text:
    Roose, Appellee, v. Boyle, Treas., et al., Appellants.
    (No 20633
    Decided February 21, 1949.)

      Messrs. Kuih & Meyers, for appellee.

      Mr. Richard DeNobel and Mr. Roland A. Baskin, for appellants.
   Hurd, J.

This action in equity for injunctive relief originated in the Court of Common Pleas of Cuyahoga County, and is here on appeal on questions of law and fact from a judgment of that court enjoining the collection of municipal special assessments levied by the city of Parma against certain sublots of the Parma Wood subdivision for the cost of installing certain improvements, including paving the streets of the subdivision, sidewalks, water and sewer connections, in the years 1927 and 1928.

The cause is presented to this court for trial de novo on the issues made by the pleadings, a transcript of the evidence taken before a master commissioner, and the briefs and arguments of counsel. The record is voluminous, comprising six volumes of evidence, both documentary and oral. Limitations of time and space prevent a discussion of this evidence in detail.

The plaintiff contends that the amount of the assessments levied against each of the sublots exceeds the fair market value of the land after such improvements had been installed. The plaintiff contends further that ■such assessments, because of the amount thereof on each sublot, constitute the taking of his property without due process of law and are confiscatory and in violation of his constitutional rights as contained in Section 19, Article I of the Constitution of the state of Ohio, and the Fourteenth Amendment to the Constitution of the United States.

The defendants deny these contentions of plaintiff and by way of amended answer and argument, both oral and by brief, say that while there are minor issues, the main issues in this cause are (1) whether the plaintiff can add together the several assessments against his property and claim that each individual assessment is invalid, if in fact he is able to establish that the total assessments equal or exceed the value of the property assessed after the installation of the improvements, and (2) whether the fair market value of the property exceeds substantially the total assessments after the installation of the improvements.

The defendants raise other questions, claiming that neither the plaintiff nor his predecessor in title filed any objections to any of the improvements or assessments and that no objections had been made to such improvements or assessments by any one until the filing of this action; that the annual installments of the assessments levied for improvements were paid for several years, or contracted to be paid pursuant to land contract between plaintiff’s predecessor in title and various persons; that the improvements were made pursuant to petition filed with the city of Parma requesting it to install such improvements, which petition waived all assessment limitations and various notices required by law, including the notices required by Sections 3818 and 3895, General Code; that all the owners who were affected by the various improvements petitioned for such improvements; that the plaintiff is barred by the statute of limitations from bringing this action and is particularly barred by the statute of limitations from bringing this action to enjoin the collection of installments of special assessments which became due and payable more than four years prior to the commencement of this action; and that the plaintiff, or his predecessor in title, in requesting the improvements or in failing to halt such improvements before they were begun, or in failing to object to such improvements or assessments, or by their acts, is guilty of laches and is now estopped to claim that such assessments are illegal.

Finally, the defendants argue that the claims of plaintiff should not be approved by a court of equity because plaintiff purchased the property in question some fifteen years after the improvements were installed, by deed assuming and agreeing to pay such assessments; that to approve or grant an injunction at this time, in view of all the circumstances, would enable plaintiff to cast thé burden of paying these assessments upon the general taxpayers “while at the same time reaping a huge profit for himself and others who will be encouraged to bring similar suits. ’

The plaintiff is the owner of 166 sublots fronting on Dawnshire drive and Redfern road in the Parma Wood allotment. The record discloses that he purchased these lots in November 1943, and by deed assumed and agreed to pay all the assessments of every .kind and description due or to become due against such subiots. The deed carried revenue stamps of $9.35, which naturally leads to the conclusion that he paid an average of approximately $53 for each of the sub-lots. Instead of paying the assessments, as agreed by deed, plaintiff brought this action within five months from the date of acquisition of the sublots to have the assessments declared void and to enjoin their collection, the petition having been filed April 6, 1944.

•The record further indicates that the Parma Wood Company, the original owner, on March 15, 1926, filed a plat of the subdivision which is recorded in volume 96 page 32 ■ of Cuyahoga county records. The subdivision as platted has 319 lots and includes the two main streets of Dawnshire drive and Redfern road hereinbefore noted.

There appears in the record a letter from the engineer of the then village of Parma, dated March 9, 1926, addressed to the council of the village reporting that improvement petitions had been filed by the Parma Wood Company, owner of the subdivision, requesting installation of water and sewers on Dawnshire drive and Redfern road. It appears from the record also that there are letters dated May 21, 1928, from the village engineer reporting to the council of the municipality that sidewalks had been petitioned for by 98 per cent of the property owners on Dawnshire drive, and 100 per cent of the property owners on Redfern road. Also in the record are petitions filed by the Parma Wood Company requesting installation of pavements on Dawnshire drive and Redfern road at the sole cost to that company, whereby the assessments and other limitations are waived. These petitions are signed by the Parma Wood Company, per L. G. Oollister, president, and W. P. Edmonton, secretary, with the corporate seal of the corporation attached, and are a part of the records of the municipality.

Authority for these petitions is found in Section 3836, General Code, which provides that a municipality may assess the entire cost of the improvements, if such petition is filed, signed by three-fourths in interest of the property owners or the owners of 60 per cent of the frontage abutting on the streets improved. Otherwise the municipality is required to pay at least 2 per cent of the cost of improvements and the cost of intersections. See Section 3836, General Code, and Section 3820, General Code.

Thereafter, on May 3, 1926, resolutions of necessity were adopted by the council of the village of Parma for water and sewers on Redfern road and Dawnshire drive. On December 22, 1926, resolutions of necessity were adopted by the municipality for pavements on the same streets and thereafter on May 21, 1928, resolutions of necessity were adopted for sidewalks on these streets.

According to the record all these necessity resolutions provided for the entire cost of the improvements. This action could not have been taken by the council without the filing of petitions, for the improvements signed by the required number of property owners. There is, in law, a presumption of regularity in respect of such official acts, and there is nothing in the record indicating anything to the contrary.

The record shows also that ordinances to proceed with the improvements were adopted as follows: Water and sewer, May 24, 1926; pavement, January 17, 1927; sidewalks, June 11, 1928.

Pinal estimates were paid to contractors in the year 1928 as follows:

Dawnshire drive water and sewer Peb. 20, 1928

pavement Sep. 4, 1928

sidewalk Nov. 10, 1928

Redfern road water Nov. 7, 1927

sewer Sept. 6, 1927

pavement Oct. 15, 1928

sidewalk Nov. 10, 1928

After the improvements were installed, assessments therefor were levied for each improvement based on the actual cost, made payable in ten annual installments, and certified to the county auditor for collection on the tax duplicate. Thereafter in the year 1938, pursuant to applicable sections of the General Code, the municipality refunded all its special assessment bonds including the assessment bonds for the improvements on Dawnshire drive and Redfern road, and on January 3, 1939, pursuant to the provisions of Sections 2293-5p and 2293-5g, General Code (116 Ohio Laws, pt. 2, 116), it respread all its unpaid assessments.

The record further indicates that the individual amount assessed for water, sewer, pavement and sidewalks against the sublots in question were on an average per lot as follows:

Dawnshire drive water $112.80

sewer 236.23

pavement 259.63

sidewalk 42.99 $651.65

Redfern road water $110.75

sewer 191.15

pavement 268.09

sidewalk 45.26 $615.25

From the foregoing detailed factual history, it appears to us as an inescapable conclusion that the improvements installed were made upon the petitions of the plaintiff’s predecessors in title, whereby the predecessors in title were bound by agreement to pay for the improvements in accordance with the provisions of the resolutions and ordinances adopted by council. Therefore it appears to us that the plaintiff, who purchased these sublots some fifteen years after the improvements were installed, does not occupy any better position than his predecessors in title upon whose petitions the improvements in question were installed in the first instance. If the owners who successfully petitioned council to have these improvements installed had brought suit immediately after their installation, to abrogate tbe assessments and enjoin the collection thereof, they could not have been beard to complain as they would then have been estopped by their own 'conduct from so doing.

The record shows further that the plaintiff, in attempting to determine the cost of improvements under its claim of confiscation, is treating interest as part of the assessment in arguing for assessment limitations. This position we believe is untenable in view of the holding of the Supreme Court of Ohio in the case of Wilcox v. Village of Edgerton, 103 Ohio St., 267, 133 N. E., 78, the syllabus of which is as follows:

‘‘Where a statue limits the assessment for local improvements to thirty-three and one-third per cent of the actual value of the property so assessed after the completion of such improvement, and the village council pursuant thereto, by ordinance, fixes the mode of payment either in cash within twenty days, or in' ten annual installments, at the option of the property owner, such installments to bear the same rate of interest as the bonds issued in anticipation of the collection of the assessments: Held: Upon the owner’s own election to pay in ten animal installments, the interest charges upon such installments are not in violation of Section 3819, General Code, so long as he was given the option of paying it all in one payment, within the thirty-three and one-third per cent.”

See, also, the dictum of the court at page 270.

We conclude from the foregoing that, in considering the costs of improvements where the same have been petitioned for and the owner has the option of paying in cash within thirty days or in ten equal installments with interest, the added interest may not be considered as a part of the cost of the improvements when considered in relation to the value of the property where it is claimed that the cost of the improvements is confiscatory. - .

