pension and the board acted contrary to and in violation of its own rules in denying him a pension. In the instant ease, the board acted in conformity with its rules and regulations.
“The case of State, ex rel. Eden, v. Kundts, supra, announces the doctrine that ‘The right of a retired or dismissed police officer to a pension * * * is governed entirely by the rules adopted and in force at the date of his retirement or- dismissal. ’ However, in that case, the bone of contention was the right of a retiring or dismissed police officer to a pension, which right is not questioned in this case. We are here concerned merely with the right of the board to change the amount of pensions previously allowed.”

And in that case, the court directly held that a police pension was a gratuity and that the board had discretionary power to modify pension awards previously made by increasing or reducing the amount, provided it was done reasonably and not arbitrarily.

Mell v. State, ex rel. Fritz, supra, was approved and followed in State, ex rel. Lewis, v. Zupnik, 131 Ohio St., 94, 1 N. E. (2d), 622, and State, ex rel. Carroll, v. McCarthy, 139 Ohio St., 654, 41 N. E. (2d), 863.

So the real question in this case is whether Rule 43-c is ah arbitrary, unreasonable, or discriminatory action on the part of the board of trustees.

That the board is not required to place all members of the police department in the same class and award to each a pension in the same amount and upon the same conditions is clear. The power to make rules and regulations necessarily imports the power to classify. Classification is the most inveterate mental habit. We could not think without resorting to it. Truax v. Corrigan, 257 U. S., 312, 66 L. Ed., 254, 42 S. Ct., 124, 27 A. L. R., 375.

Constitutional provisions requiring all laws of a general nature to have uniform application or against discriminatory laws do not require laws to apply to every one within the state and to affect all in an identical manner. Such constitutional provisions do not exclude class legislation, provided there is reasonable basis for the classification. If the law affects all similarly situated in the same manner, it satisfies the constitutional requirement.

In 8 Ohio Jurisprudence, 635, Section 493, the rule is stated that:

“A classification based on proper and justifiable distinctions considering the purpose of the law, or on distinctions that the court cannot pronounce unreasonable and purely arbitrary, is valid”; and at pages 637 and 638, Section 494: ‘ ‘The test, derived from the doctrines announced in both federal and state courts relative to classification, is, according to the Supreme Court, whether there is a real and substantial distinction in the classification attempted, or is 'it merely artificial, arbitrary, or fictitious, made for the purpose of avoiding constitutional requirements?”

Unattainable exactness is not required in classification. It is said in 12 American Jurisprudence, 157, Section 483, that: “In a classification for governmental purposes there cannot be an exact exclusion or inclusion of persons and things”; and at 164, Section 486:

“The Fourteenth Amendment does not forbid statutes and statutory changes to have a beginning, and thus to discriminate between the rights of an earlier and later time. Frequently, changes in statutory regulations must be made so as to take effect after a given date without applying rigorously to previously established conditions.”

And as to the test to be applied by the court when a classification is assailed it is said in 12 American Jurisprudence, at 214 et seq_., Section 521:

“In accordance with the basic rules of constitutional law underlying court review of legislation assailed as unconstitutional, in those cases in which laws are attacked as violating the equality requirements of the federal and state Constitutions there is a presumption in favor of a legislative classification, of the reasonableness and fairness of legislative action, and of legitimate grounds of distinction, if any such grounds exist, on which the legislature acted. Hence, when the classification in a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of. that state of facts at the time the law was enacted must be assumed. Although the presumption in favor of a classification is not conclusive and is rebuttable, courts may not declare it invalid unless, viewed in the light of facts made known or generally assumed, it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators. All reasonable doubts must be resolved in favor of a classification made by the legislature, and it is the duty of the court to sustain it if any reasonable distinction can be found.”

Let us consider the objections to Rule 43-c, and its amendments in the light of these rules.

It is said that the distinction between “disability” and “length of service” beneficiaries is arbitrary and unreasonable and furnishes no valid basis for classification. However, it is manifest that there is a distinction. A disability beneficiary is usually much younger than a beneficiary because of length of service. The chances of a disability pensioner’s general physical condition being such as to permit him to work is much greater. The fact that there is no mathematically precise line that can be drawn between the two classes is no justification for judicial invalidation of a practical line drawn by the board of trustees.

The distinction has a basis in fact to support it and the court certainly cannot say that there is no conceivable basis for the board’s action — that it is arbitrary and unreasonable beyond a reasonable doubt.

Next it is urged that because Rule 43-e applies only to those who had been placed on the pension roll prior to the effective date of Section 4628-1, General Code (the vested rights statute), it discriminates against those existing pensioners. As shown by the^law already cited, the constitutional provisions against arbitrary class legislation have never been construed so as to invalidate legislation because it failed to operate retroactively. Legislation must have a beginning and to so construe the constitutions as to prevent a beginning would stifle all legislation. Furthermore, the effect of this argument would be to render unconstitutional Section 4628-1, General Code, and not to invalidate Rule 43-e. The relator having only a pension— a gratuity — certainly cannot complain that the General Assembly failed to include him in legislation which would metamorphose his gratuity into a vested right.

The next objection is that Rule 43-c applies only to pensioners capable of earning and that a classification based on tbe distinction 'between “earned and earnable” income, and income from other sources is purely arbitrary.

We do not think this objection is sound. Can any court say that a policy that has a tendency to force those to work who are capable is arbitrary and unreasonable? It would seem to be in accordance with sound public policy and a very salutary basis of classification.

A pensioner with an income from investments, not incapacitated for work, naturally falls in a different class, to be dealt with or not by the board in its wisdom in a different way. Drawing a pension is not an inducement to him to withhold productive energy as it is to a pensioner capable of performing work. Furthermore, as a practical matter (and that is the way the court must view classification) the likelihood of a retired policeman having any substantial income from investments is remote and exceptional, and can' be disregarded without destroying the classification.

The fourth objection is that Rule 43-c is invalid because it empowers a police surgeon to decide whether the pensioner is able to engage in a profitable occupation and “by inference to decide the amount of 'earnable income.’ ”

Whether the pensioner is able to engage in a profitable occupation is a question of fact. .That question must be answered in some way. As it depends upon the mental and physical condition of the pensioner, a rule that requires an examination and report by a qualified physician would seem to be the appropriate and customary way of approaching the solution. Of course, the rule cannot be construed as giving the police surgeon’s report a conclusive quality. The board has no power to delegate its authority. The ultimate decisión must be that of the board under the statute on the physical and mental condition of the pensioner as well as the question whether there is an opportunity for gainful employment within his capability.

We find nothing arbitrary or unreasonable in the rule itself. If it should be administered in an arbitrary and unreasonable manner, an aggrieved pensioner would not be without remedy. No such question of arbitrary administration arises in this case. ■ The relator admits that he is capable of gainful employment and that he in fact is so engaged now and earning more than sufficient to justify the action of the board in suspending his pension if Rule 43-c is valid..

Finally, to avoid the application of the case of State, ex rel. Carroll, v. McCarthy, supra, a distinction is sought to be drawn between earned income paid from taxation and income received from a private source. No authority is cited for any such distinction. The reason it was mentioned in that case was that the rule under consideration limited suspension to instances of pensioners accepting public employment. Rule 43-c contains no such limitation and we know of no principle of public policy that would justify the court in imposing such a limitation. The rule that makes a person ineligible to hold two offices whose functions are inconsistent has no application .here. We believe an examination of the official rolls of the country would show many pensioners holding offices and enjoying the emoluments of the office and the pension without question. Whether they shall be permitted to enjoy both depends on legislation and not on any inherent distinction between public and private employment.

We find no merit in this contention.

For these reasons, the judgment is reversed, and the cause remanded with instructions to dismiss the action.

Judgment reversed.

Hildebrant, J.,

concurs.

Ross, P. J.,

dissenting. I dissent from the opinion for the reason that, while Section 4628-1, General Code, does not directly apply to the pension being paid the relator for the reason that such pension was granted before the effective date of the statute, the existence of this statute at the time of the change in the rules presents a situation resulting in unreasonable discrimination.

The effect of the statute and the amended rule is to freeze beyond control of the trustees a pension granted after the effective date of the statute (State, ex rel. Cline, v. Miller et al., Bd. of Trustees, 134 Ohio St., 445, 448, 17 N. E. [2d], 749), and permit unlimited control over one granted before the statute became effective. Two pensioners, otherwise entirely equal in qualifications and right, would be placed in entirely different categories.

I dissent for the further reason that the amendment to the rule applies only to earned income and not to all income, whether earned or received in another manner. I think the judgment of the Court of Common Pleas should he affirmed.


author: Geiger, J.

text:
    Rutherford, Appellant, v. Western Union Telegraph Co., Appellee.
    (No. 3726
    Decided October 4, 1944.)

