author: Guernsey, J.

text:
    In re Estate of Lester.
    (No. 968
    Decided May 1, 1945.)

      Messrs. Carhart, S Carhart, for appellant.

      Mr. George T. Geran, for appellee.
   Guernsey, J.

This is an appeal on questions of law from an order of the Probate Court of Marion county sustaining objections of Millie K. Lester, appellee herein, widow of the decedent, to the probate of the last will and testament of Guy 0. Lester, deceased, and denying the application of Bertha M. Lester, appellant herein, divorced wife of the decedent, to probate the will.

The application to probate was filed on August 23, 1943. Objections to the probate of the will were thereafter filed by Millie K. Lester.

The sole ground of the objections was that the instrument purporting to be the last will and testament of Guy 0. Lester was executed on December 4, 1929, at a time when the decedent was intermarried with Bertha M. Lester; that on July 2, 1937, Guy 0. Lester and Bertha M. Lester were divorced from each other in cause No. 24419 in the Court of Common Pleas of Marion county, Ohio; that in the decree in such action a complete adjustment of property rights of the parties was ordered and adjudged by the court; that by virtue of such divorce, property settlement and adjustment the condition and circumstances of the decedent were substantially and radically changed from what they were at the time of the execution of the instrument ; and that by reason of such changed circumstances resulting from the decree such instrument was, as a matter of law, revoked.

The application to probate the last will and testament qnd the objections to the probate thereof were by agreement of applicant and objector submitted together and heard by the Probate Court upon the depositions of the attesting witnesses to such last will and testament and upon an agreed statement of facts signed by the attorneys for the applicant for probate and the objector.

The deposition of each of the attesting witnesses, Reed M. Winegardner and Henry R. Brinker, is to the effect that the witness was present at the execution of the instrument now before him, bearing date the 4th day of December, 1929, and purporting to be the will of Guy 0. Lester, deceased; that the witness subscribed his name thereto as witness at the request of the testator and in his presence; that he saw Guy 0. Lester subscribe his name and heard him acknowledge his signature at the end of the instrument; and that Guy 0. Lester, at the time of executing the same, was of full age, of sound mind and memory and not under restraint.

The agreed statement of facts, omitting caption and signatures, is in the following words and figures:

“This matter is now before this court on an objection to the probation of the purported will of Guy 0. Lester, deceased, and it is hereby stipulated that the above matter be submitted to the court upon the following agreed statement of facts:
“ ‘Last will and testament
“ ‘I, Guy 0. Lester, of township of Pleasant, county of Marion and state of Ohio, being of full age and of sound mind and memory, do make, publish and declare this to be my last will and testament, hereby revoking all wills by me heretofore made.
“ ‘Item I. I direct that all my just debts and funeral expenses be paid out of my estate as soon as practicable after the time of my decease.
“ ‘Item II. All the property, real and personal, of every kind and description, wheresoever situate, which I may own or have the right to dispose of at the time of my decease, I give, bequeath and devise to my wife, Bertha M. Lester, absolutely and in fee simple.
“ ‘Item III. I make, nominate and appoint my wife, Bertha M. Lester, to be the executrix of this, my last will 'and testament, hereby authorizing and empowering my said executrix to compound, compromise, settle and adjust all claims and demands in favor of or against my estate; and to sell, at private or public sale, at such prices and upon such terms of credit or otherwise, as she may deem best, the whole or any part of my real or personal property, and to execute, acknowledge and deliver deeds and other proper instruments of conveyance thereof to the purchaser or purchasers. I request that no bond be required of my said executrix.
“ ‘In witness whereof, I have hereunto set my hand at Marion, Ohio, this 4th day of December, A. D. 1929.
“ ‘Guy 0. Lester
“ ‘Signed by the said Guy 0. Lester' and by him acknowledged to be his last will and testament, before us and in our presence, and by us subscribed as attesting witnesses in his presence and at his request and in the presence of each other this 4th day of December, A. D. 1929.
“ ‘Reed M. Winegardner residing at Marion, Ohio.
“ ‘Henry R. Blinker residing at Marion, Ohio.’
“That at that time, namely, December 4th, 1929, Guy :0. Lester and Bertha M. Lester, were living together as husband and wife, having been married on July 25th, 1901.
“On July 2nd, 1937, Bertha M. Lester was granted a divorce from the decedent, Guy 0. Lester, who was then in full life, a copy of which decree reads as follows :
“ ‘On May 19th, 1937, this cause came on to be heard upon the petition of the plaintiff, the answer and cross-petition of the defendant, and the evidence, and was submitted to the court;
“ ‘And upon consideration, the court finds that'the plaintiff is a bona ficle resident of the state of Ohio, and of the county of Marion therein, and has been such continuously, for more than one year, and for more than thirty days, respectively, immediately preceding the filing of the petition; that said defendant has been duly served with process herein, and that both parties are properly before this court; and the court finds that the petition of the plaintiff is not well taken, and the same is accordingly hereby dismissed;
“ ‘And thereupon, upon motion in open court by the defendant for leave to amend her cross-petition, instanter, by interlineation, by the insertion in the first line of the prayer thereof, after the word “decreed,” the words, “a divorce and,” such leave was granted and such amendment was at once duly made; and upon ■motion in open court by the plaintiff, leave was granted him to at once file a reply to such amended cross-petition, which same was immediately done;
“ ‘And on July 2nd, 1937, this cause came on to be heard upon such amended cross-petition of the defendant, the 'reply thereto, of the plaintiff, and the evidence, and was again submitted to the court;
“ ‘And tfie court finds tfiat tfie defendant is a bona fide resident of tfie state of Ohio, and of tfie county of Marion therein, and has been such continuously for more than one year, and for more than thirty days respectively, immediately preceding the filing of her amended cross-petition herein; tfiat said plaintiff was duly served with a summons upon tfie cross-petition of defendant, and by his reply to tfie amended cross-petition of defendant, and by his appearance, this day in court, both in person and by counsel, is properly before this court;
“ ‘And upon tfie issues joined, tfie court finds tfiat tfie allegations contained in said amended cross-petition are true, and tfiat tfie defendant is entitled to a divorce from tfie plaintiff upon tfie ground of gross neglect of duty in his marriage relations with defendant; and tfiat tfie defendant is also entitled to tfie other relief as prayed for in lier said amended cross-petition.
“ ‘And it is accordingly hereby adjudged, decreed, and ordered by tfie court:
“ ‘That tfie defendant, Bertha Lester, be and she hereby is granted a divorce from tfie plaintiff, Gruy 0. Lester, and tfie bonds of tfieir said marriage are hereby absolutely severed and dissolved; tfiat tfie custody and control of the minor son of said parties, Elwin Lester, is hereby given and granted unto tfie .said defendant, with tfie right of visitation to said child on tfie part of tfie plaintiff at all reasonable times; and the said plaintiff is hereby ordered to pay to tfie defendant, tfie sum of $20 per month for tfie support and maintenance of said minor son, until such minor son graduates from high school, but such payments shall not continue past June of tfie year 1942; tfie first payment hereunder to be for and in tfie month of July, 1937, and subsequent payments to be each and every month thereafter until tfie above specified time;
“ ‘As permanent alimony for said defendant, it is hereby decreed and ordered by the court, that said plaintiff shall pay to the defendant, beginning July, 1937, for her own support, the sum of $17 per month, such payments to continue so long as said defendant remains unmarried; in the event that defendant remarries, then such monthly payments of $17 shall at once cease; however, such monthly payments of $17 shall be in addition to the monthly payments of $20 as above provided for the support of said minor son;
“ ‘The Ford V-8 automobile, model 1935, now in possession of the defendant, but belonging to -plaintiff, is hereby adjudged and given to the defendant, and said plaintiff is ordered to at once execute and deliver to the defendant a proper bill of sale therefor, and in the event that he fail or refuse to do so, then this decree shall operate1 to transfer the title of such automobile to the defendant;
“ ‘All household goods, crops, live stock, implements, and all other personal property now on the 57.08-acre farm, be and the same are hereby given and granted unto the defendant for and during the term of her natural life, or until she shall remarry, she to have, the entire control of the same, with the right to occupy and/or lease said premises or any part thereof, as she may see fit, and this decree shall operate as a transfer of such rights and interests to this defendant; and said plaintiff is hereby barred from alienating or further encumbering such undivided one-half interest; .however, should defendant remarry, then she shall forfeit all further rights in and to said undivided one-half interest belonging to said plaintiff; Said farm is described as follows:
“ ‘ “Situated in the county of Marion, in the state of Ohio, and in the township of Pleasant and known as being the north part of the east part of the south-east quarter of section 10, township No. 6, south of range 15, east, beginning at the quarter post in the east line of said section; thence south on said east line 32 chains and 25 links to the northeast corner of a 10 acre tract; thence on the north line of said 10 acre tract, west, 13 chains and 5 links, to the northwest corner thereof; thence on a line parallel to the east line of said section, north, 32 chains and 25 links to the center of a certain road on the east and' west half section line of said section; thence east on said line, 13 chains and 5 links' to the place of beginning, containing 42.08 acres, more or less.
“ ‘ “Also the following situated in said county, state and township and being 5 acres to be taken out of the north-west corner of the west half of the south-west quarter of section No. 11, township No. 6, south, range No. 15, east, said 5 acres to extend 40 rods east and west, and 20 rods north and south;
“ ‘ “Also the following, situated in said county, state and township, and being 10 acres, more or less, out of the south-east corner of section No. 10, township No. 6, south, range No. 15, east, Pleasant township, Marion county, state of Ohio, .and bounded and described as follows: Beginning at the south-east corner of said section No. 10; thence on the east line thereof, north, 7 chains and 65 links to a stake; thence west parallel with the south line of said section No. 10, -13 chains and 5 links to a stake; thence south parallel with the east line of said section, 7 chains and 65 links to a post in the south line thereof; thence east on said line, 13 chains and 5 links, to the place of beginning;
“ ‘ “Being the same premises conveyed by Robert H. Niggles and wife to John J. Stiffler, deed recorded in Yol. 154, page 61, Marion county, Ohio, Deed Records.”
‘ ‘ ‘The court finds that there is a mortgage indebtedness of approximately $2,450 against said farm to the Federal Land Bank of Louisville, Ky., the amortization payments tliereon being $105 each July 1st, and January 1st. It is hereby adjudged and ordered that plaintiff make these payments as they become due until the entire payment of said indebtedness, and he shall further pay all taxes and assessments against said farm, now levied or to be levied in the future, and shall pay for all insurance now covering the buildings .on said premises, and for the future insurance thereon, the coverage on said buildings to be not less. than $3,000, all such payments, on mortgage, taxes and assessments and insurance to continue until said mortgage indebtedness is entirely paid, or until the death of defendant, or until she remarry, whichever is soonest; if a loss or losses, covered by insurance, should occur, then the proceeds of such insurance covering such loss or losses, shall be utilized, as far as possible, to restore said premises; and in the event that such premises or any part thereof should be sold upon foreclosure or other legal process due to the default or other action of the plaintiff, then said plaintiff shall pay to defendant the same amount of money, per annum, that he would bo required to pay, as above provided, in the liquidation of such payments due on said mortgage indebtedness, said taxes and assessments, and said insurance, plus the sum of $200 per annum, which said sum of $200 per annum is considered to be the reasonable net income from said farm, all such payments to be made until the death of defendant, or until she remarry, and such payments are hereby made a lien upon the interest of said plaintiff in said premises.
. ■ “ ‘This decree is considered by the parties hereto as a continuing order and the amounts specified herein to be paid by the plaintiff are based upon the ability of plaintiff to earn the sum of $200 or more per month, and in the event that his said-earnings or income fall below the amount of $200 per month, unless such decrease be due to his own deliberate default, then this decree shall be subject to modification by the court upon proper application.
“ ‘It is ordered that each party pay the costs incurred, respectively, by each, in this action.
“ ‘Approved:
“ ‘Mouser & Mouser for plaintiff. Hector S. Young,
“ ‘Heo. T. Geran for defendant. Judge.
7/2/37.’
“On July 31st, 1937, Guy 0. Lester married the woman who is now his surviving spouse, Millie K. Lester, and who is the objector in this matter.
“It is agreed that up to the time of his death, said Guy 0. Lester had fully complied with all of the provisions of said divorce decree, and that Bertha M. Lester never remarried.
“Guy 0. Lester died on the 6th day of July, 1943/ and said Millie K. Lester, on July 24th, 1943, was duly appointed and qualified as the administratrix of this estate, by the action of this court, and she is now acting as such.-
“On August 23rd, 1943, the former wife of the deceased, Bertha M. Lester, presented for probation, the above mentioned written instrument as the last will' and testament of the deceased, Guy 0. Lester.”