Next, it will be noted that plaintiff proceeds upon ■the theory that he may cumulate the costs of all the improvements and then by adding together all the separate assessments levied against the property, regardless of the amount and time when levied, and if and when the total amount assessed equals or exceeds the market value of the property after the improvements are installed, claim that each and every assessment is as to him null and void. This process of rationalization by retrogression cannot stand the test of law or logic. Bearing in mind that plaintiff’s predecessor in title petitioned for these improvements, such a process of reasoning would eventually reach a point-of reductio ad absurdum. By such a method, property owners petitioning for improvements in number and amount sufficient to equal or exceed the value of their property could, when the saturation point was reached, escape the obligation of paying for the same by casting the entire burden upon the general taxpayers.The law never intended such result. Certainly the great powers of a court of equity should not be invoked by the injunctive process in support of such a plea.

Counsel point to and rely upon the case of Domito v. Village of Maumee, 140 Ohio St., 229, 42 N. E. (2d), 984, as authority for their contention that the assessments here are confiscatory and should be abrogated by the injunctive process. We consider that the D omito case stands as the highest authority under the facts there presented but it is our considered opinion that there is a clear and unmistakable distinction between the facts of the Domito case and the facts of the instant case.

In the first place there is nothing in the opinion showing that the improvements in the Domito case were made upon the petition of three-fourths in interest or of 60 per cent or more of the owners of .foot frontage abutting upon the street in question. The case is authority for the proposition that an assessment levied against private property cannot equal or exceed the value of the property after the improvement is made, but it is not authority for the proposition that cumulation of separate valid assessments levied over a period of time will eventually invalidate all the assessments. It is clear from an examination of the case that there were two assessments, one by the county and one by the city. It is only the city assessment which was held void ab initio. The county assessment was not invalidated. Consequently the Domito case cannot be relied upon as authority for the theory contended for here, namely, that if the total of all separate assessments for the various improvements equals or exceeds the value of the property assessed then each and every individual assessment thereby becomes invalid or void ab initio.

The second paragraph of the syllabus in the Domito case is also authority for the proposition that failure to make written objection as provided by law after notice of the improvement and the amount levied therefor precludes the owner from escaping payment by asserting noncompliance with statutory requirements on the part of the assessing body, although it does not estop him from resisting collection on a constitutional ground. We wish only to point out here that the time has long since passed when any attack could be maintained against the assessments in ques-lion here upon any statutory ground. Therefore, we must accept the proceedings in respect thereof as regular and in accordance with all statutory requirements.

We shall next consider the question of the claim of the plaintiff that the amount of the assessments levied against each of the sublots exceeds the fair market value <of the land after the improvements have been, installed.

We have examined the record carefully on this subject, have weighed the testimony of the experts who-testified upon the trial of the case, and have reached the considered conclusion that the plaintiff has failed to establish the allegations of his petition in this respect by a preponderance of the evidence. On the contrary, we find that the preponderance of the evidence on the question of valuation is definitely in favor -of the defendants.

Not only do we find that the testimony of defendants'’ experts both in direct examination and on cross-examination is more credible, reasonable and probable than that of plaintiff’s expert witnesses, but we find other facts in the-record which materially substantiate the expert testimony proffered by the defendants showing that the value of the land was substantially in excess of the cost of the improvements after the same were installed, even if we were constrained to accept the theory of cumulation of costs contended for by the plaintiff. The testimony of defendants’ experts as to the market value is substantiated by other sales and purchase-money mortgages as disclosed by the county records against other property in the vicinity. The land contracts of 1928, 1927 and 1928 for the sale of property in the Parma Wood subdivision likewise may ■ be considered as corroboration of the defendants’ expert testimony. Also, a first mortgage in 1927 to the United Banking & Trust Company (later The Central National Bank) in the sum of $76,400 on the property of the Parma Wood Company covering' 191 lots, is independent, disinterested and cogent evidence indicating values as of that time. There is also supporting evidence in the-form of a bank appraisál in the year 1927 covering lots in the subdivision, which indicates that the. value of the land at the time was greatly in excess of the cost of the improvements installed.

Therefore, we conclude that by the greater weight of the evidence before us, as shown in the record, the value of the sublots was shown to be considerably in excess of the cost of the improvements when such improvements were installed.

In conclusion it appears to us that the transaction of plaintiff in the purchase of these properties and in prosecuting this suit bears all the aspects of a speculative venture which, if successful, would enable the plaintiff to gain substantial profits at the expense of the general taxpayers.

In view of the foregoing, we find it unnecessary to pass upon the other defenses pleaded in the amended answer of the defendants. In our opinion, which is contrary to that of the trial court, the plaintiff has failed to establish a clear right to the injunctive process and his petition for injunction should be denied. Consequently we conclude that all the equities are in favor of the defendants and that the finding and decree should be for the defendants.

Decree for defendants.

Skeel and Nichols, JJ., concur.

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

      Secfcion 3836. “When a petition subscribed by three-fourfclis in interest ■of the owners, or the owners of sixty per cent of the frontage of property abutting upon a street, alley, or highway of any description between designated points in a municipal corporation, is regularly presented to the council for that purpose, the entire cost of any improvement of such street, alley, or highway, including the cost of intersections and regardless of the limitations of Section 3820 of the General Code and without reference to the value of the lands of those who subscribed such petition, may be assessed and collected in equal annual installments, proportioned to the whole assessment, • in a manner which may be fixed by the council * * *. The interest on any bonds issued by the corporation, together with the annual installments herein provided for, and the cost of such proceedings and assessments, shall be assessed upon the property so improved. * * **’

      Section 3820. “The corporation shall pay such part of the cost and expense of improvements for which special assessments are levied as council deems iust, which part shall be not less than one-fiftieth of all such cost and expense, and in addition thereto, the corporation shall pay the cost of intersections ’ ’

      Wilcox v. Village of Edgerton, 103 Ohio St., 267, at page 270: “It is all left to the owner’s option, whether he prefers time with interest or cash without interest. The assessment of cash without interest is made by the village. The ten installment assessment with interest is made by the owner: •that is, he elects so to pay. For the favor of the time he assumes the burden of interest as fixed in the ordinance. He cannot complain at his own election, since, had he so desired, he might have paid the whole assessment in a bnm> sum within the statutory limitation of 33 1/3 per cent.”


source: Caselaw Access Project

author: Hildebrant, J.

license: Public Domain

text:
    Allen et al., Appellees, v. Cole et al., Appellants.
    (No. 983
    Decided December 6, 1950.)

      Mr. Mark T. Brown, for appellees.

      Messrs. Sohngen, Parrish, Beeler é Egbert, for appellants.
   Hildebrant, J.

This appeal on questions of law is from an order of the Common Pleas Court refusing to allow recovery of attorney’s fees incurred in obtaining a dissolution of an injunction, as damages secured by the injunction bond, wherein it was finally determined that the injunction was wrongfully issued.

The chronolog7/ of events is set forth in the short-narrative bill of exceptions, as follows:

“On the 23rd day of July, 1949, plaintiffs filed their petition herein, and therein prayed that the defendants be temporarily restrained, and that on final hearing they -be permanently enjoined, from locking or barring the gate or from doing anything which would deny the plaintiffs the right to use and enjoy a certain lane described in the petition. In this petition plaintiffs further prayed that an account of the damage done by defendants blocking said lane be taken and that plaintiffs be awarded judgment therefor and for such other relief as might be just and proper.

‘ ‘ On the same day plaintiffs posted a cash injunction bond in the amount of two hundred ($200) dollars and a temporary restraining order was issued restraining the defendants from blocking said lane.

“On August 2, 1949, defendants filed a motion to-dissolve the temporary restraining order.

“When counsel for the parties discussed with the court the setting of a time for a hearing on the motion to dissolve the temporary restraining order, counsel for plaintiffs advised that plaintiff's would seek no relief in the action other than mailing the temporary order permanent. The court then suggested that counsel for defendants file an answer and that the hearing on the motion be consolidated with the hearing on the question as to whether the temporary, restraining order would be made permanent. Counsel for defendants agreed to this procedure.

“On September 7, 1949, defendants filed an answer and on the same day the cause came on for hearing before the court sitting without a jury. Both parties, produced testimony bearing on the sole question of whether plaintiffs were entitled to the injunctive re-' lief sought.

“On October 31,1949, both parties filed briefs in support of their respective positions.

“In early December, 1949, the court rendered an opinion in which, it held that plaintiffs were not entitled to the injunctive relief prayed for.

“On January 10, 1950, plaintiffs filed a motion asking leave of court to reopen the matter and introduce additional evidence. This was granted and a further hearing was had before the court sitting without a jury on March 20, 1950.

“Subsequently defendant filed an additional brief dealing with the effect of the additional evidence introduced by the defendants at the second hearing and on a later date, the plaintiffs filed a reply brief.

“On the 3rd day of May, 1950, defendants filed a motion asking the court to increase the amount of the plaintiffs ’ injunction bond, A memorandum of law accompanied the filing of this motion.

“On the 19th day of June, 1950, the court rendered a supplementary opinion holding that the additional evidence offered by plaintiffs did not change the court’s decision and that plaintiffs were not entitled to the injunctive relief sought.

“Also on June 19, 1950, defendants filed a motion requesting the court to order the clerk of courts to pay to the defendants the cash deposited with said clerk by plaintiffs as their cash injunction bond to secure defendants’ damages sustained by reason of the temporary restraining order having been wrongfully issued.

“At a hearing on this motion defendants introduced in evidence a copy of a statement of account rendered to defendants by defendants’ counsel for services rendered by counsel in defending the instant suit in the Common Pleas Court. This included services in preparing and filing pleadings and motions, arguing motions, appearing at hearings and preparing entries. A copy of the exhibit referred to is attached hereto and made a part hereof.

"On the 25th day of August, 1950, the court denied defendants’ motion to require plaintiffs to increase the amount of their injunction bond, and also denied defendants’ motion to order the plaintiffs’ injunction bond forfeited. Defendants noted their exceptions to these two rulings.”