      Mr. Joseph W. Horner, for appellant.

      Messrs. Vorys, Sater, Seymour & Pease, for appellee.
   Geiger, J.

The facts presented by the pleadings are to the effect that on the 14th day of November 1941, plaintiff was a passenger in a Plymouth automobile while it was driven westwardly on U. S. route 40 by a Lottie Standish, at the rate of about 40 miles an hour; that when the car in which the plaintiff was riding as a passenger arrived at a point two and one-half miles west of Etna, a truck of the defendant, driven by its agent at a dangerous rate of speed (about sixty miles an hour), without sounding a horn or in any manner warning the driver of the automobile, cut in front of the automobile in which plaintiff was a passenger and without'any signal came to an abrupt stop, causing the truck and the automobile in which plaintiff was riding to collide; that the plaintiff was injured as alleged ; and' that the damage and injuries to her were due solely and proximately to the negligent operation of the truck in the following particulars:

(1) That the defendant was operating its truck at an unlawful and dangerous rate of speed.

(2) Defendant failed to have its truck under proper control.

(3) That the defendant failed to blow its horn or to give any signal.

For answer the defendant admits certain allegations, denying all others and alleges that if the plaintiff was injured or damaged, such injuries or damages were caused solely and proximately by the plain tiff’s own negligence and the negligence of the person driving the automobile in which she was a passenger and without any fault or negligence on the part of the defendant.

The case was tried before a jury which unanimously held in favor of the defendant. A motion for a new trial on the usual grounds was overruled and judgment entered on behalf of the defendant.

The evidence shown by the bill of exceptions discloses a marked difference in the testimony of the plaintiff and her witnesses from that of the defendant and its witnesses.

Briefly, the plaintiff’s evidence, supported by the driver of the car, the plaintiff, and two other ladies riding in the car, is to the effect that about ten minutes before the collision the .plaintiff’s car passed the defendant’s truck which was then being loaded with tools used by the agent of the defendant in tree trimming ; that as the car in which the plaintiff was riding proceeded westward, the truck at a high rate of speed passed the automobile and cut in so closely to its line of progress that the driver of the automobile was in serious danger from the proximity of the truck overtaking and passing the automobile; that the truck drew in in front of the car in which the plaintiff was riding along the north lane of the highway, and suddenly, without any warning, stopped, leaving the driver of the automobile with no other course of action than to endeavor to stop her automobile by the use of the brakes; and that due to the proximity of the stopped truck and to the fact that at the same time on either side there were cars passing in both directions which pocketed the automobile, the only recourse was to collide head on with the rear of the stopped truck.

It may be said in passing that the ladies who testified did so in a clear and convincing manner, describing the circumstances surrounding the collision as it appeared to them. On the other hand the driver of the truck and the employees of the defendant, with equal clearness denied that the truck passed the car in which the plaintiff was riding, but asserted the facts to be that it was proceeding in a lawful manner along the north lane of the highway, going westward and that it was slowed down gradually upon the discovering of a school bus on the opposite side of the road, which was then about stopped to permit children to alight. These witnesses asserted that after the truck had so stopped, almost instantly the car driven by Lottie Standish collided with the rear of the truck with such force as to drive it forward about twenty feet. The testimony of the agents of the company was supported by the testimony of the witnesses who saw the collision and asserted that the truck did not cut in around the left side of Lottie Standish’s automobile, but was being driven at a proper rate of speed in the north lane of the three-lane highway. The witnesses all asserted that the truck came to a stop because at that point a school bus loaded with children was proceeding eastward.

The jury found in favor of the defendant.

The defendant introduced a series of photographs taken by a commercial photographer shortly before the trial, and it appeared from the testimony of the ladies riding in the car, that on the next day the agents of the defendant came to the home of Lottie Standish and sought to ascertain the extent of the damages that may have been caused; that when one of the agents of the defendant made inquiry of Lottie Standish, she stated that she said to him, “Why in the devil,” or something like that, “did you run around us so fast and stop so abruptly?” and that one of the agents of the defendant, Cline, replied to this, “I lost my head and I told the driver to put on the brakes immediately.” This conversation was testified to by other witnesses on behalf of the plaintiff. Objection was made to the introduction of the photographs on the ground that they were not taken at or near the time of the accident. The court, over the objection of the plaintiff, permitted the photographs to be introduced in evidence and submitted to the jury, and as to the conversation between Lottie Standish and Cline, the court charged, “Evidence was admitted concerning statements made by the witness Cline on the day following the accident which, Mr. Cline, of course, denied having made the statement [sic], and you will consider this evidence concerning statements made by him on the day following the accident for the purpose of determining the credibility of Mr. Cline as a witness and for no other purpose whatever.”

Assignments of error are asserted to the effect:

(1) That the court erred in the admission of evidence (which related to the introduction of the photographs) .

(2) That the court erred in refusing to admit evidence offered on behalf of the plaintiff (which related to the statement alleged to have been made by Cline).

(3) That the court erred in its charge to the jury in the instruction that Cline’s statement was to be considered only for the purpose of determining the credibility of Cline as a witness and for no other purpose whatever.

As to the assignment of error in reference to the photographs, we find from inspection and evidence that they were clear-cut photographs of the highway, adjacent buildings and the marking of the three lanes of traffic. Evidence was introduced to the effect that the photographs correctly represented the condition of the roadway as it existed at the time of the accident. No attempt was made to disclose by the photographs any conditions existing at the time of the accident which did not relate to the permanent and continuing condition of the highway. We are of the opinion that the court did not err in permitting the introduction of the photographs and that assignment of error is overruled.

As to the charge of the court in reference to the statement made by Cline to Lottie Standish, which he denied having made, the court refused to. permit the same to go to the jury for any other purpose than to affect the credibility of Cline, the court holding that the statement being made on a day subsequent to the accident was not a part of the res gestae, and could not be considered for any other purpose than to affect credibility. In this we believe the court was correct and that assignment of error is overruled.

We find no error in the general charge of the court.

The case is eminently one for the determination of a jury, as testimony was in conflict and the witnesses testified to the existence of diametrically opposite conditions.

We find no errors requiring the reversal of the order of the court finding upon the verdict of the jury in behalf of the defendant.

The judgment of the court is affirmed.

Judgment affirmed.

Hornbeck and Montgomery, JJ., concur.

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


author: Ross, P. J. Hildebrant and Matthews, JJ., Matthews, J., Hildebrant, J.,

text:
    Toms, d.b.a. Homer Toms Motor Car Co., Appellee, v. Hartford Fire Ins. Co., Appellant.
    (No. 6473
    Decided February 5, 1945.)

      Mr. Bert II. Long and Mr. Milton M. Bloom, for appellee.

      Mr. August A. Rendigs and Mr. Elmer E. Strasser, for appellant.
   Ross, P. J.

This review presents an appeal on questions of law from a judgment of the Municipal Court of Cincinnati, in favor of the plaintiff. The trial was to the court without a jury.

The action was brought by the plaintiff to recover damages for the breach of a contract of insurance which covered loss by theft and provided that the defendant insurer would defend any suit brought against the plaintiff “as respects insurance afforded by this endorsement.”

The clause in the policy so providing is as follows:

“It is further agreed that the company, as respects insurance afforded by this endorsement, shall (a) defend in his name and behalf any suit against the insured alleging loss of or damage to automobiles, the property of others, in the custody of the insured for storage, repair or safe-keeping and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the company shall have the right to make such investigation, negotiation and settlement of any claim or suit as may be deemed expedient by the company.”

The coverage provided in the policy is found in paragraph I:

‘ ‘ The definition of insurance coverages appearing in the printed conditions of the policy designated above are hereby expunged, and such policy is extended to include coverage as follows:
“1.- Coverages afforded. The company agrees to pay within the limits stated in paragraph 4, all sums which the insured shall- become obligated to pay by reason of liability imposed by law for direct loss of or damage including loss of use by theft, hereinafter called loss, to automobiles which are the property of others and in the custody of the insured for storage, repair or safekeeping, sustained under those coverages for which a specific premium is set opposite thereto:
‘ ‘ Coverages
“A. Fire and Explosion (except explosion of tires) Premium $180
“B. Theft, if the entire Automobile is taken. Incld.
“3. Exclusions
“This Policy does not apply to:
“(a) Legal liability for loss of use of such automobiles other than loss of use by theft.”

