author: Fess, J. Conn, J.,

text:
    Enterprise Roofing Co., Appellant, v. Riker et al., Appellees.
    (No. 4490
    Decided December 18, 1950.)

      Mr. Clarence P. Ducey, for appellant.

      Mr. John W. Bebout, for appellees.
   Fess, J.

This is an appeal on questions of law from an order of the Court of Common Pleas dismissing an attachment, on motion of the defendants to discharge the same.

The petition and affidavit for attachment were filed May 9, 1950. On May 10, 1950, defendants filed a motion to discharge the attachment, which was granted on the same day. Notice of appeal was filed on May 10, followed by an amended notice on May 12, 1950. • The entry recited simply that the attachment heretofore issued be discharged and the respondents released and discharged from the order of garnishment “to all of which plaintiff excepts.” No time was fixed in the entry for the filing of an appeal, as required by Section 11865, General. Code, and no bond was filed as contemplated by Section 11866, General Code.

Defendants moved to dismiss the appeal because (1) of failure to file bond required by Section 11866, General Code, and (2) the question presented by the appeal is moot, since jurisdiction over the attached property has been lost.

Recently, in McDowell v. Hannefeld, 87 Ohio App., 407, 95 N. E. (2d), 394, this court held:

‘ ‘ The bond required by Section 11866, General Code, is not essentially an appeal bond but is analogous to a supersedeas bond and the giving of such bond is not prerequisite to an appeal on questions of law from an order discharging an attachment.”

Incident to consideration of the claim that the question has become moot, this court has re-examined the authorities upon which the McDowell case was decided. Certain language in the opinion in the McDowell case is inaccurate. In that case we concluded that a different method of appeal was not provided by Sections 11865 and 11866, General Code. Upon examination, it is apparent that Sections 11865 and 11866, General Code, do provide a different method of appeal from that provided by the Appellate Procedure Act, but, construing the sections relating to appeal from an order discharging an attachment in pari materia with the provisions of the Appellate Procedure Act, we adhere to our decision in the McDowell case that the giving of the bond required by Section 11866, General Code, is not a prerequisite to an appeal which may be taken under the Appellate Procedure Act.

The provisions of Sections 11865 and 11866, General Code, have their origin in the Act of March 10, 1857 (54 Ohio Laws, 26), to amend the act entitled “An Act Regulating Appeals to the District Court,” passed March 23, 1852 (50 Ohio Laws, 93). Although the 1852 act related to appeals, the 1857 act provided that a party affected by an order discharging or refusing to discharge an attachment should be entitled to file a petition in error to reverse, vacate or modify the same as in other cases. Prior to the act of 1857, a party was permitted to file a petition in error from an order discharging an attachment. William Watson & Co. v. Sullivan, 5 Ohio St., 43.

Section 2 of the 1857 act contained substantially the same provisions as found in Sections 11865 and 11866, General Code. It is interesting to note that under the Code of Civil Procedure a petition in error could be filed within three years (3 Curwen’s Revised Statutes, 2023, Section 523). The act of 1857, therefore, reduced the period for a petition in error in an attachment proceeding to 30 days. The provisions were later incorporated in Sections 5563a to 5563c, Revised Statutes of 1880 (77 Ohio Laws, 69).

In Sibley v. Condensed Lubricating Oil Co., 12 W. L. B., 308, 9 Dec. Rep., 399, decided in 1884, the court, after reviewing the authorities, held that a petition in error filed after the period fixed by the court pursuant to Section 5563b, but within the period relating to proceedings in error in general, was proper and a motion to dismiss the petition in error was overruled.

The purpose of Sections 11865 and 11866, General Code, is to permit an attachment to remain in full force and effect pending an appeal. But in the McDowell case we said:

“Had plaintiff desired to maintain her attachment, she should have requested the court to fix the time for filing her appeal and have then given the bond-required by Section 11866, General Code. Although under the terms of the statute the court must fix the time for appeal, in the absence of a request, objection to the failure to do so may be regarded as waived on the part of the plaintiff.”

On re-examination of the sections in question, we hold that Section 11865, General Code, requires the court or judge to fix the number of days, not to exceed 30, within which the party may file his appeal, and that upon the fixing of such time the party, in order to perfect his appeal and maintain his attachment, must give the bond required by Section 11866, General Code. Such party, however, may elect to appeal under the Appellate Procedure Act.

Inasmuch as the journal entry was summarily entered by the court over objection of the plaintiff, without fixing a time for filing an appeal, the plaintiff can hardly be held in this case to have thereby waived his right to maintain the attachment by the filing of a bond.

With respect to a moot question, it becomes at once apparent that the failure of the court to fix the time within which an appeal might be filed was prejudicially erroneous to the plaintiff. The question is therefore not moot, and the motion to dismiss is overruled.

By reason of the error of the court in failing to fix the time within which an appeal might be taken, the order is reversed and the cause remanded to the Court of Common Pleas for further proceedings.

Judgment reversed and cause remanded.

Carpenter, J., concurs.

Conn, J.,

concurring. I concur in the overruling of defendants’ motion to dismiss the appeal, but am of the opinion that this court has jurisdiction to hear and determine the case on its merits for the reason that the notice of appeal was sufficient under the Appellate Procedure Act to constitute an appeal, and that the appeal has been perfected by the filing of the original papers, bill of exceptions, briefs, and assignments of error.

       Section 5563a, Revised Statutes, provided that petitions in error must be filed in attachment proceedings “as in other cases.”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Delphos Realty Co., Appellee, v. Wilson, Appellant.

      (No. 2130
    Decided June 20, 1951.)

      Messrs. Leyland ds Patterson, for appellee.

      Mr. Frederick W. Howell, for appellant.
   Per Curiam.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery County in an action in which the plaintiffappellee, Delphos Realty Company of Dayton, Ohio, was granted a decree for specific performance of an agreement entered into with the defendant-appellant, Charles O. Wilson, involving the sale of real estate.