Many cases in other jurisdictions under a variety of circumstances disclose widely different views which are set forth in the comprehensive annotations in 164 A. L. R., 1077, to Kern v. Gentner, 176 Ore., 479, 159 P. (2d), 190, and in 16 L. R. A. (N. S.), 49, to Littleton v. Burgess, 16 Wyo., 58, 91 P., 832, to which reference is made for a broad general view of the whole subject. '

The majority rule is stated in 43 Corpus Juris Secundum, 1102:

“Attorney’s fees are allowable as damages only for services rendered in procuring dissolution of the injunction. If injunction is the sole relief sought, fees may be allowed for defending the entire action; but, if other relief is also sought, they generally are not recoverable if the dissolution results merely from a trial on the merits. The services for procuring the dissolution ordinarily must be segregated from services rendered in the case generally, to warrant a recovery therefor.”

The rationale of the majority view is stated in 164 A. L. R., 1089:

“The reasoning which supports this view is that a temporary injunction is an extraordinary remedy, that it deprives the defendant of a right claimed by him, even though temporarily, and puts him under a restraint, to remove which he must procure the services of counsel, that the plaintiff in the suit in which the temporary injunction is issued has agreed to pay the defendant’s damages in the event it is determined that the temporary injunction was wrongfully issued, and that the expenditure of attorneys’ fees to remove the temporary restraint are a part of the damages sustained by reason of its issuance. ’ ’

It is set forth in 16 L. R. A. (N. S.), 77:

“In other states — and they are the more numerous — the sums paid attorneys, solicitors, and counsel as compensation for services rendered in procuring the dissolution of the injunction are recoverable as damages by the obligee from the obligors in the injunction bond in case the injunction fails. The charges must be reasonable, the services must have been necessary, and the fees must have been paid, or at least there must be a legal obligation of the obligee to pay them. If the injunction is ancillary only to the judgment sought, it must be directly attacked and dissolved, save m some very exceptional cases, or the fees will not be allowed. The services, too, for which compensation is claimed, must be exclusively related to the dissolution of the injunction; but the relation is not exceedingly close. The services in preparing the papers and briefs on the application to dissolve, in attending and making the argument, in defending the dissolution when it has been challenged on appeal, in preventing the reinstatement of the injunction, and in the proceedings to ascertain the damages, are all sufficiently related to the dissolution. ’ ’

The basis for a right to recover at all is set forth in 21 Ohio Jurisprudence, 1307, Section 230, wherein it is said: ‘ ‘ The restraint of lawful right gives a right to the recovery of at least nominal damages.” And as to attorneys’ fees, it is stated at page 1309, Section 231:

“Attorneys’ fees necessarily incurred in obtaining dissolution of an injunction wrongfully issued may be allowed in assessing the damages in an action on the injunction bond. The fact that such fees have not been paid does not affect recovery on the bond. Recovery cannot, however, be had for attorneys’ fees in the original ease, for services which were not rendered in efforts to dissolve or modify the provisional injunction, or not otherwise occasioned by its allowance or subsistence. Such fees and expenses as are incurred, in defeating the action, where the dissolution of the injunction is only incidental to the result, are not recoverable.”

In considering the case at bar, it will be noted that it is one wherein the defendant filed a motion to dissolve and pressed that motion at every opportunity until final disposition of the case and that it is a case wherein injunction was the' sole relief sought.

Ohio authority on this question is meagre and none too clear.

In Noble v. Arnold,, 23 Ohio St., 264, it is stated in the syllabus:

“In an action on an undertaking for an injunction, whereby the plaintiff agrees to pay the defendant ‘ the damages he may sustain by reason of the injunction,’ if it be finally decided that it ought not to have been granted. Held:

“1. That attorney fees and expenses necessarily incurred in obtaining a dissolution of an injunction, may be recovered as damages secured by the undertaking, when it is finally decided that the injunction ought not. to have been granted.

“2. But where the attorney fees and expenses are incurred in defeating the action, and the dissolution of the injunction is only incidental to the result, such fees and expenses are not damages sustained by reason of the injunction, and no recovery therefor can be had upon the undertaking.

“3. An indebtedness, or liability to pay attorney fees and expenses, incurred in procuring a dissolution of an injunction, is sufficient damage to sustain an action on the undertaking.”

In that case the injunction was ancillary, and a motion to dissolve was filed.

At page 270, the court said:

“It is the undoubted privilege of the party to procure a dissolution of an injunction which has been wrongfully obtained. To the extent of the attorney fees and expenses necessarily incurred for that purpose, he is damaged by the injunction. The express undertaking, is to pay ‘the damages he may sustain by reason of the injunction,’ if it ought not to-have been granted. • Such expenses, then, come within the damages he is entitled to recover upon the undertaking^

‘ ‘ But as already intimated, a distinction is to be taken between expenses incurred only in procuring a dissolution of an injunction, and such as are incurred in the defense of .an action, to which the injunction is merely auxiliary, and is not essential to the relief sought.

“While, as already stated, we regard the expenses, including reasonable attorney fees, necessarily incurred in procuring a dissolution of an injunction wrongfully granted, as recoverable in an action on the undertaking, when it is finally decided that it ought not to have been granted, we are equally clear that, this can not be done, when the expenditure or liability is incurred in defending an action, to which the injunction is only ancillary, and not essential to the relief sought by the action; for it could not then be regarded as damage sustained ‘by reason of the injunction.’

“The true rule would seem to be, under an undertaking like the one in this ease, that where reasonable attorney fees and expenses are necessarily incurred alone in procuring the dissolution of an injunction, when it is the sole relief sought by the action, or is merely ancillary thereto, and it is finally decided that it should not have been granted, such fees and expenses may be recovered in an action on the undertaking; but where the injunction is only auxiliary to the object of the action, and the liability is incurred in defeating the action,'and the dissolution of the injunction is only incidental to the result, no recovery can be had on the undertaking for the attorney fees and expenses occasioned thereby.”

In Riddle v. Cheadle, 25 Ohio St., 278, it was held:

“In an action on an injunction bond, the plaintiff can not recover for attorneys’ fees in the original case, except those paid for services rendered in efforts to dissolve or modify the provisional' injunction, or otherwise occasioned by its allowance or subsistence. ’ ’

On its facts, the case is very similar to the one at bar, the injunction restraining the erection of a building on a right of way, but is distinguished by the fact that no motion to dissolve was filed and, therefore, no services were rendered in attacking the temporary order.

■ In Hatch v. Newark Telephone Co., 12 Ohio Law Abs., 717, the Court of Appeals of the Second Appellate District held, as shown by the second headnote:

“Attorney fees, paid for trying a case finally and on its merits, defeating an injunction sought, do not form a-basis for action upon an injunction bond, but where defendants are put to extra expense by virtue of the allowance of temporary restraining order, such expense may be collected.”

The action was to enjoin a reorganization of the telephone company, and a motion to dissolve the temporary order was made.

At page 718 the court said:

“It is settled in this state by Noble v. Arnold, 23 Ohio St., 264, and Riddle v. Cheadle, 25 Ohio St., 278, that attorney fees paid for trying a case finally and on its merits, defeating an injunction sought, do not form a basis of the action upon an injunction bond; that the bond indemnifies the obligees only for damages that have resulted from the injunction. The cases referred to, however, do not meet the • precise question that we now have.

“In this case the defendants moved for a dissolution of the restraining order and prepared for a hearing thereon and proceeded to partially hear that motion. Manifestly, therefore, the defendants did something more than defend a final judgment and incurred liability for counsel fees further than would have been necessary had they awaited the opportunity to submit it once for all when the action was ready for trial. The fact, therefore, seems to be beyond dispute that, the defendants were put to extra expense by virtue of the allowance of the restraining order. It may be difficult to determine just how much extra expense was incurred because of the issuance of the temporary restraining order. It may be difficult to apportion the attorney fees finally paid and say just how much more of attorney fees had to be paid because the temporary injunction was issued. Still these difficulties do not affect the legal principle that the obligees were éntitled to recover something for the undoubted damage that did actually follow the issuing of the injunction. ’ ’

And, further, it is stated:

“If, therefore, there was evidence tending to show a line of demarcation running through the services rendered by the attorneys, so that it/ can be seen that up to one point the services were required or justified by the injunctions and the desire to dissolve it and after that point the services were required only to present the defense against a final decree, then it follows that the obligees were damaged by the temporary injunction to the extent that they incurred attorney fees to dissolve it, although it might well be that not all the services rendered up to the line of demarcation could be said to be elements of damage. There appears to have been in' this case manifest damage to some degree.”

Finally, the court said, at page 719:

“The'trial court had the power and the difficult duty of determining what part of that sum had been earned by the attorneys and paid to them by reason of the issuance of a temporary restraining order.”

The fact, that the ultimate hearing on the motion io dissolve and the right to make the injunction permanent were, by direction of the court, consolidated, so that the right to dissolution and the right to a permanent injunction were the subject of the same evidence and effort of counsel at the same time, should not, we believe, mitigate against the defendants who never receded at any time from their position of attack upon the temporary order.

We, therefore, conclude that the duty was cast upon the trial court to fix the reasonable value of the attorneys’ services as damages recoverable upon the injunction bond.

The judgment is, therefore, reversed and the cause remanded to the Common Pleas Court for the purpose of so doing.

Judgment reversed.

■' Ross, P. J., Hildbbrant and Matthews, JJ., concur in the syllabus, opinion and judgment.


author: Wiseman, J.

text:
    Reams et al., Appellants, v. Henney, Admr., Appellee.
    (No. 4406
    Decided June 5, 1950.)