It appears from the record that the plaintiff was engaged in the business of operating a public automobile garage; that among the vehicles placed with him for storage was one, the property of the Liberty Mutual Insurance Company; that on the 27th day of February, 1944, at about 2:30 a. m., an employee of the plaintiff, by the name of Bourne, not then on duty, came to the garage, and while another employee of plaintiff, by the name of Hamlin, was on duty but engaged in taking care of an automobile, went to an upper floor of the garage, secured the automobile of the Liberty Mutual Insurance Company and drove it down to the street level, where he sought to load it with three men and two women; that Hamlin, the employee, objected, but was overawed by the presence of Bourne and the men with him, all of whom were in an intoxicated condition; and that while Hamlin was still protesting, Bourne drove the automobile out of the garage, across the Ohio river into Kentucky, where some hours later, it was wrecked in a collision with another automobile.

There is evidence that Bourne repeatedly stated that he wished only to borrow the car to take his friends to their home in Kentucky, and would bring it back before morning; but the evidence shows that Bourne and his friends proceeded to make a tour of the various drinking places across the river and that the wrecking of the automobile occurred about 4:30 a. m., while being driven by Bourne on the way to the home of his friends, after leaving a night club in a Kentucky town.

It is also evident that, while TIamlin states that the men did not “threaten” him, he did not feel competent to contend with them in their drunken condition, and they used abusive language toward him when he sought to prevent Bourne taking the car. Hamlin learned of the damage to the automobile about 10 a. m., in the morning of the 27th day of February, and passed the information on to his superiors, who then immediately notified the agent for defendant of the loss.

Claim was made upon plaintiff by the Liberty Mutual Insurance Company for the damage to its automobile.

The information was' given to the defendant who denied liability. Suit was filed by the Liberty Mutual Insurance Company against plaintiff, and the defendant, after being given due notice of the filing of such action, refused to defend it.

Plaintiff employed counsel and defended the action. Judgment was rendered against plaintiff for $335.83. The costs were $5.07, and plaintiff incurred a reasonable attorney’s bill of $100. The defendant having refused to pay such judgment, costs and attorney’s fees, the instant action was instituted.

In the trial of the present action, the court permitted the introduction of the bill of particulars, separate findings of fact and law,- the judgment, entry of satisfaction, and cost bill in the suit of the Liberty Mutual Insurance Company against the plaintiff.

In such bill of particulars it is stated:

“Plaintiff further says that it delivered the said automobile, together with several other automobiles, to said defendant to be safely kept and stored in said garage and to be redelivered to said plaintiff at its request under the terms of a contract of bailment for a consideration of $36 per month, which was paid in advance by said plaintiff.
“Plaintiff further says that on February 27, 1944, the said automobile was damaged by and through the defendant’s failure to take proper precautions to protect said automobile from the depredation of an employee of said defendant, while said automobile was in the custody and possession of the defendant under and by virtue of the contract aforesaid.”

The defendant claims the policy of insurance upon which the instant action is predicated (1) did not require it to defend the action against plaintiff and (2) does not cover the loss he sustained.

Upon the first contention the case of Socony-Vacuum Oil Co. v. Continental Casualty Co., 144 Ohio St., 382, 59 N. E. (2d), 199, states the applicable law. The first, third, and fourth paragraphs of the syllabus are as follows:

“1. The duty of a liability insurance company under its policy to defend an action against its insured is determined from the plaintiff’s petition, and when that pleading brings the action within the coverage of the policy of insurance, the insurer is required to make defense regardless of its ultimate liability to the insured.
“3. A liability insurance company breaches its contract to defend by making to the insured such a claim of nonliability for indemnification as to render it impossible for such company, in making defense, to project both its own interests and those of the insured.
“4. When there is such a breach of contract, accompanied by an invitation to insured to employ its own counsel to participate in the defense for its own protection, the insured, protesting against such action, may employ counsel with notice to the insurance company that it must bear the expense, and the company will be liable for reasonable attorney fees and proper expenses incurred in making defense.”

Referring to the quotation from the bill of particulars of the Liberty Mutual Insurance Company, it will be noted that the plaintiff in the action against this plaintiff stated “the said automobile was damaged by and through the defendant’s failure to take proper precautions to protect said automobile from the depredation of an employee of-said defendant * * (Italics added.)

It is fortunate that the Supreme Court of the United States has approved a definition of this word depredation, in the case of Deal v. United States, 274 U. S., 277, 283, 71 L. Ed., 1045, 47 S. Ct., 613. The court there says in the opinion:

“Difficulties, of course, arise from the words ‘robbery’ in section 291 and ‘depredation upon’ in section 940. Robbery, accurately defined, is ‘the felonious and forcible taking from the person of another, goods or money to any value, by violence or putting him in fear.’ Bouvier’s Law Dictionary; Jolly v. United States, 170 U. S., 402, 404. Depredation is ‘the act of plundering; a robbing; a pillaging.’ Century Dictionary.”

Certainly, the scope of this word “depredation” in the bill of particulars in the action against this plaintiff was wide enough to include the word theft used in the policy of insurance.

The defendant, after notice of the action, refused to defend. In doing so, it breached its contract with the plaintiff, who is entitled to recover his damages reasonably attributable to such breach, which damages certainly include his costs and attorney’s fees in the action. American Liability Co. v. Remke, Admr., 34 Ohio App., 496, 171 N. E., 372.

The bill of particulars in an action against an insured is properly admitted in evidence in an action by such insured against his insurer for failure to defend the former action, when such bill of particulars shows by its language that the action against the insured is such as to be covered by the agreement to' defend.

The trial court committed no error in admitting the bill of particulars in evidence, nor in admitting the judgment showing costs and the cost bill, in proof of the damage caused by the refusal to defend.

It does not, however, appear how the findings of fact and conclusions of law in the case against the insured would be competent or relevant in the instant action. It was only necessary for the plaintiff in the former action to prove negligence causing the loss of the automobile.

In the instant action, the plaintiff must show that such loss was due to theft as that word will be later herein defined.

It may be presumed, however, that the court excluded such findings of fact and conclusions of law in its consideration of the issues. Had the case been tried to a jury, the admission of the findings of fact and conclusions of law would have constituted prejudicial error.

Coming now to the second contention of the defendant — does the word “theft” include such circumstances as appear here?

The authorities are not in accord in construing the meaning of\ the word when found in contracts of insurance. Some hold the word synonymous with a technical definition of larceny, requiring an intent upon the part of the wrongdoer to permanently deprive the owner of possession. See: Kovero v. Hudson Ins. Co. of New York, 192 Minn., 10, 255 N. W., 93; Seither v. Pennsylvania Mfrs.’ Assn. Gas. Ins. Co., 104 Pa. Sup. Ct., 260, 159 A., 53; Morris Plan Co. of R. I. v. Firemen’s Fund Ins. Co., 49 R. I., 159, 141 A, 182; Hawkins v. Agricultural Ins. Co., 190 A., 858, 862; Gulf & S. I. Rd. Co. v. Butter Motor Co., 12 La. App., 495, 126 So., 458; Boddie v. Home Ins. Co. (La. App.), 166 So., 178, 179; Laird v. Home Ins. Co. of New York (La. App.), 177 So., 603, 604, 605; Standard Chevrolet Co. v. Federal Hardware & Implement Mutuals (La. App.), 178 So., 642, 644; Repp v. American Farmers’ Mut. Automobile Ins. Co., 179 Minn., 167, 228 N. W., 605; Fidelity & Guaranty Fire Corp. v. Ratterman, 262 Ky., 350, 90 S. W. (2d), 679; Smart v. State, 116 Tex. Or. R., 639, 32 S. W. (2d), 197; Union Ins. Soc. of Canton v. Robertson, 88 Colo., 590, 298 P., 1064; Home Ins. Co. of New York v. Trammell, 230 Ala., 278, 160 So., 897; Schenectady Varnish Co. v. Automobile Ins. Co. of Hartford, Conn., 127 N. Y. Misc., 751, 217 N. Y. Supp., 504; Shearer v. Anderson, 13 F. (2d), 258, 259; Michigan Commercial Ins. Co. of Lansing v. Wills, 57 Ind. App., 256, 106 N. E., 725.

In Royal Ins. Co., Ltd., v. Jack, 113 Ohio St., 153, 148 N. E., 923, 46 A. L. R., 529, it is held that acquiring possession of an automobile through fraud does not constitute theft. While some language in the opinion would indicate the word “theft” should not be given an ultra technical meaning, on page 162 of the opinion, the court approves the case of Van Vechten v. American Eagle Fire Ins. Co., 239 N. Y., 303, 146 N. E., 432, in which it was held that a temporary unlawful taking and use of an owner’s automobile, returned in a damaged condition, although constituting larceny under New York criminal code, did not constitute “theft” under a policy insuring against “theft, robbery or pilferage.” See, however, De Long v. Massachusetts Fire & Marine Ins. Co., 256 N. Y. Supp., 300, 142 N. Y. Misc., 654, where this opinion is criticized and not followed (reversed, 262 N. Y. Supp., 165, 238 A. D., 760).