The matter was presented to the court on the pleadings and an agreed statement of facts. The record shows that on July 18, 1949, the plaintiff entered into a written agreement with defendant, whereby defendant agreed to sell and the realty company agreed to buy a certain tract of land in the city of Dayton. The agreement provided for the payment by the plaintiff of a consideration of $8,750 and for the delivery of a warranty deed by the defendant, both of which provisions were complied with by the respective parties. The written agreement provided further that ‘ ‘ same to be clear and free of all encumbrances excepting taxes and assessments after June, 1949, installment.” The record shows further that on the date of purchase the records of the office of the county treasurer of Montgomery county showed that there existed upon such real estate unpaid taxes and assessments amounting to $1,108.92.

Several years prior to the sale the defendant entered into contracts under the Thomas-Zoul Act (117 Ohio Laws, 32) which provided for the payment of delinquent taxes and assessments over a period of ten years as now authorized by Section 2672-3, General Code. The plaintiff made numerous demands upon the defendant for the payment of the delinquent taxes and assessments, but the defendant refused to make payment and denied he was required to make payment under the terms of the agreement.

The court must determine whether, under the written agreement, the defendant was required to discharge the unpaid taxes and assessments which had accrued prior to June 1949. The record shows that the defendant has paid all current taxes and assessments and all installments of delinquent taxes and assessments under the Thomas-Zoul Act up to and including June 1949.

The sole question for determination is whether the defendant is obligated to pay the remaining installments of delinquent taxes and assessments under the terms of the contracts entered into pursuant to the Thomas-Zoul Act.

The defendant contends that after he entered into the contracts under the provisions of section 3 of the act (now Section 2672-3, General Code), such delinquent taxes and assessments took on the character of current taxes and assessments and that under the agreement the grantees assumed and agreed to pay such taxes and assessments due and payable after June 1949.

The statutory provision does not support the contention of the defendant. Under the provisions of the Thomas-Zoul Act (since superseded by the Whittemore Act), the taxpayer was not permitted to enter into a written contract with respect to the payment of taxes and assessments unless and until such taxes and assessments became delinquent and were encumbrances upon the real estate. Section 3 of the ThomasZoul Act (now Section 2672-3, General Code), in part, provided:

“Upon receipt of such certificate the county auditor shall note on the tax list and duplicate, and on the delinquent tax list, in such manner as the bureau may prescribe, the fact that such undertaking has been entered into; and thereafter, so long as such undertaking shall continue to he performed, the lands against which said delinquent taxes or assessments, penalties, interest and other charges are, charged, shall not he entered on the foreclosure list, and shall not be published as provided in Section 5704 of the General Code, as part of the list of delinquent lands, anything in the permanent statutes of this state to the contrary notwithstanding.” (Emphasis ours.)

Section 6 of the Thomas-Zoul Act (now Section 2672-6, General Code), in part, provided:

“In case of any default in the payments under the undertaking provided for in this act, the county treasurer shall enter on the duplicate the date and the fact of such default. Thereupon such undertaking shall be canceled of record in the office of the treasurer and a certificate of such cancellation shall be given to the county auditor, and such officer and all other officers cmthorised hy permanent law in this state to act in the premises, shall proceed to enforce the payment and collection of such delinquent taxes, assessments, penalties and interest, in the manner prescribed by the permanent latv of the state therefor * * (Emphasis ours.)

Under the provisions of these sections the encumbrance on the real estate was not removed by the defendant entering into an undertaking to pay such delinquent taxes and assessments over a period of ten years under the Thomas-Zoul Act. Such unpaid delinquent taxes and assessments did not become current taxes and assessments. The provisions of the statute (Thomas-Zoul Act) simply stayed any further proceeding by the proper officers “authorized by permanent law in this state” to enforce the payment and collection “in the manner prescribed by the permanent law. ’ ’ The Thomas-Zoul Act did not supersede Section 5704, General Code, but merely suspended its operation so long as the taxpayer did not default in the payments under the undertaking. The delinquent taxes and assessments on the property in question still remained an encumbrance and such encumbrance existed at the time the contract was entered into. Under the written agreement the defendant was obligated to discharge this encumbrance. 11 Ohio Jurisprudence, 932, 937, Sections 63, 66.

As we find no error in the record, the judgment is affirmed.

Judgment affirmed.

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


author: Middleton, P. J.

text:
    The State, ex rel. Clymer, a Taxpayer, Appellant, v. Board of County Commissioners of Marion County et al., Appellees.
    (No. 1020
    Decided May 9, 1951.)

      Messrs. Sanders $ Grigsby, for appellant.

      Mr. Ralph E. Carhart and Mr. William J. Hunter, for appellees.
   Middleton, P. J.

This is an appeal on questions of law and fact from a judgment of the Common Pleas Court denying an injunction and dismissing plaintiff’s petition.

There is no dispute as to the facts, the question being as to the application of the law to the facts.

In brief, the facts, so far as necessary to show the questions involved, are that the county commissioners of Marion county advertised for bids for the construction of a county road project, under Section 6945, General Code; that two bids were received, one slightly higher than the other; that one bid was by R. C. Grin-dell and the other by the U. S. Construction Company, the latter bid exceeding the Grindell bid by $277.77; and that the county commissioners awarded the contract to the U. S. Construction Company on the higher bid.

The journal of the board, at the time the bid was awarded to the U. S. Construction Company, set forth that “the board finds that the bid of the U. S. Construction Company is the best bid and within the estimate. * * *”

Subsequent to the hearing of this cause in the Common Pleas Court and to the filing of the notice of appeal to the Court of Appeals, the board of county commissioners passed the following resolution which is recorded in the journal of the board, to wit:

“Whereas, the resolution as passed and adopted by the Board of County Commissioners of Marion County, Ohio, on May 18, 1950, relative to the opening of bids and awarding of a contract for drag treating various roads in Marion county, Ohio, did not fully and completely record the action of said board and is therefore incorrect and should be amended to read as follows:
“Whereas, this being the date set for the opening of the bids for drag treating various roads in Marion county, Ohio, and
“Whereas, the following bids were received:
L. C. Grindell $70,219.55
U. S. Construction Company 70,497.32 and
“Whereas, the board being duly advised in said matter and after careful consideration of said bids, hereby rejects the bid of L. C. Grindell, and further finds that the bid of the IT. S. Construction Company was submitted by the lowest competent and responsible bidder and within the estimate made by the county engineer, therefore be it
“Resolved, by the Board of Commissioners of Marion County, Ohio, that the contract for the 1950 drag treating program be awarded to the U. S. Construction Company, being the lowest competent and responsible bidder, at their bids of $70,497.32 and further be it
“Resolved, that the U. S. Construction Company shall furnish a performance bond and contract to the approval of the board of county commissioners for the performance of the work and the furnishing of the material bid upon, and further be it
“Resolved, that the journal entry of May 18, 1950, be and the same is hereby corrected and that this resolution be considered a nunc pro tunc order, and that it be the official record of May 18, 1950. ’ ’

