author: Hurd, P. J.

text:
    Cloverleaf Restaurants, Inc., v. Lenihan et al.
    (No. 20328
    — Decided June 20, 1947.)

      Messrs. Robb & Robb and Messrs. Friebolin & Byers, for appellant.

      Mr. B. E. Schulist and Mr. Donald M. Marshman, for appellees. •*.
   Hurd, P. J.

This is an original proceeding in contempt, commenced in this court for violation of an injunction heretofore issued by this court. The history of the case and the facts which are not in dispute are substantially and briefly as follows:

This cause originated in the Court of Common Pleas and was heard on appeal in this court de novo on questions of law and fact. This Court of Appeals in rendering final judgment on January 23, 1947, ordered and decreed,-as follows:

“That the said defendant appellees, Charles L. Lenihan and Gloria S. Lenihan, shall forthwith cease to use the trade name ‘Pickwick’ in connection with their business of purveying food,. liquor or other refreshments in the conduct of the business heretofore and now conducted by them or either of them at 11633 Clifton boulevard* Cleveland, Ohio-. The said defendants appellees are permanently enjoined and restrained from the use of the trade name ‘Pickwick’ upon any sign or in any advertisement or other printed matter or upon any tableware or furnishings, or upon any napery or uniforms, or in any other way in their conduct of the said business in the city of Cleveland and its environs so long as the plaintiff appellant, Cloverleaf Restaurant Inc., or the successor in title to such trade name ‘Pickwick’ shall continue to use the same in any food, liquor of other - refreshment purveying business in such territory.”

(For opinion dated December 30, 1946, see 79 Ohio App., 493, 72 N. E. [2d], 761.)

Thereafter, on February 10, 1947, a motion for new trial, filed» in this court, was overruled. Thereupon counsel for the defendants, appellees herein, made application to the Supreme Court of Ohio for an order directing the Court of Appeals to certify its record to the Supreme Court, That application was denied by the Supreme Court on April 30, 1947, and a certificate of the entry was filed with the clerk of this court on May 19, 1947.

On June 6, 1947, a motion was filed by the plaintiff', appellant herein, for an order requiring the defendants to show cause why they should not be punished for contempt for wilful and deliberate violation of the injunction and order rendered against them by this court. That motion was supported by positive affidavits to the effect that the defendants were still continuing the use of the name “Pickwick” up to the date of the hearing which was had on June 16, 1947.

At the hearing the defendants v admitted the continued use of the name as set forth in the affidavits, but claimed that they were doing so as a matter of right under and by virtue of a certain paper writing denominated “Assignment” which was proffered in evidence as defendants’ exhibit 1.

Objection was made by plaintiff to the introduction of proffered exhibit 1. The court reserved ruling and now, in passing upon the. objection, overrules the same and admits in evidence exhibit 1, a copy of which is as follows:

' “For and in consideration of the sum of one dollar ($1.00) and other good and valuable considerations, the receipt of which is hereby acknowledged, we, Charles William Brais and Charlotte Brais, husband and wife, residing at number 161 West .street, Berea, Ohio, and being the owners and operators of the Pickwick Restaurant located at number 11616 Detroit avenue, Cleveland, Ohio, from 1923 to 1926, inclusive, for ourselves, our heirs, our executors and administrators and our assigns, do by these presents give, grant, set over, transfer and assign unto Charles L. Lenihan and Gloria S. Lenihan, husband and wife doing business as The Pickwick at Number 11631-33 Clifton boulevard, Cleveland, Ohio, all our right, title and interest in and to the trade name Pickwick and its use in the city of Cleveland, Ohio, and its environs, which trade name Pickwick was adopted and used by us in connection with our restaurant business as aforesaid.

“In witness whereof we have hereunto set our hands at Berea, Ohio, this fifteenth day of May A. D. 1947.

“Charles William Brais

“Charlotte Brais

“Signed and acknowledged in the presence of:

“Bernard H. Schulist

“Donald M. Marshman.”

In our opinion, the defendants’ claim that they are now .entitled to use the name “Pickwick” as a matter of right, despite the injunction heretofore issued, is entirely without merit and, therefore, cannot be sustained'by this court.

The evidence in the record of the original trial in this case shows that a “Pickwick Restaurant” was located at 11616 Detroit avenue, city of Cleveland, from 1923 to 1926, but there was no evidence in the record showing that the business was carried on after 1926. This court ( considered that question in its determination of the issues in the original case and concluded from the record that there was an abandonment of the use of that name by the Pickwick Restaurant at 11616 Detroit avenue, some time in 1926. That our conclusion was well founded is borne out by the fact that the assignment now in evidence shows that the assignors operated the business of the “Pickwick Restaurant” at 11616 Detroit avenue only from 1923 to 1926 inclusive.

Applying well settled principles of law it has been held that a trade-mark, or trade name, is not the subject of property except in connection with an existing business. Hanover Star Milling Co. v. Metcalf, 240 U. S., 403, 412, 413, 414, 60 L. Ed., 713, 36 S. Ct., 357.

No distinction can be made between a trade-mark and trade name in respect of the rights acquired in either by usage. Both are held to be of like character and. will be protected if violated. Nims on Unfair Competition & Trade Marks, p. 17, and cases therein cited.

Under heading “Trade-marks, Trade Names,” etc., there are a great number of reported cases, both state and federal, involving the deceptive use or imitation of corporate or business names or styles by competitors, and the rule applied is the same which the courts apply in connection with trade-mark infringements.

“If the use by the defendant of the name complained of is calculated to induce persons to deal with him in the belief that they are dealing with the “older institution, unfair competition exists and relief ■ is afforded.” See Rogers on Good Will, Trade Marks & Unfair Trading, 234. This court so found in this case. See, also, 52 American Jurisprudence, 564, Section 86 et seq; Also page 512, Section 11.

The Supreme Court of the United States has held that a trade name or trade-mark is not the subject of property except in connection ■ with an existing business. See Hanover Star Milling Co. v. Metcalf, supra, at pages 412, 413, 414; United Drug Co. v. Rectanus Co., 248 U. S., 90, 63 L. Ed., 141, 39 S. Ct., 48.

“In short, the trade-mark is treated as merely a protection for the good-will and not the subject of property except in connection with an existing business. The same rule prevails generally in this country,' and is recognized in the decisions of this court already cited. See also Appolinaris Co. v. Scherer, 27 Fed. Rep., 18, 20; Levy v. Waitt, 61 Fed. Rep., 1008, 1011; Macmahan Co. v. Denver Mfg. Co., 113 Fed. Rep., 468, 471, 475; Congress Spring Co. v. High Rock Congress Spring Co., 57 Barb, 526, 551; Weston v. Ketcham, 51 How. Pr., 455, 456; Candee v. Deere, 54 Illinois, 439, 457; Avery & Sons v. Meikle, 81 Kentucky, 73, 86.” Hanover Star Milling Co. v. Metcalf, supra, at page 414.

With respect to the assignment of trade names and trade-marks, the law is that a trade name or trademark is not by itself such property as can be transferred and the right to use it cannot be assigned except as incidental to the transfer of the business or prop-, erty in connection with which it has been used. It cannot exist independently of some business in which it is used and an attempted assignment of a naked trade-mark disconnected from any business or good will is void. The authorities on this subject are so numerous that a detailed discussion of them would serve no purpose. We cite only a few: Macmahan Pharmacal Co. v. Denver Chemical Mfg. Co., 113 F., 468 (C. C. A. 8, 12-16-01); President Suspender Co. v. MacWilliam, 238 F., 159, 161 (C. C. A. 2, 11-14-16); Crossman v. Griggs, 186 Mass., 275, 71 N. E., 560; Falk v. American West Indies Trading Co., 180 N. Y., 445, 73 N. E., 259, 1 L. R. A. (N. S.), 704, 105 Am. St. Rep., 778, 2 Ann. Cas., 216; Lea v. New Home Sewing Mach. Co., (C. C.) 139 F., 752; Bulte v. Igleheart Bros., 137 F., 492, (C. C. A. 7, 4-11-05); Carroll v. Duluth Superior Milling Co., 232 F., 675, 680-681 (C. C. A. 8, 3-25-16); Nims on Unfair Competition & Trade Marks (2 Ed.), 697; Fries & Fries Co. v. Excel Co. Inc., 16 F. (2d), 543 (C. C. A. D. C.); Nims on Unfair Competition & Trade Marks (2 Ed.), 36.

In the instant case the so-called “Assignment” was acquired by the defendants for a nominal consideration of one dollar, 21 years after the business had been abandoned by the assignors. Quite obviously the purported assignment is void, having no effect whatsoever to transfer’ to defendants any title to the use of the name “Pickwick.” Consequently, a claim of right to use the name in the face of the injunction issued by this court is a clear violation of the injunction, punishable as a contempt of this court.

We believe, before concluding, that we should advert to another proposition implicit on the face of this record and that is that the defendants herein without any application to modify the order of this court and in defiance of the orders of this court proceeded deliberately to violate the injunction issued herein. This course of action by them is contrary to all accepted principles of law. By such a course of conduct the defendants have attempted to set themselves over and above the law. Such conduct cannot be countenanced or condoned by this court.

It should be observed that a full and complete hearing was had. Thereupon, a motion for new trial having been overruled, an appeal, by means of a motion to certify to the Supreme Court of Ohio, was denied. No application for a rehearing was filed in the Supreme Court. Consequently, with the ruling in the Supreme Court there was a finality to the proceedings which should have been observed most scrupulously by defendants.