The applicant for probate of the will, Bertha M. Lester, assigns error in the following particulars:

(1) The finding and decision of the Probate Court of Marion county, Ohio, is contrary to law.

(2) The finding and decision of the Probate Court is contrary to the evidence.

(3) The judgment, finding and decree of the Probate Court is contrary to the agreed statement of facts.

(4) The judgment, finding and decree of the Probate Court is contrary to Section 10504-22, General Code, which provides that the Probate Court shall admit a will to probate when it appears that such wfill was duly attested and executed according to the law in force at the time of the death of the testator, in the state of Ohio, if the testator at the time of executing the will was of full age, of sound mind and memory and not under restraint.

' (5) The Probate Court erred in finding and holding that the last will and testament of Buy 0. Lester was revoked by virtue of the decree of the Common Pleas Court of Marion county, Ohio, in an action for divorce and alimony, wherein the Common Pleas Court granted to Bertha M. Lester, the appellant herein, a divorce and alimony, for the reason that the agreed statement of facts and journal entry definitely show that there was no settlement between the parties as to their property rights, and the Probate Court erred in finding that there was a settlement, which is contrary to the evidence, contrary to the law, and contrary to the agreed statement of facts.-

(6) Other errors apparent on the face of the record. The assignments of error all relate to and are predicated upon the same subject matter so that they will be considered together.

In the consideration of such assigned errors it is necessary to first determine the nature of a proceeding to probate a will and the jurisdiction of the Probate Court over the subject matter of the proceeding.

A proceeding to admit a will to probate is not, speaking generally, a civil action, but a judicial inquiry to ascertain whether the instrument before the court is the last will and testament of the decedent. 41 Ohio Jurisprudence, 391, Section 202.

■ It is to all intents and purposes a proceeding ex parte in nature, substantially in rem. Persons interested in resisting the probate of the will .are not allowed to introduce evidence to contest its validity. 41 Ohio Jurisprudence, 393, Section 203.

On the probate of a will the main issue, in fact the only issue, is whether the paper propounded is a will. The inquiry can be neither enlarged nor contracted by the pleadings. The jurisdiction of the Probate Court is limited to the probate of the will and to an inquiry as to whether the provisions of law have been complied with in the execution of the will, and the condition of mind and capacity of the testator to make a disposition of his property, as revealed by the testimony of the witnesses to the will. 41 Ohio Jurisprudence, 394, Section 205.

No testimony can be given against the will and when the proponent makes a prima facie case in favor of the probate it is the duty of the Probate Court to grant the application for probate. State, ex rel. Young, v. Morrow, Judge, 131 Ohio St., 266, 274, 275, 2 N. E. (2d), 595; In re Will of Hathaway, 4 Ohio St., 383; Missionary Society of M. E. Church v. Ely, 56 Ohio St., 405, 409, 47 N. E., 537; McWilliams v. Central Trust Co., 51 Ohio App., 246, 200 N. E., 532; In re Will of Fisher, 67 Ohio App., 6, 35 N. E. (2d), 784; Sections 10504-18 and 10504-22, General Code.

Section 10504-18, General Code, above mentioned, prescribes:

“The court shall cause the witnesses to the will, and such other witnesses as any person interested in having- it admitted to probate desire, to come before the court. On request of such interested person, the court shall compel the attendance of any witness by subpoena as in civil cases. Such witnesses shall be examined, and may be cross-examined, in open court, and their testimony reduced to writing and filed.”

Section 10504-22, General Code (114 Ohio Laws, 349), above mentioned, prescribed:

“If it appears that such will was duly attested and executed, and that the testator, at the time of executing it was of full age, of sound mind and memory, and not under restraint, the court shall admit the will to probate.”

Prior to the adoption of the Constitution of 1851 and also prior to the adoption of “an act relating to wills, and to repeal former acts relating thereto” (50 Ohio Laws, 297), passed May 3, 1852, effective June 1,1852, an “act relating to wills” (38 Ohio Laws, 120), passed March 23,1840, effective October 1,1840, and as amended March 12, 1844 (42 Ohio Laws, 73), March 8, 1845 (43 Ohio Laws, 66), February 28, 1846 (44 Ohio Laws, 79), February 22, 1848 (46 Ohio Laws, 66), March 20, 1849 (47 Ohio Laws, 32), and March 17, 1851 (49 Ohio Laws, 99), was in effect.

This act conferred jurisdiction on the Common Pleas Court in probate matters.

Section 13 of the act prescribed:

“The said court shall cause the witnesses to such will, and such other witnesses as any person interested may desire, to come before such court; and said witnesses shall be examined in open court, and their testimony reduced to writing and filed: Provided, That in all cases where any witnesses, other than the subscribing witnesses to the will, are introduced, the court may order their testimony to be taken and reduced to writing, by a master commissioner of the court, which testimony shall be filed with said will.”

Section 16 of the act prescribed:

“If it shall appear that such will was duly attested and executed, and that the testator, at the time of executing the same, was of full age, and of sound mind and memory, and not under any restraint, the court shall admit the will to probate. ’ ’

These provisions were of such character that the proceeding to probate a will pursuant to such act was not an adversary proceeding over which the court exercised general jurisdiction, but a special ex parte proceeding over which the court exercised such jurisdiction as was expressly prescribed by law.

None of the amendments to the act related either to the jurisdiction of the Common Pleas Court in probate matters, or in any way affected the provisions of sections 13 and 16 of the original act.

Following the adoption of the Constitution of 1851, the “act relating to wills,” passed March 23, 1840, as amended, was repealed by the “act relating to wills, and to repeal former acts relating thereto,” above mentioned.

This act, pursuant to the provision contained in the Constitution of 1851, conferring jurisdiction on the Probate Court in probate matters, provided, among other things, that the Probate Court should have jurisdiction of the probate of wills and of other matters designated in the Constitution, and prescribed the procedure in connection therewith.

Section 12 of the act prescribed:

“The said court shall cause the witnesses to such will, and such other witnesses as any person interested in having the same admitted to probate, may desire, to come before such court; and said witnesses shall be examined in open court, and their testimony reduced to writing, and filed.”

Section 15 of the act prescribed:

“If it shall appear that such will was duly attested and executed, and that the testator, at the time of executing the same, was of full age, and of sound mind and memory, and not under any restraint, the court shall admit the will to probate.”

It will be noted that these provisions recognized and continued in effect the special and limited nature of a proceeding to probate a will, as it existed at the time of the adoption of the Constitution of 1851.

It will also be noted that the provisions of section 13 of the act of 1840 and the provisions of section 12 of the act of 1852 are almost identical with the provisions of Section 10504-18, General Code, now in effect, except that section 13 of the act of 1840 did not contain the phrase, “in having it admitted to probate,” after the words, “person interested,” and that Section 10504-18, General Code, contains provisions as to the subpoenaing and cross-examination of witnesses.