The cause was heard in this court de novo on a transcript of the evidence presented in the Common Pleas Court, and certain additional evidence, including the journal of the board of county commissioners setting out the adoption of the resolution of July 24, 1950, correcting, the record of the action of the board of county commissioners on May 18, 1950, relative to the opening of bids and awarding of the contract in question.

This court held in the case of State, ex rel. Wuebker, v. Bockrath, that records of administrative and legistive bodies are allowed to be changed after the time when they should have been made, in order to conform with the truth.

On appeal, the Supreme Court affirmed the judgment of this court, in 152 Ohio St., 77, 87 N. E. (2d), 462, holding, as disclosed by the first three paragraphs of the syllabus:

“A record must speak the truth and when it does not do so those who have the authority and power may correct the record to make it conform to the truth.
“A nunc pro tunc correction of an earlier record is entitled to the same respect as if it were the original record.
“The record of an administrative board may be corrected to conform to the actual truth, after the timo when it should have been made.”

After the record has been amended it is entitled to the same respect as an original record. This being a hearing de novo, this court is not controlled by the commissioners ’ record as it appeared at the time of the hearing of the cause in the Common Pleas Court, but by the record as it exists at the time of the trial in this court.

There is no question raised that the action recorded in the resolution adopted July 24, 1950, complies with the provisions of Section 6945, General Code, and that if such a resolution had been recorded in the commissioners’ journal as of May 18, 1950, the appellant would have no complaint, so far as is reflected in his brief.

He concedes that the board of county commissioners has the authority to correct a mistake or omission in its proceedings, but claims that the resolution of July 24, 1950, was an attempt to contradict its former record.

There is ample evidence in the record to support the provisions of the resolution of July 24, 1950, and this court specifically finds that the record, as amended, presents the real facts and shows that the board acted in accordance with law.

As the board of county commissioners had the authority to pass the resolution of July 24, 1950, and the record supports the contents of the resolution, the plaintiff is not entitled to the relief prayed for.

Judgment is, therefore, entered in favor of the defendants, and the petition of the plaintiff is dismissed.

Judgment for defendants.

Jackson and Guernsey, JJ., concur.


author: Wiseman, J.

text:
    The First Discount Corp., Appellee, v. Hatcher Auto Sales, Inc., Appellant.
    (No. 2126
    Decided December 1, 1950.)

      Messrs. Shaman, Winer & Shulman and Mr. Paul Ziegler, for appellee.

      Mr. Joseph W. Sharts and Mr. Harold H. Singer, for appellant.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery County, affirming a judgment of the Municipal Court of Dayton rendered in favor of the plaintiff.

The defendant-appellant has assigned 16 alleged errors, 10 of which involve the weight or sufficiency of the evidence. Since the defendant in its brief discussed the alleged errors generally and not separately the court will do likewise.

The defendant cannot urge alleged error of the trial court in overruling defendant’s demurrer to the amended statement of claim and in overruling defendant’s motion for a directed verdict at the close of the plaintiff’s case. The defendant filed an answer after the demurrer was overruled and introduced evidence on defense after the motion for directed verdict was overruled. We do not find that the judgment is against the manifest weight of the evidence.

Several legal questions have been raised which require comment. The plaintiff instituted its action on a cognovit note. The defendant was the payee and indorser of the note. It is contended that the payee was not a holder in due course. The maker, Charles V. Lynch, was a purchaser of an automobile from the defendant and as part consideration for the sale of the automobile executed the cognovit note in blank. The plaintiff came into possession of the note and filled up the note as to amount and payee according to instructions. Under Section 8119, General Code, the plaintiff had prima facie authority to complete the instrument. Prom the evidence it is apparent that the instrument was completed before the plaintiff became a party to the note or before it was discounted. It is not contended that the note was completed contrary to instructions. When the plaintiff discounted the note it was completed and negotiable upon its face. The plaintiff became a holder in due course. Section 8157, General Code.

The defendant by indorsing the note “without recourse” became a qualified indorser. Section 8143, General Code. The liability of a qualified indorser is controlled by Section 8170, General Code, which in part provides:

“Every person negotiating an instrument by de- • livery or by a qualified indorsement warrants:
< Í # # #
“3. That all prior parties had capacity to contract. ’ ’

The evidence shows that the maker was a minor at the time the note was executed, which fact was then unknown to the plaintiff or defendant. When the maker defaulted in payment, the plaintiff herein, in another action, sued the maker who then disaffirmed the contract and interposed a defense of minority. Under Section 8170, General Code, the defendant warranted that the maker had capacity to contract when as a matter of fact he did not have such capacity. When the defendant by qualified indorsement negotiated the note signed by the minor, it became liable under its warranty. Central Acceptance Corp. v. Bradfield, 6 Ohio Law Abs., 566.

There is no evidence in the case supporting the contention that plaintiff had indorsed the note to a bank in Indiana. The indorsement to such bank was stricken (Section 8153, General Code), and the holder of a negotiable instrument, especially if the holder is an indorsee, may sue on the note when due. Section 8156, General Code. There is no support for the contention that plaintiff was guilty of usury, or that because the plaintiff was an Indiana corporation it could not be a holder in due course and maintain suit as such. Every holder is deemed prima facie to be a holder in due course. Section 8164, General Code. The instrument was a cognovit note in which “presentment for payment, notice of nonpayment, protest, notice of protest, and diligence in bringing suit against any party” were expressly waived.