On the other hand, there are many authorities which refuse to define the word “theft” as requiring an intent to permanently deprive the owner of possession. Employers’ Fire Ins. Co. v. Bartee, 87 Colo., 147, 285 P., 756; James v. Phoenix Assurance Co., 75 Colo., 209, 225 P., 213; De Long v. Mass. Fire & Marine Ins. Co., supra.

In Berry v. State, 31 Ohio St., 219, 27 Am. Rep., 506, the second paragraph of the syllabus is:

“The wrongful taking and carrying away of the property of another, without his consent, with intent to conceal it until the owner offers a reward for its return, and for the purpose of obtaining the reward, is larceny. ’ ’

At pages 226 and 227 of the opinion it is stated:

“In 2 East’s Crown Law, 553, it is defined' to be, ‘the wrongful or fraudulent taking and carrying away, by any person, of the mere personal goods of another, from any place, with a felonious intent to convert them to his (the taker’s) own use, and make them his own property, without the consent of the owner.’ Mr. Baron Parke, in commenting on this definition, held it incomplete in not defining the meaning of the term ‘felonious, ’ and declared the taking must be, not only wrongful and fraudulent, but also ‘without color of right,’ and that ‘there must be an intention to deprive the owner wholly of his property.’ Regina v. Holloway, 1 Den. C. C. 337.”

‘ ‘ The contention of the plaintiff is, that the facts established at the trial did not bring the case within the rule thus stated, inasmuch as there was no intention to deprive the owner wholly or permanently of his property. In an exact sense, it is not true that an intent to appropriate permanently the property taken is a necessary ingredient in the crime of larceny, if by permanent appropriation is meant keeping the specific property from the possession of the owner.”

In Pennsylvania Indemnity Fire Corp. v. Aldridge, 73 App. D. C., 161, 117 F. (2d), 774, 133 A. L. R., 914, a decision by the Court of Appeals for the District of Columbia, facts constituting a much weaker case than here presented resulted in liability under a policy providing “for payment of loss from damage resulting from theft.”

The .sixth paragraph of the syllabus reads:

“Unauthorized use of automobile by boy employed by insured to wash automobile, for which boy pleaded guilty of violating statute making unauthorized use of a motor vehicle an offense, constituted a ‘theft’ within automobile theft policy, so as to entitle insured to recover for damages resulting when boy accidentally wrecked automobile.”

This court cites the Berry case, at page 776 of the opinion, where it is stated:

“In a number of cases which purported to apply the common-law definition, persons were held guilty of larceny in spite of the fact that in each case it was not the intention of the taker permanently to deprive the owner of his property. In fact, the only rule as to felonious intent in larceny to which all the cases can be reconciled, is that the intent of the taker must be to appropriate the stolen property to a use inconsistent with the property rights of- the person from whom it is taken. It cannot be disputed that Harrison intended, in this case, to make use of the misappropriated car in a manner inconsistent with the property rights of appellee.
“In some jurisdictions several of the offenses listed above from the District of Columbia Code, are included within the statutory definition of larceny. In at least one state the word theft is defined as a crime which includes larceny, embezzlement, stealing, or obtaining money, labor, real or personal property, or credit by false pretense or representation. The Quebec Criminal Code defines theft or stealing as follows: ‘ Theft or stealing is the act of fraudulently and without col-our of right taking, or fraudulently and without colour of right converting to the use of any person, anything capable of being stolen with intent: (a) To deprive the owner, or any person having any special property or interest therein, temporarily or absolutely of such thing or of such property or interest.’ The Quebec Court of Review, interpreting this section, held that a theft occurred under circumstances almost completely parallel with those of the present case.”

The Berry case is cited with approval in State v. Baxter, 89 Ohio St., 269, at page 284, 104 N. E., 331.

In Great American Mutual Indemnity Co. v. Meyer, 18 Ohio App., 97, the syllabus is as follows:

“1. The word theft is a broader term than larceny and may include not only an unlawful taking of property but other unlawful deprivations thereof.
“2. Where an insurance policy purports to indemnify an automobile .owner against loss by theft, and contains a clause excepting the insurer from liability in case the property is wrongfully converted by a mortgagor or vendee in possession, the insurer is liable for the embezzlement of an insured automobile by one who is not a mortgagor or vendee in possession.
“3. When the bailee of an automobile fails to deliver it at a designated place, and neither the bailee nor automobile is ever seen or heard of again by the owner after diligent search, a jury is warranted in the inference that the automobile has been embezzled.”

This last case, while referring to embezzlement, was one in which the owner was permanently deprived of possession.

It does not need citation of authority to sustain the proposition that the policy is given a reasonable construction, most favorable to the insured.

Although the employee Hamlin constantly claimed ho was not threatened by Bourne and his friends, it is evident from reading the record that he did in no way consent to the taking of the automobile. It is also obvious that, although Bourne told Hamlin and testified that he intended to bring the automobile back, he took it wrongfully, in flagrant violation of the rights of the owner and bailee, and with utter disregard of the consequences, which, considering his condition, were to be easily anticipated. Whether he would have returned it is a matter of conjecture, influenced only by his own statements. He committed crimes under the Ohio code and in crossing the state line violated the federal statute. Certainly, such unlawful taking of the property in the custody of the bailee is within .the scope of the word “theft” giving it an ordinarily reasonable interpretation, which the parties to the contract contemplated.

It seems reasonable to conclude that the parties to the contract of insurance contemplated by the use of tlio word “theft” not merely a technical felonious taking, including a questionable requirement that the wrongdoer intended to permanently deprive the owner of possession, but, on tbe contrary, any taking in violation of tbe criminal code in wbicb tbe owner or custodian of tbe automobile did not part with its custody voluntarily, or even through, fraud. Where the taking is wrongful, in violation of a specific act of the Legislature, making such taking a felony and over the vigorous protest of the owner or bailee, it is reasonable to infer that the parties intended that such a taking should be included in the coverage against theft. It is to be noted that in Section 12619, General Code, the statute is in the alternative — “Whoever steals any motor vehicle, or whoever purposely takes, drives or operates any motor vehicle without the consent of the owner,” etc. (Italics added.) Stealing and wrongful taking without the consent of the owner are placed upon an equal basis.

There was sufficient evidence introduced to sustain the amount of damages ascertained by the court arising by reason of the breach of the contract of insurance, and the judgment of the trial court is, therefore, affirmed.

Judgment affirmed.

Hildebrant and Matthews, JJ.,

concur in separate memoranda.

Matthews, J.,

concurring. I concur in paragraphs one, two, three and four of the syllabus, and in the judgment.

The trial court found that there was a theft of the automobile and a reading of the record convinces me that there is substantial evidence in support of that finding, even though the term be given the common-law definition. That makes it unnecessary to determine whether a loss resulting. from a taking not coming within that definition was covered by the policy.

Hildebrant, J.,

concurring. I concur in paragraphs one, two, three and four of the syllabus, and in the judgment.

To find no theft here requires that there be attributed to the wrongdoer a constant bona fieles attached to his statement of intention to take the car only for the purpose of taking his companions home, and then to return it. Within a very few minutes he acted contrary to, and in violation of that expressed intention. These actions on his part would seem to speak louder than words, stripping his remarks and conduct of their bona fides and justifying the conclusion that he had given expression only to a pretended purpose in order to more easily obtain the wrongful possession and consummate the taking away. Such actions would seem to fit within the common-law definition of larceny or theft and to justify the finding of the court below which should, therefore, be affirmed.


author: Geiger, J. By the Court.

text:
    Fifty West Broad, Inc., Appellant, v. Poulson, Appellee.
    (No. 3655
    Decided September 26, 1944.)

      Mr. Hugh M. Bennett, for appellant.

      Messrs. Druggan & Gingher and Mr. J. Paul McNamara, for appellee.
   Geiger, J.

This court has already rendered three opinions in this case; one on the 30th day of October 1943, one on the 31st day of December 1943, and one on the 21st day of April 1944. Those opinions were all addressed to the procedure from the trial court to this court. By virtue of amendments permitted to the notice of appeal and proper diminution of the record, the case is now before this court for final'determination on the merits.