In a case of nation-wide importance, recently decided by the Supreme Court of the United States, it was held that even though the action of the court in the exercise of general jurisdiction of its equity powers, upon pleadings properly invoking its action, be erroneous, nevertheless, the orders of the court must be respected until such time as the decision of the court has been reversed by orderly review in a court of higher jurisdiction. See the late case of United States v. United Mine Workers, 330 U. S 258. The court said:

“Proceeding further, we find impressive authority for the proposition that an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until'it is reversed by orderly and proper proceedings. This is true without regard even for the constitutionality of the Act under which the order is issued. In Howat v. Kansas, 1922, 258 U. S., 181, 189, 190, 42 S. Ct., 277, 280, 281, 66 L. Ed., 550, this court said: ‘An injunction duly issuing out of a court of general jurisdiction with equity powers, upon pleadings properly invoking its action, and served upon persons made parties therein and within the jurisdiction, must be obeyed by them, however erroneous the action of the court may be, even if the error be in the assumption of the validity of a seeming, but void law going to the merits of the case. It is for the court of first instance to determine the question of the validity of the law, and until its decision is reversed for error by orderly review, either by itself or by a higher court, its orders based on its decision are to be respected, and disobedience of them is contempt of its lawful authority, to be punished.' ”

It should be observed in this case that the Supreme Court of Ohio, in overruling the motion to certify the record in this case, upheld the validity of the decision of this court and that, therefore, it was unquestionably the duty of the defendants to obey the order entered therein. ' ■

In the chapter on Contempt, in 9 Ohio Jurisprudence, 140, Section 75, under the sub-heading “Injunction,” we find the following:

“One statute in Ohio relates specifically to injunctions and the punishment for violation thereof. The Court' of Appeals for Hamilton county held that in proceedings fór the punishment of a defendant charged with violating an order of injunction, Section 11887 and 11888, General Code, relating to contempt for violation of an injunction, were the proper ones to apply,'and not the sections providing for the punishment generally of contempt of court. * * * But the Cuyahoga Court of Appeals sustained a sentence to a county jail for ten days and payment of a fine of $500, for violation of an injunction against selling-goods in a certain territory. The court here was evidently acting- under G. C. Section 12142.

“The assessment of fine for violation of an injunction is an individual matter and the limit of $200 applies individually and not collectively; hence -where there are several defendants each must respond himself for the wrong done; and where there are seven defendants, the aggregate fine of $1,000 is not excessive. Bigger, J., emphatically stated the position of the Ohio coui’ts in 1903, that the court would uphold its' lawful orders and maintain its dignity and the supremacy of the law by all means at its command— not that the court would act arbitrarily or had the slightest disposition to inflict greater penalties than were necessary to accomplish observance of its orders; but it must not be thought that the violation of an order of a court, charged with the performance of its duty, can be treated as a light matter.”

It is the conclusion of this court that the defendants are guilty of contempt of this court in the violation of the injunction entered herein on January 23, 1947, and that in the maintenance of law and order and in upholding the dignity of this court, the defendants must be punished as provided by law.

While we think we are not confined to the provisions of Section 11888, General Code, but may also proceed under Section 12142, General Code, nevertheless, we have decided to adopt the procedure provided under Section 11888, General Code.

Therefore, sentence is imposed upon each- defendant with a fine of. $100 for the use of the county tec make restitution to the plaintiff, and to give further security to obey the injunction, in default of which the defendants will be held in close custody until compliance with the orders of this court, heretofore issued herein. It is ordered accordingly.

Judgment accordingly.

Morgan and Skeel, JJ., concur.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Dickerson et al., Appellants, v. Curtin et al., Appellees.
    (No. 4003
    — Decidéd June 13, 1947.)

      Mr. A. J. Worsham and Mr. Frank C. Shearer, for Appellants.

      Messrs.iPreteman & Dillon, for appellees.
   By the Court.

This, is an appeal on questions of law from the judgment of the Common Pleas Court of Franklin county, in an action to quiet title brought by Bennett Dickerson and Harriet L. Dickerson, husband and wife, against Thomas E. Curtin who, although served with summons, filed no pleadings and .gave no notice of appeal. Immediately after the action was commenced Erma C. Pratt was made a party defendant, filed an answer and defended the action.

The plaintiffs, appellants herein, claim title to the real estate involved through a quitclaim deed from Charles F. Worley and Ivya Worley, husband and wife, dated May 11, 1946. The Worleys claim their title through a general warranty deed from Thomas. E. Curtin, dated August 23, 1945.

Subsequent to the conveyance from Curtin to the Worleys, and prior to the conveyance from Worleys to Dickersons, ah action was commenced in the Common Pleas Court of Franklin county by Hamilton Mc-Allister and others against the Worleys, case No. 169347, seeking to set aside the deed from Curtin to the Worleys on the ground that it violated a certain restrictive covenant relative to the sale of the property to persons other than those of the Caucasian race. That action resulted in a decree that the deed from Curtin to the Woideys was null and void as of the date of its execution; that no right, title or interest passed to the Worleys by reason of such purported deed; and that the owner of the property was Thomas E; Curtin. The decree was filed of record on June 10, 1946. During the pendency of that action, and about one month before tbe decree was entered, to wit, on May 11, 1946, tbe Worleys executed tbe quitclaim deed to tbe Dicker-sons, under which they claim title. After the decree in the case of McAllister v. Worley became final, Thomas E. Curtin, on July 13, 1946, conveyed” the real estate in question to Erma C. Pratt. In a separate trust agreement Erma C. Pratt agreed to hold the property as trustee for Vernon W. Moss, as an individual and as president of the Eastwood Civic Association. Those facts were alleged in the answer of Erma C. Pratt and were proven at the trial.. The facts were not in dispute; the questions raised were legal and not factual.

We have been furnished a copy of the well-prepared opinion of Judge Leach. It is thorough and well reasoned; to attempt to improve on it would be futile. We approve the judgment of the trial court in every particular. In substance, the court found:

“That the plaintiffs have no title upon which to-base their petition to quiet title to the premises; that by virtue of the conveyance by quitclaim deed from Charles F. and Ivya Worley, the said plaintiffs obtained no right, title or interest in and to s'aid property, the title to which they sought in their petition to quiet;- that said plaintiffs had actual notice of the pendency of the case of McAllister v. Worley, No. 169347 on the dockets of this court, wherein Charles F. and Ivya Worley, the grantors in the quitclaim to the plaintiffs in the instant case, were denied any right,, title or interest in and to said premises, and that by virtue of the quitclaim deed from the defendants Worley to the plaintiffs, the plaintiffs acquired no right,, title or interest in and to said premises, and' that by virtue thereof, the petition of the plaintiffs should be dismissed. ’ ’

From that judgment the plaintiffs have prosecuted this appeal. For their first assignment of error plaintiffs contend that the court erred in overruling the motion to dismiss Erma C. Pratt as a party defendant. The point is made that Erma C. Pratt held the property as trustee; that she held no beneficial interest and was not the real party in interest. The record shows that she was the record title holder and, even though she held the property as trustee for others by the terms of a separate trust agreement, she, nevertheless, held the legal title.

A trustee of the legal title may maintain an action to quiet title. 33 Ohio Jurisprudence, 897, Section 77. A trustee is competent to maintain or defend an action in preservation or protection of the res. 33 Ohio Jurisprudence, 918, Section 105; 40 Ohio Jurisprudence, 370, 375.

Second, it is claimed that the court erred in sustaining defendant Pratt’s motion to amend her answer and in proceeding to adjudicate the case against plaintiffs without a real party in interest as a party defendant. The court properly allowed the defendant, Erma C. Pratt, the right to amend her answer to conform to the proof, by alleging that she held the property as trustee. Except for the right of amendment, this assignment of error raises the same question as was raised by the first assignment.

Third, it is contended that the court erred in finding that the plaintiffs had no right, title or interest in the property involved. A question is raised as to whether the doctrine of lis pendens was properly applied. The quitclaim deed under which the plaintiffs claim title was executed while the case of McAllister v. Worley was pending. Under the provisions of Section 11300, General Code, the plaintiffs were charged with notice of the pendency of the suit. During the pendency of that action, the plaintiffs could not acquire any interest under the quitclaim deed against the parties to that litigation.. Any interest which the plaintiffs would acquire would be subject to the judgment or decree in that case. See 25 Ohio Jurisprudence, 654; Cook v. Mozer, 108 Ohio St., 30, 140 N. E., 590. However, the trial court did not rely entirely on the doctrine of lis pendens, since the undisputed evidence shows that at the time the transfer was made to the plaintiffs they had actual knowledge of the pendency of the case of McAllister v. Worley, and of the issues raised therein. In that case the court decreed that the Worleys had no title to the property in question. . It follows that if the Worleys had no title they could not convey title to the plaintiffs.

Fourth, it is contended that the court erred in dismissing plaintiffs ’ petition and in rendering judgment for defendants. The point is made that since the plaintiffs were not parties to the case of McAllister v. Worley, they now have a right to impeach the decree if they feel aggrieved by it. As heretofore stated, either under the doctrine of lis pendens or on the ground of actual knowledge of the pendency of the action, the plaintiffs are bound by the decree in the case of McAllister v. Worley, and as to them such decree is final and conclusive.

Finding no error in the record prejudicial to «the rights of the plaintiffs, the judgment is affirmed.

Judgment affirmed.

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


author: Metcalf, J.

text:
    Litton, Appellee, v. Geisler et al., Appellants.
    (No. 736
    — Decided January'5, 1945.)

      Messrs. Johnson, Jones, Jenhins & Jefferys and Mr. A. J. Layne, for appellee.

      Mr. John L. Smith and Messrs. Pratt & Crowe, for appellants.
   Metcalf, J.

On Juñe 1, 1928, defendants Jean H. Renay and her husband, Charles N. Remy, executed and delivered to O. A. Sears, now deceased, a leasehold estate for oil and gas purposes “for a term of ten years and so much longer thereafter as oil, gas, or their constituents are produced in paying quantities thereon.” Among other provisions the lease stipulated that lessee was to pay lessors “for the product of each gas well from the time and while gas is marketed an annual rental of $300 payable annually.” Lessors were to have the use of gas for heat and light in one dwelling house on the land leased at their own risk and their cost for laying the line.

In the year 1932 a well was drilled which produced gas, but because of a lack of market no gas .was ever sold from this well up to and including the present time. In the meantime, by arrangement between lessors and lessee, lessors were permitted to connect additional residences to this well and to use gas therefrom until there are now five different homes being furnished heat and light therefrom.

Upon the death of O. A. Sears, the original lessee, this leasehold estate was, by .the next of kin, conveyed to the defendant William J. Geisler. Previous to this the leasehold estate had been conveyed back and forth between- a corporation and the original lessee, which is of no consequence'insofar as the disposition of the question before this court is concerned.