The defendant contends that the automobile was a necessary and that since a minor is liable for necessaries, the action cannot be maintained against the defendant indorser on its warranty. In the prior action the minor interposed a defense that the automobile was not a necessary, although it is claimed in this action that it is a necessary since it was used by the minor to go and return from his place of employment. It has been held, and we think rightly so, that an automobile is not a necessary unless it is considered an essential to the bodily or mental needs of the minor and not for business purposes. Chambers v. Dunmyer Chevrolet Co., 74 Ohio App., 235, 238, 58 3ST. E. (2d), 239.

It is contended that this action cannot be maintained since the former action instituted against the minor is still pending. The record shows that judgment was taken on the note and execution issued. On motion of the defendant the judgment was suspended. Although the appearance docket shows an entry filed vacating the judgment, no such entry was journalized or can be found among the papers. Assuming that the plaintiff still has a judgment against the maker, would this fact deprive the plaintiff of its remedy against the defendant? We do not think so. Section 8224, General Code, provides how a negotiable instrument is discharged and Section 8225, General Code, provides the manner in which a person secondarily liable on the instrument is discharged. The mere pendency of the action on a suspended judgment is not sufficient to discharge the instrument or operate as a bar to the action against the defendant on its warranty.

We find no errors assigned well made.

Judgment affirmed.

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


text:
    Blissenbach, a Minor, Appellee, v. Yanko, d. b. a. Jay’s Service Drug Store, et al., Appellants. (Two cases.)

      (Nos. 3435 and 3437
    Decided May 31, 1951.)

      Mr. David C. Haynes and Mr. Theodore T. Macejho, for appellee.

      Mr. James J. Granito, for appellant John Yanko.

      Mr. William E. Pfau, for appellant The DeVilbiss Company.
   Per Curiam.

In this opinion the parties will be called plaintiff and defendants.

Defendant The DeVilbiss Company, a corporation and nonresident of Mahoning county, upon which service was obtained in Lucas county, and defendant John Yanko, d. b. a. Jay’s Service Drug Store, separately appealed to this court on questions of law from a judgment of the Court of Common Pleas entered upon a jury verdict for $41,000 against them. This was a joint action, brought against the two defendants as joint tort-feasors, by the plaintiff, an infant, through her mother as her parent and natural guardian, to recover damages for personal injuries caused by their alleged joint negligence.

The appeals were consolidated for hearing and will be considered as one in this opinion.

The defendant company manufactured a “DeVilbiss Electric Steam Vaporizer No. 148,” a duly patented double-shelled cylindrical shaped container designed somewhat like a tea kettle to form medicated steam by means of electric current connected with electrodes and used in the treatment of respiratory diseases, which vaporizer was sold to plaintiff’s mother by defendant Yanko.

The vaporizer was fitted with a small aperture to discharge the medicated vapor it produced and was equipped with a loose and easily removable lid.

When she purchased the vaporizer plaintiff’s mother advised defendant Yanko that she was going to use it to treat her six-month-old daughter. Thereupon defendant Yanko demonstrated the use of the vaporizer to her, but did not warn her of the freely removable lid, which was apparent, nor did he warn her of the danger of scalding that might result in case it was overturned.

Plaintiff’s mother used the vaporizer in treating-plaintiff from February 20 to March 2, 1949. On the latter date, as she had done on every previous occasion on which she had used it, she placed plaintiff on the davenport with her head toward one of the arm rests and guarded her from falling by placing a chair with its back toward the davenport. She then covered the plaintiff, the vaporizer which was placed on one of the upholstered arms of such davenport and the back of the chair with a sheet. For no disclosed reason, while the attention of the plaintiff’s mother was directed to a conversation with an insurance agent who had called at her home that morning, the vaporizer upset, the lid came off therefrom and the contents thereof spilled upon the plaintiff’s arms and body, causing- severe burns and permanent personal injuries and disfigurement.

Plaintiff charged defendant company with negligently manufacturing and marketing a vaporizer with a loose and easily removable lid which would come off if and when the vaporizer was overturned. This, she contends, constituted a defectively constructed vaporizer.

Plaintiff charged defendant Yanko with negligently failing to protect her by warning her mother of the conditions and selling such defectively constructed vaporizer.

After overruling the demurrer of the defendant company, filed on the ground of lack of jurisdiction because of misjoinder, the trial judge submitted the case to the jury on the theory that the company and Yanko were joint tort-feasors.

The court was correct in its ruling as this action was rightly brought in Mahoning county, where one defendant, John Yanko, was a resident, and the other defendant, The DeVilbiss Company, resided in Lucas county.

The plaintiff, in good faith, charged both defendants jointly with actionable liability. Section 11282, General Code. In addition thereto the defendant company waived the question of jurisdiction by proceeding to try the case on the merits and taking an appeal to the Court of Appeals. Foster v. Borne, 63 Ohio St., 169, 58 N. E., 66.

The following interrogatories were submitted to and answered by the jury:

“1. Do you find the defendant, John Yanko, or the pharmacist working in his drug store, negligent in any manner as claimed in the plaintiff’s petition ? Answer: Yes.
“2. If your answer to the first question is ‘yes,’ then set forth in what respect the defendant, John Yanko, or the pharmacist was negligent as claimed in the plaintiff’s petition? Answer: Yes. That the defendant failed to explain the possibility of the lid coming off consequently spilling its contents if the vaporizer was upset.
“3. If your answer to question No. 1 is ‘yes,’ was the fact that the lid of the vaporizer was loose and freely removable apparent to the purchaser? Answer : Yes.
“4. If your answer to question No. 1 is ‘yes,’ did it require a direct intervening act or force which could not reasonably have been forseen by the defendant, John Yanko, which upset the vaporizer and caused the lid to come off? Answer: Yes.”

It is urged by the defendant company, first, that there was no evidence in the record of negligence against The DeVilbiss Company which warranted the trial court in submitting the negligence of this defendant to the jury; second, that there was a misjoinder of parties defendant and service could not properly be secured against The DeVilbiss Company, a nonresident of Mahoning county, in this action brought against the druggist; and, third, that the answers to the interrogatories, especially Nos. 3 and 4, entitled the defendant Yanko to a final judgment and since the only way the action could proceed against the nonresident defendant was predicated upon joint liability, the defendant, The DeVilbiss Company, is entitled to final judgment.