In the amended petition filed in the court below, it is stated that the plaintiff is a corporation; that Francis Poulson was at the time mentioned a member of the Democratic state executive committee, an unincorporated voluntary organization; that prior to the 12th of November 1936, Ralph H. Beaton was receiver of the property of the American Insurance Union; that on the 12th of November 1936, the defendant, purporting to act on behalf of the Democratic state executive committee and as chairman of such committee, rented from Beaton, receiver, certain space in the American Insurance Union building for a .period of 25 months for an annual rental of $4,800, payable in monthly installments of $400; that the defendant entered into the possession of the premises and remained in possession during the full term; that the rent under the lease for the last five months of the term in the amount of $2,000 is due and unpaid; that Beaton as receiver of the American Insurance Union property did, on the 21st day of December 1938, sell and assign the same,, including the lease of the defendant, to the plaintiff; that the defendant was not authorized by the Democratic state executive committee to execute the lease, although this fact was not disclosed to Beaton, receiver; that'by the breach of. the covenant there is due and owing to the plaintiff from the defendant as rent under the lease the sum of $2,000; and that for the purpose of conferring jurisdiction of the controversy of the'Municipal Court, the plaintiff remits the excess of the claim over $1,500.

For answer the defendant admits certain matters, including the fact that he executed the lease on behalf of the state executive committee; and that the committee entered into possession, but denies that there is due • the sum of $2,000 or any other sum.

A second defense was asserted which was later withdrawn.

A reply was filed by the plaintiff. .

The matter came on for hearing in the Municipal Court of Columbus and was submitted to the court without the intervention of a jury. The court found in favor of the defendant and dismissed the plaintiff’s petition.

The plaintiff filed an assignment of errors embracing eight paragraphs, which may be epitomized to the effect that the Municipal Court erred in rendering judgment on behalf of the defendant and that it' should have found under the issues that the defendant was - liable for the unpaid rents. A bill of exceptions was filed in which is exhibited the lease in question, which is on a form of the American Insurance Union building, of certain space in the building, to the Democratic state executive committee. The lease is signed by Ralph II. Beaton, receiver of the American Insurance Union property and premises, as- lessor, and the Democratic state executive committee, by Francis Poulson, chairman, as lessee.

The Democratic executive committee occupied the premises for a period of 20 months, paying therefor the monthly installments of rent hy checks to Ralph H. Beaton, receiver of the American Insurance Union property, the checks being signed by the printed signature, “ Democratic state executive committee, Theda Jacobs, Asst. Secretary.” All vouchers for such monthly rent were in the name of the Democratic state executive committee.

It nowhere appears that Francis Poulson individually ever entered into a contract with the predecessors of the plaintiff, by which he agreed either to rent the property or to pay any of the several installments of rent. The committee moved from the premises to another location at the end of the 20th month, .leaving five months of the lease for which rents were not paid. It is asserted by the plaintiff that Francis Poulson had no authority to enter into a lease on behalf of the Democratic executive committee; that he as agent of the committee is personally liable for his unauthorized contract in the name of the principal; that there is no statute authorizing the appointment of a chairman of the executive committee, under which the defendant may avoid personal- liability for the debt; and that the executive committee, as a committee distinct from its individual members, was not obligated on the lease.

Section 4785-63, General Code, provides for party-controlling committees and is generally to the effect that the controlling committee of each political party shall be a state central committee consisting of enumerated members to be elected by direct vote at the primaries held in even numbered years; that each party-controlling committee shall elect an executive committee which shall have such powers as may be granted to it by the party-controlling committee and as may be provided by law.

Section 4785-64, General Code, provides for the organization of committees and is to the effect that the members-elect of the party central committee shall meet within a certain time following the primary election, and that a temporary chairman and secretary shall be chosen and the committee shall proceed to organize by the election of a chairman and other officers.

The report of the proceedings of the state central committee discloses the fact that the members of the central committee met at the proper time and place for organization. One of the first actions of the central committee was to unanimously elect Poulson as chairman of the state executive committee. A resolution was adopted to the effect that all the powers vested by law in the state central committee of the Democratic party be delegated to an executive committee; that the executive committee have and possess all the powers vested by law in the state central committee and be empowered to conduct the business of the state Democratic party during such time as the state central committee is not in session; and that when the state executive committee is not in session all the powers delegated to the state executive committee are to be exercised by the chairman. Thereupon Poulson announced certain appointments of officials to act in behalf of the committee and upon roll call a full executive committee as provided by statute was selected by the central committee.

Thereupon the activities of the political organization were reposed largely in the control of Poulson as chairman of the state executive committee, neither the central committee nor the executive committee being active in the functioning of the organization.

It is urged that Poulson by virtue of the fact that he was chairman of the executive committee and had signed the lease in the name of that organization is now personally liable for the unpaid rent by virtue of tbe fact that the executive committee was not empowered to enter into the contract and that he as agent of the executive committee was personally liable for his unauthorized contract in the name of his principal.

As before stated it nowhere appears that there was any attempt to personally bind Poulson, the lease being made to the executive committee, and Beaton stating that inasmuch as the Democrats were in power it was assumed that they would have money to discharge their obligations, and that the lease was made directly with the executive committee by Poulson, its chairman.

Without attempting to discuss the legal principles advanced by the plaintiff in this case, under which it asserts that Poulson is personally liable for the unpaid rents, we arrive at the conclusion that the plaintiff has failed to show any obligation upon the part of Poulson to pay this defaulted rent. Certain cases are cited which counsel claims are pertinent to the issues here before the court. They are not Ohio cases and in themselves are not clear as to the holding of the courts, and we do not regard them as authority supporting the claim of plaintiff. The cases cited are Lightbourne v. Walsh, 89 N. Y. Supp., 856; McCabe v. Goodfellow, Treas., 133 N. Y., 89, 30 N. E., 728, 17 L. R. A., 204; Empire City Job Print, Inc., v. Harbord, 265 N. Y. Supp., 450.

Were the position asserted by counsel for plaintiff to become established, to the effect that the chairman and other members of a voluntary political organization should be personally responsible for all the debts and obligations that might be incurred by such organization, it would be practically impossible to get any responsible individual to assume these important political positions. Suela a conclusion would be so out of harmony with what is generally understood to be the obligation of a chairman of a committee that we must refuse to establish such an obligation without more convincing authority than has been suggested by counsel for plaintiff.

All the assignments of error asserted by plaintiff are overruled. The judgment is affirmed.

J lodgment affirmed.

Hqrnbeck and Montgomery, JJ., concur.

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

(Decided November 4, 1944.)

On Application for rehearing.

By the Court.

This matter is again before this court on application for rehearing, it being insisted that the court in its former, decision in this case, dated September 26, 1944, was in error in sustaining the trial court.

This is the fourth time this case has been before this court.

Counsel quotes a gratuitous comment of this court, to the effect that if the position asserted by counsel for plaintiff, i. e., that the chairman and other members of a voluntary political organization should be responsible for debts when they are incurred by such organization, should become established, it would practically be impossible to get persons to assume those important political positions. Counsel asserts that this view of the court would tend to encourage financial profligacy by political parties in Ohio, and that it says in effect that contracts can be made without any financial liability. Counsel comments to the effect that under such view great sums could be spent in more expensive political campaigns than Ohio has ever witnessed, without any heed having to be given to the payment of the cost of such extravagance; that the court’s view is a sure way to impair further the foundation upon which our democracy rests; that lavish political programs can be planned and executed without any thought of the high costs because no one need pay for them; and that the decision of the court would encourage reckless spending by all political parties in Ohio.

We are unable to follow the argument of counsel in this matter.

If the court has properly held that no member of a voluntary committee should be held for the obligations of the committee, where the contract is made with the committee and not with the individuals, such a ruling would, instead of permitting profligacy, tend to make those who furnish services to the committee more cautious in extending credit than such persons otherwise would be if they could, upon the failure of the assets of the committee, pursue its individual members.

Persons furnishing services to a cordmittee do not furnish such services unless they are reasonably assured of the ability of the committee to pay.

The testimony in this case is to the effect that the contract in writing was made in reliance upon the committee’s ability to pay, and that there was no purpose of holding members of the committee personally liable.

' Beaton, by whom the lease was originally made, states such fact, and says in substance that the fact that the committee represented the party in power would indicate that it would have money sufficient to pay its obligations.

Instead of promoting reckless political extravagances the court is of the opinion that the knowledge that no one but the political organization would be responsible for the payment of the debts incurred by the chairman of the committee would restrain those dealing with the committee from entering into excessive contracts.

Counsel asserts that the court was badly confused because it stated that three cases involving New York decisions were cited by the plaintiff, whereas, as a matter of fact, they were cited by the defendant.

We do not regard it as a matter of consequence to whom the citations of those cases were attributed, if the cases themselves do not support the contention of the plaintiff.

Counsel states in speaking of those cases, “No one of them supports the claim of the plaintiff, as the court states.”

This court certainly had the power to consider the effect of those decisions even though it attributed their citations to the wrong party.