      Mr. Clifford L. Rose and Mr. Daniel E. Bevis, for appellants.

      Mr. Roscoe R. Walcutt, for appellee.
   Wiseman, J.

This is an appeal on questions of law from the Common Pleas Court of Franklin County, which directed a verdict in favor of the defendant in an action for waste.

The plaintiffs, appellants, are the children of Paulus Ziegler who died in 1929, leaving a will by which he left a life estate in a piece of real estate to his wife, Maria Louise Ziegler, and the remainder to the plaintiffs, share and' share alike. The widow died on January 26, 1948, and thereafter the defendant, -appellee, Alfred J. Henney, was appointed administrator of her estate by the Probate Court of Franklin County.

In the amended petition the plaintiffs allege that while the life tenant was in possession of the real estate in question she committed waste by failing to keep the property in reasonable repair, and that because of such waste plaintiffs were damaged' in the, amount of $2,863. For their second cause of action plaintiffs allege that under the will of her husband Maria Louise Ziegler was given, for and during her natural life, all his furniture and household goods, which she converted to hér own use.

The defendant in his amended answer sets up several defenses, among which is the four-year statute of limitation, and a general denial.

It is. contended by the plaintiffs, and the proof indicates, that this action was for “permissive"’ waste rather than “voluntary” waste. In 40 Ohio Jurisprudence, 1329, Section 2, voluntary waste and permissive waste are defined as follows:

“Voluntary waste is wilful waste, such as pulling down or razing houses, or cutting down timber trees. Permissive waste arises from the neglect, omission, sufferance, or permission of the tenant in failing to preserve or protect the estate of inheritance. ’ ’

The evidence shows that the life tenant failed during her tenancy to make reasonable repairs and allowed the property to become in a bad state of repair. There is no evidence to support the charge that she committed “voluntary waste.”

The plaintiffs’ action was instituted under the provision of Section 10503-23, General Code, which is as follows:

“A tenant for life in real property, who commits or suffers waste thereto, shall forfeit that part of the real property of which such waste is committed or suffered, to the person having the immediate estate in reversion or remainder. Such tenant also will be liable in damages to the person having the immediate estate in reversion or remainder for the waste committed or suffered thereto. ”

■ This section-is applicable to both “voluntary” and “permissive” waste. The word, “committed,” refers to voluntary waste, and the word, “suffered,” refers to permissive waste.

The trial court held that Section 11224, paragraph 4,. General Code, was the applicable statute of limitation and that the action was barred in four years after the right thereof accrued. In our opinion the trial court properly applied this statute of limitation.

' The plaintiffs introduced evidence to show in detail the dilapidated condition of the premises at the timé the life tenancy was terminated. The plaintiffs were unable to furnish proper proof of items of waste which had been suffered during the four-year period immediately preceding the bringing of the action. There was some evidence as to the reasonable market value of the property after the termination of the life tenancy but there was no proof as to the value of the property at the beginning of'the four-year period immediately preceding the institution of the action. Plaintiffs sought to introduce testimony of a contractor as to the cost of placing the property in reasonable repair. An objection to the introduction of this evidence was sustained and the plaintiffs proffered this testimony. The proffered testimony is not confined to the cost of repair due to the waste suffered within the four-year period. In applying the four-year statute of limitation, the trial court ruled that the plaintiffs ’ right of action was barred as to damages for any waste suffered prior to the beginning of the four-year period immediately preceding ihe institution of the action. The plaintiffs not being able to offer proof as to the items of waste suffered within the four-year period, the trial court directed a verdict for the defendant.

The plaintiffs assign as error: The judgment is not sustained by sufficient evidence and is contrary to law; and the court erred i-n excluding evidence offered by the plaintiffs and in directing a verdict for the defendant.

The record shows that there was a failure of proof with respect to the second cause of action and it appears that counsel are not pressing plaintiffs’ right to recover for conversion of furniture and household goods.

The principal question for determination is whether the trial court properly applied the four-year statute of limitation to the evidence in this case, and whether it properly excluded the evidence proffered by the plaintiffs.

The action was instituted within four years after the death of the life tenant. The contention of the plaintiffs is that if the action is instituted within the statutory period of time after the death of the life tenant, they are permitted to show the condition of the premises at the termination of the life tenancy and will be permitted to recover damages by reason of any waste suffered during the entire period of the life tenancy. There is no case law in Ohio touching this precise question. Counsel for the plaintiffs cite the case of Prescott v. Grimes, 143 Ky., 191, 136 S. W., 206, which holds:

“As it is the duty of the life tenant to so manage the property as to leave it in a reasonable condition of repair at the expiration of his tenancy, the plea of the statute of limitations can not avail. The duty of the tenant is to leave the property in reasonable condition and repair at the end of the term, and this dnty keeps pace with the life of the tenancy. It is an ever-present, existing dnty, and when the court comes to enforce this duty, the inquiry is' not when the waste occurred, or how long it has been permitted to run, but what is the extent thereof, and what sum will be required to make the necessary repairs. During the life of the tenancy there is no limitation to the time within which the aetion to compel reparation for permissive waste must be commenced. ’ ’

It is pointed out, however, that in Kentucky the statute gave a right of action only for voluntary waste. Any doubt on this question was set at rest in Fisher’s Exr. v. Haney, 180 Ky., 257, 202 S. W., 495, in which the court distinguished between voluntary waste and permissive waste and the application of the statute of limitation to the two types of actions. In that case the third and fourth paragraphs of the syllabus are as follows:

“If a tenant for life commits voluntary waste, the remaindermen may, at once, under Section 2328 of the Kentucky Statutes bring an action for damages, and limitation begins to run from the time when the voluntary waste complained of was committed; and under Section 2515 of the Kentucky Statutes, the action must be brought within five years from the date the cause of action accrued.

“A cause of action to recover damages for permissive waste does not begin to run until the estate of the life tenant has terminated and the action may be brought within five years after that date to recover damages for permissive waste committed at any time during the life tenancy.”

The Kentucky statute which authorizes an action to be brought for waste is as follows:

“If any tenant for life or years shall commit waste during Ms estate or term, of anything belonging to the tenement so held, without special license, in writing, so to do, he shall be subject to an action of waste, shall lose the thing wasted, and pay treble the amount at which the waste shall be assessed.”

TMs statute authorizes an action to be brought for voluntary waste. It does not authorize an action to be brought for permissive waste. It is apparent that the provisions of the Ohio statute and the Kentucky statute are dissimilar in that the Ohio statute covers both voluntary and permissive waste, whereas the Kentucky statute covers only voluntary waste.

It is urged by counsel for the plaintiffs that the breach of duty of the life tenant is continuing and that if the action is brought within four years after the termination of the tenancy, evidence is admissible with respect to any waste which has been suffered regardless of the time such waste occurred. On the other hand, counsel for the defendant contends that under Section 10503-23, General Code, the tenant is liable in damages for any waste committed or suffered and, since the statute makes the tenant liable, the right of action accrues against the tenant at the time the waste is committed or suffered; and that evidence as to items of waste- committed or suffered prior to the beginning of the four-year period immediately preceding the institution of the action would be inadmissible for the reason that the right of action for damages for such items of waste would be barred by the statute of limitation. That was the view of the trial court. The issues presented in this case do not require a discussion respecting the nature of the remedy given to the reversioner against a life tenant in Ohio prior to the enactment of Section 4177, Revised Statutes, on March 19, 1887 (now Section 10503-23, .General Code). On this matter see Allen v. McCoy, 8 Ohio, 418; Stauffer v. Eaton, 13 Ohio, 322; Crockett v. Crockett, 2 Ohio St., 181; Jenks v. Langdon, 21 Ohio St., 362; 40 Ohio Jurisprudence, 1328, Section 2. A similar question was raised and decided in the case of Sherrill v. Connor, 107 N. C., 630, 637, 12 S. E., 588, in which it was held that an action for damages for items of permissive waste suffered prior to the beginning of the three-year period of the statute of limitation could not be maintained. The court there said:

“We think that his Honor erred when he told the jury that, on account of the continuous character of the injury, no statute of limitations applied to the permissive waste. While we find no direct authority upon the question, the general principles governing the assessment of damages, and the application of them in other analogous cases, lead us to a conclusion very different. ’ ’

In that case, as in the case at bar, it was contended that to so construe the statute would require an action to be brought after each item of waste was committed or suffered and would cause a multiplicity of suits. The court, in that cáse, in discussing this contention, .stated:

“It being apparent that, from the nature of the case, the liability for permissive waste to the same building may be the subject of separate actions, where it is continued after one recovery, we can see no reason why his Honor should not have limited the extent of the recovery by the plaintiffs, laboring under no disability, such as prevented the statute from running to three years before the action was brought They had the right to bring an action and adjust liabilities at any time after dower was assigned in 1866. There would have been' no greater inconvenience in ascertaining the exact status of a building at the time of assessment heretofore, if an action had been brought, than would arise should the plaintiffs, in future, find, on bringing another action, alleging that the defendant had suffered buildings to be injured still more for want of repair since the damage had been ascertained in this action ’ ’

It is our opinion that the plaintiffs’ right of action was barred four years after the right thereof accrued; that the right of action accrued under Section 10503-23, General Code, at the time waste was committed or suffered with respect to the right to damages for that particular item of waste; and that the plaintiffs were confined in the introduction of the evidence to items of waste'committed or suffered within four years immediately preceding the institution of the action. The trial court did not err in excluding the proffered testimony and directing a verdict for the defendant.

The judgment of the trial court is sustained by sufficient evidence and is not contrary to law.

Judgment affirmed.

Miller, P. J., and Hornbbck, J., concur.


author: Ross, P. J.

text:
    In re Estate of Chance.