It will also be noted .that the provisions of section 16 of the act of 1840 and section 15 of the act of 1852 are practically identical with each other and with the provisions of Section 10504-22, General Code (114 Ohio Laws, 349), as in effect at the time of the filing of the ap*plication to probate.

Although Section 8 of Article IY of the Constitution of 1851, now in effect, prescribes that the Probate Court shall have jurisdiction in probate and testamentary matters, and the jurisdiction conferred by such section is apparently plenary, such section must be interpreted in the light of the rules of law applicable to the character of proceedings to probate wills, prevailing before its adoption, and when so interpreted the jurisdiction conferred by such section is within the limits hereinbefore set forth.

Consequently the Probate Court is without jurisdiction to consider or - determine whether a will has been revoked by operation of law or otherwise, as it attempted to do in this case. Such question may be considered and determined only by the Common Pleas Court upon petition to contest a will upon that ground.

This being the case it is improper for this court to consider or determine whether upon the facts set forth in the agreed statement of facts the will was revoked as a matter of law.

As the testimony of the subscribing witnesses to the will established conformity with all the requirements of Section 10504-22, General Code, it was the duty of the Probate Court, under the rules of law hereinbefore mentioned, to render judgment admitting the will to probate.

For the reasons mentioned, the judgment of the Probate Court is contrary to law and for that reason will be reversed, at the cost of the appellee, and this court rendering the judgment the Probate Court should have rendered grants the application to admit the will to probate, without prejudice to the right of the appellee to contest the same by appropriate action in the Common Pleas Court. It is further ordered that this cause be remanded to the Probate Court for execution.

Judgment reversed.

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


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    The State of Ohio, Appellee, v. Jenkins et al., Appellants.

      (Nos. 6464, 6465 and .6466
    Decided December 14, 1944.)

      Mr. Carson Hoy and Mr. Loyal S. Martin, for appellee.

      Mr. Philip J. Kennedy and Mr. Chauncey D. Pichel, for appellant James Jenkins.

      Mr. Jos. H. Fulton and Mr. David L. Shannon, for appellant James Willie Brown.

      Mr. Augustus Beall, Jr., and Mr. James E. K imp el, for appellant Johnnie Mae Gardner. •
   By the Court.

(1) The principal ground for reversal of judgments of their convictions, asserted by the defendants, is that the court erred in granting the state’s application for a joint trial. They were charged with, and found guilty of, murder in the first degree.

The joint trial was ordered on the application of the prosecuting attorney. The ground assigned by him was that the crime had been planned aiid personally executed by all the defendants, and that each had so confessed. The defendants assert that the ground relied upon not only forms no basis for .ordering a joint trial, but, on the contrary, affirmatively shows that the defendants were entitled to separate trials.

The power to order a joint trial is conférred by Section 13443-3, General Code, which reads as follows:

“When two or more persons are jointly indicted for a capital offense, each of such persons shall be tried separately unless the court for good cause shown on application therefor by the prosecuting attorney or one or more of said defendants, order said defendants be tried jointly.”

That this section violates no constitutional right of the defendants is clear. It could be given retroactive operation without violating any constitutional provision. See Beazell v. Ohio, 269 U. S., 167, 70 L. Ed., 216, 46 S. Ct., 68.

Section 13443-3, General Code, has never been construed by the Supreme Court, but such court has, in State v. Fox, 133 Ohio St., 154, 12 N. E. (2d), 413, considered Section 13442-11, General Code, which provides for joint trials in noncapital cases “unless the court for good cause shown” orders a separate trial. It is true that in that case the court found there was no issue as to abuse of discretion, but the case did raise the issue as to the introduction of admissions or confessions by one of several eodefendants.' And the court held that such admissions and confessions were competent against the admitting or confessing defendant, even though they implicated other defendants, provided the court, by appropriate instruction, limited the probative value of such admissions and confessions to the charge against the admitter or confessor, and clearly excluded them as against the other defendants. The court followed the overwhelming weight of the authorities, and expressly placed the Illinois and Wisconsin cases, relied upon by the defendants, in the minority category. The court also indicated the trend of its thinking on the attitude of a court reviewing the order of a trial court refusing to grant a separate trial. It did this by citing the annotation in 70 A. L. R., 1185, where it is said:

“Separate trials are properly granted where it appears that a defendant would be prejudiced on a joint trial by the reception of evidence which is not admissible as against him, but which is competent as against his codefendant. But a refusal is justified when the jury is properly instructed concerning the application of the evidence and no prejudice has in fact resulted from trying the defendants jointly.”

Many cases are cited in support of the above-quoted statement.

We conceive that the same principle applies to ordering a joint trial- of defendants jointly indicted as applies to refusing to grant a severance. Clearly, the facts disclo.sed would be sufficient to justify a joint trial in any case, civil or criminal, where a joint or separate trial was a matter of choice, and no countervailing reason appeared. The ultimate issue is whether the defendants have received a fair trial. And that can only be determined by an examination of the record.

All the defendants testified in this case.

An examination of these confessions and a comparison of them with the testimony which was t given by each confessor upon the witness stand shows that the respect in which each defendant modified his or her confession resulted from an effort to minimize his or her own active participation and to magnify that of the other defendants. It was therefore the testimony rather than the confessions that was damaging to the other defendants. And, of course, each defendant was a competent witness, whether the trial was joint' or several.

It is true that each defendant could have refused to testify in a separate- trial other than his own, on the ground that his testimony might incriminate him, and it may be that the incentive to testify might be greater or different in a joint trial, but no defendant had a vested right to have the other defendants refuse to testify on that ground. A codefendant might have been induced to testify against another defendant on a separate trial.

Although it seems to us that the placing of these confessions in evidence could not have prejudiced any defendant, under the circumstances of this case, still the court was careful to instruct the jury that it should not consider any confession except as against the confessor. That certainly protected the defendants in their rights as defined in State v. Fox, supra.

(2) It is also urged that the court erred in overruling Jenkins’ challenge to the array. The drawing was in open court, in the presence of the judge and counsel for defendants. After the wheel was spup, a jury commissioner drew seventy-five cards from the wheel. As each card was withdrawn, it was handed to a deputy sheriff, who read aloud the name thereon. The card was then handed to a deputy clerk of courts who. caused the name to be placed on the venire list.

It is said that this was not a compliance with Section 13443-1, General Code.

In view of Section 9, General Code, which authorizes a deputy to perform all the duties of his principal, this drawing must be regarded as having taken place under the personal supervision of the clerk. That being so, we are of the opinion that it was a substantial compliance with Section 13443-1, General Code. Furthermore, there is no claim that the substantial rights of any defendant were prejudiced by the method of drawing.

(3) We have examined the record as to the other assignments of error, and have reached the conclusion that they are insubstantial. By Section 13449-5, General Code, we are precluded from giving any effect to mere technical errors and must disregard all errors except such as are material and prejudicial to the substantial rights of the party excepting. We are directed to disregard all errors which do not affect the substantial rights of the parties. See State v. Moon, 124 Ohio St., 465, 179 N. E., 350, and State v. Witsel, 144 Ohio St., 190, 58 N. E. (2d), 212.

Each of the defendants testified to the substantial facts that fastened guilt. Under such circumstances, we cannot but disregard mere errors of form and the claim of abuse of discretion.

We find that the defendants received a fair trial, free of any prejudicial error.

Tlie judgments are affirmed.

Judgments affirmed.

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


author: Nichols, J.

text:
    Olsen et al., Appellants, v. Watson et al., Appellees.
    (No. 1795
    Decided February 27, 1945.)

      Mr. D. H. Wysong, for appellants.

      Messrs. Turner & Turner, for appellees.
   Nichols, J.

This action originated in the Court of Common Pleas of Montgomery county on June 19, 1925, and is now in this court on appeal by plaintiffs, Walter Olsen and Viola Olsen, from the judgment of that court in favor of defendants, C. P. Watson and Chas. S. Anderson.

The appeal was attempted to be prosecuted as one upon questions of law and fact. On motion of defendants, appellees herein, this court heretofore dismissed the appeal on questions of law and fact, retained the case as an appeal upon questions of law only, and granted plaintiffs, appellants herein, fifteen days in which to have prepared and filed a bill of exceptions, if they so desired. The fifteen days long since have passed and no bill of-exceptions has been filéd. As a result, this court is limited to a decision of any errors appearing from the pleadings and the transcript of the docket and journal entries in the Common Pleas Court.

As would be expected, the case has run a stormy course throughout the years intervening from 1925 to the present time, having previously been in this court on petition in error filed by plaintiffs, this court having, on July 13, 1937, passed upon all the errors claimed to have intervened prior to that time and having affirmed the judgment appealed from.

It seems apparent that without a bill of exceptions, the only portion of the record .to which we can look for errors at this time is that which took place in the Common Pleas Court subsequent to the former judgment of this court. It would further seem apparent that reference to the various proceedings from the institution of the action to the date of the former judgment of this court would be without purpose and especially so since the trial judge, in an opinion rendered on August 21,1943, has recited very ably a history of the proceedings as shown by the transcript.

In the brief of plaintiffs, the following questions are submitted for consideration of this court:

“1. Did the determination of the issues in case No. 57467, being a foreclosure action filed on January 29, 1926, and judgment granted on April 24, 1928, judicially vacate, set aside and hold for naught a judgment rendered on January 22, 1927, in this action filed previously — namely, June 19,1925, especially when the issues are entirely different?
“2. Did the trial court err in granting judgment on the pleadings after judgment was previously granted and not vacated or reversed, and in striking plaintiffs ’ entry and reply from the files?”