It is asserted by plaintiff that it relies upon Ohio cases and that no mention of those Ohio cases is made in the decision.

This court did not cite those cases because on first reading it was of the opinion that they announced no authoritative principles controlling the case at bar.

We have again read those cases and are still of the opinion that there is no principle announced which would support the original claim of the plaintiff.

In Devoss v. Gray, 22 Ohio St., 159, it is held:

“In order to hold a member of such society responsible for its debts, it must be shown that such member, in some way, sanctioned or acquiesced in their creation. ’ ’

It is true that the political representatives of the political party designated Poulson as the ultimate authority in the management of the business of the committee. However, this authority so grantéd did not attempt to make Poulson liable for the debts to be incurred, but merely constituted him as agent in the transaction of the business.

Counsel cites the case of Scanlon v. Duffield, 103 F. (2d), 572. We are of the opinion that that case might well have been cited by counsel for the defendant. The court, on page 574 of the opinion, stated:

“The true test of liability is to whom did appellant’s testate knowingly extend credit. The law in such a case places the burden of payment on the person to whom credit is knowingly and exclusively given.”

The case last cited gives consideration to Section 8125, General Code. That section provides in substance that when the instrument contains, or a person adds to his signature, words indicating that he signs for or .on behalf of a principal or in a representative capacity, he is not liable on the instrument if he was duly authorized.

The case of Cannon, Jr., v. Miller Rubber Products Co., 128 Ohio St., 72, 190 N. E., 210, related to the personal obligation of one signing a promissory note. It holds that “a petition in an action against the officers signing such note, seeking to hold them personally liable thereon, fails to state a cause of action and is subject to demurrer, in the absence of allegations fixing personal liability.”

It may be urged that both Section 8125, General Code, and the case last cited relate to promissory notes, and, therefore, are not applicable to the liability of Poulson on a lease which is not a promissory note.

We are of the opinion that the section referred to relates to any obligation and is not confined to a promissory note. This we think will be demonstrated if counsel will read the cases cited under the section referred to.

The further objection is made that oral argument was made before Judges Hornbeck, Geiger and Barnes, and that the case was decided by Judges Hornbeck, Geiger and Montgomery. Judge Montgomery never heard the oral argument in this case. Plaintiff asserts that it is entitled to argue the case orally before the court which decides it. “This is a right granted to appellant by a rule of the court.”

The only section of the rules we find that is possibly applicable to oral argument is Rule Y, Courts of Appeals, which relates generally to the presentation of the case and the limitation of time. See, also, Rule II, Section 8 and Rule III, Supreme Court.

Counsel was advised by common rumor that Judge Barnes would not be able to sit in the determination of this case, and was also advised that Judge Montgomery would sit by designation in his stead. Counsel was then in possession of the facts which would have permitted him to represent to the court that he had orally argued the case before Judge Barnes and that he desired to present an oral argument to Judge Montgomery.

We feel that counsel was not justified in neglecting a request for oral argument before Judge Montgomery, and, if the decision was rendered, in objecting to it because he claimed a right to present the case orally to Judge Montgomery. If he lost any advantage on this account it was through his own oversight, as he had possession of all facts.

We know of no rule either of our court or of the Supreme Court by which every judge participating in the decision must be present to hear the presentation of oral arguments. It often happens that a judge for one reason or another does not hear the oral argument, but participates in the decision. We see no cause for complaint upon the part of the plaintiff for this reason.

Counsel concludes 'with the following observation:

“It is respectfully suggested that if the trial court is to be affirmed, some sound legal principle be chosen as the basis for such affirmance rather than the dangerous ground upon which this decision now rests.”

We, of course, deny the allegations, but if the court has been in error in promulgating a dangerous ground, the road is open to the final consideration by the Supreme Court.

Fifty West Broad, Inc., should have taken prompt action when it realized that its tenant was moving away, to secure the payment of the balance of the rent out of whatever assets the committee might then have had, and it was common rumor that the committee at that time had an abundance of assets.

The application for rehearing is denied.

Application denied.

Hornbeck, Geiger and Montgomery, JJ., concur.

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


author: Hildebrant, P. J. Ross, J.,

text:
    In re Weber.
    (No. 892
    Decided February 23, 1945.)

      Messrs. Andrews & Weiss, for petitioner.

      Mr. Paul A. Baclen, prosecuting attorney, for the state.
   Hildebrant, P. J.

Application for writ of habeas corpus was denied by the trial court. Appeal was taken to’-this court' on questions of law.

■ ••P^itionefrfentered a plea of guilty to each of two affidavits.’filed'against him by the health commissioner of Butler county, Ohio, before a justice of the peace, and was fined $500 and $100 respectively, each sentence being suspended by the justice, as appears by the following entry on the docket in each case:

“It is further adjudged and ordered that the fine of $500 be and is hereby suspended during good behavior and upon payment of said costs.”
“It is further adjudged and ordered that the fine of $100 be and is hereby suspended during good behavior and upon payment of said costs.”

The costs were paid by petitioner, and, thereafter, on report of the health commissioner to the justice of the peace, the suspensions were revoked and petitioner notified of that action by registered mail.

Thereafter, the justice issued executions in each case for fine and costs, as provided in Section 13454-2, General Code, which reads:

“When a judge or magistrate renders judgment for • a fine, an execution may issue for such judgment and costs of prosecution, to be levied Cm the property, or, in default thereof, upon the body of the defendant. The officer holding such writ may arrest such defendant in any county and commit him to the jail of the county in which such writ issued, until such fine and costs are paid or secured to be paid, or he is otherwise legally discharged. ’ ’

The return of the executions, except for deletion of the word “also” in the first case, reads as follows:

“Received this writ Oct. 18, 1943, and by virtue of its commands, I have also arrested and committed the within named George Weber to the county jail as within commanded, and left with the keeper thereof a certified copy of this writ.
“Henry L. Collins, Constable.”

Petitioner complains of the proceeding before the justice at the time of entering the plea of guilty, but it is obvious that appeal would have been the proper remedy, and, in accordance with the familiar doctrine that habeas corpus may not be substituted for such remedy, petitioner’s contentions must fail.

It is urged that having paid the costs at the .time sentence was suspended, the phrase “during good behavior” is meaningless, and the court, acting on the report of the health commissioner, was without power to revoke the suspension sua sponte, without petitioner being present with opportunity to be heard and defend.

15 American Jurisprudence, 138, Section 483, contains the following:

“The power to suspend sentence during the good behavior of the defendant has been questioned even in those jurisdictions where an indefinite suspension is allowed. This objection is placed on the ground that such action of the court expresses a condition, on compliance with which the offender would be absolutely relieved from all punishment and freed from the power of the court to pass sentence, and that courts cannot abdicate their own powers and duties or tie their own hands in such a way that after sentence has been suspended, they are unable to inflict the proper punishrhent in the exercise of a sound discretion when deemed to be in the interest of justice. It has been held, however, that -no such condition is implied and that sentence may therefore properly be suspended during good behavior.”

15 American Jurisprudence, 138, Section 484, defines what constitutes “good behavior” as follows:

“Good behavior means conduct conforming to the law. Misconduct violative of a condition of good behavior may be of a different nature from that of the original offense.”

In 12 Ohio Jurisprudence, 682, Section 667, the phrase “good behavior” appears in connection with probationary sentences, and appears to be an accepted phrase. From the above, we conclude that the action of the justice in suspending the sentence during “good behavior” was proper. While the main point in the case of Weber v. State, 58 Ohio St., 616, 51 N. E., 116, is no longer the law, the following comment pertinent here appears at page 619:

“But when the suspension is without express conditions, as in this' case, it is within the power of the court to set aside the suspension at any time during the same term, on its own motion, and to order the sentence to he executed.”

The broad ground referred to in People v. Goodrich, 149 N. Y. Supp., 406, to the effect that the suspension is a matter of grace only, vesting no rights in a defendant, and may be revoked by the court, on its own motion, on learning of facts satisfactory to the conscience of the court, seems to justify such action.

The principal contention is that the return of the constable fails to show an attempt to levy on property and a want of the same before seizing the body of the petitioner, and the claim is made in argument that petitioner actually did have property upon which the constable could have levied. However, there is nothing in the record to substantiate that claim and therefore this court feels bound to presume that the constable proceeded without any irregularity in the service of the process. 17 Ohio Jurisprudence, 129, Section 104.

It further appears that habeas corpus is not the proper remedy for correcting errors and irregularities in the proceedings or sentence. 20 Ohio Jurisprudence, 445, Section 23.

The judgment of the court below will be affirmed, this court basing the detention of the petitioner, however, on the commitment in the first case, since the affidavit in the second case shows on its face it is made under Section 4414, General Code, which is found under the heading “Municipal Corporations” in the code, and, hence, may well fail to cover violations of the orders of the county board of health, as distinguished from a city hoard of health.