Subsequent to the death of Sears, lessors sold and conveyed the land upon which the well is located, reserving their interest in the gas well. Following this the Remys sold and conveyed to the plaintiff, Clint Litton, all their gas rights in this well and he in turn brought this action against defendant, Geisler, to quiet title and have the original lease -declared null and void and cancelled of record he claiming the entire working interest as well as the royalty on the theory that the original lease had expired. The defendants Remys, on their own motion, became parties defendants asking a reformation of their deed of conveyance to the plaintiff to show only the royalty interest to be conveyed thereby and subject to the original lease to Sears.

From the pleadings and the evidence the sole and only question presented in this appeal on questions of law and fact is whether the well in question has been and is producing gas in paying quantities. The answer to the question depends upon the intention of the Remys and Sears, and their successors in title, as ascertained from the facts and circumstances surrounding, this case. Herrington v. Wood, 6 C. C., 326, 3 C. D., 475.

The evidence discloses that dne to a lack of market all parties were satisfied to let the well stand until such time as a market could be obtained, and during this interval the Remys were furnished, in lieu of the $300 per annum that they would have been entitled to had the gas been marketed, sufficient gas to heat and light additional homes over and above the one residence provided for in the lease. No question was ever raised by either lessors or lessee that the well was not producing in paying quantities. The lessee had expended approximately $8,000 in the drilling of the well. The testimony indicates that when a market is found the well will produce from $18,000 to $20,000 in proceeds. That both lessors and lessee were benefited by this arrangement is clear because it saved the well for lessee until such time as he could market the gas and at the same time the evidence indicates that lessors were receiving, in lieu of the $300 per annum' in cash, at least that much from the benefit of the additional service.

In the case of Union Gas & Oil Co. v. Adkins (1922, C. C. A., 6), 278 F., 854, the court, in a well considered opinion, in discussing'the right of lessee to determine whether oil or gas is produced in paying quantities, said :

“There is some force in this contention insofar as it applies to gas wells, where the contract 'provides that the lessor shall receive a fixed annual rental for each gas well, and the lessee is ready and willing to pay that rental. In such case the landowner receives the same revenue from the operation of his land as lie would receive if the gas well were in fact a paying one to the lessee.”

In the instant case it has made no appreciable pecuniary difference to lessors that the gas has not been marketed. See, also, Ohio Oil Co. v. McCrory, 14 C. C., 304, 7 C. D., 344. It is rather universally held that acceptance of rents or royalties under an oil and gas lease such as the one here under consideration is a waiver of forfeiture for breach of an'y covenant or condition for which such rents or royalties are paid. See 80 A. L. R., 481, annotation.

The original parties to this lease considered the gas produced of sufficient importance as to its paying quantity that after the quantity produced was fully ascertained they „ caused pipe lines to be laid to the various homes served. Someone paid the cost of this extra service and this would hardly have been done if the well was not producing in paying quantities. This service satisfied the' lessors and surely they are estopped from maintaining that the well has not produced and is not producing in paying quantities, or from complaining that no gas has ever been marketed therefrom, and the record discloses that they do not so claim or complain. Plaintiff’s claim or title can rise no higher than that of the Remys. He is bound by the facts and circumstances surrounding the operation of this well during all of these years whereby his predecessors in title have been benefited by the production of the well. Neither' can plaintiff usurp the prerogative of lessee and claim the well does not produce in quantities sufficient to warrant lessee in the operation thereof. It is held in Zeller v. Book (1905), 7 C. C. (N. S.), 429, 18 C. D., 119, that the fact it is questionable whether oil wells on land held under a lease operative only so long as oil or gas should be found in paying quantities will ever yield a reasonable profit on the investment is not sufficient ground for vacating the lease; in the absence of fraud, the lessee is the sole judge of this question, and as long as he can make a profit therefrom he will be permitted to do so. The mere fact that a lessee under such a lease has failed to operate the wells for some time, will not be ground for vacating such lease, where such lessee shows good and sufficient reason why it has been impracticable for him to do so.

The Supreme Court of Oklahoma in the case of Hennessy v. Junction Oil & Gas Co., 75 Okla., 220, 182 P., 666, held:

“The lessee, acting in good faith and upon his honest .judgment, not an arbitrary judgment, or one springing from an ulterior purpose to secure an unfair advantage of the lessor, is to determine whether or not the well brought in produces gas in quantities large enough to transport.”

In the case of Barbour, Stedman & Co. v. Tompkins, 81 W. Va., 116, 93 S. E., 1038, the court held:

“Under an oil and gas lease for the term of fivé' years and as long thereafter as either mineral is produced from the land in paying quantities, the production required to effectuate such extension, in the absence of equitable circumstances varying the rule., is that quantity which will bring a reasonable pecuniary return in excess of the cost of production, regardless of any particular amount of profit derivable from the operation of the well.

“The lessor can not terminate the lease merely because he thinks the quantity of gas discovered within the five year period is not sufficient to constitute a paying well, where the operator, reasonably and in good faith, claims it is such a well and is willing to pay the rental stipulated therefor. Iiis judgment, when bona fide, is entitled to great weight in determining whether the gas is in fact produced in paying quantities.”

The Eennessy and Barbour cases just cited are quoted with approval by the Court of Appeals of the Seventh Appellate District of Ohio in the case of Weisant v. Follett, infra.

It was further held in the case of Texas Pacific Coal & Oil Co. v. Bruce (1921, Texas Civ. App.), 233 S. W., 535, that a stipulation in a gas and oil lease that the lease shall continue so long as oil or gas is found in paying quantities is a stipulation for the benefit of the lessee, and the lessee may, in good faith, exercise his judgment as to whether he will continue operation or abandon the lease, and fraud in the exercise of this determination will not be presumed, but must be alleged and proved.

The prevailing rule seems to be that the phrase “paying quantities” is to be construed from the standpoint of the lessee, and by his judgment if exercised in good faith. The burden is upon plaintiff in this case to prove that the lessee has forfeited the lease because of failure to produce gas in paying quantities; and in the absence of indication of bad faith or selfish personal motive, the experience, interest and judgment of the lessee" herein, under all the surrounding circumstances, are controlling as against the claim of plaim tiff. See Weisant v. Follett, 17 Ohio App., 371.

The evidence in this case clearly shows that the lease here under consideration has never expired by the terms thereof; nor is there any element of forfeiture established. Under' such circumstances, plaintiff’s claim that any attempted renewal of this lease is void because it does not comply with the statute of frauds is untenable. No claim of bad faith or fraud is made by plaintiff and under the testimony could not be so claimed. Plaintiff was in possession of all the facts and circumstances surrounding the operation of this well prior to the purchase of the interest of the Remys by him and he is not in a position to claim an equitable injustice.

Under the terms of the lease, the evidence and the law this court finds in favor of the defendants and’ a .decree is rendered accordingly.

Decree accordingly.

McCurdy, P. J., and Gillen, J., concur.


author: Guernsey, J.

text:
    Yankulov v. Bushong, Supt.
    (No. 890
    — Decided October 24, 1945.)

      Mr. F. W. Durbin, for petitioner.

      Mr. Hugh 8. Jenkins, attorney general, and Mr. H. 8. Zwolinski, for respondent.
   Guernsey, J.

This is an action in habeas corpus brought in this court by Nellie Yankulov, on behalf of Steve Yankulov, her minor son.

In the petition it is alleged that Steve Yankulov has been confined in Lima State Hospital at Lima, Ohio, since the 13th day of March 1945, and that he is sane and is being unlawfully restrained of his liberty by Dr. R. E. Bushong, superintendent of the hospital.

In his return to the writ of habeas corpus issued on the petition the respondent represents to the court that he has had Steve Yankulov in. his custody since the date mentioned, by virtue of a commitment of the Common Pleas Court of Summit county to Lima State Hospital, as provided for in Section 13441-3, General Code, and attaches to the return the journal entry of the court prescribing the commitment, reading as follows, to wit:

“This day, to wit, the 6th day of March, A. D. 1945, came the prosecuting attorney, Alva J. Russell, by Robert Azar and Jackson Morris, assistant prosecuting attorneys, on behalf of the state of Ohio, the defendant being in court in custody of the sheriff, and accompanied by counsel, having heretofore, upon arraignment at the April Term 1944 of this court, to wit: On May 5, 1944, entered a plea of not guilty by virtue of insanity to the charge of murder in the first degree as contained in the indictment returned against him herein, and was remanded to the county jail to await trial.

“And thereafter, to wit: On the 26th day of February, 1945, the defendant appeared in court for trial, whereupon a jury was duly empaneled and sworn and the trial commenced, and not being completed, adjourned from.day to day until the 6th day of March, 1945, at 11:20 a. m., at which time the jury, having heard the testimony adduced by both parties hereto, the arguments of counsel, and the charge of the court, retired to their room for deliberation. And thereafter on the same day, to wit: At 2:50 p. m. o’clock, said jury came again into court and returned their verdict, in writing, finding said defendant not guilty by reason of insanity.

“Thereupon, the court, being fully advised in the premises, hereby orders that the said defendant be taken hence by the sheriff to the Summit county jail, and that he be FORTHWITH conveyed to the Lima State Hospital for the Criminal Insane, at Lima, Ohio, there to be confined under the rules'and regulations of said institution until he is restored to sanity.”

The court finds from the evidence submitted on the trial of this cause:

Steve Yankulov was born on February 14, 1928, at Kenmore, Ohio.

The crime for which he was indicted was committed on April 7, 1944, during a holdup of a saloon in which he and certain other older boys were engaged. The shot resulting in the death upon which the murder charge was based .was fired by One of his associates in the holdup but he was present with a gun participating in the holdup shortly prior to the firing of the fatal shot.

With the same associates he had participated in a holdup of the' 13 Club the previous week.

At the time the crime for which he was indicted was committed he was approximately 16 years of age.

On May 5, 1944, Steve Yankulov entered a plea of not guilty by reason of insanity to the indictment and on September 1, 1944, pursuant to the provisions of Section 13441-4, General Code, was ordered committed to Lima State Hospital for Criminal Insane for observation as to his mental condition and -was admitted to the hospital for that purpose on September 8, 1944.