      (No. 7333
    Decided January 29, 1951.)

      Mr. Roy L. Struble and Miss Regina B. Closs, for appellant.

      Messrs. Kunkel & Kunkel and Messrs. Dinsmore, Shohl, Sawyer S Dinsmore, for appellees.
   Ross, P. J.

This court would be content, in affirming the judgment of the Probate Court of Hamilton County, to adopt the opinion of the Honorable Chase M. Davies (appearing among the papers filed in the trial court) as the opinion of this court, were it not that it is believed there are additional considerations justifying the conclusions reached by the trial court in its opinion and with which this court fully concurs.

It appears that a citation was issued by the Probate Court of Hamilton County upon a complaint filed under the provisions of Section 10506-67, General Code. This citation was served upon certain residents of Franklin county, in Franklin county. These residents of Franklin county, so served, appeared in the Probate Court of Hamilton County solely and only for the purpose of filing a motion to quash such service. -

As is pointed out in the opinion of Judge Davies, the Probate Court of Hamilton County has sole and ex-elusive jurisdiction to administer the estate of the incompetent involved. Section 10501-55, General Code; State, ex rel. Black et al., Exrs., v. White, Judge, 132 Ohio St., 58, 5 N. E. (2d), 163.

Section 10501-22, General Code, provides :

“In the exercise of jurisdiction the probate judge shall have the powers, perform the duties, and be governed by the rules and regulations provided by law for the Courts of Common Pleas and the judges thereof in vacation, so far as they are consistent with laws in force. The provisions of law governing civil proceeding's in the Court of Common Pleas, so far as applicable, shall govern like proceedings in the Probate Court when there is no provision on the subject of this act.

“Unless it is expressly otherwise provided by law, in all actions or proceedings had in the Probate Court, whether ex parte or adverse in character, the court may award and tax costs, and apportion them between the parties, on the same or adverse sides, as it adjudges to be right and equitable.”

Section 10501-24, General Code, requires that the provisions of law applicable to the Common Pleas Court involving summons shall be applicable to the Probate Court.

It is noted that the provisions of Section 10506-67, •General Code, give the Common Pleas Court concurrent jurisdiction with the Probate Court to issue a citation when complaint is made that assets are being sequestered by any person. Obviously, this section has nothing to do with venue or process. The execution of the powers conferred upon the Probate Court is subject to other appropriate legislation. The first paragraph of Section 10501-22, General Code, provides, as previously noted, that the provisions of law applicable to “civil proceedings” in the Common Pleas Court shall, as far as practicable, govern like proceedings in' the Probate Court.

The term, “civil proceedings,” used in that section is a general term, sufficiently extensive in its scope to include “civil actions,” “provisional remedies,” “special actions, ’ ’ and ‘ ‘ special proceedings, ’ ’ all divisions mentioned and considered in Part Third of the Code and under general Title IV, “Procedure in Common Pleas Court. ’ ’

There being no provision of law applying to process involving a citation issued either by the Probate Court or Common Pleas Court in a proceeding under Section 10605-67, General Code, reference must be made to the only other civil proceedings in the Common Pleas Court, where matters of process and extracounty jurisdiction are considered. This will be found under Title IV, Division II; sucli division being entitled ‘ ‘ Civil Actions. ’ ’ Under this division is placed Chapter 3 (Sections 11268 to 11278, General Code), “Where Action to be Brought,” and Chapter 4, “Commencement of the Action” (Sections 11279 to 11301, Genera] Code). These are the two chapters in which the jurisdiction of the Common Pleas Court over persons sought to be made amenable to its conferred powers is considered.

An examination of Chapter 3 shows that the only sections pertinent to the instant question are:

Section 11277, General Code, which provides:

“Every other action must be brought in the county in which a defendant resides or may be summoned, except actions against an executor, administrator, guardian, or trustee, which may be brought in the county wherein he was appointed or resides, in which cases summons may issue to any county.”

And Section 11279, General Code, which provides:

“A civil action must be commenced by filing in the office of the clerk of the proper court a petition, and causing a summons to be issued thereon.”

'Chapter 4, Section 11282, General Code, permits extracounty service under certain conditions, none of which has application here.

This examination of the sections of the Code discloses that neither the Probate Court nor the Common Pleas Court is given specific power to issue an extra-county citation in the proceeding herein involved.

in addition to this conclusion of the trial court, it is to be noted that in Section 8, Article IV of the Constitution of Ohio, it is provided:

“The Probate Court shall have jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, the settlement of the. accounts of executors, administrators and guardians, and such jurisdiction in habeas, corpus, the issuing of marriage licenses and for the sale of land by executors,. administrators, and guardians, and such other jurisdiction, in any county or counties, as may be provided by law.”

It is claimed by appellants that Section 10501-23, General Code, is inferentially an exercise of the legislative power conferred by Section 8, Article IV, supra. This section provides:

“The probate judge shall issue warrants, attachments and other process, and all notices, commissions, rules and orders, not contrary to law, that are necessary and proper to carry into effect the powers granted to him.”

It will be noted that this section became effective January 1, 1932, and was in force at the time the preceding section (Section 10501-22, General Code), as now in the Code, was amended August 22, 1941 (119 Ohio Laws, 394). However, such amendment is an addition which in no way affects the instant question, and tlie first paragraph (hereinbefore, quoted), pertinent here, was originally a part of the 1932 Probate Code.

Reference to 114 Ohio Laws, 320, shows that these sections (Sections 10501-22 and 10501-23, General Code), as well as Sections 10504-10 and 10504-11, General Code, hereinafter considered, were a part of the Probate Code effective January 1, 1932, and were then (except as noted) identical in language used, with the present sections of the Code.

Sections 10501-22 and 10501-23, General Code, supra, must, therefore, be considered together as relevant sections of the same act of the Legislature. If anything were needed further to assure the conclusion that the general provisions of Section 10501-23, General Code, applying to process, do not modify the limitations and po.wers mentioned in Section 10501-22, General Code, it will be found in the provisions of Sections 10504-10 and 10504-11, General Code, both sections being also a part of the Probate Code of 1932.

Section 10504-10, General Code, provides:

“If real or personal estate be devised, or bequeathed, by a last will, the executor, or any person interested therein, may cause it to be brought before the Probate Court of the county in which the decedent was domiciled. By citation, attachment or warrant, or, if circumstances require it by warrant or attachment in the first instance, such court may compel the person having the custody or control of such, will, to produce it before the court for the purpose of being proved.”

Section 10504-11, General Code, provides:

“The process mentioned in the next preceding section may be issued into any county in the state, and shall be served.and returned by the.sheriff, or other officer to whom it is delivered.”

If Section 10501-23, General Code, is inferentially effective to give the Probate Court power to issue process in the instant proceeding, then it would be effective to give the Probate Court power to “compel the person having the custody or control of such will to produce it before the court” by extracounty process, because in both cases extracounty process would be necessary in some instances to effect the powers granted the Probate Court, at least if other remedy was not available, yet, then, why did the Legislature in the same act as a part of the same Probate Code enact Section 10504-11, General Code, specifically authorizing extracounty process in the case of the citation of wills?

Another consideration also reinforces the conclusions herein reached. Section 10506-67, General Code, as previously noted, gives the Common Pleas Court concurrent jurisdiction upon complaints of concealment of assets. The provisions of Section 10501-55, General Code, would prevent the Probate Court of Franklin County from exercising jurisdiction, but it would not prevent the Common Pleas Court of Franklin County from issuing a necessary citation upon complaint filed therein, charging concealment or sequestration of assets by residents of Franklin county. So, therefore, complainants are not without a remedy. It is apparent that if the Legislature had deemed it expedient to permit extracounty process where there was complaint of concealment of assets, it would have enacted a specific process section as it did in the case of custodians of wills.

It must'be considered that the Legislature in enacting the many sections of the 1932 Probate Code was fully aware of the several provisions of such code and that it advisedly conferred jurisdiction on the Common Pleas Court in Section 10506-67, General Code, and refrained from so doing in Section 10504-10, General Code.

The findings, reasoning and conclusions of the trial court are adopted and approved, and its judgment is affirmed.

Judgment affirmed.

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


author: Per Curiam.

text:
    Davis et al., Appellants, v. Shigley, Exr., et al., Appellees.
    (No. 517
    Decided October 21, 1950.)

      Mr. John L. TJndercoffer, Mr. A. M. Kinney, Jr., and Mr. Jack W. Williams, for appellants.

      Mr. Neal W. Hunter, Mr. George H. Smith.and Mr. George R. Smith, for appellees.
   Per Curiam.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Qreene County,- in favor of the defendants in a will contest.

The record shows that counsel for the plaintiffs were notified on April 25, 1950, that the case had been set for trial on May 25, 1950. In response to the notice of the trial date, counsel for the plaintiffs wrote a letter to counsel for the defendants acknowledging receipt of notice that the case had been set for trial, and expressing the hope that the matter could be tried or disposed of on the date set. In the late afternoon of May 24th, counsel for the plaintiffs notified counsel for the defendants that they would be unable to go to trial. Upon the day of trial the plaintiffs were represented by A. M. Kinney, Jr., and Jack W. Williams.

The ground for the continuance is found in the statement of Mr. Kinney, which appears in the bill of exceptions as follows: “I am here representing Mr. Undercoffer, who is the senior attorney in this matter. Much as I regret the inconvenience to your Hon- or and the others, we will have to ask for a continuance of the case. It was moved ahead without the consent of counsel for plaintiffs, and Mr. Undercoffer has done his level best to prepare this case for trial, and he has had illness, and at the last minute he called Mr. Williams and myself in, and we have not had time to get it ready. Our office is in Cincinnati, and it is difficult to contact people. It would only be a great injustice to our clients to proceed. In fact, we cannot proceed.”