Taking up these questions in their order, it can be seen readily that the first relates only to matters which took place in the Common Pleas Court' prior to the former decision of this court affirming the judgment of that court, and cannot be again brought in question at this time.

It is further apparent that in the absence of a bill of exceptions, this court does not now have before it information upon which wo can act intelligently since there is not-before us any record of the proceedings in case No. 57467, referred to by counsel. It may be said, however, that the pleadings in this case and the transcript of the docket and journal entries indicate clearly that the only judgment in favor of plaintiffs rendered on January 22, 1927, was one wherein the court found defendants to be in default for answer and demurrer and ordered the case sent to the jury for assessment of damages.

The transcript further discloses that such default was opened by the court and defendants were allowed to plead, the entry of August 24,1927, being as follows:

“The default judgment heretofore taken herein by the plaintiffs against these defendants having been waived by counsel for the plaintiffs is hereby suspended. ’ ’

The transcript further discloses that after the default judgment had been suspended, the cause was tried and submitted to a jury and verdict was returned for plaintiffs in the sum of $4,010. On motion for new trial, this judgment was set aside by the Common Pleas Court solely on the ground that the same was not sustained by the required degree of proof. As stated above, any errors in connection with the action of the Common Pleas Court prior to the judgment of this court rendered on July 13, 1937, are not now available to plaintiffs.

Proceeding to answer the second question propounded by plaintiffs, the transcript discloses that the trial court did not grant judgment on the pleadings but granted such judgment on the pleadings aid the evidence. We do not have the evidence before us by way of a bill of exceptions and any error in that respect cannot be determined here.

We note that counsel claims that a “judgment was previously granted and not vacated or reversed.” As stated in answer to question No. 1, the judgment of January 22, 1927, was vacated, or at least suspended, the cause tried to a jury, judgment rendered for plaintiffs and subsequently set aside by the Common Pleas Court because not sustained by the evidence.

The error complained of in the court striking from the files “plaintiffs’ entry and amended reply to defendants’ amended answer” is not shown very clearly by the brief of plaintiffs. Our examination of the transcript of the docket and journal entries shows that during the long course of this litigation certain pleadings had become lost, among which was a third amended answer of defendants. To remedy the situation resulting from loss of such pleadings, defendants obtained leave to file a fourth amended answer. Thereafter plaintiffs filed a copy of the original third amended answer with a motion interposed by them. Thereupon defendants moved the court and obtained leave to withdraw their fourth amended answer and to substitute the' copy furnished by plaintiffs of the third amended answer. When the cause came on for trial, plaintiffs, without leave of court, filed a reply to the fourth amended answer of defendants which had been withdrawn previously. This reply was stricken from the files. There certainly can be no error in that respect, as reply had been filed previously to the third amended answer of defendants.

We have examined all of the errors assigned and given careful consideration to the claims of plaintiffs and find that there is no prejudicial error apparent upon the record warranting a reversal of the judgment in this case. We refer to the very fine opinion rendered by the Common Pleas Court, of which mention is made above.

The judgment of the Common Pleas Court is affirmed.

Judgment affirmed.

TIornbeck, P. J., and Geiger, J., concur.

Nichols, J., of the Seventh Appellate District, sitting by' designation in the Second Appellate District.


author: Guernsey, P. J.

text:
    Carr, Appellee, v. The Marion Masonic Temple Co., Appellant.
    (No. 965
    Decided January 23, 1945.)

      Mr. Bernard G. Moloney and Messrs. Sandies, Elliott é Ashbaugh, for appellee.

      Messrs. Garhart & Carhart, for appellant.
   Guernsey, P. J.

This is ail appeal on questions of law from a judgment of the Common Pleas Court of Marion county, Ohio, in an action wherein Mary E. Carr, the appellee, was plaintiff, and The Marion Masonic Temple Company, appellant, was defendant.

The action is one on appeal to the Common Pleas Court from a finding of the Industrial Commission of Ohio made on the rehearing of the application of Mary E. Carr for compensation under the Workmen’s Compensation Act, filed by her pursuant to the provisions of Section 1465-74, General Code.

In her petition the plaintiff alleged that at all times in the petition mentioned The Marion Masonic Temple Company was a corporation duly organized and ex-' isting under the laws of the state of Ohio; and that this cause came into the court on her appeal from an adverse order of the Industrial Commission, by virtue of the provisions of Section 1465-90, General Code of Ohio.

Plaintiff in her petition further said that, on .or about the 27th day of October 1934, she was the lawfully wedded wife of Harry E. Carr, deceased, and was living with him at the time as his wife, totally dependent upon him for her support; and that on the 27th day of October 1934, while in the usual course of his employment for his employer, The Marion Masonic Temple Company, Iiarry E. Carr sustained injuries which resulted in his death the same date when he fell down an elevator shaft in the building of his employer and died as the result of a severe head injury at the base of the brain.

Plaintiff further said that, on or about the 27th day of October 1934, her husband, Harry E. Carr, was employed by The Marion Masonic Temple Company of Marion, Ohio, and that the company on such date had regularly in its employ three or more employees.

The plaintiff further said that the decedent, Harry E. Carr, was employed by the defendant as a janitor and worked at whatever job he was assigned from day to day or from hour to hour throughout the day’s employment.

Plaintiff further said that the defendant was amenable to the Workmen’s Compensation Act; that within the time required by law the plaintiff filed with the Industrial Commission her claim for compensation, in what is known as claim No. 5227-27, alleging the decedent’s injuries in the course of his employment by the defendant; and that from time to time hearings were held on her case, and on the 12th day of July 1937 the order was made, “that the claim be disallowed on rehearing.”

Plaintiff further said that within sixty days thereafter she filed her petition in the court.

Plaintiff prayed for a jury to try her right of action; for the finding of the court or jury in favor of her right to participate in the state insurance fund; for the payment of medical bills; that the court so certify such findings and verdict to the Industrial Commission to require the Industrial Commission thereupon to order compensation paid to this plaintiff in the manner provided by the Workmen’s Compensation Act; and that such certification of the court shall be entered in the record of judgments of this court for the purpose of error proceedings or in lieu of final judgment in such case, all in accordance with Section 1465-90 of the General Code of Ohio, together with her costs herein expended, including a reasonable attorney fee as provided by law.

The defendant’s answer to the petition is a general denial of the allegations thereof.

The cause was submitted to the Common Pleas Court upon the pleadings mentioned, a certified transcript of the proceedings by and before the Industrial Commission and certain stipulations of counsel, which appear in the bill of exceptions of the trial had in the Common Pleas Court.

Upon trial, the jury returned a verdict in favor of the plaintiff, signed by eleven members of the jury, which, with caption and signatures omitted, is in the words and figures following:

“We, the jury, being duly impaneled and sworn, find upon the issues of this cause, that the plaintiff has a right to participate in the state insurance fund, and we do so render our verdict upon the concurrence of eleven members of our said jury that being three-fourtlis or more of our number. Each of us said jurors concurring in this verdict signs his name hereto this 24th day of November, 1942.”

The defendant requested the court to submit seven separate interrogatories to the jury, to be returned with its verdict.

The court refused to submit interrogatories Nos. 3, 4 and 7, but submitted the other four interrogatories, Nos. 1, 2, 5 and 6, respectively.

The submitted interrogatories were answered by the members of the jury concurring in the general verdict and were returned with the general verdict.

The interrogatories submitted, and the answers thereto, are as follows:

“Interrogatory No. 1. How many regular employees or operatives had The Marion Masonic Temple Company at the time Harry Carr was injured? Answer: Three.
“Interrogatory No. 2. If you find that there were three or more regular employees or operatives of The Marion Masonic Temple Company in October, 1934, then name them. Answer: C. E. Waddell, Harry Carr and Milton McKenan.
“Interrogatory No. 5. If you find that Milton Mc-Kenan was one of the regular employees or operatives, at the time Harry Carr was injured, then answer this question — Did he have a contract of hire express or implied with The Marion Masonic Temple Company? Answer: Implied.
“Interrogatory No. 6. If you find that Milton Mc-Kenan did have a contract of hire express or implied with The Marion Masonic Temple Company, then answer this question: What was the date of said contract? Answer: Eleven days before Harry Carr’s death.”

The interrogatories concerning which the appellant assigns error in the refusal of the court to submit, are as follows:

“Interrogatory No. 3. If you find that George Earl Waddell was one of the regular employees or operatives at the time Harry Carr was injured, then answer this question: Did George Earl Waddell do any manual labor for The Marion Masonic Temple Company?
“Interrogatory No. 4. If you find that George Earl Waddell was one of the regular employees or operatives of The Marion Masonic Temple Company at the time Harry Carr was injured, then answer this question : What manual labor did George Earl Waddell perform?”

Within the time limited by law the defendant filed its motion for new trial which was heard on the 25th day of January 1.943, and the following judgment was entered :

“And this cause coming on further to be heard on the 25th day of January, 1943, on the motion for a new trial filed by the defendant herein, the same was submitted to the court upon the pleadings, briefs and argument of counsel for the respective parties hereto. Upon consideration whereof the court do find that said motion is not well taken and the same, therefore, is overruled, to which said defendant excepts.
“Wherefore, it is ordered, adjudged and decreed that the plaintiff herein, Mary E. Carr, has a right to participate in the state insurance fund of the state of Ohio by reason of the death of her husband, Harry Carr. Judgment is accordingly awarded to conform to said verdict, and the clerk of this court is directed to forward a certified copy of this finding to the Industrial Commission of Ohio.
“The court further finds that Bernard C. Moloney and Sandies, Elliott & Ashbaugh, attorneys for the plaintiff, are entitled to a fee from the workmen’s compensation fund as provided by statute and the amount is fixed at 20% of the first $500 of such compensation as the commission may hereafter award in this case, and ten per cent (10%) of such sum as may be awarded in excess of $500, the entire fee not to exceed the maximum of $500 allowed by law, to all of which the defendant excepts.”