The evidence discloses that the vaporizer was of a standard and conventional type and design; that it was a simply constructed instrument, patented in 1944 and manufactured and merchandized since 1946 by a reputable corporation engaged in the manufacture of like products since 1888; and that if handled properly it would not have caused any injury.

The law exacts of one who puts a force in motion that he shall control it with a skill and care proportioned to the danger created. 20 Ruling Case Law, 51, Section 47.

A dangerous instrumentality shall be cared for with the utmost caution. Byrnes v. Hewston, a Minor, 13 Ohio App., 13.

If dangerous instrumentalities are entrusted to persons unskilled in their use or unaccustomed to operate them and the owner has knowledge of such incompetency, and the person so using such agency by his negligent operation of the same causes damage to the person, the owner will be held responsible therefor. Elliott v. Harding, 107 Ohio St., 501, 140 N. E., 338, 36 A. L. R., 1128.

A vaporizer is not such a dangerous instrumentality. It has an important place in the field of modern therapy. The question in this case is the operation of the vaporizer itself. It is not per se a dangerous instrument. It is an instrument of dangerous potentialities if carelessly used. Care must be proportioned to the danger to be avoided. It was not fool proof. Liability in this case rests upon the theory of negligent construction resulting in damage to the infant. There were no latent or hidden dangers in this vaporizer. It was designed with a loose lid because a loose lid provides a natural safety valve whereby the lid is pushed up and the steam released if the aperture with which the vaporizer is provided becomes clogged, either by the chemical deposits or sediments of water and medicaments. The aperture is provided for the emission of the medicated steam.

Plaintiff’s mother knew when she purchased the vaporizer that she was purchasing a loose lid vaporizer of simple construction. It was not intended that the top should remain intact at all times. The lid was made to be easily removable, and its weight was all that held it in place.

There is no evidence that the steam generated by the vaporizer caused the lid thereof to come off; no evidence of any latent or hidden dangers in this vaporizer. It was manufactured with a loose lid, displayed as such, and sold as such; the purchaser of it knew that it had a loose lid after her inspection and after it had been explained to her. She had used it for over a week. Likewise, there is no evidence from which reasonable minds could reach any conclusion other than that the negligence of the mother in the use of the vaporizer was the sole proximate cause of the injuries suffered by the plaintiff.

The motion of the defendants for a directed verdict, made at the conclusion of all the evidence should have been granted, and this court will enter the judgment for the defendants which the trial court should have rendered.

For the reasons mentioned, the judgment of the Common Pleas Court is reversed and final judgment entered for defendants.

Judgment reversed.

Nichols, P. J., Phillips and Geieeith, JJ., concur.


author: Montgomery, J. Putnam, J.,

text:
    McKelvey, Appellant, v. McKelvey et al., Appellees.

      (No. 266
    Decided October 31, 1951.)

      Messrs. Badger, Pyers & Miller, for appellant.

      Mr. Macin E. Estill, for appellees.
   Montgomery, J.

The will of Sarah McKelvey, deceased, was admitted to probate on April 19, 1949. In that will she designated Delmar Alderman as executor. The then probate judge of Holmes county, deciding that Alderman had not qualified as required by statute, on August 9, 1949, appointed the appellant, Clarence McKelvey, administrator with the will annexed. He was the only son and heir at law of the testatrix. Thereafter, on November 23, 1949, in pursuance of the decision of this court rendered in case number 262, McKelvey was removed as such administrator and Alderman was appointed executor.

In the meantime, on September 24, 1949, McKelvey had instituted this suit to contest the will of his mother. He made parties defendant the legatees and devisees, and himself as administrator with the will annexed. In spite of his removal as such administrator, no further action was taken until May 10, 1951, when McKelvey filed a motion for an order substituting Aiderman as executor in place of himself as administrator with the will annexed. Thereafter a motion was filed to dismiss the action for reasons upon which we will comment hereinafter. The trial court overruled the motion of McKelvey and sustained the motion to dismiss the action. From these two orders this appeal was perfected to this court.

Various questions were raised, and naturally do arise, in the consideration of these problems. We will endeavor to discuss them in their natural order.

Was the appointment of McKelvey as administrator with the will annexed void ab initio, as claimed by the appellees, for his failure to comply with a provision of Section 10509-4, General Code, which requires that before an appointment, the applicant must file a “statement of any indebtedness the deceased has [had] against such person making said application”!

We discussed this proposition in our opinion in case number 262. We think the appointment was voidable, but not void. If he had proceeded without objection to administer the estate, it could hardly be claimed that everything which was done in such administration was invalid. McKelvey was subject to removal, and he was removed. This removal left the situation as though he had not been appointed.

Was McKelvey precluded from suing himself as administrator, or rather naming himself as such administrator, as one of the defendants! Again, we do not think so. He was serving, as stated, under a voidable appointment. Again, let it be stated that if the action proceeded without objection, the result of the litigation would not be in vain. And again, let it be stated that the remedy would be his removal. Such removal would have been proper because, as stated long ago, one cannot faithfully serve two masters. One acting in a fiduciary capacity must be faithful to his trust above ail other things, and must not be in a position antagonistic to his trust.

But that does not go to the proposition that he could not appear in two capacities. As this writer stated in the case of Hayes v. Peak (unreported), to which we will refer hereinafter, “the fact remains that one appearing in a representative capacity is a different person from that same individual appearing on his own behalf.”

And Judge Sherick in the case of Meyers, Exrx., v. Hogue, 45 Ohio App., 330, 187 N. E., 127, in the third paragraph of the syllabus, and in his opinion as it appears on page 335, stated the proposition in substantially the same language. The same proposition may be inferred from the sixth paragraph of the syllabus in the recent case of Peters v. Moore, 154 Ohio St., 177, 93 N. E. (2d), 683.

Is there unity of interest between the executor and the heirs at law, who unquestionably were properly served and are in this case? We say unhesitatingly that there is no such unity. The writer of this opinion has had occasion throughout the years to discuss this proposition presented in various ways.