This matter was set for trial before a nonresident judge who, at this stage of the proceedings, referred the request of counsel for plaintiffs to the resident judge. The latter promptly overruled the motion for a continuance. Some testimony was taken, after which the matter of the continuance was presented to the trial judge for the purpose of making up the record. At this point in the record the court stated it understood that the case had been assigned for trial several weeks previously; that on the day before trial a communication was received by counsel for the defendants requesting a continuance; and that on the day of trial associate counsel appeared and, a few minutes before the proceedings were to begin, requested the continuance. Thereupon the trial judge overruled the motion for a continuance.

The sole question before this court is whether the trial court erred in overruling such motion. Does the record show the commission of prejudicial error in overruling the motion for a continuance? We think it does not.

In 9 Ohio Jurisprudence, 202, Section 7, the general rule is stated thus:

“It is the general rule that the granting or refusing of a motion for a continuance rests within the sound discretion of the trial court. Hence, an appellate court will not interfere with the exercise of this discretion unless the action of the trial court is plainly erroneous and is clearly an abuse of discretion. ’ ’

In support of the' general rule the following cases may be cited: State, ex rel. Buck, v. McCabe et al., Judges, 140 Ohio St., 535, 45 N. E. (2d), 763; Norton v. Norton, 111 Ohio St., 262, 266, 145 N. E., 253; Diebold v. Powell, 32 Ohio St., 173; Hoff v. Fisher, 26 Ohio St., 7; Loeffner v. State, 10 Ohio St., 598; Ex parte Petition to Prohibit Sale of Intoxicating Liquors, 12 C. C. (N. S.), 248, 21 C. D., 586: 12 American Jurisprudence, 450, Section 5.

It is well settled that a reviewing court will not reverse a trial court’s ruling on a motion for a continuance unless, on the whole record, an abuse of discretion is shown.

In 2 Ohio Jurisprudence, 1061, Section 589, judicial discretion is defined as follows: “As the term is ordinarily used, it has been said to imply not merely error in judgment, but perversity of will, passion, or moral delinquency. Discretion, when applied to a court of justice, ordinarily means sound discretion, not wilful or arbitrary, but regulated by well-known and established principles of law, or such as may be exercised without violating any principle of law.”

In 17 Corpus Juris Secundum, 191, Section 5, the general rule is stated in similar language, and on page 217, Section 36, where the basis for the motion for continuance is the illness of counsel, the text is as follows:

“While the granting or refusing of a continuance on account of the illness of counsel is a matter of discretion with the court, it is usually considered a good ground for continuance that the counsel employed is too ill to conduct the cause when the same is called for a hearing; but in such case it must appear that applicant has a meritorious cause or defense, that the particular counsel was necessary to the proper presentation of the cause, and that there was no time or opportunity, to employ other counsel to conduct it.”

The record in this case does not show a compliance with the requirements set forth in the above text. In the same work, on page 218, it is stated: “A continuance will not be granted on the mere statement of a party that his attorney is too ill to be present, or on an unverified certificate of a physician.”

In 9 Ohio Jurisprudence, 212, Section 24, it is stated: “An affidavit generally is filed with a motion for a continuance, setting out the grounds for the continuance. In fact the rule seems to be that the application must be on affidavit.” See, also, 12 American Jurisprudence, 472, Section 30.

In the instant ease the record does not show that senior counsel was ill on the day of trial and was unable for that reason to appear, or that he had been unable to prepare his case, or that his presence was necessary to the trial.

A case involving similar facts is Malle v. Hayes, 25 Ohio App., 506, 159 N. E., 116, where a will contest case was brought to the Court of Appeals on petition in error. The court held that the case would not be continued where it had been properly listed for trial and had been published two weeks under rule of court in the official organ of courts and no steps were taken towards haying the case continued until after four o ’clock of the day before it was in court.

This court is of the opinion that the record does not show such an abuse of discretion on the part of the trial court as would require reversal.

Judgment affirmed.

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


author: Carpenter, J.

text:
    Bell, Appellee, v. Bell, Appellant.
    (No. 4477
    Decided May 29, 1950.)

      Mr. Joel S. Rhinefort and Mr. O. C. Clement, for appellee.

      Mrs. Eva Epstein Shaw and Mrs. Jane Meyers Sutter, for appellant.
   Carpenter, J.

This is an action to contest the will of Emily Bell who died February 26, 1945. The will was admitted to probate March 9, 1945, and the petition herein was filed March 12, 1945. Mildred May Bell was the only defendant named and served with summons. It is alleged in the petition that “letters testamentary thereon were issued by said court to the defendant, Mildred May Bell, as the sole executor thereof who thereupon qualified.” On February 17, 1947, by interlineation, the name of Mildred May Bell, as executrix of the last will and testament of Emily Bell, was inserted in the caption of the petition as a party defendant, and,' as such, summons was served upon her.

Two demurrers were filed to the petition by the defendant, Mildred May Bell, and one by her as executrix. The grounds of all the demurrer^ were that there was a defect of parties defendant in that the executrix was not made a party and as to her the action was not brought within six months after the will had been admitted to probate, as required by Section 12087, General Code.

The demurrers were overruled on April 6, 1949. From that order this appeal was taken by Mildred May Bell.

A motion to dismiss the appeal is presented by plaintiff, contending that that order was not a final order as defined by Section 12223-2, General Code, which provides, in part, as follows:

“An order affecting a substantial right in an action when in effect it determines the action and prevents a judgment, or an order affecting a substantial right made in a special proceeding * * * is a final order which may be revieAved * *

This statute is in the same form as Avhen enacted as Section 512 of the civil code (51 Ohio Laws, 145).

In Holbrook v. Connelly, 6 Ohio St., 199, a demurrer to the petition Avas overruled, defendant ansAvered and a demurrer to the answer was sustained. Defendant sought to prosecute error from those orders. The court, in a per curiam opinion, said:

“No final order, within the meaning of 512th section of the Code of Civil Procedure, is shoAvn to have been made. It does not appear that either of the decisions made ‘in effect determined the action and prevented the judgment.’ For aught that' appears, the defendant may yet succeed in his defense to said action. The record, therefore, discloses no foundation for a proceeding in error. ’ ’

That language is equally apropos to the case .at bar.

In Betz v. Industrial Commission, 139 Ohio St., 624, 41 N. E. (2d), 701, citing Holbrook v. Connelly, the court ordered the dismissal of an appeal on similar facts.

The Court of Appeals of the Second Appellate District has had this proposition before it in several cases: Suiter v. Suiter, 74 Ohio App., 44, 57 N. E. (2d), 616; Kelley v. Kelley, 74 Ohio App., 225, 57 N. E. (2d), 791; Spangler v. U-Drive-It Co., 84 N. E. (2d), 296; Fornoff v. Ehlert, 85 N. E. (2d), 308.

The only authority cited by defendant-appellant in opposition to the motion to dismiss is Czech Catholic Union v. East End Bldg. & Loan Assn., 140 Ohio St., 465, 45 N. E. (2d), 300. That Avas an action started by creditors of the defendant association against it and its stockholders to enforce their superadded liability. Later the Superintendent of Building and Loan Associations took over the association for liquidation and was made a party defendant in the action and filed a demurrer to the petition on the ground that, as superintendent, under the statute, he had the exclusive right to enforce that superadded liability. His demurrer was overruled and he appealed from that order. The appeal was dismissed by the Court of Appeals for the reason that the order appealed from was not a final order. Judge Zimmerman, in the Supreme Court opinion, said:

‘ While the general rule is that an order overruling a general demurrer is not a final order permitting appeal, a majority of the court is of the opinion that the order in controversy here did constitute a final order, because in effect it determined that the superintendent, after taking .possession of the building and loan association for liquidation under the statutes, was precluded from enforcing the superadded liability against the stockholders.”

Factually, that was an entirely different case from this one.

The motion to dismiss the appeal is granted.

Appeal dismissed.

Conn and Fess, JJ., concur.


author: Putnam, J.

text:
    The State of Ohio, Appellee, v. McElhinney, Appellant.
    (No. 326
    Decided April 4, 1950.)

      Mr. Clyde E. Leivis, prosecuting attorney, for appellee.

      Mr. Fred B. Wickham, for appellant.
   Putnam, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Delaware County, affirming a judgment of a justice of the peace overruling a motion for a new trial, based solely on the ground that the arrest, plea of guilty and sentence of the defendant on a misdemeanor charge took place on Sunday, October 17, 1948.

The assignment of error is as follows:

“The court erred in affirming the judgment of the justice of the peace for Delaware township, Delaware county, Ohio, wherein said justice overruled the motion of the defendant-appellant for a new trial and adhered to his judgment accepting defendant’s plea and sentencing him on Sunday, October 17, 1948.”

It is not contended that these proceedings were against the will and over the objection of the defendant, and it is admitted in argument that he desired quick action until the terms of a heavy sentence made the procurement of counsel and challenging action desirable.

The sole question involved is whether the courts of Ohio may take judicial action on Sunday. It is admitted that there is no statutory law in this state prohibiting courts from functioning on Sunday; and that the Sunday laws which we have, such as prohibiting •common labor on Sunday, do not include judicial acts.

The contention is that under the common law of England Sunday is a nonjudicial day or dies non j,uridicus and as such all judgments pronounced by courts on that day are void; that this principle of the common law is the law of Ohio; and that if this is not so the appeal has no merit.