From that judgment this appeal is taken.

Plaintiff is application for hearing and determination of compensation filed with the Industrial Commission was on a blank form prescribed by the Industrial Commission for the hearing and determination of compensation in cases where the employer had failed to comply with the section of the Workmen’s Compensation Act, which, in the act of its enactment, was designated as Section 27, but is now designated as Section 1465-74 of the General Code.

In her application, the plaintiff, among other tilings, recited that she made application to the Industrial Commission of Ohio for the purpose of having determined the amount of compensation, to which she might be entitled under the provisions of the Workmen’s Compensation Act on account of the death of Harry E. Carr (hereinafter referred to as decedent), in accordance with Section 27 of such act; and that in support of her application she submitted the following statement of fact for the consideration of the commission :

“1. Deceased was employed at time of injury causing death, by Masonic Temple, Main and Church streets, Marion, Ohio.
“2. Prior to and at the time of said injury such employer employed three or more workmen or operatives regularly.
“3. Said employer was not on said date a subscriber to the state insurance fund as established under the provisions of said act.
“4. Said employer had not on such date elected to pay compensation direct, under the provisions of Section 22 of said act.
“5. Deceased received an injury in the course of employment on the 27th day of October, 1934.
“7. Said injury resulted in the death of deceased on the 27th day of October, 1934.
“8. I bear the relationship of wife to the deceased.
“9. I was wholly dependent on deceased for support at the time of his death.
“10. This application is made on behalf of myself and the following named persons who were also dependent on deceased for support:
Name: Age: Relation to Wholly or deceased: partially:
Ruth Carr 11 years Daughter Wholly.
“11. Neither myself nor any of the above mentioned persons have heretofore filed suit against said employer for damages on account of the death of the deceased.”

At the beginning of the statement to the jury, counsel for the defendant made the following assertion as to the nature of the defense to the case:

“Ladies and gentlemen of the jury, and if the court please, our defense in this case is denying the fact that there were three or more employees of the defendant company. ’ ’

At the time of the injury and death of Harry E. Carr, Section 1465-61, General Code (114 Ohio Laws, 28), provided in part as follows:

“The term ‘employee,’ ‘workman’ and ‘operative’ as used in this act, shall be construed to mean: * * *
“Every person in the service of any person, firm or private corporation, including any public service corporation, employing three or more workmen of operatives regularly in the same business, or in or about the same establishment under any contract of hire, express or implied, oral or written, including aliens and minors, but not including any person whose employment is but casual and not in the usual course of trade, business, profession or occupation of his employer.”

There is no dispute in the evidence as to the fact that the decedent, Harry E. Carr, was in the service of the defendant company as a workman or operative in the capacity of custodian or janitor of the building maintained and operated by it in the city of Marion; that he was regularly employed in such business, in and about the same establishment, under a contract of hire; and that he sustained the injuries from which death resulted, in the course of his employment.

There is little, if any, conflict in the evidence as to the nature of the services rendered by G. E. Waddell. Such services consisted in being present at an office room in the building owned and maintained by the defendant; attending meetings and recording the proceedings of the board of directors of the defendant; collecting rents from the various Masonic bodies and other tenants, not Masonic bodies, having quarters in the building; leasing quarters in . the building; and from time to time instructing the janitor or custodian of the building to get ready for use, paraphernalia required by the various Masonic bodies, occupying the building, in the performance of their ritualistic work. The services were of such character that if Waddell was secretary of the corporation at the time they were rendered, they would be considered as rendered by him in the performance of his official duties and not in the capacity of a workman or operative employed by the defendant.

The evidence further shows that in addition to performing the services mentioned, Waddell acted in a secretarial capacity to the various Masonic bodies maintaining quarters in the building; collected the dues from the members of such bodies; and made himself available in an office room in the building at all times for the convenience of members of such bodies in paying dues and for transacting other business of the Masonic bodies.

The status of the evidence with reference to the services performed by Waddell is such that an inference might be drawn therefrom that the services rendered by Waddell with reference to instructing the custodian or janitor as to getting paraphernalia ready was performed in his capacity as a secretarial officer of the various Masonic bodies occupying the building, and a conflicting inference might be drawn that such services were rendered by him on behalf of the defendant, each of such inferences being equally declucible from the evidence.

There is also a conflict in the evidence as to the status of Waddell with reference to his employment by the defendant company. In one place in the bill of exceptions it is stipulated that he was secretary of the company, which is a corporation organized and existing under the laws of the state of Ohio, while in several other places in the bill of exceptions it is stipulated that he was secretary of the board of directors of the defendant company.

The office of secretary of a corporation is universally recognized as an. executive office and the incumbent thereof is recognized by law as an executive officer. On the other hand, the position of “secretary to the board of directors” of a corporation may or may not constitute an office of such corporation. If the articles of incorporation, bylaws and regulations so provide, such position constitutes an office. On the other hand, if the articles of incorporation, bylaws or regulations do not so provide, such position may constitute an employment by a corporation, not in an official capacity.

In this case neither the articles of incorporation, bylaws nor regulations are in evidence.

All the evidence on the subject tends to prove that the services performed by Milton McKenan were in assisting the janitor or custodian in the performance of his duties, and that the services were performed during a period of approximately eleven days preceding the death of Harry E. Carr.

There is a conflict in the evidence as to who employed McKenan, one witness testifying that Waddell had stated in her presence, after the death of Carr, that he employed him, and McKenan himself testified •that he was employed by Harry Carr.

The evidence shows that neither the defendant nor Carr paid him anything for the services rendered by him.

Other than the inferences that may be drawn from the testimony that Waddell employed him, from evidence as to Waddell’s status with respect to the company, and from the past conduct of the defendant with reference to the employment of an assistant to Carr; there is no evidence that the company employed Mc-Kenan or had any knowledge of his employment.

There is in evidence minutes of a meeting of the directors of the defendant company, held at Marion, Ohio, on November 7,1933, the pertinent part of which is as follows:

“After talking on the matter of janitors with Harry Carr, Charles B. Schaffner moved to increase Mr. Carr’s salary to $145 per month beginning November 1, 1933, and extending to May 1, 1934, with the understanding with Mr. Carr that he pay Frank Fisher $35 a month from November 1, 1933, to May 1, 1934, and after May 1, 1934, Mr. Carr’s salary be reduced to the present amount of $120 per month. Motion seconded by Clarence Price. Vote on motion: Crawbaugh, yes; Price, yes; Schaffner, yes; Gracely, yes; Queen, yes; Carhart, yes; Zachman, yes.”

There is also evidence that Fisher, mentioned in the resolution, worked as assistant to Carr from sometime in the fall of 1930 to May 1934, his employment being during the winter months of such years; that during the years 1931 and 1932 he was paid by the defendant company and after 1932 until May 1934 he was paid by Carr; and that, in the absence of Carr, Waddell instructed him in the performance of his duties.

There is also evidence that Waddell was at all the times hereinbefore mentioned secretarial officer of the various Masonic bodies occupying the building; that he was either secretary of the company or secretary to the board of directors of the company; and that Waddell died before the trial of this action.

The evidence also shows that Waddell received compensation at the rate of $400 per year for the services rendered by him to the defendant company and also received compensation in varying amounts from the various Masonic bodies he served in a secretarial capacity.

The appellant assigns error in the following particulars :

“1. The court erred in overruling defendant’s motion when it objected to the introduction of any evidence at the beginning of the trial, for the reason that the court did not have jurisdiction of the subject matter and that the petition did not state facts sufficient to constitute a cause of action.
“2. The court erred in overruling the defendant’s motion made at the time plaintiff rested her case, on the grounds that the trial court did not have jurisdiction of the subject matter and that the plaintiff had not introduced sufficient evidence to make out a case, of to obtain the relief prayed for.
“3. The court erred in overruling defendant’s motion made at the conclusion of all the testimony, for the reason that the trial court did not have jurisdiction of the subject matter and the evidence conclusively showed that plaintiff was not entitled to the relief prayed for.
“4. The trial court erred in not submitting to the jury all of the evidence contained in the record from the Industrial Commission taken upon the rehearing of said matter before said commission.
“5. The trial court erred in its charge to the jury.
“6. The trial court erred in instructing the jury that George Earl Waddell, secretary of the defendant corporation, was an employee or workman, within the meaning of the workmen’s compensation law, and thereby taking from the jury one of the factual issues in the case.
“7. The trial court erred in approving and ordering the clerk to journalize the final entry without submitting the same to the Attorney General of Ohio, as provided by Section 1465-90, General Code of Ohio.
“8. The trial court erred in refusing to submit to the jury interrogatories Nos. 3 and 4, which the defendant requested to be submitted before argument.
“9. The trial court erred in overruling defendant’s motion for a new trial.
“10. That said judgment and verdict is contrary to law.
“11. That said judgment and verdict is contrary to the evidence.
“12. That said judgment and verdict is contrary to the weight of all of the evidence.
“13. The court erred in submitting this matter to the jury, for the reason that the evidence clearly showed the defendant company was not amenable to the workmen’s compensation law as it did not have in its employ three or more workmen or operatives at the time plaintiff’s deceased was injured and died.
“14. Other errors apparent upon the face of the records.”