For many years the law governing this situation had been fixed by the decision in the case of Bradford v. Andrews, 20 Ohio St., 208, 5 Am. Rep., 645. Many years thereafter the Supreme Court decided the case of McCord v. McCord, 104 Ohio St., 274, 135 N. E., 548, and differentiated, without expressly overruling, the case of Bradford v. Andrews, supra, the Legislature having acted in the meantime so as to make the changed ruling necessary.

Relying upon the decision in McCord v. McCord, supra, this court, speaking through the writer of this opinion, decided at least three cases and discussed at some length the basis for the differentiation between the Andrews and the McCord cases, and the statutes governing the situations involved. First there was the case of Sands v. Citizens National Bank, an unreported case from Tuscarawas county. Then came the case of Hayes v. Peak, supra, from Franklin county, also unreported. Then came the case of Dralier v. Walters, from Stark county, also unreported.

However, the judgment in the case of Draher v. Walters, upon error being prosecuted to the Supreme Court, was reversed in 130 Ohio St., 92, 196 N. E., 884, by a four to three decision. That decision seemed to throw out of the window,.as it were, all that had been decided by the Supreme Court and by this court theretofore.

However, in the recent case of Peters v. Moore, supra, the holding in Draher v. Walters, supra, was overruled so far as it affects our situation, and the case of McCord v. McCord, supra, was approved and followed. In other words, the law in Ohio is now, in this respect, what it was understood to be following the decision in the McCord case, and prior to the decision in the Draher case.

As to the unity of interest, it might be claimed that there is such unity as between the administrator with the will annexed and the executor, even though it would not exist between the executor and the heirs. However, in making this claim of such unity, the appellant is confronted with the plain provisions of the statutes governing such matters.

Section 11410, General Code, is in this language:

“An order to revive an action against the successor (other than the executor or administrator) of a defendant shall not be made without the consent of such successor, unless made within one year from the time it first could have been made.”

Certainly, Alderman as executor is to be classed as the successor of McKelvey as administrator. The order of revivor sought was not made within one year from the time it could have been made. Alderman is not consenting to the revivor. He of course is not the executor or administrator of Clarence McKelvey, or of any named defendant, and so is not affected by the amendment to the statute.

Section 12080, General Code, reads:

“All the devisees, legatees, and heirs of the testator, and other interested persons, including the executor or administrator, must be made parties to the action.”

Section 12087, General Code, limits the bringing of the action to contest a will to six months after it is probated. An action is begun as against a party only from the time of the service of summons upon him, or someone united in interest with him. Until service was had upon him, the executor, Alderman, was not a party to the action.

We refer again to the recent case of Peters v. Moore, supra, and specifically to the third and fourth paragraphs of the syllabus, which are:

“3. Under the provisions of Section 12080, General Code, all the devisees, legatees, and heirs of the testator, and other interested persons, including the executor or administrator, must be made parties to an action to contest a will.
“4. Under those provisions it is mandatory and jurisdictional that the executor be made a party to such action.”

In other words, a compliance with those sections of the Code is mandatory and necessary to confer jurisdiction upon any court.

Finally, the appellant contends that, even if he be wrong in his other contentions, Alderman, nevertheless, has entered his appearance generally, both as to his person and as to the merits of the cause, and the court was thereby given jurisdiction to proceed.

In passing, the peculiar character of the motion which was sustained is to be noted. It is in this language:

“Now comes Macin E. Estill, attorney for D. P. Alderman, executor of the estate of Sarah McKelvey, deceased, and defendants Robert Hoxworth, et al. and moves the court to dismiss the above recited action on the ground that the court lacks jurisdiction of the cause in as much as the executor of the estate of Sarah MeKelvey, deceased, i. e. I). P. Alderman, was not made a party thereto as required by G. O. Section 12080 and that he was not joined in the action or served within the statutory period of six months within which a will contest may be instituted as required by G. C. 11230 & G. C. 12087. Further, that the order of appointment of Clarence McKelvey as administrator w. w. a. of the estate of Sarah McKelvey, deceased, was reversed, vacated, revoked and set aside by the Court of Appeals being case No. 262, Court of Appeals, Holmes county, Ohio, and D. P. Alderman’s application for letters testamentary and bond ordered accepted and his appointment order.
“/s/ Macin E. Estill
“Attorney for D. P. Alderman, executor, et al.”

Inquiry might be propounded as to whether this was an attempted entry of appearance by Alderman through his counsel. On its face it would be the entry of appearance by counsel only. And the language of the motion is such that it might be debatable whether it did more than question the jurisdiction over the person, and whether it went so far as to question the jurisdiction over the cause of action. Of course, if it were the former, there was no general appearance or waiver.

But, even though this motion should be treated as the action of Alderman, executor, and even though it went further than an objection to the jurisdiction over his person, the situation still will not avail the appellant.

The parties, of course, cannot confer jurisdiction of the subject matter upon a court when no such jurisdiction exists. That, as we have heretofore stated in the course of this opinion, is the situation here. They cannot confer jurisdiction by agreement, certainly not by mere waiver.

The rule as stated in 3 American Jurisprudence, 802, Section 32, is as follows:

“It is a well-settled rule that jurisdiction of a court over the subject matter cannot be conferred by the consent or agreement of the parties, nor can the want of such jurisdiction be waived. Hence, it necessarily, follows that a general appearance by a defendant does not itself confer on the court jurisdiction of the subject matter.”

And, in the case of Campbell v. Johnson, 83 Ohio App., 225, 79 N. E. (2d), 147, it appears in the course of the opinion that the trial court had sustained a demurrer “for the reason that the administrator de bonis non entered his appearance after the expiration of the time prescribed by the statute of limitations.” That judgment was affirmed by the Court of Appeals, and this particular proposition, although not discussed, seems obviously to have been taken for granted as to its correctness and to have been approved.

The judgment in the instant case is affirmed.

Judgment affirmed.

McClintock, P. J., and Putnam, J., concur.

Putnam, J.,

concurring. I concur in the judgment of affirmance. I think that in the end the whole case turns upon the fact, as indicated in the opinion, that the motion made by attorney Estill, no matter what its effect in other' cases might be as to entering a special or general appearance, cannot in a case of this character be construed as giving the consent required by Section 11410, General Code, to revive the action as to the executor. Under that section it could not be done as a matter of right. The year of limitation had passed and this consent was necessary to give the court jurisdiction. Nothing in the record shows any consent. The court could do nothing else but dismiss the cause.