On October 7, 1944, Dr. R. E. Bushong made the following report to the committing court:

“We have given Yankulov a mental, physical and psychological examination and we have further had hi-m under daily observation. He has manifested no signs or symptoms of mental disorder but psychological testing reveals that he has an I. Q. of sixty-two and a mental age of exactly ten years. This indicates that he is mentally deficient and places him in the moron group. It is the opinion of our staff, however, that he lias' sufficient mentality to distinguish between right and wrong, and that he is responsible for bis conduct.”

Thereafter Steve was returned to Summit county for trial on the first degree murder indictment against him. At the trial Dr. Bushong testified on the question of Steve’s sanity to the same general effect as set forth in his report above mentioned.

The trial resulted in a verdict by the jury that Steve was not guilty by reason of insanity and he was then ordered committed to Lima State Hospital as set forth in the journal entry above mentioned.

At the trial of the instant case, on the question of the present sanity of Steve, Dr. Bushong testified to the same general effect that he testified to on the trial of the indictment.

He further testified that by reason of Steve’s moronic condition of mind he would, if released, be easily influenced either for good or bad by his associates or environment, and if his associates or environment should happen to bo bad his release might prove dangerous.

From Dr. Bushong’s testimony and other evidence in the case the court finds that Steve at the present time has sufficient mental capacity to understand the nature, quality and consequences of his acts, and to know whether they are right or wrong, and has not, by reason of the duress of mental disease, so far lost the power to choose between the right and wrong and to avoid doing acts which are wrong, that his free agency is destroyed; and finds further that Steve is a moron and by reason of his moronic condition of mind he would, if released from custody, be easily influenced either for good or bad by his associates or environment and if his associates or environment should happen to be bad his release might prove dangerous.

There is no statutory definition of insanity as a defense to an indictment or as a basis of commitment on acquittal on a plea of insanity, but it is established by court decisions that such insanity may be occasioned by idiocy, imbecility, lunacy, or any other defect, weakness or disease of the mind. Clark v. State, 12 Ohio, 483, at page 489, 40 Am. Dec., 481; Blackburn v. State, 23 Ohio St., 146; People, ex rel. Thaw, v. Lamb, 118 N. Y. Supp., 389.

Otherwise expressed, insanity, in criminal law, “is any defect, weakness, or disease of the mind rendering it incapable of entertaining, or • preventing its entertaining in the particular instance, the criminal intent which constitutes one of the elements in every crime.” 1 Bishop’s Criminal Law (9 Ed.), 274, Section 381.

But no matter what is the condition of the mind of the accused he is not insane within the purview of the criminal law if, at the time of the commission of the alleged crime, he had sufficient mental capacity to understand the nature, quality and consequences of the particular act or 'acts constituting the crime, and to know whether they were right or wrong, and had not, by reason of the duress of mental disease, so far lost the power to choose between the right and wrong and to avoid doing the act or acts in question, that his free agency was at the time destroyed. Clark v. State, supra, at page 495; Loeffner v. State, 10 Ohio St., 598, at page 615; Blackburn v. State, supra.

The verdict of the jury in the trial of the indictment against Steve and the judgment of the court based thereon simply amounted to an adjudication that at the time of the commission by him of the offense •charged in the indictment and with reference to the .offense Steve was insane because his mental capacity ■did not measure up to the standard above set forth.

From that adjudication there is both at common law .and under the provisions of Section 13441-3, General Code, a presumption that such condition of insanity •continues.

However, where the constitutional question of due process of law has been raised, it has been seriously •questioned whether a commitment for insanity can pyoperly be sustained in the absence of any provision for a finding as to the continuance of the insanity at the time of the trial. 1 L. R. A. (N. S.), 540, 544; Underwood v. People, 32 Mich., 1, 20 Am. Rep., 633.

That presumption is one of fact and, so far as it reflects on the question of the present sanity of the individual, may be rebutted and overcome by the •evidence.

The journal entry ordering Steve’s commitment prescribes that Steve be forthwith conveyed to Lima State Hospital for the Criminal Insane and “there to be confined under the rules and regulations of said institution until he is restored to sanity.”

The only statutory provisions relating to such commitment are contained in Section 13441-3, General Code, which reads as follows:

“Sec. 13441-3. When a defendant pleads ‘not guilty by reason of insanity, ’ and is acquitted on the sole ground of his insanity, such fact shall be found by the jury in its verdict, and it shall be presumed that such insanity continues. In such case the court shall forthwith direct that the accused be confined in the Lima State Hospital, and shall forthwith commit him to such hospital, and such person shall not be released from confinement in such hospital unless and until the judge of the Court of Common Pleas of Allen county, Ohio, the superintendent of said Lima State Hospital and an alienist to be designated by said judge and said superintendent, or a majority of them, after notice and hearing, find and determine that said defendant’s sanity has been restored, and that his release will not be dangerous; if said release be granted, it may be final, or on condition, or such person may be released on parole; and thereafter, in the discretion of said judge or superintendent may be returned to said hospital.' Notice of such hearing shall be given to the prosecuting attorney of Allen county, also to the prosecuting attorney of the county from which said defendant was committed; nothing in this section contained shall be held or construed to deprive such person of his constitutional privilege to the writ of habeas corptis.”

It is contended by the respondent that in order to warrant Steve’s release in this action it is necessary for the court, under the provision of the above-mentioned . section of the General Code, to find and determine first that his sanity has been restored and second that his release will not be dangerous.

An inspection of the section reveals that it provides for a special proceeding in the Common Pleas Court of Allen county to secure the release of a person committed to Lima State Hospital pursuant to the provisions of the section, on acquittal on the sole ground of insanity, and expressly prescribes that nothing in the section contained shall be held or construed to deprive such person of the constitutional privilege to the writ of habeas corptis. . :

As the instant case is an action in habeas corpus it is governed by the rules applicable to habeas corpus and not by the rules applicable to such special proceeding.

Under the rules applicable to habeas corpus a person committed to a hospital as insane is entitled to be released from restraint upon establishing the fact that he is sane. In re Remus, 119 Ohio St., 166, 162 N. E., 740.

However, assuming that the provisions of the section are determinative of the duration of Steve’s commitment, such provisions must be considered in connection with the nature and purpose of such commitment. The commitment is not in the nature óf a. penalty for a crime because the accused has been acquitted of the crime. It is predicated solely upon the adjudication of the insanity of the accused as hereinbefore defined, at the time of and with reference to the offense with which he was charged in the indictment, and upon the legal presumption that by reason of such insanity his being at large would be dangerous to himself and to others. Consequently the phrase “that his release will not be dangerous” as used in the section means that the accused’s release will not be dangerous by reason of his present insanity.

Where an accused is found to be presently sane it follows as a matter of law that his release will not be dangerous within the meaning of the section.

'While it is established that Steve Yankulov is a moron and therefore easily subject to influence, whether for good or bad, he is apparently no different than any other moron, and the mere fact that a person is a moron does not subject him to incarceration in a hospital for criminal insane persons.

The presumption of insanity arising from the adjudication is rebutted and overcome by the evidence showing that Steve Yankulov is now sane under the test of insanity- prescribed by law in criminal cases.

For the reasons mentioned, the petition is granted and Steve Yankulov is ordered released -from the custody of the respondent.

Costs are to be paid by tbe state of Obio in the manner provided by law.

Writ allowed.

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


author: By the Courl.

text:
    Motors Ins. Corp., Appellee, v. Dressel, Supt. of Ins., Appellant. McGraw, Appellee, v. Dressel, Supt. of Ins., Appellant.
    (Nos. 4019 and 4020
    Decided May 21, 1947.)

      Mr. J. Both Grabbe, for appellee Motors Insurance Corporation.

      Mr. Harry A. Hanna, for appellee William J. MeGraw.

      Mr. Hugh 8. Jenkins, attorney general, Mr. Ralph Klapp, Mr. John W. Bricker and Mr. Paul R. Qingher, for appellant, Superintendent of Insurance.

      Mr. Frank X. 8chaut and Mr. Harold H. Gorman, for Ohio Automobile Dealers Association, amicus curiae.

   By the Courl.

These appeals on questions of law are from orders of the Common Pleas Court entered in appeals thereto and holding invalid a rule which had been approved and adopted by the Superintendent of Insurance of Ohio, effective on June 11, 1945.

Four errors are assigned:

(1) The decision of December 30, 1946, is contrary' to law.

(2) The court erred in overruling appellant’s motion to dismiss the appeal.

(3) The court erred in holding that it had jurisdiction to declare invalid' the amended rule adopted by the Superintendent of Insurance on May 29, 1945.

(4) The court erred in holding the amended rule invalid.

The rule, as amended, provides:

“This office, as a matter of policy, will not. issue insurance agents’ or solicitors’ licensés for new applicants falling within any of the following classifications:

“(1) Officers or employees of financial or lending institutions.

“(2) Applicants connected with the automobile sales business, except for life insurance.

“(3) Applicants who are public employees whose time is supposed to be devoted to the service of the public.

(4) Applicants who have not passed their twenty-first birthdays, except applicants who have been honorably discharged from the armed forces of the United States and who have passed their eighteenth birthdays.”

The quoted rule, supersedes a former rule of August 7,1943, and the changes therein are indicated by italics, The first, third and fourth subdivisions of the rule are not involved in these appeals which are to be determined upon the language of the first paragraph and subdivision two.

Judge Leach in a carefully' written opinion, with' which we have been favored, held the rule, as it would-affect the appeilants, Motors Insurance Corporation and McGfraw, unlawful because it is in conflict with. Section 644, General Code, and -relied, in the main, upon the case of Automobile Insurance Agency, Inc. v. Lloyd, 36 Ohio Law Abs., 455, 44 N. E. (2d), 792, wherein this court affirmed the judgment of the Common Pleas Court. The Common Pleas Court case is reported in 36 Ohio Law Abs., 448. A motion to certify the record in that case in the Court of Appeals was overruled by the Supreme Court on June 10, 1942. With that conclusion we agree.