Assignment 1. Under the first assignment of error the appellant makes two general contentions:

a. The petition does not state facts sufficient to constitute a cause of action in that there is no allegation therein charging that the defendant company was not a subscriber to the workmen’s compensation fund or a self-insurer.

b. As the relief sought by plaintiff is a finding of the court or jury in favor of her right to participate in the state insurance fund, the payment of medical bills, and for the certification of such finding and verdict to the Industrial Commission to require it thereupon to order compensation paid to plaintiff in the manner provided by the Workmen’s Compensation Act, the subject matter of the action was such that the Common Pleas Court would have jurisdiction thereof only in the event the Industrial Commission was made a party defendant thereto, and, consequently, the Industrial Commission, not being made a party defendant to such action, the Common Pleas Court was without jurisdiction of the subject matter.

a. As shown by the above statement of facts, the plaintiff, in her application to the Industrial Commission for compensation, based her claim for compensation on the fact that the defendant, on the date that Harry E. Carr sustained Ms injuries, was not a subscriber to tbe state insurance fund as established under tbe provisions of tbe Workmen’s Compensation Act; and that tbe defendant bad not, on sucb date, elected to pay compensation direct, under tbe provisions of the act. Plaintiff charged sucb matters as facts in her application.

“Tbe trial in tbe Court of Common Pleas is in tbe nature of an appeal from tbe Industrial Commission. •When tbe action is filed in tbe Court of Common Pleas tbe record of tbe evidence has already been made. Tbe only purpose of tbe pleadings is to properly start tbe action, give due notice by summons to tbe defendant, whether it be tbe Industrial Commission or tbe employer, and to set forth concisely tbe character of tbe action involved. Since tbe only purpose of tbe trial in tbe Court of Common Pleas is to ‘determine tbe right of tbe claimant to participate or to continue to participate in sucb fund’ from tbe evidence contained in tbe transcript, tbe issue in reality has already been made. As set forth in Section 1465-90, G-eneral Code, tbe law has defined that issue to be tbe ‘right of tbe claimant to participate or to continue to participate in sucb fund.’ If there be questions relating to procedure or jurisdiction, which tbe defendant wishes to raise, timely objection by motion or other objection, should be made before tbe introduction of evidence.” Miles v. Electric Auto-Lite Co., 133 Ohio St., 613, 615, 15 N. E. (2d), 532.

If tbe defendant intended to make a defense on tbe issue raised by tbe application as to whether it was a subscriber to tbe workmen’s compensation fund, it was its duty at tbe time of bearing before tbe Industrial Commission to have sucb defense incorporated in tbe record on tbe rehearing in order that by sucb transcript sucb defense might be considered by tbe Common Pleas Court. Miles v. Electric Auto-Lite Co., supra, 614.

Although the plaintiff in her petition did not specifically plead that the defendant company was not a subscriber to the workmen’s compensation fund or a self-insurer, she did plead that the defendant was amenable to the workmen’s compensation law.

Taking into consideration the nature of plaintiff’s application for compensation and the fact that the action, under the provisions of Section 1465-90, General Code, was brought to charge the defendant with liability as an employer under the Workmen’s Compensation Act, which would exist only in 'the event defendant was not a subscriber to the fund or a self-insurer, and considering the nature of an appeal to the Common Pleas Court from an order of the Industrial Commission, the nature of the issue to be determined on such appeal, the nature of the proceedings had before the Industrial Commission, as hereinbefore mentioned, and the liberal rules applicable to proceedings under the Workmen’s Compensation Act, we are of the belief that such allegation, in the absence of a motion to make definite and certain, was sufficient to charge that the defendant company was not a subscriber to the workmen’s compensation fund and was not a self-insurer.

For the reasons mentioned, the petition was not deficient in the respects claimed by the defendant in its contention under subdivision (a) of its first assignment of error.

b. Under the provisions of Section 1465-74, General Code, any employee whose employer had failed to comply with the provisions of Section 1465-69, General Code, with reference to the making of payments into the state insurance fund, may, in lieu of a civil action against the employer as provided in Section 1465-73, General Code, file his application with the commission for compensation. In the event lie files such application, Section 1465-74, General Code, prescribes that the commission shall hear and determine the same in like manner as in other claims and shall make such award to such claimant as he would be entitled to receive if such employer had complied with the provisions of Section 1465-69, General Code, and such employer shall pay such award in the manner and amount fixed thereby or shall furnish to the Industrial Commission a bond, in such an amount and with such sureties as the commission may require, to pay such employee such award in the manner and amount fixed thereby.

Section 1465-74, General Code, further prescribes that in the event of the failure, neglect or refusal of the employer to pay such compensation to the person entitled thereto, or to furnish such bond, within a period of ten days after notification of such award, the same shall constitute a liquidated claim for damages against such employer in the amount so ascertained and fixed by the commission, and the commission shall certify the same to the Attorney General who shall forthwith institute a civil action against such employer, in the name of the state, for the collection of such award; and that the amount received in such action shall be paid into the state insurance fund.

Such section further prescribes that a final judgment against an employer, recovered in the manner provided therein, shall entitle the claimant to the compensation provided by the Workmen’s Compensa-, tion Act for such injury, occupational disease or death, and such compensation shall be paid from the surplus created by Section 1465-54, General Code.

Where, pursuant to the provisions of Section 1.465-90, General Code, an appeal is taken to the Common Pleas Court by a claimant from an order of the Industrial Commission denying right of claimant to receive compensation claimed by bim pursuant to the provisions of Section 1465-74, General Code, above mentioned, it is prescribed by the former section' that the defendant in the action brought by the claimant on such appeal shall be the employer, and that the court, or the jury under the instructions of the court, if a jury is demanded, shall determine the right of claimant to participate or continue to participate in the fund upon the evidence contained in the transcript of the record of the rehearing of such claim by the Industrial Commission, certified to the court by the Industrial Commission pursuant to the provisions of the section.

Considering the provisions of the Workmen’s Compensation Act as a whole, we believe it is clear that a finding of a court or jury, on such appeal, that the claimant has the right to participate in such fund, has the effect of authorizing the Industrial Commission to make such award to the claimant as he would be entitled to receive if such employer had complied with the provisions of Section 1465-69, General Code, which award shall be payable by the employer and enforceable against him in the manner prescribed in Section 1465-74, General Code, and, on final judgment against the employer on such award, shall be paid from the surplus created by Section 1465-54, General Code, all as prescribed in Section 1465-74, General Code.

For the reasons mentioned, the defendant was the proper party defendant to the petition, the subject matter of the action was within the jurisdiction of the Common Pleas Court and, consequently, appellant’s contention, designated as subdivision (b)- of assignment of error No. 1, is without merit.

Assignments 2 and 3. We will consider assignments 2 and 3 together as they involve the same general subject matter.

In both of these assignments the defendant makes the same general contentions it makes in assignment No. 1 which we have already considered and decided contrary to defendant’s contention.

The defendant makes further contentions to the effect that there was no evidence that the defendant was a noncompiying employer within the meaning of the Workmen’s Compensation Act, and that there was no evidence that the defendant had three or more workmen or operatives in its employment at the time Harry E. Carr sustained the injuries resulting in his death.

The evidence on the issue whether the defendant was a noncomplying employer at the time mentioned is indefinite, but counsel for the defendant, in their opening statement on the trial of the cause in the Common Pleas Court, as noted in the foregoing statement of facts, expressly limited the defense in this action to a denial of the fact that there were three or more employees of the defendant company. By so limiting the defense they waived any other defense the defendant may have had so that it is immaterial whether the evidence tends to prove that the defendant was a noncomplying employer.

In regard to the contention of the defendant that there was no evidence tending to prove the employment by it of three or more workmen, all the evidence tends to prove the employment of the decedent, Harry E. Carr, as a workman by the defendant, within the meaning of the Workmen’s Compensation Act.

The evidence with reference to the employment of Waddell tends to prove the performance of services by him for the defendant for hire which, if he was an officer of the company, are of a character that would be solely attributable to the performance of his official duties, but which, if he was not an officer, would constitute services as a workman. As hereinbefore noted, the evidence is conflicting as to the capacity in which lie was employed by defendant, so that the capacity in which he was employed was, upon the record, a matter for determination by the jury.

With reference to the employment of McKenan, there were facts in evidence before the jury from which it would be warranted in inferring that he was employed as a workman by the defendant, and such evidence therefore presented a question for determination by the jury.

For the reasons mentioned, the court did not err in overruling the motion of the defendant, made at the close of plaintiff’s evidence and renewed at the close of all the evidence, for a directed verdict in its favor, and assignments of error Nos. 2 and 3 are without merit.

Assignment 4. By the express- acquiescence of counsel for defendant in some instances and by acquiescence implied from his silence in others, the court was permitted to state to the jury summations of certain facts in evidence as shown by the certified transcript of the proceeding's on rehearing had before the commission, instead of submitting the case to the jury upon the transcript, as provided by statute. By such acquiescence and silence the defendant is precluded from claiming error as to this method of procedure, and this assignment is therefore without merit.

Assignment 5. Under this assignment of error the appellant contends that at its request the court, before argument, gave three special charges to the jury, and that in its general charge it gave instructions to the jury directly in conflict with the requested instrutions. Appellant further contends that the court in its general charge gave further erroneous instructions, which will be hereinafter mentioned.

We will not discuss the special charges given at defendant’s request except to state that they were correct statements of law applicable to the facts in the case.

Tlie instructions contained in the general charge, which the appellant contends are in conflict with these special charges, are as follows:

“Now the second question is this: Were these three employees of this defendant corporation at the time of this injury, not casual employees but regular employees ?
“I say to you as a matter of law there were two. I say to you as a matter of law that the decedent Carr was an employee. I say to you as a matter of law that the secretary was an employee.”

For the reasons mentioned in our discussion of assignments of error Nos. 2 and 3, the above instructions given in the general charge were erroneous, as, upon the evidence in the case, the issue whether Waddell was an employee or McKenan was an employee was a matter for determination by the jury and did not constitute a matter of law to be determined by the court.

The error in giving these instructions in the general charge requires the reversal of the judgment.