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    Burrier, Appellant, v. Kiefer et al., Appellees.
    (No. 1475
    Decided April 23, 1951.)

      Messrs. Myers & Spurlock, for appellant.

      Messrs. Kennedy, Kennedy & Purdy, for appellees.
   Middleton, P. J.

This case is before the court on an appeal on questions of law and fact from a judgment of the Court of Common Pleas.

The plaintiff filed her petition in partition and recites that she has an undivided one-twelfth interest, as tenant in common, in certain real estate in the city of Bucyrus, Ohio; that she, together with all the defendants named, except Paul C. Kennedy as administrator of the estate of Lucia Kemp Peighner, deceased, the unknown heirs at law of Lucia Kemp Peighner, and the Peoples Savings & Loan Company of Bucyrus, Ohio, are tenants in common with the right of possession of the whole one-half part of the real estate therein described; that such real estate descended to them by virtue of the death of Lucia Kemp Peighner, who died childless within one year of the date of the petition; that Lucia Kemp Peighner was the surviving spouse of Lewis C. Peighner who died testate February 14, 1942; that his widow, Lucia Kemp Peighner, elected to take under the law and also elected to take the real estate described, under her elective rights as the surviving spouse; that the real estate in dispute was the family homestead and was occupied as such by Lucia Kemp Peighner and Lewis C. Peighner until their respective deaths; that at the death of Lucia Kemp Peighner said real estate descended, one-half to the heirs of Lucia Kemp Peighner and one-half to the plaintiff and her co-tenants, by virtue of Section 10503-5, General Code.

The petition states further that Lucia Kemp Feighner, through her guardian, had executed a mortgage to the defendant Peoples Savings & Loan Company encumbering the real estate in question, which mortgage is in full force and effect; that the heirs at law of Lucia Kemp Feighner are unknown; and that an action to determine heirship will be required.

The prayer is for partition and the appointment of a receiver to collect rents, pay taxes and maintain insurance on the buildings located on the property.

The defendant Paul C. Kennedy, administrator of the estate of Lucia Kemp Feighner, filed an answer in which he admits he is such administrator by appointment of the Probate Court and denies all other allegations of the petition. He then states that claims against the estate of Lucia Kemp Feighner have been presented in the sum of $2,327.50; that the personal property of the estate was appraised at $239; that the personal property is wholly insufficient to pay the claims against the estate; and that it will be necessary to sell the property described in the petition to pay the debts of the decedent.

Subsequent to the filing of his answer the administrator filed an amendment thereto, in which he states that since the filing of his answer he has instituted in the Probate Court of Crawford County an action to determine heirship and for the sale of the real estate described in the petition to pay the debts of the decedent, and that thereby the Probate Court of Crawford County acquired jurisdiction over such real estate and all the questions involved, and asks that the petition be dismissed for the reason that the court has no jurisdiction over the real estate described in the petition.

The cause was submitted upon a stipulation of facts, the original pleadings and files in the Common Pleas Court and the Court of Appeals, the entire file and papers in the Probate Court in the administration of the estate of Lewis C. Feighner, deceased, and in the estate of Lucia Kemp Feighner, the deed from John T. Albright which conveyed the real estate in question to Lewis C. Feighner, and the administrator’s deed from the administrator of the estate of Lewis C. Feighner to Lucia Kemp Feighner, conveying the real estate to her.

It is set forth in the stipulation that the real estate in question was the family homestead of Lewis C. Feighner and Lucia Kemp Feighner during their respective lives; that claims have been presented to the administrator of the estate of Lucia Kemp Feighne" in the approximate amount of $2,327.50; that the personal property is insufficient to pay such claims, and such claims are unpaid; that on May 9, 1949, the administrator of Lucia Kemp Feighner filed his petition in the Probate Court of Crawford County for the determination of heirship of the decedent and also for an order to sell the real estate, involved in this action, to pay the debts of Lucia Kemp Feighner; that Lewis C. Feighner died testate and childless on February 14, 1942, and left Lucia Kemp Feighner his surviving spouse; and that Lucia Kemp Feighner died intestate on or about June 24, 1948, leaving no children, so far as is known, and leaving no parents.

Section 12028, General Code, provides who may file a petition for partition and what must be set forth. It is provided that when the title to the real estate came to such person by descent or devise upon the death of an inhabitant of this state, a partition thereof shall not be ordered within one year from the date of the death of such person, unless the petition sets forth and it be proved that all debts and claims against the estate of such decedent have been paid or secured to be paid, or that the personal property of the deceased is sufficient to pay them.

In the instant case, it is stipulated that the petition in partition was filed within one year of the death of Lucia Kemp Feighner; that the debts and claims against the estate have not been paid or secured to be paid; and that the personal property of the deceased is insufficient to pay them.

Section 10510-51, General Code, in part, provides:

“If after the institution of proceedings for the partition of the real estate of a deceased person, it is found that the assets in the hands of his executor or administrator are probably insufficient to pay the debts of the estate * * * the executor or administrator shall make a written statement to the Probate Court of such assets, indebtedness, expenses * * * and the court forthwith shall ascertain the amount necessary to pay such debts, expenses * * * and give a certificate thereof to the executor or administrator.”

Section 10510-52, General Code, provides:

“The executor or administrator thereupon shall present such certificate to the court in which the proceedings for partition are, or have been pending, and on his motion the court shall order the amount named in the certificate to be paid over to the executor or administrator out of the proceeds of the sale of the premises, if thereafter they are sold, or have already been sold. Nothing herein contained shall prohibit an executor or administrator from proceeding to sell real estate belonging to the estate, for the payment of debts or legacies, although it has been sold on partition or otherwise, or the proceeds of such sale fully distributed.”

Section 10510-2, General Code, provides:

“As soon as an executor or administrator ascertains that the personal property in his hands is insufficient to pay all the debts of the deceased, together with the allowance to the widow and children for twelve months, and the costs of administering the estate, he shall commence a civil action in the Probate Court or the Court of Common Pleas for authority to sell the decedent’s real estate.”