Judgment affirmed.

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

Ross, J.,

concurs in the first and second paragraphs of the syllabus and in the judgment.


author: Matthews, J.

text:
    Capital Finance Co., Appellant, v. Karp et al., Appellees.
    (No. 6481
    Decided February 5, 1945.)

      Mr. Ceclric Vogel, for appellant.

      Mr. Jolm II. Doyle, for appellees.
   Matthews, J.

This is an appeal from a judgment of the Court of Common Pleas of Hamilton county, affirming a judgment of the Municipal Court of Cincinnati in favor of the defendants. By defendants, we do not include the mortgagor who was made a party to this action.

The action is in replevin. The plaintiff based its right to possession on two chattel mortgages, both of which were in default. One had been duly filed in compliance with Section 8561, Gfeneral Code. The other had'not.

The trial court found that the plaintiff did not own the mortgage that had been filed at the time this action was instituted. Certainly, the written assignment was not executed until several days after the action was begun. We cannot say that there was no substantial evidence to support the finding that the plaintiff did not have title to the cause of action on that chattel mortgage at that time.

This leaves for consideration the issues raised as to the plaintiff’s rights under the unfiled chattel mortgage. By Section 8560, General Code, such a mortgage is made “absolutely void as against the creditors of the mortgagor, subsequent purchasers, and mortgagees in good faith.” Such unfiled mortgages are valid as to all others. As the validity of this mortgage between the original parties is undisputed and as the plaintiff, as assignee, stood in the position of the mortgagee, the question reduces itself to an inquiry as to whether the defendants are purchasers in good faith.

Stated most favorably to the defendants, the facts are, that on August 26, 1943, one of the defendants, in response to a telephone call from the mortgagor, went to his residence, bought this property for $126, made a nominal payment of $1 thereon, and agreed to pay the balance upon delivery. At that time the mortgagor represented that there were no incumbrances upon the property. The next day and before delivery, the defendants discovered the filed chattel mortgage which secured a debt of $21.09. Thereupon, they sent a truck for the furniture. The employee in charge carried a written request to the mortgagor to allow the property to be taken to the defendants’ store, and for the mortgagor to come to the store. The mortgagor complied and shortly after the mortgagor and the property arrived at the store an employee of the plaintiff also arrived and a meeting was had, at which one of the defondants told the mortgagor of the discovery of the filed mortgage and the plaintiff’s employee informed the defendants of its unfiled chattel mortgage. An attempt was made to adjust the claims of the parties, during which the mortgagor paid the defendants $21.09, the amount due on the filed mortgage. Just why this was done, in view of the fact that the defendants still owed $125 on the purchase price, is not clear. The meeting dissolved without any agreement being reached and with the defendants still owing $125 on the purchase price, and still having the $21.09, which the mortgagor had paid to them. The defendants at a later date refunded the $21.09, but still owed all but $1 on the purchase price, and had possession of the property.

A few days thereafter the plaintiff filed this action in replevin against the defendants, to recover possession of the property.

Counsel have cited many cases to make manifest the common-law rule as to when title passes under a contract for the sale of personal property, and have cited various sections of the Uniform Sales Act (Sections 8398 and 8399, General Code) and cases construing its terms upon the same subject. These authorities are relevant to show that title had passed as between the mortgagor and the defendants, but they, fail to answer the question as to whether the defendants were purchasers in good faith, within the meaning of Section 8560, General Code.

Are the defendants, who at the time they received notice of plaintiff’s unfiled chattel mortgage had only paid $1 on the purchase price and had received $21.09 from the mortgagor to satisfy the filed mortgage, purchasers in good faith?

In 40 Ohio Jurisprudence, 1023, Section 112, it is said:

“In accordance with the general rule, a purchaser without notice is protected only when the purchase money has been paid or the purchaser has changed his position before notice. A purchaser who executes and delivers notes without notice of prior rights, but receives notice before he pays the notes, while they are still in the hands of the payee, is not a bona fide purchaser; * * *.”

This is the rule in most, if not all, jurisdictions. In 46 American Jurisprudence, 631, Section 466, the general rule is stated:

“Notice acquired by the buyer after the purchase, but before he has paid the price, ordinarily prevents his receiving protection as a bona fide purchaser. It is essential to constitute one a bona fide purchaser from a fraudulent purchaser that a valuable consideration shall have passed before notice of the fraud.”

The subject of the elements of a bona fide purchaser status as against an unfiled or unrecorded mortgage is discussed in the annotation to La Fon v. Grimes (86 F. [2d], 809), in 109 A. L. R., 156, at 166, where the result of the cases is stated to be:

“The general rule is that a subsequent purchaser without notice who is protected by the recording laws as against a prior unrecorded deed or mortgage is not entitled to protection to the extent of the part of the consideration that he has not paid when he receives notice of the prior conveyance.”

And, at 167, the annotator summarizing the opinion in Kitteridge v. Chapman, 36 Iowa, 348, says:

“A purchaser who * * * has paid only $1, could not be regarded as a bona fide purchaser.”

This has also been held in Ten Eyck v. Witbeck, 135 N. Y., 40, 31 N. E., 994, 31 Am. St. Rep., 809, and Dunn v. Dunn, 151 App. Div., 800, 136 N. Y. Supp., 282.

As the defendants had paid only $1 at the time they received notice of the unfiled mortgage and even as to that could have protected themselves, the unfiled mortgage was as effective as to them as it was as to the mortgagor. The mortgage being in default, the plaintiff was entitled to the immediate possession of the property embraced within its terms.

For these reasons, the judgment is modified, and. as the facts are undisputed, this court renders final judgment for the plaintiff for the chattels described in the unfiled mortgage. The judgment will be so modified and affirmed as modified, at the costs of the appellees.

Judgment modified and affirmed as modified,

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


author: Hildebrant, J.

text:
    The State, ex rel. Adkins, Appellee, v. Mefford, Appellant.
    (No. 6430
    Decided November 27, 1944.)

      Mr. Arthur C. Friche and Mr. David L. Shannon, for appellee.

      Mr. B. J. Gilday and Mr. Fred L. Hoffman, for appellant.
   Hildebrant, J.

A jury returned a verdict of guilty, on May 3, 1944, finding defendant to be tbe father of a bastard child.

On May 4, 1944, the court entered judgment on the verdict as follows:

‘ ‘ The jury having returned a verdict of guilty herein, it is ordered and adjudged by the court that said defendant, J ames Mefford, is the reputed father of the bastard child of the complainant, Merlena Adkins, and that he stand charged in the sum of two hundred ($200) dollars, payable at once, and the sum of ten ($10) dollars every two weeks, payable in advance, commencing as of the date of this entry, which sum the court finds to be necessary for the support, maintenance, and expenses incurred by said complainant in the premises. It is ordered that said biweekly payment of ten ($10) dollars continue until the said bastard child shall have attained the age of eighteen (18) years.
“It is further ordered that said James Mefford give bond in the sum of fifteen hundred ($1,500) dollars that said order will be performed, and pay the costs of this proceeding, and if said James Mefford shall fail or refuse to give the bond herein ordered or pay said costs, he shall be committed to the jail of said county, there to remain until he complies with the order of the court or is discharged as provided by law.
“To all of which defendant, through counsel, excepts, and especially that said bond shall cover said biweekly payments of $10.”

On the same day, bond conditioned in conformity with the judgment was executed by defendant and filed. It contained the following notation under the hand of the trial court:

“Said Mefford signs said bond under protest as to the biweekly payments mentioned therein.”

A motion for a new trial was filed on May 6, 1944, and overruled on May 9,1944. This appeal is on questions of law.

Among the claimed errors are:

(1) The trial court erred in entering judgment before the time for filing a motion for a new trial had expired.

(2) The bond which the trial court required defendant to give is contrary to law.

To sustain the first ground mentioned above, defendant cites Section 11599, General Code, and Boedker v. W. E. Richards Co., 124 Ohio St., 12, 176 N. E., 660, with which the court is familiar. The above section appears in the Code, in Part Third — Remedial—Title IV — Procedure in Common Pleas Court — -Division IV —Judgment. It has to do with the manner of giving and entering judgment in civil cases.

The bastardy statutes appear in the Code, in Part Third — Remedial—Title IV- — Division VIII — Quasi-Criminal Actions, and are, therefore, special proceedings. Therefore, a jury’s verdict in a bastardy case may well be viewed as a special verdict, subject primarily to the code provisions of Division VIII referred to supra, and is not necessarily controlled by the provisions applicable to civil actions generally.