The other error complained of in the general charge is in the following instruction:

“There has been some argument here that there was an individual employer in this case. In other words, that any contract that might have been made or any third man that might have been on the premises was employed not by the defendant corporation, but by the decedent Carr. If you find that that was the arrangement to have a subterfuge and that in truth and fact from all the circumstances there was a third employee and that he was employed by Carr for the benefit of this defendant corporation, and that this was simply a subterfuge to cover up, then I say to you that the law requires you to find, if you do, I am not, passing on the facts, I give you the law to cover the things you may find, if you do so find, then I say that you must find that there was an implied contract between this defendant and the third party, and if you find as I said before, this man died as a result of injuries in the course of his employment, and that there were three persons then and there regularly employed by this company on the premises of The Marion Masonic Temple Company, then she is entitled to participate. The questions at issue she must establish by a preponderance of the evidence. If you find on either question I have submitted she has not established it the}7 are not entitled to participate.”

Although there was evidence, including the resolution of the board of directors, as to the employment of Fisher, a previous assistant of Carr, from which the jury might properly infer that the employment of MeKenan by Carr or by Waddell constituted an employment by the defendant company, there was no evidence of any subterfuge on the part of the defendant in the employment of MeKenan, and that part of the instruction referred to intimating that the jury might find from the evidence that there was an arrangement to have a subterfuge, or that they might find that “this was simply a subterfuge to cover up,” was both erroneous and prejudicial. This error also requires reversal of the judgment.

Assignment 6. Under this assignment of error the appellant contends that the court erred in instructing the jury that Waddell was an employee or workman within the meaning of the workmen’s compensation law. This matter was covered by the previous assignment of error in which we find that the court erred in the respect mentioned.

Assignment 7. This assignment is directed to the claimed error of the court in approving and ordering the clerk to journalize the final entry without submitting it to the Attorney General of Ohio, as provided in Section 1465-90, General Code of Ohio.

There is nothing in the record before this court showing whether the journal entry mentioned was submitted to the Attorney General, so the court cannot consider this claimed error.

Assignment 8. This assignment is directed to the claimed error of the court in failing to submit interrogatories Nos. 3 and 4, mentioned in the statement of facts.

Interrogatories Nos. 3 and 4 were properly refused for the reason there was no issue in the case as to whether Waddell performed “manual” labor. The issue fo.r determination by the jury was whether Wad-dell was employed in the service of the defendant company as a workman or operative as defined in Section 1465-61, General Code, above mentioned.

Assignment 9. This assignment is directed to the claimed error of the trial court in overruling defendant’s motion for new trial.

This assignment of error is well taken as the court erred in the respects hereinbefore mentioned which were all assigned as grounds for a new trial.

Assignments 10, 11, 12 and 13. Assignments 10, 11, 12 and 13 will be considered together. There is substantial evidence tending to support the verdict and judgment rendered. The verdict and judgment are not contrary to law, in not being supported by any evidence, and are not contrary to the manifest weight of the evidence. The court did not err in submitting the case to the jury, except in the respects hereinbefore specifically mentioned.

Assignment 14. Under this assignment of error appellant does not specify or argue any errors, so this assignment will not be considered.

For the errors found, .the judgment of the Common Pleas Court is reversed and the cause remanded for a new trial and further proceedings according to law, at costs, of appellee.

Judgment reversed.

Jackson and Middleton, JJ., concur.


text:
    In re Estate of Thoroman: Thoroman, Appellant, v. Thoroman, Exr., Appellee.

      (No. 1784
    Decided January 22, 1945.)

      Mr. Joseph W. Shafts, for appellant.

      Messrs. Iclclings, Jeffrey & Weisman, for appellee.
   Nichols, J.

This cause is in this court on appeal upon questions of law from the judgment of the Probate Court of Montgomery county in the matter of exceptions filed by appellant, as surviving spouse, to the first, final and distributive account of the executor.

On motion of appellee, appeal upon questions of law and fact was dismissed heretofore by this court and the cause was retained for hearing upon questions of law only._

William E. Thoroman, a resident of Montgomery county, died on September 25, 1941, leaving a last will and testament which was duly admitted to probate, the pertinent provisions of which are as follows:

“First: I give, devise and bequeath to my son, William Cary Thoroman, the property known as six hundred twenty (620) Bellaire avenue, Dayton, Ohio, * * * the said property to be to him absolutely and in fee simple and his heirs and assigns forever; provided, however, that he or those inheriting said property shall pay my just funeral expenses including a marker for my grave to match the marker already in the burial lot; but said funeral expenses need not exceed $300 exclusive of said marker.
“Second: I desire that all my other just debts, if any, shall be paid out of the remaining assets bf my estate as soon as reasonably possible after my decease.
“Third: I desire my executor shall convert into money as soon as reasonably possible all my estate not included in the first item above and after paying the debts, if any, provided for by the second item above, shall out of said fund first pay to my wife, Lessie Elsie Thoroman, what the law allows her as my wife. All the rest and residue thereof, I give, devise and bequeath to my remaining children, namely, Marcile Elsie Thoroman and Mary Prances Thoroman and Edgar Paul Thoroman and Dorothy May Thoroman and Elsie Pauline Gross, share and share alike per stirpes, to them and their heirs and assigns forever.”

By item fourth of his will, testator nominated his son, Edgar Paul Thoroman, as executor thereof, authorizing and empowering him to compound, compromise, settle and adjust all claims and demands in favor of or against the estate, and to sell at public or private sale at such prices and upon such terms of credit, or otherwise, as he may deem best, any or all of his real or personal property.

In due course, the executor filed inventory and appraisement of the estate, notice of the time of holding the same having been waived by the surviving spouse. In the inventory and appraisement is shown the following :

Household furniture, $ 150.00

Parcel No. 1, being the real estate specifically devised by item first of the will, 5,500.00

Parcel No. 2, consisting of an additional lot, 5,000.00

The total appraised value of the estate, as shown by the inventory and appraisement, including the household goods, is $10,650.

Schedule F of the inventory indicates no specific personal property was selected by the widow or set off to her by the appraisers, who certified that she will need in money for her year’s support the sum of $1,000, and that 20 per cent of the total appraised value of the estate was set oil to her in the sum of $2,130. No exceptions were filed to the inventory and appraisement.

In his first, final and distributive account, to which the exceptions were filed by the widow, the executor charges himself as follows:

Cash on hand at death, $ 291.76

Cash received from William C. Thoroman, in part payment for funeral expenses, 300.00

Beceived from sale of property at 703 Bellaire ave., 5,000.00

N. C. B. bonus cheek, 29.22

Sale of lot, 300.00

Furniture and household goods «150.00

Beal estate described in will of deceased as 620 Bellaire ave., 5,000.00

Total receipts, $11,070.98

In the account, the executor takes credit for the sum of $1,348.77 expended in payment of debts of the deceased, including funeral expenses of $667.12, executor’s fees $250, 'attorney fees $250, and Probate Court costs.

By way of distribution, the executor claimed credit, in the amount of $5,000 on account of the real estate specifically devised to William Cary Thoroman, and further'claimed credit by way of cash distribution as follows:

To the widow of deceased, 20% of inventory, $2,130.00

Widow’s year’s allowance 1,000.00

One-third of net estate left for distribution 530.74

To each of the children of the deceased, 212.29 thus balancing receipts and disbursements.

In her amended exceptions to the executor’s account, the widow alleges that the account is not true and correct in the following matters:

“(1) It includes as ‘Cash on hand at death,’ only $291.76, whereas there should have been included $700 received from sale of automobile.
“ (2) It claims credit for $210 paid the widow over the amount of her distributive check ($3450.74) to make up the sum of $3660.74 claimed to have been paid to her as her distributive share, whereas $150 of said claimed credit is for furniture taken by her which was her own property, not part of the assets of said estate.
“ (3) It figures her setoff of 20 per cent under G. C. Sec. 10509-54 at only $2130, whereas it should be at least $2214.18, and $81.64 additional if the correction be made as to the $700 from sale of automobile.
“(4) It figures as ‘1/3 of net estate left for distribution . . . $530.74,’ having first deducted all debts of decedent and also all expenses and fees of administration, whereas said one-third due to widow under the terms of the will and as defined by G.- O. Sec. 10503-4, should be at least $3690, or with the correction aforesaid as to the $700, $3826.40.”

Upon the hearing of these exceptions, the Probate Court found:

“1. The exception relating to ‘cash on hand at death’ is overruled, the court finding that the testator had on hand $291.76 at his death. If the widow desired to take exceptions to this figure, exceptions should have been taken to the inventory as provided by law. The court cannot now question this figure.
“2. The exception concerning the ownership of household furniture is overruled, the court finding that the testator did own $150 worth of furniture at his death and that the widow has taken and acquired all of said household furniture belonging to testator. Again the court cannot question the accuracy of the appraisement. Exceptions should have been taken to the inventory as provided by law.
‘‘3. The exception relating to the twenty per cent (20%) setoff to which the widow is entitled under Section 10509-54, Gr. C., is sustained in part. The court finds that the inventory showed ‘no moneys on hand at death.’ In truth and in fact, the testator had on hand at death $291.76, together with $29.22 in the form of an N. C. R. bonus check, making a total of $320.98, moneys on hand, which was not reflected in the inventory of this estate. The executor is ordered to amend the inventory at bar to show this additional $320.98.
“The widow is entitled to twenty per cent (20%) of this additional sum, which is $64.20.
“4. The exception of the widow relating to the construction of the will of testator is overruled. The court finds that the executor’s construction of the will is correct. The court finds that the executor’s construction of the will as reflected in his final account is correct.
“It is, therefore, hereby ordered, adjudged and decreed that exceptions of the widow numbered one (1), two (2) and four (4) are overruled, and exception numbered three (3) of the widow is sustained in part. The executor is ordered to amend the inventory at bar to show an additional sum of $320.98 cash on hand at death, and the widow is entitled to twenty per cent (20%) of this additional sum, or $64.20 as her twenty per cent (20%) setoff of the gross estate.”