It is further urged in the brief on behalf of the Superintendent of Insurance that the motions to dismiss the appeals should have been sustained because appellants are not persons adversely affected, under Section 154-72, General Code.

It appears in case No. 4Q19 that Motors Insurance Corporation is a fire insurance corporation, organized in the state of New York and presently licensed in the state of Ohio to write physical damage coverages upon automobiles. In case No. 4020 McGraw is an automobile dealer engaged in the business of selling automobiles at Bellaire, Ohio. He filed his appeal, from the order of the Superintendent of Insurance, on behalf of himself and numerous other persons connected with the automobile sales business in the state of Ohio.

Judge King, who ruled on the motions to dismiss the appeals, held that, upon the averments of their petitions, the appellants were adversely affected by the rule, under Section 154-72, General Code, and that, if it were asserted that they were not so affected, such issue could be developed factually upon the hearing of the cause. The subject matter of the motions was not again urged and the question now presented is whether, upon the undisputed facts, the appellees in this court, Motors Insurance Corporation and McGraw, are adversely affected by the rule. Manifestly they are. The superintendent could not observe the letter of the rule and accord to them, or either of them the privileges assured by Section 644, General Code. They may be "suitable” persons and may qualify in all particulars as defined in such section, but prospective agents of Motors Insurance Corporation and McGraw would stand on an entirely different footing than other applicants for licenses. The insurance company has an interest not only in the appointment of its agents, who would be named directly by the company, but likewise in its solicitors, even though the latter were directly named by the agents. It is obvious that, the insurance company would have concern as to the solicitors of business which it would write, although their immediate responsibility was to agents of the company.

We find no valid reason why the rule now under consideration should not be challenged in its entirety by a person adversely affected. The superintendent at the hearing restricted consideration of the amendment to subdivision four of the rule and held that there was no material change in the other three paragraphs. We do not agree that there is no such change, because the words, “or solicitors,” are new and had not appeared in any prior rule. We likewise are of opinion that the rule as it affects insurance “agents” was appropriately tested in the action of the superintendent in proposing the new rule and in adopting it, because of the language of Section 154-64, General Code, that “No rule shall be amended after the effective date of this act except by a new rule which shall contain the entire rule as amended, and shall repeal the rule amended.” The rule here under consideration when adopted became a new rule as of that date and could be tested in all particulars as though none of its subject matter had been incorporated in a former rule.

We have not considered other propositions convincingly presented and discussed at length in briefs of appellees and amicus curiae, which question the power of the Superintendent of Insurance to promulgate any rules whatever, urge that the rule is in violation of the state and federal constitutions and assert that it is discriminatory against applicants for first licenses.

We are satisfied that the rule is unreasonable and invalid because its effect is to deny the appellees iu this court the benefit of the controlling statute, Section 644, and is in contravention of Section 154-64 (d). Section 644 defines the requisite qualifications for agents of insurance companies, which qualifications may not be modified by any rule. State, ex rel. Foster, v. Evatt, Tax Commr., 144 Ohio St., 65, 56 N. E. (2d), 265; State, ex rel. Kildow, v. Industrial Commission, 128 Ohio St., 573, 192 N. E., 873; Matz, Admr., v. J. L. Curtis Cartage Co., 132 Ohio St., 271, 7 N. E. (2d), 220.

The judgments are affirmed.

Judgments affirmed.

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


author: Carpenter, J.

text:
    The State of Ohio, Appellee, v. Norman, Appellant.
    (No. 4162
    — Decided December 23, 1946.)

      Mr. Joel S. Rhinefort,-prosecuting attorney, and Mr. Jerome J esionowski, for appellee.

      Mr. Jesse 8. Heslip, for appellant.
   Carpenter, J.

The indictment herein charged murder in the second degree. To a plea of former jeopardy, in which discharge was prayed for, a general demurrer was filed and sustained. Prom that order this appeal on questions of law was taken.

It is unnecessary to discuss the facts or merits of the plea, because this court has no alternative but to dismiss the appeal sua sponte for the reason that that order was not a judgment or final order. It was only an interlocutory matter. '

Section 13459-1, General Code, limits all appeals in criminal cases to a “judgment or final order.” Whitelock v. State, 21 Ohio Law Abs., 393, appeal dismissed, State v. Whitelock, 131 Ohio St., 332, 2 N. E. (2d), 777.

Under Section 6 of Article IV of the Constitution, this court can only “review * * * judgments or final orders of * * * courts of record inferior to the Court of Appeals.” “Finality” is a sine qua non for appeal-ability of an order of the Court of Common Pleas in a criminal cause. State v. Smith, 135 Ohio St., 292, 20 N. E. (2d), 718.

Appeal dismissed.

Stuart and Conn, JJ., concur.


text:
    Dann, Appellee, v. Banks, Appellant.
    (No. 3977
    — Decided January 9, 1947.)

      Mr. Joseph M. Harter and Mr. David M. Postlewaite, for the motion.
    Mr. David T. Keating, contra.

   By the Court.

This cause is, submitted on motion by the appellee to strike the so-called notic°e of appeal, filed on December 14,1946, from the files for the reason that such document is a nullity as it was not filed within 20 days after the rendition of the judgment of the Common Pleas Court of Franklin county, such judgment being rendered on November 15, 1946.

An examination of the transcript discloses that on November 15, 1946, the judgment entry was filed, on November 23, 1946, a motion for a new trial was filed and on December 18,1946, tbe motion for new trial was overruled.

Having been filed before tbe overruling of the motion for new trial, the notice of appeal was prematurely filed. Section 12223-7, General Code, provides that when a motion for new trial is filed by either party within ten days after a journal entry of a final order, judgment or decree has been approved by the court in writing and filed with the clerk for journalization, the time of perfecting the appeal shall not begin to run until the entry of the order overruling or sustaining the motion for new trial. ,

The motion will be sustained, not for the reasons indicated therein, but for the reasons above stated.

Motion sustained.

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


text:
    In re Guardianship of Kowalke.
    (No. 991
    — Decided December 20, 1946.)

      Mr. Frank Wiedemann and Mr. John Watters, tor appellant.

      Messrs. Moloney $ Kelly and Mr. William P. Moloney, for appellee.
   Guernsey, J.

This is an appeal on questions of law, by Waldo V. Grover as guardian of the person and estate of Mary Kowalke, an incompetent person, from an order of the Common Pleas Court of Marion county, appointing Charles D. Harmon, Jr., his successor as guardian of the person and estate of Mary Kowalke, an incompetent person.

The reason for the dismissal of the appeal, as set forth in the journal entry of the Common Pleas Court, is “that the said’Waldo V. Grover, as guardian of the person and property of Mary Kowalke, an incompetent person, is without capacity, to file or to perfect the alleged appeal.”

Upon the hearing of the appeal in the Common Pleas Court, all the records of the Probate Court in the matter of the guardianship of Mark Kowalke showing that Waldo V. Grover, by order of the Probate Court, prior to the appointment of Charles D. Harmon, Jr., as guardian of the person and estate of Mary Kowalke, and prior to the appeal from the Probate Court to the Common Pleas Court, had been removed as such guardian for the reason that the interests of Waldo Y. Grover were adverse to his ward, were admitted in evidence, but the admission of other evidence was refused.

The records referred to, in addition to showing the facts above mentioned, disclose that Waldo Y. Grover perfected an appeal from the order of removal, to the Court of Appeals, but that the execution of. the order of removal was not stayed pending such appeal, or otherwise. Such records disclose further that Waldo V. Grover, upon the order of the Probate Court, filed his final account as such guardian and turned over all the assets of the’ ward to the newly appointed guardian. Such records disclose further that Waldo Y. Grover was not a relative of Mary Kowalke, or otherwise interested in her person or estate.

The execution of the order of removal, not being-stayed pending appeal, became immediately effective .to terminate the authority of Waldo Y. Grover as such guardian.

Prom the order of removal, Waldo V. Grover in his individual capacity had the right to and did appeal to this Court of Appeals for the purpose of reversing the same, and as he was not a relative of, or otherwise interested in’ the person and estate of Mary Kowalke, this was the only right he had in relation to the guardianship.

He was,, therefore, without capacity, either as an individual or as guardian of the person and estate of Mary Kowalke, to appeal from the order appointing Charles D. Harmon, Jr., as guardian, made subsequent to the order removing- him as such guardian, and consequently the Common Pleas Court did not err in dismissing his appeal from the order.

In view of the fact that if Waldo Y. Grover had, on his appeal from the order of removal, been successful in securing a reversal of such order he would have been entitled to reinstatement as such guardian, to the exclusion of Charles D. Harmon, Jr., as such guardian, his appeal from the order appointing Harmon was wholly ineffective to reserve, protect or secure any legal right to which he might be entitled.

For the reasons mentioned, the judgment of the Common Pleas Court is affirmed.

Judgment affirmed.

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


text:
    In re Guardianship of Kowalke.

      (No. 987
    — Decided December 20, 1946.)

      Mr. Frank Wiedemann and Mr. John Watters, for appellant.

      Messrs. Moloney & Kelly and Mr. William P. Moloney, for appellee.
   Guernsey, J.

This is an appeal on questions of law, by Waldo V. Grover from an order of the Probate Court of Marion county, removing him as guardian of the person and estate of Mary Kowalke, an incompetent.

Iir September 1945, Clara A. Kowalke died, leaving an estate consisting of both real and personal property amounting to approximately $37,000, and leaving a paper writing purporting to be her last will and testament.

Except for minor bequests appearing in other items of the purported will, the estate- is disposed of in item 10 thereof, which reads as follows:

“In the event that my sister, Mary Kowalke, is living at the time of my decease, I give, devise and bequeath to Waldo V. Grover of the city of Marion, Ohio, all the rest and residue of my estate, to be held in trust, however, by him for the benefit of and to pay the comfortable living expenses of my sister, Mary Kowalke, so long as she may live, and I direct that the said Waldo V. Grover be and he is hereby authorized to convert any of my real estate or personal property which I may own at the time of my decease, into cash, and to deposit same in a solvent building and loan •company or bank if in Ms opinion lie deems it to be for tbe best interests of said trust estate, and 1 further authorize the said trustee, Waldo V. Grover, to make •due and proper expenditures out of the principal of said trust if that is necessary for the benefit of my ■said sister, Mary Kowalke, during her lifetime and to pay all of her necessary expenses and at her death to pay her expenses of last sickness and funeral ■expenses out of said trust estate. I further authorize the said Waldo Y. Grover to do all things legally necessary to carry out my intentions to provide for the comfortable living expenses of my sister during her lifetime and to effect the purposes of the trust hereby created for the benefit of my said sister, Mary Kowalke.