It is obvious that a bastardy proceeding is special— being neither an all civil nor all criminal proceeding, but procedurally has some of the attributes of both. The warrant, arrest, recognizance and form of verdict of guilty, all suggest the criminal procedure, while the quantum of proof, for example, suggests the civil action.

In a criminal case, although the statutes provide for a motion for new trial, there is no section comparable to Section 11599, General Code, allowing the postponement of the entering of judgment. It is familiar practice to pronounce sentence in a criminal case immediately after verdict and frequently with the jury still in the box, which practice has been upheld in Daugherty v. State, 24 Ohio App., 212, 157 N. E., 400, wherein the following appears in the syllabus:

“4. Filing of motion for new trial under Section 13746, General Code, does not as matter of law suspend final judgment or sentence until after trial judge overrules motion, and overruling of motion is not condition precedent to passing of sentence on accused or entry of final judgment.
“5. Where defendant was convicted of highway robbery, trial judge, if satisfied that no errors during trial prejudiced defendant’s .rights, had legal right to pronounce sentence immediately after verdict.”

Section 12123, General Code, provides in part:

“* * * if the jury find him guilty, he shall be adjudged the reputed father of the illegitimate child if said child is alive, and the court shall thereupon adjudge that he pay to the complainant such sum as the court may find to be necessary for her support, maintenance and necessary expenses, caused by pregnancy and childbirth together with costs of prosecution, and a reasonable weekly sum to be paid complainant for support and maintenance of said child up to eighteen years of age.”

It would, therefore, appear that upon the return of a jury’s verdict of guilty in a bastardy case, the duty rests upon the judge to thereupon, which word connotes, at once, proceed to obey the mandate of the statute, and no postponement of that duty in deference to a possible new trial motion is indicated or required.

In 15 American Jurisprudence, 108, it is stated:

“In the absence of statute, the trial court may pass sentence on the defendant in a criminal case before a motion for arrest of judgment and for a new trial has been passed upon, and before the time allowed for filing such motion has expired.”

See, also, Stated. De Grace, 144 Ore., 159, 22 P. (2d), 896, 90 A. L. R., 232.

This court, therefore, concludes that it was not error for the trial- court to proceed to. judgment as in this case.

This court coming now to a consideration of the second assignment of error set forth above, it appears that the judgment of the trial court must, with respect to the giving of the bond, be modified, so that the obligation of the bond will operate only according to the requirements of Section 12123, G-eneral Code, which says:

“The court shall require the reputed father to give security for the payment of support, maintenance and necessary expenses of the complainant caused by the pregnancy and childbirth together with the cost of prosecution. ’ ’

The language of the statute falls short of requiring a bond for the support of the child and indicates the intention of the Legislature to protect against nonperformance of that obligation by the nonsupport statutes, rather than to include it in the bond here required.

Numerous other errors are assigned, but on examination of the record, the court finds no error prejudicial to defendant, with respect thereto.

It is the order of this court, therefore, that the judgment of the trial’court be modified to limit the obligation of the bond required to payment of the support, maintenance and necessary expenses of the complainant caused by the pregnancy and childbirth, together with the cost of prosecution, and that the bond be corrected accordingly.

The judgment as modified is, therefore, affirmed,

Judgment modified and affirmed.

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


text:
    Levy, Appellee, v. Foley, Appellee; Foley, Appellant.
    (No. 6475
    Decided February 5, 1945.)

      Messrs. Rosen & Rosen, for appellee Gerald Levy.

      Mr. Samuel Plotnich, for appellant.
   Matthews, J.

On June 30,1944, the Municipal Court of Cincinnati entered a judgment by default against the appellant, which it had jurisdiction to do, providing the recital in the return of the summons, that it had been served by leaving a true copy at his usual place of residence, was true.

On August 29, 1944, appellant filed a motion to set aside the judgment on the ground that it had been irregularly entered, in that he had not been duly served with summons and had had no notice of the pendency of the action. This motion was supported by an affidavit that the summons was never served upon him, either personally or by leaving a copy at his usual place of residence, and that he had a good defense to the action.

On September 16, 1944, the court made an entry in which it was recited that the court heard evidence, and that: “The court finds said judgment was entered at a former term and the motion filed after term. Wherefore the motion is overruled.”

On September 22, 1944, the court made this entry:

‘ ‘ This cause coming on to be heard on application of counsel for plaintiff to amend the entry of September 16th, 1944, bearing minute number 217, and it appearing that due to mistake said entry does not correctly set forth the proceedings and order made therein, said entry is amended and corrected to read as follows: This cause coming on to be heard on the motion of Elliot Foley, defendant, to quash summons issued to him and the motion thereon and to set aside the default judgment entered as to him, and counsel for the plaintiff having in open court moved to strike from the files said defendant’s motion to quash, vacate, etc., the court being of the opinion that the matters sought to be reached by the defendant’s motion should have been by petition, as the judgment had been rendered at a former term of this court, and without considering any evidence on the matters set forth in the defendant’s affidavit in support of his motion, grants plaintiff’s motion to strike defendant’s motion from the files; Elliot Foley by his counsel, excepts.”

Within twenty days, notice of appeal was filed from that order to this court.

It is urged that the entry of September 22, 1944, should be regarded as having been entered on September 16th, the date of the entry which it was intended to' correct, in other words, that it should be regarded as a nunc pro tunc entry. It should be observed that there is no recital that it was entered as of the earlier date. Furthermore, the two orders related to different subjects. The first entry related to the motion of the appellant, and recites that the court heard evidence. It shows that the court took jurisdiction, or, .at least, is ambiguous upon that subject. The second entry related to the plaintiff’s motion to strike the appellant’s motion from the files,- which was not mentioned in the first entry. It clearly shows that the court refused to take jurisdiction of appellant’s motion. This appeal is from the latter entry and raises issues not raised by the original entry. It shows that instead-of the appellant’s motion being considered on the merits, it was stricken from the files.

However, even assuming that the court intended to make the entry of September 22nd as of September 16th, it could have no effect on the time within which an appeal could be taken from the latter entry.

In 2 Ohio Jurisprudence, 348, Section 300, it is said:

“The court cannot, by entering a nunc pro tunc order, defeat the right to take error proceedings; the time for taking the error proceedings will be computed from the date of the actual entry of the order or judgment.” This was held in Charles v. Fawley, 71 Ohio St., 50, 72 N. E., 294.

And in Perfection Stove Co. v. Scherer, 120 Ohio St., 445, 166 N. E., 376, the court stated at page 449, that the nunc pro tunc order cannot extend the time for appeal “unless additional rights are created or an existing right denied by such nunc pro tunc entry, or unless the appeal or error proceeding grows out of such nunc pro tunc entry, as distinguished from the original order or entry.”

This, it seems to us, is another way of saying that the time for appeal cannot be extended by merely, entering a duplicate order at a later date — which is not Ibis case. This appeal grows out of the last order and it also denies rights which would otherwise have existed in favor of the appellant. It denied to him a hearing upon his motion to set aside the judgment on the ground of lack of service of summons.

The appeal was filed in time.

It is urged that the appellant did not pursue the correct procedural method to have the judgment vacated; that he should have proceeded by petition, as provided in Section 11635, General Code, rather than by motion, as provided in Section 11634, G-eneral Code.

Section 11634, G-eneral Code, inter alia, provides for the setting aside of judgments on motion, when there is an irregularity. Certainly, the entering of a judgment against a party over whom the court has not acquired jurisdiction is an irregularity — in fact, the greatest. And if the appellant had not been served with summons or entered his appearance, as he avers, the court had acquired no jurisdiction over his person, and any attempt to bind him by any action of the court would be vain. Any judgment pronounced against him would be utterly void and of no effect in the court assuming to render it and in every other jurisdiction. In every proceeding to enforce it, its invalidity could be questioned. This was decided in Kingsborough v. Tousley, 56 Ohio St., 450, 47 N. E., 541, and Hayes v. Kentucky Joint Stock Land Bank, 125 Ohio St., 359, 181 N. E., 542, in which the court followed a well established rule. Certainly, the lack of service can be raised in the same court in the same case, by motion, either before or after term.

As the court made no inquiry into the fact of service, we are not concerned here with the subject of the presumption of the truth of recitals on the record and the degree and kind of proof required to overcome a finding of jurisdictional facts.

While the entry of September 22nd purports to be an amendment of the earlier entry, it, in legal effect, constitutes a setting aside of that entry and the entering of an entirely different order.

The order of September 22nd, to the extent that it' strikes the appellant’s motion from the files is reversed and the motion is restored to the files for hearing upon the issue of service of summons.

The cause is remanded to the Municipal Court of Cincinnati for further hearing in accordance with law and this opinion.

Judgment accordingly.

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