Prom the evidence taken upon the hearing of the exceptions, as shown by the bill of exceptions before this court, it appears that the testator in his lifetime sold an automobile owned by him for the sum of $700 and turned that sum over to the son who had been named as executor in his will, the apparent purpose being to enable the son to pay expenses incurring by reason of his last illness and, perhaps, to make available to his spouse funds for her sustenance. .

Upon considering the evidence thus adduced, the Probate Court found that the son had expended for the above purposes all of the $700 so turned over to him except the sum of $291.76, being the amount with which the executor charged himself in his account.

The Probate Court further ordered that the inventory and appraisement be amended so as to include the sum of $291.76 as cash on hand at the death of-testator. This action of the Probate Court we are unable to disturb as being against the manifest weight of the evidence.

The Probate Court further found that there had come into the hands of the executor a National Cash Register bonus check in the amount of $29.22, being the amount set forth in the account, and ordered the inventory and appraisement to be further amended so as to incorporate the same. Thus the court ordered the inventory and appraisement increased by the sum of $320.98 and found the widow entitled to 20 per cent of this sum, to wit, $64.20, in addition to the $2,130 shown by the inventory as originally filed. We find no error in this respect.

Complaint is made that the executor deducted from the cash distributed to the widow $150, being the appraised value of the household goods as- shown by the inventory. Upon hearing of the exceptions, evidence was submitted as to whether the household goods inventoried were the property of the widow or of testator, from which the Probate Court found that such household goods were the property of-testator and that the widow had taken and retained possession thereof.

We observe that the executor, in causing the appraisement to be made, did not comply with Section 10509-47, General Code, which requires that each article or item be set down separately, with its value in dollars and cents, distinctly in figures, opposite the article or item, respectively. However, as heretofore stated, no exceptions were filed by anyone to the inventory- and appraisement. Although the household goods were not set off to the widow as a part of her 20 per cent allowance, she had the right to take the same at the appraised value. The court having found that she had in fact taken possession of the household goods and its finding not being contrary to the weight of the evidence, we find no error in the court’s refusal to sustain the exception in this connection.

- We have thus disposed of all the questions involved in this proceeding except as to the amount to which the widow is entitled upon final distribution.

In the journal entry showing the-findings of the Probate Court in the matter of these exceptions, it is merely set forth by the court that it .“finds that the executor’s construction of the will is correct * # * as reflected in his final account.”

Whether the Probate Court was in error requires, of course, a consideration of the provision made for the widow by the will, together with the applicable sections of the General Code relating to her rights where she has elected to take under the will.

Section 10504-61, General Code, provides:

“If the surviving spouse elects to take under the will, such spouse shall be thereby barred of all right to an intestate share of the property passing under the will, and shall take under the will alone * *

At first impression, it may be thought that there is an inconsistency between the quoted provision of the General Code and the situation presented by the will because of the fact that the will gives to the widow “what the law allows her as my wife,” but this inconsistency disappears when consideration is given t.o the fact that although the will provides that the widow is to receive “what the law allows her as my wife,” it qualifies her right to receive such allowance out of a particular fund which remains for distribution after having converted into money all .of his estate except that specifically devised in item first and after the payment out of such fund of testator’s debts.

In construing the will of testator, it seems clear he intended that the widow, upon distribution of his estate, should have an amount of money which would equal in value the interest the widow would have taken in his entire estate had he died intestate. Except for the provisions in the will which prescribed the source from which such lawful share of his estate shall be paid, the widow’s rights under this will are the same as though decedent had died intestate.

Section 10503-4, General Code, provides:

"When a person dies intestate having title or right, to any personal property, or to any real estate or inheritance in this state, such personal property shall bo distributed, and such real estate or inheritance shall descend and pass in parcenary, except as otherwise provided by law, in the following course: * * #
"3. If there be a spouse and more than one child, or their lineal descendants surviving, one-third to the surviving spouse and the remainder to the children equally, or to the lineal descendants of any deceased child, per stirpes.”

It seems apparent that the executor, as well as the Probate Court, determined that the last quoted provision governed the amount to which the widow is entitled in this case, since it appears in the account that the widow was given one-third of the fund remaining after payment of the debts, funeral expenses, costs of administration, allowance to the widow for year’s support provided by Section 10509-74, General Code, and the 20 per cent allowance provided for in Section 10509-54, General Code, but in computing her one-third interest, the executor as well as the Probate Court refused to take into consideration the value of the real estate specifically devised in item First of the will. In this we believe both the executor and the court were in error, and that the proper manner by which to compute the interest of the widow is to be arrived at by adding the appraised value of the specifically devised real estate to the amount of cash remaining after having converted the remainder of the estate into money and after having deducted therefrom the debts, funeral expenses, costs of administration, allowance to the widow for year’s support and the 20 per cent allowance under Section 10509-54, General Code.

Appellant argues that her share should be determined before making any of the deductions above referred to. In this we do not concur. It seems elemental that distribution of an estate can be made only out of the net estate remaining after payment of the debts, expenses and allowances above referred to, all of which must be deducted before anyone is entitled to a distributive share of an estate.

Section 10509-121, General Code, expressly enjoins upon the executor to proceed with diligence to pay the debts of the deceased, and indicates the order in which they are to be paid as well as what are considered “debts.”

All of the facts necessary to a determination of the amount to which the widow in this case is entitled as her distributive share are before this court, from which we conclude that no moneys of this estate remain for distribution to the children of testator; that the amounts which are shown to have been distributed to the children should have been distributed to the widow; and that the Probate Court was in error in finding upon the exceptions to the account so as to approve the distribution shown therein.

The judgment of the Probate .Court is affirmed in part and reversed in part, as hereinbefore indicated, and the cause is remanded to that court for further proceedings in accordance with this opinion.

Judgment accordingly.

Hornbeck, P. J., and Geiger, J., concur.

Nichols, J., of the Seventh Appellate District, sitting by designation in the Second Appellate District.


author: Doyle, J.

text:
    Smith, Appellant, v. Ayres, Aud., et al., Appellees.
    (No. 1108
    Decided July 20, 1945.)

      Mr. Jacob Levin, for appellant.

      Mr. William G. Wichens, prosecuting attorney, for appellees.
   Doyle, J.

The sole debatable question in this appeal on questions of law from the Court of Common Pleas of Lorain county is whether real property, which has been sold, following tax delinquency, pursuant to the forfeited land statutes, on a date between the day preceding the second Monday in April (the date of the establishment of a tax lien on real property — Section 5671, General Code) and the date upon which the real property tax lien becomes due and payable (the following December — Section .2653, General Code) is to be conveyed to the purchaser thereof, free and clear from the said April statutory lien.

Upon a reconsideration of this case, the members of this court are of the opinion that the Supreme Court of this state has so construed' Section 5752, General Code, as to compel a determination that the purchaser takes title to the property free from the April lien, although not due and payable until after the sale. State, ex rel. City of South Euclid, v. Zangerle, Aud., 145 Ohio St., 433.

A part of Section 5752, General Code, provides:

, “Such sale shall convey the title to the said tract or parcel of land, divested of all liability for any arrearages of taxes, assessments, penalties, interest and costs which remain after applying thereon the amount for which it was sold.” (Italics ours.)

In the opinion of the case cited, the word “arrearages” as used in the statute was given consideration, and it was there determined, as we construe the decision, that the word means “indebtedness,” whether due or not due. Under this interpretation, and applying it to the case now under consideration, the statutory tax lien of April created a tax indebtedness against the property, and therefore it became an “arrearage” within the meaning of the statute which cleared the property of liability for “arrearages” upon sale.

The judgment of the Court of Common Pleas entering judgment for the defendants upon the pleadings is therefore reversed, and the cause remanded for a hearing upon the merits.

Judgment reversed.

Washburn, P. J., and Stevens, J., concur.


author: Carpenter, J.

text:
    In re Estate of Long.
    (No. 296
    Decided April 9, 1945.)

      Mr. C. L. Newcomer, for appellant.

      Mr. W. Kent Fenton and Mr. Charles T. Stahl, for appellee.
   Carpenter, J.

In the Probate Court William Kent Fenton, under authority of Section 10509-193, General Code, as amended in 1941, filed an application for an allowance for legal services alleged to have been rendered to the administratrix. After a hearing, the application was granted in part, and motion for a new trial was filed by the administratrix and overruled, all on June 20, 1944. On June 22nd, the administratrix filed a notice of appeal on questions of law and fact to the Court of Common Pleas. On July 19th, the administratrix filed a bill of exceptions in the Probate Court which bill was duly certified by the judge of that court on August 10th.

On October 5th, William Kent Fenton filed a motion in the Common Pleas Court to dismiss that appeal “for the reason that the court was without jurisdiction to hear and determine same” and on November 15th that motion was granted, from which order this appeal on questions of law was filed on November 16th.

Appeals from the Probate Court to the' Court of Common Pleas are now provided for in Section 10501-56, General Code. Under it, appeal to that court on questions of law and fact can be had only wheii “a record has not been taken at the hearing of any matter before the Probate Court so that a bill of exceptions or a complete record may be prepared.” That law is constitutional. In re Estate of Bates, 142 Ohio St., 622, 53 N. E. (2d), 787.

In this case, a record was taken and a complete bill of exceptions was filed in the Probate Court by the administratrix. Such being the record, the court did not err when it dismissed the appeal, and its judgment is affirmed.

Judgment affirmed.

Stuart and Conn, JJ., concur.