“Upon the death of my said sister, Mary Kowalke, it is my Avill that said trust shall terminate and I give, devise and bequeath to Waldo Y. Grover, Garnette Grover, his wife, and Virginia Grover, his daughter, all of the remainder and residue of said trust estate, including, cash, personal property, and real estate, to be theirs absolutely and in fee simple forever.”

The purported will was admitted to probate by the Probate Court of Marion county on October 8, 1945.

There are no next of kin of Clara A. Kowalke, deceased, other than Mary KoAvalke, except a second cousin, Albertha C. TerpanyT" who lives in the. state ■of Washington.

An application Avas filed for the appointment of Waldo Y. Grover, designated as testamentary trustee, ■and also designated as one of the residuary devisees ■and legatees in item 10 of the purported will, as .guardian of the person and estate of Mary Kowalke, ■and pursuant to such application he Avas appointed ■as such guardian on October 15, 1945.

On March 23, 1946, an application for the removal of Waldo Y. Grover as guardian of the person and estate of Mary Kowalke, on the ground that he-possessed rights and interests adverse to the ward,, namely, that he would not bring a will contest case because it would adversely affect the interests of himself and his family, was filed by Albertha 0. Terpany, the second cousin of Clara A. Kowalke, deceased,, and Mary Kowalke.

On April 3, 1946, a hearing was held in the Probate Court on the application, and upon the hearing the court, on the same day, ordered the removal of Waldo-Y. Grover as guardian, upon such ground.

The existence of'interests of a guardian adverse to-those of the ward is a sufficient ground for the removal of the guardian.'39 Corpus Juris Secundum, 65, 66,. Guardian and Ward, Section 45. See, also, In re Wiener, Gdn., 31 N. P. (N. S.), 448.

The question raised by this appeal, therefore, is-whether such conflicting interests exist warranting 'the■rémoval of Waldo V. Grover as such guardian.

Although she had been declared an incompetent,, Mary Kowalke had the same legal right to inherit and transmit by inheritance, as any other person.

In order to preserve those rights it is, within the-meaning of Section 10507-15, General Code, “for the best interests of the ward” where reasonable grounds for contest exist,- to contest any will under which the-ward receives substantially less than he or she would receive as an heir-at-law had there been no will.

, That is true irrespective of whether the ward, in a case such as the instant case, would receive comfortable living expenses, medical and other necessary care under such will.

It is the duty of the guardian to determine whether' reasonable grounds exist for such contest and if he determines they do exist, to institute and maintain such contest on behalf of his ward.

In making that determination and instituting and maintaining such contest it is absolutely essential that the guardian has no interest adverse to his ward which may influence his determination or the institution or maintenance of such proceedings.

As shown by the evidence in this case, Mary Kowalke will receive substantially less under the will of her sister than she would receive as her sole heir-at-law if there had been no will, and consequently it was the duty of Waldo V. Grover as her guardian, to determine whether reasonable grounds for contest existed and if so to institute and maintain such contest.

As Waldo V. Grover, his wife and his daughter are to receive a very substantial part of the estat.e as the residuary beneficiaries under the terms of the will, and such contest, if successful, would deprive him and them of such benefits, his interests are wholly adverse to the interests of the ward, Mary Kowalke, in determining whether reasonable grounds for contest existed, and in instituting and maintaining such contest, and' for that reason the Probate Court did not err in removing him as guardian.

The order of the Probate Court is, therefore, affirmed at the costs of the appellant, Waldo V. Grover.

Order affirmed.

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


text:
    Magley, Appellee, v. The Masonic Temple Assn. of Columbus, Ohio, Appellant.
    (No. 3957
    — Decided February 3, 1947.)

      Mr. Horace S. Kerr, for appellee.

      Messrs. Wiles & Doucher and Mr. Henry L. Scarlett,. for appellant.
   By the Court.

This is an appeal on questions of law from a' judgment of the Common Pleas Court of' Franklin county. The action was instituted by the-plaintiff filing a-petition alleging and claiming damages by reason of an explosion and fire occurring on the-property of the defendant. The case was tried by the court without the intervention of a jury and on the-issues joined the court found in favor of the defendant. After the lapse of several berms of court the plaintiff filed a petition for a new trial on the ground of newly discovered evidence. It was agreed between counsel that the matter could be submitted to the court. -on affidavits instead of at a formal hearing, and the case was conducted in that manner. To support the ■allegations in the petition the plaintiff submitted the •affidavits of Herrick L. Johnston and Dana J. Demo-rest. Those affidavits disclose that both of those gentlemen are chemists, who made an investigation as to the cause of the fire and the results of their examination •of certain lacquers, varnishes, enamels and paints ■as to their combustibility and explosiveness. On the submission of those affidavits the plaintiff rested his case. The trial court found in favor of the plaintiff and granted a new trial and it is to that judgment that this appeal is directed.

The assignments of error may be epitomized as follows:

(1) The court was in error in granting a new trial when there was no evidence in the record to prove the material allegations of the plaintiff’s petition.

(2) The court erred in failing to sustain the defendant’s motion for a judgment notwithstanding the ■decision of the court and to render a final judgment in favor of the defendant.

(3) The court erred in overruling the defendant’s motion for a new trial.

The particular statute under which newly discovered •evidence becomes a ground for a new trial is Section 11576, General Code. Subdivision seven of that section authorizes the granting of a new trial for, “Newly ■discovered evidence, material for the party applying, which with reasonable diligence he could not have •discovered and produced at the trial.”

It will be noted that under this section a new trial ■can be granted for newly discovered evidence which, first, is material to the party applying, and which with reasonable diligence he could not have discovered and produced at the trial.

■ Section 11580, General Code, provides that the application for a new trial after term may be made by petition. Section 11581, General Code, provides in part as follows: “The facts stated in such petition, shall be-considered as denied, without answer.”

Therefore, by that section, defendant denies that the plaintiff has newly discovered evidence material -for the plaintiff, which with reasonable diligence he could not have discovered and produced at the trial, and that such evidence was discovered after the term at which the judgment was rendered. That being denied hy the defendant without answer, the burden of proof was upon the plaintiff, as the Supreme Court said in the third paragraph of the syllabus in the case of Sheen v. Kubiac, 131 Ohio St., 52, 1 N. E. (2d), 943:

“To warrant the granting of a motion for a new trial based on the ground of newty discovered evidence, it must be shown that (1) the new evidence must be such as will probably change the result if a new trial is granted, (2) it must have been discovered since the trial, (3) it must be such as .could not in the exercise of due diligence have been discovered before the trial, (4) it must be material to the issues, (5) it must not be merely cumulative to former evidence, and (6) it must not merely impeách or contradict the former evidence.”

Now, as stated, previously, the only evidence to support the plaintiff’s petition for a new trial was the two affidavits of Demorest and Johnston. We find nothing in the record to establish that such evidence was discovered since the trial, nor that it could not, in the ■exercise of due diligence, have been discovered before the trial. Those facts were properly alleged in the petition to vacate the judgment, but the record is totally lacking in any proof of them. Under Section 11581, General Code, some proof is rquired to establish those facts, the amount resting within, the sound discretion ■of the court.

In the case of Thompson v. Longo, 16 Ohio Law Abs., 205, this court held as follows, in the fifth paragraph of the syllabus:

Under the provisions of G. C. 11581 all of the material allegations of the petition for the vacation ■of a judgment after term are denied and must be proved by a preponderance of the evidence.”

The sixth paragraph of the syllabus in that case reads:

“A petition for vacation of a judgment after term and the granting of a new trial on the ground of newly discovered evidence must show that the evidence was not discovered until after term and could not have been discovered with reasonable diligence; that the evidence is material and would probably produce a ■different result. ’?

See also Western Ohio Public Service Co. v. Incorporated Village of Yellow Springs, 38 Ohio Law Abs., 472; Stroufe v. Guttman, 65 Ohio App., 556, 32 N. E. (2d), 444.

Counsel for the plaintiff, in his oral argument, ■stated when that new evidence was discovered and the diligence he pursued which would have been sufficient to sustain the ruling of the tria) court, but that is not in the record and counsel for the defense had no opportunity to cross-examine or file counter affidavits, and therefore it cannot' be considered by the court in passing upon this question.

Counsel for the plaintiff has filed a memorandum in which reference is made to several Ohio cases, none of which is exactly in point, or in opposition to the principles announced in the cases quoted, supra.

We áre of the opinion that the trial court was in error in granting a new trial under the evidence submitted on the record.

The next assignment of error is that the court erred in failing to sustain the defendant’s motion for a judgment notwithstanding the decision of the court and to render a final judgment in favor of the defendant. Prior to the filing of the motion for a new-trial the defendant filed a motion for a judgment notwithstanding the decision of the court. That motion was overruled prior to the overruling of the motion for a new trial.. Section 11601, General Code, is the section pertinent to such motion and it provides:

“When, upon the statements in the pleadings or upon the evidence received upon the trial, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, although a verdict has been found against such party and whether or not motion to direct a verdict may have been made or overruled, but no judgment shall be rendered by the court on the ground that the verdict is against the weight of the evidence.” (Italics ours.)

It will be noted the above-quoted section provides that when upon the evidence received in the trial of a cause a party is entitled to judgment, judgment shall be so rendered by the court. As stated previously, the record does not disclose that any of the new evidence was discovered after the trial. There is not a scintilla of evidence on the subject. The motion for a judgment notwithstanding the decision of the court was, therefore, one under Section 11601, General Code, and the courts have almost unanimously held that where a plaintiff fails to offer proof upon a material issue therein a judgment in his favor is contrary to law, and if the trial court fails to do this, it is the duty of the reviewing court to do so.