It is alleged that there are no decisions by our Supreme Court directly in point binding upon this court. This perhaps is true except as certain of the decisions hereinafter referred to contain statements of principle and arguments which are true and persuasive. Many decisions are cited from other states holding that judicial acts on Sunday are void. Many of these are based upon specific statutory enactment. In some states, it is true, the decisions are based squarely upon the common law.

Exhaustive and helpful briefs have been filed by counsel herein and numerous authorities cited from texts and other states as well as our own. It would serve no useful purpose to enter into a detailed analysis of these cases as, in our opinion, two or three Ohio cases are decisive of the question herein presented, not because, they are in direct point, but because the principles and arguments therein expounded are pertinent and persuasive and are arrows that point the way which ought to be followed.

In the case of Bloom v. Richards, 2 Ohio St., 387, it was held that a contract entered into on Sunday was not for that reason void at common law. However, in the statement of principles therein the following appears :

‘ ‘ But even were such a contract void by the common law of England, it would not necessarily follow that it is void in Ohio.

‘ The English common law, so far as it is reasonable in itself, suitable to the condition and business of our people, and consistent with the letter and spirit of our federal and state constitutions and statutes, has been and is followed by our courts, and may be said to constitute a part of the common law of Ohio. But wherever it has been found wanting in either of these requisites, our courts have not hesitated to modify it to suit our circumstances, or, if necessary, wholly to depart from it.

“Christianity is a part of the common law of England, but, under the provisions of our Constitution, neither Christianity nor any other system of religion is a part of the law of this state.

“We have no union of church and state, nor has our government ever been vested with authority to enforce any religious observance simply because it is religious. Of course, it is no objection, but, on the contrary, it is a high recommendation to a legislative enactment, based upon justice or public policy, that is found to coincide with the precepts of a pure religion; nevertheless, the power to make the law rests in the legislative control over things temporal, and not over things spiritual.

“The statute, prohibiting common labor on the Sabbath, could not stand for a moment as the law of this state, if its sole foundation was the Christian duty of keeping that day holy, and its sole motive to enforce the observance of that duty. It is to be regarded as a mere municipal or police regulation, whose validity is neither strengthened nor weakened by the fact that the day of rest it enjoins is the Sabbath day.”

The case of State v. Thomas, 61 Ohio St., 444, 56 N. E. 276, 48 L. R. A., 459, involved the question, among others, whether a conviction based upon an indictment returned by a grand jury which was impanelled and sworn on Labor Day is invalid. Labor Day is designated by statute as a holiday “and for all purposes whatever considered as the first day of the week.” The second paragraph .of the syllabus of that case is as follows:

“Construing Section 457 of the Revised Statutes, with Section 4446-2, which makes the first Monday in September a holiday to be known as Labor Day, it is not unlawful to hold the Court of Common Pleas on that day when the judges of the district in the exercise of their powers under the first of these sections have fixed that day for the commencement of the term; and an indictment found and returned by a grand jury impanelled and sworn in on that day is not, on that account, invalid.”

Tn the course of the opinion, at pages 465 and 466, 1he court states:

“If it be conceded that the statute places Labor Day in the same category with Sunday for all purposes, does it follow that a grand jury impanelled on that day is an illegal body without authority to thereafter hear evidence and find indictments? The distinctive principle established by the case of Bloom v. Richards, 2 Ohio St., 387, is, that Sunday laws are mere civil regulations for the good of society, and not designed to enforce or require any religious observance of the day; and, that being penal in their nature, such laws will not be extended by construction beyond their plain import; so that, whatever act may be lawfully done on any other day of the week, is equally lawful on Sunday, unless its performance on that day is forbidden by statute. Our statute goes no' further than to the prohibition, on that day, of common labor, the arrest of persons on civil process, the selling of intoxicating liquors, and certain shows, games and sports. It was held in that case that the making of a contract for the sale of land did not come within the prohibition against common labor on Sunday, and the specific performance of such a contract made on that day was enforced. The case was thoroughly considered, and it is shown by Judge Thurman, in an opinion of great research, that the principles stated are maintained by the great weight of authority in this country, and that under constitutions like ours, an enactment could not be sustained whose purpose was simply to enforce the observance of Sunday as a religious duty. It is generally held that statutes which in terms require the closing of public offices on Sunday, do. not prevent the performance of judicial duties by judges on that day. There is no provision in our statutes, as there is in those of many of the states, and was in 29 Car., 2 O. 7, under which most of the English decisions on the .subject were made, forbidding the holding of courts, or judicial proceedings on Sundays, or holidays, or requiring public offices to be closed, or all secular business suspended on that day; and the omission of such provisions from our statutes, in view of their presence in the statutes of other states, and especially since the decision of Bloom v. Richards, supra, which has been accepted as the law of this state for nearly half a century, leads to the conclusion that the Legislature has not deemed it advisable to incorporate either of them into the laws of the state. Certain, it is, that neither of them is embraced in the term common labor, as used in our statute. Where the. transaction of judicial business on Sunday or holidays is expressly forbidden by statute, acts of a ministerial character on those days are held lawful; such as the issue of a warrant for the apprehension of a criminal and his admission to bail,, the receiving of a verdict and committing the defendant for sentence, the issue and service of civil process, and many other acts of a similar nature. All of which is a recognition of the rule already stated, that tohatever acts may be lawfully done on other days are also lawful when performed on Sunday or a holiday, except when, and in so far as their performance on those days is prohibited by statute. * # * Our attention has been called to the ease of Spiedel Grocery Co. v. Armstrong, 8 C. C. R., 489, where it is held that a judgment rendered on Labor Day was void. That case was affirmed by this court without report, and was not much considered. The correctness of the decision may well be doubted; but. it is not necessary to reconsider it here.” (Emphasis added.)

The authorities agree that historically under the early common law of England courts were authorized to and did sit on Sunday, the same as on other days of the week.

In order to properly assay appellant’s claim that that portion of the common law of England which makes Sunday a nonjudicial day is now a part of the common law of Ohio, it is necessary to keep in mind, the historical background.

Professor Wigmore in his work, a Panorama of the Worlds Legal Systems (1936 Ed.), in giving an account of the papal or canon legal system, at page 935 states:

“The Bishop of Rome was early recognized as the successor of Saint Peter, whose bronze statue stands in the Vatican. That Bishop under Latin Christianity was given the title of Pontifex Maximus, a title already familiar in the pagan priesthood. And, in the course of time, the successor of Saint Peter, began to claim universal jurisdiction of law, not only over the Christian Church, but also over temporal kings and princes. The typical expression of this claim is found in a supposed letter of Pope Clement I, A. D. 91 addressed to the clergy, and later included in the so-called Decretals of Isidore, the vital Clauses read :

“ ‘Your duty is to teach the peoples. Their duty is to obey you as they would God Himself.....And all princes, high or low, and other peoples, tribes, and languages, who do not obey shall be infamous, and shall be cast out from the kingdom of God and the company of the faithful.’

“These words described during some centuries the dominance of the church’s supreme jurisdiction over morals and faith. This quasi-federal jurisdiction of the church had its own tribunals (like the American federal ones) for its own special field, alongside the other courts; but it claimed and received a supreme appellate political jurisdiction over all temporal kings and kingdoms, with the Pope as Pontifex Maximus, judging all men, and judged by none.

“From Serbia on the east to Iceland and Greenland on the northwest extended the jurisdiction of this theocracy. Its sway was at the zenith in the centuries A. D. 800-1200; it ended by four hundred years later, and it had begun four hundred years earlier, — twelve centures in all.”

From the same source we learn that in 1140 A. D. the legislation and decisions of the Popes were first systematically digested by a monk named Gratian in the so-called Decretum of Gratian. The author states, at page 944:

“Twice in history the growth of the papal supreme jurisdiction received a powerful impulse from literature; the first impulse was given by the forged Decretals of Isidore, in the 800’s, already mentioned; and.now it took place a second time, in this Decretum —one of those great text-books which by appearing at just the right time and the right place,' become universally revered as equal to law. ’ ’

As will be noted later, these periods coincide approximately with the reigns in England of Alfred and Henry II and Edward the Confessor. The power of the ecclesiastical courts and the dominance of canon law reached its peak, perhaps, during the Pontificate of Pope Innocent III, who died in 1216 A. D.

Professor Wigmore states at page 954:

“But in Innocent’s day the Roman church was vast-, ly more than that; it claimed and possessed supreme temporal political power over the entire Christian world. Rome was once more thé mistress of Europe, and kings were its vassals. Its clergy were immune from the criminal justice of the state. Its legislation covered the whole of human existence from the cradle to the grave; it was upheld by penalties that neither the proudest monarch nor the humblest peasant could escape; and it was administered by a supreme world-judge responsible to no earthly, superior for his actions.”

And on page 953 states: “Innocent III was the ambitious axxd masterful autocrat who humbled the English King John for signing Magna Carta, and who reduced England, for a short period, to be oxily a vassal of the papacy * * V’

Such was the atmosphere at the time in which it is stated in Swann v. Broome, 3 Burrows, 1595, that these canons were adopted by the Saxon kings, fortified by Edward the Confessor and confirmed by William the Conqueror and Henry II.

The original Celtic population of Britain was pagan, and its religion and legal system were administered by the priestly Druids. These were practically exterminated upon the conquest of Britain by Caesar at the middle of the first century A. D. For 400 years thereafter Roman law was administered in England by Roman praetors. Upon the abandonment of Britain by the Romans in the fifth century, Celtic culture had a short resurgence but very soon the pagan Angles, Saxons and Jutes invaded England and for 300 years dominated the scene. Eventually they established seven petty kingdoms known as the Heptarchy, all with fiuctxxating boundaries. It was not until 827 A. D. that these become consolidated under Edgbert King of Wessex who became Britwalde of the Saxon States. However, during the Pontificate of Pope Gregory the Great, 590 to 604 A. D. forty missionaries were sent to Britain and Ethelbert King of Kent and many of his subjects were converted. This was the first serious attempt to christianize the Anglo-Saxons.