By these provisions of the Code the right is given to the administrator to subject the real estate of the decedent to the payment of debts of the estate as soon as it is determined that the personal property in his hands is insufficient to pay all the debts and claims of the estate.

It is stated by the Supreme Court, in the case of Stout v. Stout, 82 Ohio St., 358, 92 N. E., 465, 137 Am. St. Rep., 785:

“The right of an administrator to subject the lands of his intestate to the payment of the debts of the estate is superior to the right of the heirs at law to have partition of such lands.
“So soon as the administrator has ascertained that the personal property in his hands will be insufficient to pay all the debts, etc., of the estate, it is his duty to forthwith apply to the Probate or Common Pleas Court for authority to sell the lands for the payment of such debts, and in such case the heirs at law can prevent a sale and have partition of the lands only by giving bond for the payment of debts, etc., as provided by Section 6146 Revised Statutes.”

Judge Spear, in the opinion, stated:

“The question at issue is in a narrow compass. It is whether or not, upon the decease of a resident of Ohio who dies intestate being seized of real estate situate in this state, and owing debts, the heirs at law may have partition of the real estate as against the claim of the administrator to subject the land to the payment of debts of the estate, without giving bond to pay debts, etc., as required by Section 6146, Revised Statutes. Both courts below answered this question in the negative. We think they answered it correctly.”

The record clearly shows that the title to the real estate at issue came to the deceased, Lucia Kemp Feighner, by deed of purchase through the exercise by her of her right to take the mansion house at the appraised value, pursuant to the provisions of Section 10509-89, General Code.

Nevertheless, whether the real estate in dispute is identical property subject to the so-called fifty-fifty rule or separate property, all this property was owned by the deceased at the time of her death and all such property was subject to the payment of the indebtedness of her estate. Riley, Admr., v. Keel, 84 Ohio App., 313, 319, 85 N. E. (2d), 123.

The administrator in the instant case, when he ascertained that the personal property of the deceased was probably insufficient to pay the debts of the estate, had the right either to bring an action to sell such real estate to pay debts, as provided for in Section 10510-2, General Code, or to secure and file a certificate in the partition proceedings, as provided in Sections 10510-51 and 10510-52, General Code.

It is the absolute right of an executor or administrator to elect which provision of the law he shall follow. This court so held in the case of Retterer v. Retterer, 20 Ohio Law Abs., 393, 32 N. E. (2d), 513. The same statement of the law is found in Allen v. Million, 35 Ohio Law Abs., 13, 39 N. E. (2d), 880.

In the case at bar the administrator elected to institute an action to sell the real estate to pay debts, pursuant to the provisions of Section 10510-2, General Code. By reason of the administrator having filed in the Probate Court his petition to pay debts, the Common Pleas Court lost jurisdiction to proceed further in the partition action.

It is therefore the finding and judgment of this court that the Common Pleas Court does not have jurisdiction to grant partition of the real estate set forth in the petition. The petition of the plaintiff is dismissed.

Petition dismissed.

Jackson and Guernsey, JJ., concur.


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    Lipps, Appellee, v. Lipps et al., Appellants.
    (No. 7338
    Decided February 27, 1951.)

      Messrs. Franks & Franks and Messrs. Scanlon S Scanlon, for appellee.

      Mr. J. W. Brown and Mr. Albert J. Lerner, for appellants.
   Per Curiam.

This is an appeal on questions of law from an order of the Common Pleas Court of Hamilton County directing J. W. Brown, Albert J. Lerner, and Frank A. Lipps to account for rents and profits.

The plaintiff instituted this action on November 11, 1947, praying for partition of certain real estate, cancellation of a certain mortgage, ‘ ‘ and all other proper relief.” J. W. Brown and Albert J. Lerner were not made parties to the action at that time. On August 24, 1949, an order for partition was issued in accordance with a decree and amended decree theretofore entered. The property not being susceptible of partition in kind, an order of sale was issued on October 6, 1949, and on November 17, 1949, it was returned. • On November 22,1949, a motion to confirm and for an order for deed and distribution was filed.

Thereafter, on November 25,1949, J. W. Brown and Albert J. Lerner filed a motion to be made parties to the action, on the ground that Fránk A. Lipps had, on July 11,1949, transferred to them all his right, title, and interest in and to any and all claims that he had or might have in this litigation, or to any funds or monies that might be found due him. On the same day, the court entered an order making them parties to receive “upon a final determination of this cause all funds found due to Frank A. Lipps.”

On December 30, T949, the court entered a decree of confirmation and distribution of the proceeds of sale, one of the items of which was a direction to pay to J. W. Brown and Albert J. Lerner the sum of $1,862.74. In this decree it was ordered that “accounting for rents and profits is left for the further order of this court. ’ ’

On May 7, 1950, plaintiff filed a motion for an accounting of rents and profits, which was granted on July 21, 1950. J. W. Brown, Albert J. Lerner, and Frank A. Lipps were ordered to account for the rents and profits from the premises from November 2, 1944, to December 31, 1949. It is from that order that this appeal was taken.

We have no difficulty in concluding that an accounting of rents and profits among the coparceners is within the jurisdiction invoked by the filing of this petition, and that jurisdiction was continued by the reservation made in the decree of confirmation and distribution.

The duty to account for rents and profits is a duty owing by a coparcener in possession to those out of possession. Section 12046, General Code. It is clear that the order directing Frank A. Lipps to account was correct and it is affirmed.

A different question is presented by the appeal of J. W. Brown and Albert J. Lerner. Neither was at any time a coparcener of the plaintiff. They did not become parties to this action until November 25, 1949, and their only interest was as assignees of the rights of Frank A. Lipps. They did not agree to assume the burden of his duty to account for rents for more than the five-year period as directed by the order appealed from. And as the assignees of Lipps’ right they did not become charged with his duty, as a matter of law, any more than the grantee of mortgaged real estate is charged with the duty of paying the mortgage debt in the absence of an express agreement of assumption.

For these reasons, the order directing J. W. Brown and Albert J. Lerner to account for rents and profits is hereby reversed.

Judgment accordingly

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