In the case of Levin v. Kiska, 54 Ohio App., 408, 7 N. E. (2d), 666, the court held in the syllabus:

“1. Where a plaintiff in an action fails to offer proof upon a material issue therein, a judgment in his favor is contrary to law.

“2. Where a jury has returned a verdict for plaintiff, and the trial judge finds, upon the hearing of a motion for a new trial, filed by defendant and containing the ground that the judgment is contrary to law, that plaintiff failed to offer proof upon a material issue in the case, it is the duty of the trial judge, under the provisions of Section 11601, General Code, to enter judgment in favor of the defendant, regardless of whether a motion to direct a verdict in defendant’s favor was made and overruled, or not made at all, during the trial; and where the trial court fails or refuses to enter such judgment, it is the duty of the reviewing court so to do.”

The same principle is maintained in the ease of' Woolley v. Fell, 24 Ohio Law Abs., 324, the first paragraph of the syllabus reading as follows:

“See. 11601 G. C. empowers a trial judge to examine the evidence and the pleadings after a jury verdict, and to render judgment non obstante veredicto against the party having the burden of proof if the state of the evidence is such that reasonable minds can arrive at but one conclusion and that adverse to the claim of the plaintiff, even though the court has overruled motions for a directed verdict at the conclusion of the plaintiff’s case in chief and at the conclusion of all the evidence.”

See also Schaffer v. Aranyos, 25 Ohio Law Abs., 386, the third paragraph of the syllabus reading as follows:

“The right of a party to have judgment in his favor does not depend upon the making and overruling of a motion for a directed verdict, by virtue of the provisions of the amendment to Section 11601, General Code, 116 Ohio Laws, 413.”

The plaintiff says that the court could not have sustained that motion, eiting Globe Indemnity Co. v. Schmitt, 76 Ohio App., 35, 63 N. E. (2d), 169. There the court held that where a special verdict alone is returned and a motion for a new trial is filed, the court has no jurisdiction to enter a judgment on such special verdict unless and until' the court has -overruled the motion for a new trial, and where the motion for a new trial is' granted the power to enter a judgment does not exist. We find that case is not in point, as it has application to Section 11599, General Code, while in the case at bar Section 11601, General Code, is applicable. We find the same situation in the case of Fishback v. Norman, 78 Ohio App., 140, 69 N. E. (2d), 159, which has been cited by the plaintiff.

The motion for a judgment notwithstanding the finding of the court in this case was not directed to the findings in the original trial; but only to the finding-in the vacation proceedings. The cases cited by the plaintiff, supra, relate to the relation between a special verdict and a motion for a new trial. Such a verdict follows just as a general verdict follows if a motion for a new trial is allowed. Therefore, a judgment cannot be had upon a special verdict until the motion for a new trial is passed upon. A motion for a judgment notwithstanding the verdict is a right which a party has irrespective of the verdict and of the motion for a new trial.

Were our sympathies permitted to enter into this matter our decision would probably be otherwise; but under the recognized law of this state we.must find that the motion for a judgment notwithstanding .the decision of the court should have been sustained, and it is so ordered.

Judgment accordingly.

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


author: Miller, J.

text:
    The State, ex rel. Williams, v. Glander, Tax Commr.
    (No. 3901
    — Decided June 28, 1946.)

      Mr. Meyer A. CooJc, for relator.

      Mr. Hugh 8. Jenlcins, attorney general, and Mr. Aubrey A. Wendt, for respondent.
   Miller, J.

This is an action in mandamus, originating in this court, brought by the state of Ohio on the relation of William A. Williams, a citizen, resident and taxpayer of the state of Ohio.

The respondent is C. Emory Glander, the duly appointed, qualified and acting Tax Commissioner of the state of Ohio.

The relator prays that a writ of mandamus be issued, commanding the respondent to levy and assess personal property taxes on the inventory of merchandise and other personal property owned and held by the Department of Liquor Control of the state of Ohio,, which personal property is within the state of Ohio,, and prays for such other and further relief as the relator may be entitled to.

The respondent demurs to the petition for the reason that it fails to show a cause of action. The respondent in Ms brief in support of Ms demurrer . asserts that by reason of tbe fact that mandamus is an extraordinary writ it will not lie unless the relator can establish a clear legal right thereto.

In State, ex rel. Stanley, v. Cook, Supt. of Banks, 146 Ohio St., 348, 66 N. E. (2d), 207, it was held in paragraph seven of the syllabus:

“A writ of mandamus will not issue to compel the observance of law generally, but will be confined, to commanding the performance of specific acts specially enjoined by-law to be performed. * * *”

Relator herein is not seeking the observance of laws generally but is seeking the performance of specific acts specially enjoined to be performed.

Respondent contends also that there is no showing that the relator has an essential beneficial interest in the relief sought. Section 12287, General Code, provides that the writ may issue on the information of the party beneficially interested. In regard to the degree, of interest on the part of the relator necessary to make him a proper party on whose information the proceedings may be instituted, a distinction is made between cases where the extraordinary writ of mandamus is invoked merely for the purpose of enforcing or protecting a private right and those where the purpose of the writ is the enforcement of a purely public right where a people at large is the real party in interest. State, ex rel., v. Henderson, 38 Ohio St., 644. The rule is well established in Ohio that the interest of a citizen is sufficient to sustain an action in mandamus. State v. Brown, 38 Ohio St., 344; 25 Ohio Jurisprudence, 1163, Section 222; Brissel et al., Commrs., v. State, ex rel. McCammon, 87 Ohio St., 154, 100 N. E., 348; State, ex rel. Erman, v. Gilman, Dir., 44 Ohio App., 339, 185 N. E., 808.

The next question for our consideration is whether the other averments in the petition state a cause of action. The relator seeks to have the respondent compelled to make personal property tax assessments against the Department of Liquor Control of the state of Ohio. He is seeking to have the state tax itself.

Taxpayers are defined in Section 5366, General Code. They include, so far as might possibly be favorable to the relator, “every person * # * doing business in this state.” The term “person” is defined in Section 5320, General Code, as follows:

“The word ‘person’ as used in this title, includes firms, companies, associations and corporations; words in the singular number include the plural number, and words in the plural number include the singular number; and words in the masculine gender include the feminine and neuter genders.”

The state of Ohio is not a firm, a company, an association or a corporation. It is a sovereignty. The doctrine seems to be that a sovereign state, which can make and unmake laws, in prescribing general laws, generally intends thereby to regulate not its own conduct but that of its subjects. State, ex rel. Parrott, v. Board of Public Works, 36 Ohio St., 409. See, also, State, ex rel. Atty. Genl., v. Cincinnati Central Ry. Co., 37 Ohio St., 157.

In 37 Ohio Jurisprudence, 804, Section 479, we find the following:

“Accordingly, the state is not bound by the terms of a general statute unless it is so expressly enacted, particularly where it is attempted to enforce a direct liability against the states or where any of the prerogatives, rights, titles, or interests of the state are sought to be devested. This exemption, however, has been declared not to include municipal corporations, or other parties of a public character other than the state. Moreover, the state may, by express provision, be brought within the terms of a statute.”

The statutes nowhere provide that the state of Ohio is'expressly included as being subject to assessment. It is well settled that statutes imposing taxes are to be strictly construed in favor of the party upon whom the tax is sought to be imposed and are not to be extended by implication beyond their clear import. Cassidy v. Ellerhorst, 110 Ohio St., 535, 144 N. E., 252, 42 A. L. R., 372; Caldwell v. State, 115 Ohio St., 458, 154 N. E., 792; Tax Commission v. Farmers Loan & Trust Co. of New York, 119 Ohio St., 410, 164 N. E., 423, 60 A. L. R., 546; State, ex rel. Foster, v. Evatt, Tax Commr., 144 Ohio St., 65, 56 N. E. (2d), 265.

For the foregoing reasons we are of the opinion that the petition of the relator fails to state a cause of action.

The demurrer is sustained, and unless the relator desires to plead further, the petition will be dismissed and the issuance of a peremptory writ denied.

Judgment accordingly.

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


author: Matthews, P. J.

text:
    The Ohio National Life Ins. Co., Appellee, v. Struble et al., Appellants.
    (No. 6826
    — Decided July 7, 1947.)

      Messrs. Rettinger, Schmitt & Kreis and Mr. Bert H. Long, for appellee.

      Mr. Robert N. Gorman, Mr. Roy L. Struble and Mr. Harold G. Knecht, for appellants.
   Matthews, P. J.

The motion to remand, etc., this case presents to the court the question whether the order appealed from is a final order. If it is not, the jurisdiction of the court is limited to dismissing the appeal, which, in effect, would be no more than an order striking papers from the files of this court and returning them to the files of the court from which they should not have been taken. No order to that court could be made. If the order appealed from is a final order, this court has jurisdiction and should proceed in due course to hear the appeal on its merits.’

' The plaintiff’s petition in this ease sets forth an action for a judgment declaring whether certain proceedings for plaintiff’s mutualization, under Section 9364-1 el seq., General Code, are valid, and declaring the rights of the defendants as dissenting shareholders. After the petition was filed, the defendants, acting on behalf - of themselves, the corporation and other shareholders, instituted an independent action seeking an injunction against the mutualization or, in the alternative in the event the injunction should be denied, the fair cash value of their stock.

Later, on motion; an order was made consolidating these two actions and directing that the second amended petition filed in the other action should stand as the answer and cross-petition herein.

After certain amended pleadings were filed, this action finally came on for trial and eventually an order was made in the following language:

“This cause came on for hearing on the pleadings, the evidence and briefs of counsel and was argued and submitted to the court, and on June 15, 1943, the court rendered an opinion, which was journalized as the findings of the court; thereafter the defendants filed a motion for a new trial and a motion for judgment-in their favor, which'said motions were argued to the court, and the court, being fully advised in the matter, and upon consideration thereof finds that neither of said motions is well taken and hereby overrules the same; and the court desiring to make effective its opinion and finding of June 15,1943, and to declare the rights of the parties hereby declares, adjudges and decrees that Sections 9364-1 and 9364-8, both inclusive, of the General- Code of Ohio are constitutional and valid enactments, that the plan of mutualization as set forth in the petition was duly adopted by the plaintiff in accordance with the provision of said sections of the General Code of Ohio, and is free from fraud, actual or constructive, and is in all respects valid.