Historically, the origin of the canon law of the church which made Sunday dies non juridicus is sup-' posed to be in an edict of the Roman Emperor Constantine about the time he convened the counsul of Nicea, iix 325 A. D., in an attempt to unify the Christian Church. Neverthless, in the year 517 A. D. a canon was adopted by the church which made not only Sunday but many other holy days dies non juridicus. These were enforced throughout the Christian world as above noted and were included in the Decretals of Gratian. They were designated as such days “to the intent that all people may apply themselves on that day to prayer and serving God. ’ ’

It is thus quite apparent that this law was church law and its purpose was to enforce a religious duty. It did not originate in England; it was brought there from Rome. It did not have universal application but at first was applied only under a few Saxon kings. The majority were pagan. The Danes who started their invasions of England about 830 A. D. were also pagan and for 200 years, in their wars with the Saxons, they occupied and held much of northern and eastern England, where ecclesiastical law was not recognized. However, when William Duke of Normandy invaded and conquered England in 1066 under the benediction of the Church of Rome, and for 200 years thereafter, while the common law was being consolidated, the church exercised a predominant influence over the English monarchs.

During the reign of Henry VIII in the 16th century and prior to his break with the Roman Church, for services to the church he was styled “defender of the faith.” And even though he broke with Rome and established the Church of England, British Kings, among other titles, are still “defenders of the faith.” It is thus apparent that the statement that Christianity is a part of the common law of England is fully justified. However, it does not. follow from that premise that that part of the common law is the law of Ohio. As stated in Bloom v. Richards, supra:

“* * * under the provisions of our Constitution, neither Christianity nor any other system of religion is a part of the law of this state.

“We have no union of church and state, nor has our government ever been vested with authority to enforce any religious observance simply because it is religious.”

This statement is borne out by the writings of Thomas Jefferson as quoted in Scott’s Evolution of the Law (1908 Ed.). We find the following at page 148:

“Tracing it [ancient writings] down through the law books, he [Jefferson] finds where Sir Matthew Hale states that ‘ Christianity is parcel of the laws of England,’ and that Lord Mansfield has just decided that the ‘essential principles of revealed religion are a part of the common law’ which carried the doctrine still further, and as Jefferson observes: ‘Leaving us to find out, at our peril, what in the opinion of the judge and according to the measure of his foot or faith, are those essential principles of revealed religion obligatory on us as a part of the common law. ’

“* * * and he significantly adds in his note-book where this record appears that because Christianity is true, it does not become a part of the common law; that the Newtonian law is true, but no part of the common law. ’ ’

Certainly no matter what the English may consider as a part of their common law, only so much thereof as is applicable to our government do we adopt. The church and state are still united in England. They were severed in this country by the revolution. Jefferson no doubt' wrote with the early history of Virginia in mind. History records and it is lucidly recounted in Freeman’s “George Washington” how the tenants of the early proprietors in Virginia were not only required to pay quit rents but were taxed by the government for the support of the established church (Church of England), and how other settlers, especially the Germans from Pennsylvania who settled in the Shenandoah valley and upper reaches of the Potomac, objected violently to this tax. The various colonies had decidedly different views on religion, and in the compromises which resulted in the adoption of the federal Constitution, it is not to be wondered that a complete severance of the church arid state was recognized by the terms thereof. Undoubtedly the views of Jefferson had weight in the results reached.

The few opinions cited in briefs of counsel which are grounded squarely upon the common law fail to take into consideration these historical facts. It is to be observed that in the great majority of opinions in the cases cited, the conclusions are not based upon the common law but upon specific statutory enactment. In this category are Pennsylvania, North Carolina, New York, Oklahoma, New Jersey, Nebraska and possibly Tennessee and Kansas.

In the ease of Moss v. State, 131 Tenn., 94, 173 S. W., 859, while the common-law rule is recognized and adhered to, the basis of the decision is statutory. The discussions in that case are interesting but its conclusions cannot be applied to Ohio for several reasons, viz:

(a) The decision is based on several grounds, one of which is the common law of Tennessee. The court says: “Moreover the unbroken custom of this state for more than 100 years setting apart and treating Sunday ns a nonjudieial day, would establish its character as such, as a part of the common law of this state, even apart from and in the absence of the decisions referred to.” We have no such common law In Ohio.

(b) The opinion further states in substance that the common law of England, as it stood at and before the separation of the colonies, is the law of Tennessee, being derived from North Carolina out of which the state of Tennessee was carved, and this is made so by statute. They are derived from Virginia which included North Carolina and embraced the common law prior to the fourth year of James I.

The laws of Ohio have no such derivation.

While Texas, Missouri and Nevada seem to adhere to the common-law rule, we cannot agree that these cases constitute the great weight of authority as claimed by the appellant. In Louisiana the courts refuse to follow the common-law rule. In the case of State v. Brownfield, 160 La., 171, 106 So., 734, 43 A. L. R., 475, in following a previous case, the court said:

“And in that case [State v. Foss, 158 La., 471, 104 So., 211] the court held that there is no legal principle which forbids an accused party from consenting to have his case argued, submitted and determined on Sunday or a statutory legal holiday. ’ ’

In the ease of Langabier v. Fairbury, Pontiac & Northwestern Rd. Co., 64 Ill., 243, 16 Am. Rep., 550, which involved the validity of an injunction issued on Sunday against a railroad company which had taken possession of a street after 12 o’clock on a Saturday night with the intention of finishing a track through the entire length of the street before Monday morning, counting upon the intervening dies non juridicus by which to evade an injunction and the process of court, the court in upholding the validity of the injunction stated:

“Here, this dies non juridicus was selected by the railway company as the proper day to commit a great outrage upon private and public rights, believing the arm of the law could not be extended on that day to arrest them in their highhanded and unlawful design. To the complainant the acts they were organized to perpetrate oii that day were fraught with irreparable injury. Feeble indeed would be the judicial arm if it could not reach such miscreants.

“To save a debt of twenty dollars, judicial acts can be performed on Sunday, and maintained as well. To prevent the ruin of an individual, such an act must not be done! ‘Lame and impotent conclusion.’

“In Comyn’s Digest, title ‘Temps,’ under the head, Dies non Juridicus, it is said, the chancery is always open. So the Exchequer may sit upon a Sunday or out of term. P. 333 (C. 5). There is nothing, to an intelligent mind, revolting in this.

“Suppose, in times of high political excitement, a citizen is indicted for treason, and judgment of death pronounced against him by a servile judge, who, not a slave of the Crown, as were Tressilian, Scroggs and Jeffries, but yet the slave of an enraged populace, on an indictment never returned into court, or found by a grand jury, and defective in every essential, and this judgment pronounced on Saturday, and the time of its execution fixed on the following Monday. To arrest this proposed, judicial murder, an application is made to a member of the appellate court on the intervening Sabbath: who would justify the judge, should he fold his arms and, on the plea the day was not a judicial day, suffer the victim to be led to execution?

“The necessity of the case would be the law of the case. The judge who has no respect for this principle, is unworthy the ermine and an unfit conservator of the rights of the citizen.

‘ ‘ The case before us is not one of life or death, but it involves irreparable injury to property. An imperious necessity demanded the prompt interposition of chancery. On that principle the act is fully justified. This is the dictate of right, of reason, of common justice and common sense.”

While'that was a chancery case and not strictly in point, yet the reasoning therein is certainly cogent in showing that there should be no construction of the law which would render a judicial act on Sunday as absolutely void.

From all the above considerations it is our judgment that the common law of England making Sunday a dies non juridicus is not a part of the common law of Ohio. Nor is it a part of the common law of Ohio from usage in this state, since for almost 100 years our highest court has pronounced the contrary doctrine. There being no statute in Ohio expressly prohibiting judicial acts on Sunday, it follows that the proceedings before the justice of the peace in this case were not void.

However, in coming to this conclusion we do not hold that judicial proceedings on Sunday may not be voidable as constituting an abuse of discretion on the part of the trial court; Certain judicial acts may be necessary, justifiable and legal, but on the other hand, a full functioning of a court in the trial of a jury ease involving the heating of the courthouse, the attendance of the bailiff, clerk, jurors and witnesses, the labor of a janitor, and the manifold activities of such proceeding might well not only violate the provisions of existing statutes against the performance of common- labor on Sunday, but also so outrage the customs of a community as to constitute an abuse of discretion which would warrant a vacation of the proceedings. However, that is not the instant case.

In the instant case it is worthy to note here that under any theory of the case the great weight of authority is, even in those states which hold Sunday to be a dies non juridicus, that the receiving of a verdict on Sunday is proper as being a ministerial act only. It can scarcely be maintained that there is any difference in nature between the receiving of a verdict. and the receiving of a plea of guilty or not guilty. Consequently, in any view of the case favorable to the appellee, the most that could be done would be to remand the defendant for resentence.

However, it is the judgment of this court, for the reasons stated, that the arrest, arraignment, plea and sentence were not void; nor under the circumstances was there any such abuse of discretion on the part of the trial court as to warrant this court in setting the samfe aside. It is true that the sentence is heavy, but it is within the limits prescribed by statute and therefore lawful and this court is not justified in interferring therewith.

The judgment of the lower court must be and hereby is affirmed.

Judgment affirmed.

Montgomery, P. J., and McOlintock, J., concur.