“To all of which the defendants except.

“The court further finds that the defendants, Roy L. Struble and Harold C. Knecht, as the owners respectively of 37 and 32 shares of stock in the plaintiff company and as dissenting stockholders are entitled to be paid the fair cash value of such shares as of July 29, 1941, in accordance with the provisions of Section 9364-2a of the General Code of Ohio, and the court hereby appoints Hugh D. Rankin and Wm. M. Corcoran and Cecil L. Hall as appraisers to determine the fair cash value of said shares, and hereby directs said appraisers to proceed to make such determination and to report the same to this court within-days.

“Defendants except to the placing of this entry upon record before the entire case is disposed of as contrary to the ruling in Von Gunten v. New Justice Coal Co., 147 Ohio St., 511.”

The appeal was taken from that order.

By complying with Section 9364-1, General Code, a domestic stock life' insurance corporation is given the absolute right to convert itself into a mutual life insurance corporation. When a majority of the shareholders and a majority of the policyholders have approved the plan and the other conditions have been complied with, minority shareholders have no power to veto the plan. Their alternative is to either accept the plan or, by invoking the procedure set forth in Section 9364-2®, General Code, have the fair cash value of the stock determined in the manner provided therein. In the event the dissenting shareholders and the corporation cannot agree, the proceeding therefor is by petition to the Common Pleas Court and, upon finding that a shareholder is entitled to have the fair cash value of his stock, the court appoints three appraisers to determine the value, and the cause proceeds to judgment as provided by statute. The proceeding is entirely statutory and special and is so declared in Section 9364-2®, General Code, in these words:

££ Such a proceeding shall be deemed to be a special proceeding within the meaning of Section 12223-2 of the General Code, and final orders therein may be reviewed, affirmed, modified or reversed as provided in Title V, Part Third, of the General Code. ’ ’

The proceeding by the corporation to convert from a, stock to a mutual company precedes the institution of the special proceeding to have the stock of a dissenting shareholder valued. The validity of the corporate action is not drawn in question in that proceeding. The only questions that arise therein are whether the shareholder has taken the requisite steps to assert his right to the fair cash value of his stock and what that fair cash value is.

The plaintiff’s petition did not set forth a cause of action under Section 9364-2®, General Code, to have the value of the defendants’ stock fixed. It set forth a cause of action for a judgment declaring that its proceedings for mutualization were valid and binding upon both consenting and nonconsenting persons. When the court made that declaration, it granted all the relief to which, the plaintiff was-entitled, and, by Section 12102-1, General Code, “such declarations shall have the force and effect of a final judgment or decree.” No further judicial act was left to be performed. The special proceeding to fix the value of the dissenters’ stock necessarily followed in point of time and was predicated upon a valid mutualization proceeding by the corporation. So far as the corporate action was concerned, it was entirely irrelevant. The right to the fair cash value arose out of- the mutualization proceeding, but.was not involved in it. It is only because of the consolidation of these two cases that the validity of the mutualization plan and the proceeding to fix the fair cash value of the dissenters’ stock appear to be involved with one another. Normally, they would be entirely separate and distinct. If there is any relationship, the proceeding to fix the value of the stock is collateral and ancillary, following the declaratory judgment. In this respect, the eases resemble the case of State, ex rel. K. W. Ignition Co., v. Meals et al., Judges, 93 Ohio St., 391, 113 N. E., 258, in which the court, in respect-to an order granting an injunction, ordering'an accounting and appointing a referee, said at page 395:

“The general equities of the case were found in favor of the plaintiff, and while the further order of the court was necessary to carry into effect the right settled by the order, it was merely auxiliary to or in execution of the order of the court made on the merits of the case, and we are of the opinion that the Court of Appeals had jurisdiction of the subject matter on appeal.”

Counsel cite the case of Von Gunten v. New Justice Coal Co., 117 Ohio St., 511, as repudiating the proposition that, a ruling of the court can be split and two judgments rendered, even though the action is part in law and part in equity. Without doubt, the court did hold in that case that where only part of the issues .are submitted to and determined by the jury, proceedings for a new trial, taken before there is a finding upon, or decision of, the remaining issues by the court, are premature, but that falls far short of a holding that in no case may a final order be made unless thereby every issue between the parties is thereby adjudicated. What the court said in the Von Gunten case must be construed in the light of the facts of that case and in the light of those facts it is clear that the court had no intention of announcing that there could never under any circumstances be but one final order •or judgment in any case. When we remember the .liberality with which causes of action may be joined in this state, the impracticability of such a rule becomes apparent. That there is nothing sacrosanct in the common-law rule that only one final judgment can-be rendered is clear. Beauvais, Exrx., v. Springfield Institute for Savings, 303 Mass., 136, 20 N. E. (2d), 957, 124 A. L. R., 611. That rule presupposes that only one cause of action is present. It was established long before statutes greatly enlarging the rights to join causes of action were enacted. It was never intended to apply to an action like the present where, by consolidation, a civil action and a special proceeding have been joined in a single action.

The Von Gunten case was a controversy between the parties arising out of a lease of coal land. Each claimed the other had violated- various provisions of the lease and prayed for both legal and equitable relief. Although, in that case, the plaintiff’s petition in form contained several causes of action, in legal effect it ■stated one cause of action for several breaches of the terms of the lease. 9 Ohio Jurisprudence, 627, Section 376. In Cockley v. Brucker, 54 Ohio St., 214, 227, 44 N. E., 590, it is said:

“If from the nature of the contract, and the breach, thereof, the party injured has sustained damages, and has also other property rights under' the contract, he-must include his whole claim in one action, and if he-omits a part, and recovers judgment for-a part only,, he cannot sustain another action for the-- omitted part, because the whole injury caused by the breach of the contract, is merged in the judgment recovered on the-part sued for. A single cause of action cannot be split up i,nto two or more causes of action; neither can two. or more actions be sustained against the same party, on a single cause of action.”

See, also, 1 American Jurisprudence, 487, Section 105.

The controversy between the parties in the Von Gunten case related to a single contract. There was no separate and distinct cause that could be adjudged without disposing of the whole case. It was in the light of those facts that the court held that so long as any issue between the parties remained undetermined, there could be no finality to any order and that the verdict of a jury deciding some issues, but not all, was not such a verdict as started the running of time within which a motion for a new trial should be filed.

It has long been the rule in this state that a court can finally dispose of a separate and distinct cause of action and reserve other issues for future consideration and adjudication, without destroying the finality of the order made. In Teaff v. Hewitt, 1 Ohio St., 511, 59 Am. Dec., 634, the plaintiff there sued to foreclose a mortgage and to enjoin certain creditors of .mortgagor from detaching fixtures from the mortgaged premises. The mortgaged premises were decreed to be sold by the court, the injunction dissolved as to some of the fixtures, and a master appointed to determine what the fixtures would have sold for.had the.sale not been delayed by the injunction. After the master had reported, a judgment for money was rendered against the plaintiff in favor'of some of the mortgagor’s execution creditors. An appeal was taken and one of the questions presented was whether the appeal opened up “the merits of the case touching the property as to which the injunction had been dissolved.” The court held that the appeal brought for review only the decree based on the-master’s report and left undisturbed the .decree "under which the mortgaged premises had been sold. On that subject, the court, at pages 520 and 521, said:

“A final decree is one which determines and disposes-of the whole merits of the cause before the court or a branch of the cause which is separate and distinct from the other parts of the case, reserving no further questions or directions for future determination; so that it will not be necessary to bring the cause or that separate branch of the cause again before the court for further decision. It is true, that after final decree defining and settling the rights of the parties, further orders " or decrees may be necessary to carry into effect the rights settled by the final decree on the merits; such as a decree confirming a sale, or confirming the proceedings or report of a master, carrying into effect the terms of the final decree. This, however, is a subsequent proceeding, and only auxiliary to or in execution of the final decree on the merits of the case. And an appeal from a decree in this subsequent proceeding, brings nothing before the court except the proceedings which follow the final determination of the merits, Hey v. Schooley, 7 Ohio, pt. 2, 48; 5 Cranch, 313; 10 Wheat., 442. An interlocutory decree is one which leaves the equity of the case, or some material question connected with it, for future determination. Where the further action of the court is necessary to give the complete relief, contemplated hy the court iipon the merits, the decree under which the further question arises, is to be regarded not as final but as interlocutory. Cocke v. Gilpin, 1 Rob. Va., 20.

“The case before us presents a double aspect for the subject matter of a decree. The object of the bill was to sell the mortgaged premises and apply the proceeds of the sale to the payment of Hewitt’s indebtedness to complainant, and also to enjoin the proceedings under the judgments of the other creditors of Hewitt, and prevent the 'sale of the machinery in the manufactory, which the complainant claimed to be' a part of the realty and to be covered by his mortgage. After the dissolution of the injunction, the respondents who were judgment creditors of Hewitt, sold the property as to which' the injunction was dissolved, on execution. At the May term of the common pleas 1850, Teaff the complainant took his decree upon one branch of the case against Hewitt for the amount of his debt with interest and cost of suit, and in default of the payment of the same, for the appraisement and sale of the mortgaged premises, including the steam engine and boilers, as to which the injunction had not been dissolved. The decree upon this branch of the case, at that term was complete and final; no further action of the court was requisite. The defendants did not appeal from this decree, but acquiesced in it; and this part of the case is not now in controversy, as it appears,between the parties.” .

See, also, Evans v. Dunn, 26 Ohio St., 439; McRoberts v. Lockwood, 49 Ohio St., 374, 34 N. E., 734. The Ohio definition seems to conform to that of other jurisdictions. 31 American Jurisprudence, 93 et seq., Sections 434 and 435.

We, therefore, hold that the order of April 19, 1947, is a final order or judgment, and that this court has jurisdiction to review it on appeal. For that reason, the motion to remand or dismiss this appeal is overruled.

Motion overruled.

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