author: McNamee, J.

text:
    In re Lonardo et al.
    (No. 21660
    — Decided September 26, 1949.)

      Mr. J. Frank Azsaréllo and Mr. Louis Fernberg, for petitioners.

      Mr. Lee G. Howley, director of law, and Mr. Saul S. Danaceau, for respondent.
   McNamee, J.

Petitioners invoke this proceeding for the purpose of being admitted to reasonable bail. They are now confined to jail in default of bail fixed by the Municipal Court of Cleveland, in the sum of $75,000 as to each petitioner. Each of the petitioners, is charged with being a suspicious person in violation of the ordinances of the city of Cleveland. The maximum penalty for conviction upon this charge is a fine of $50 and imprisonment for 30 days.

The petitioners previously were convicted of serious crimes. The assistant prosecuting attorney represents that petitioners are members of an organized band of lawbreakers currently under investigation by the public authorities, and that their release on bail at this time would constitute a menace to the peace and safety of this community. Also, it is stated that at an early date the prosecuting attorney proposes to present evidence to the grand jury which may result in charges of serious violations of the criminal law against these petitioners.

The petitioners’ bad reputations as evidenced by their criminal records and the representations as to their dangerous and lawless proclivities are factors that enlist the sympathetic understanding of this court in the effort of the law enforcement agencies to keep the petitioners confined in jail. We are aware of the difficulties encountered by public officials in the investigation of crime and prosecution of offenders. Also, we recognize the worthy motives that impel conscientious law enforcement officers to ask for high bail on minor charges against persons suspected of committing major crimes. But such considerations must yield to the imperious voice of the Constitution which the courts are sworn to support.

Section 9, Article I of the Constitution of Ohio, and the Eighth Amendment to the Constitution of the United States provide that “excessive bail'shall not be required.” The provision of the Ohio Constitution reads:

“All persons shall be bailable by sufficient sureties, except for capital offenses where the proof is evident, or the presumption great. Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted.”

From these constitutional provisions there is derived the general principle governing the allowance of bail that the amount thereof shall he reasonable. The primary purpose of bail is to secure the appearance of the accused at the trial, hut in determining the amount of bail, the following factors, among others, may be considered: The nature of the offense, the penalty upon conviction thereof, the character and reputation of the accused, and the probability of his appearance for trial.

In the leading case of People, ex rel. Sammons, v. Snow, Bailiff, 340 Ill., 464, 173 N. E., 8, 72 A. L. R., 798, the petitioner was charged with vagrancy. The maximum penalty upon conviction of that charge was imprisonment at hard labor for six months or a fine of $100. It appeared that the petitioner in that case had a long criminal record. In 1900 he was sentenced to the Pontiac reformatory for rape and subsequently paroled, in 1904 he was sentenced to the Joliet penitentiary for robbery, on May 28, 1904, he was taken from the penitentiary, was tried and convicted of murder and sentenced to be hanged on June 17, 1904, but was reprieved on June 16, and his sentence commuted to life imprisonment. On June 10, 1917, he escaped, hut on October 4, 1917, he was returned from his escape. On July 28,1923, he was paroled and was discharged on January 28, 1926. On August 12, 1927, he was sentenced to the federal penitentiary at Leavonworth and fined $1,500 for conspiracy against the laws of the United States. At the time of the vagrancy charge there was also pending against him three indictments for assault with intent to murder, driving while intoxicated and carrying concealed weapons. In reducing the hail on the charge of vagrancy from $50,000 to $5,000, Chief Justice Dunn, speaking for. the Supreme Court of Illinois, said:

“The constitutional right to be admitted to reasonable bail cannot be disregarded. The judge has no more right to disregard and violate the Constitution than the criminal has to violate the law. It. is the duty of courts to support and maintain the Constitution, and if the judges, who have taken an oath to support the Constitution, openly violate it, how can they expect the courts to retain the confidence and respect of the people? A criminal may have forfeited his right to liberty, but neither courts nor any other power have the right to deprive him of it except in accordance with the law of the land. Under the circumstances of this case, in which the extreme penalty is imprisonment at hard labor for six months or a fine of $100, the action of the court in requiring $50,000 bail was unreasonable and violated the constitutional right of the petitioner to be bailed by sufficient sureties.”

The foregoing pronouncements have a peculiar and forceful application here, where a conviction on the charge of being a suspicious person carries with it a lesser maximum penalty than the charge of vagrancy in Illinois.

It is a matter of common knowledge that ordinarily, on the charge of being a suspicious person, bail is fixed in a small amount. Departure from this customary practice is warranted in cases where the accused is a person of criminal propensities as evidenced by repeated convictions for the commission of crime. But where the accused is charged with a violation of a city ordinance constituting a misdemeanor, he cannot be required to give bail in an amount proportioned to other and more serious charges which subsequently may or may not be made against him. If, by adhering to the constitutional mandate, as we must, an advantage accrues to those who deserve it least, such a result is to be deployed. But greater potentialities for enduring harm ,ie in an evasion of judicial duty which would impair the integrity of one of the fundamental guaranties oí liberty contained in the Bill of Rights.

It is our (pinion that bail in the sum of $75,000 on the charge <f being a suspicious person is grossly disproportionite and excessive and ought to be reduced. In view of che records of criminality of the petitioners, we deem tae sum of $15,000 to be reasonable and adequate bail

The petitioners are discharged from custody upon each of ¿hem furnishing bail in the sum of $15,000.

Judgment accordingly.

Skegl, P. J., and Hurd, J., concur.


source: Caselaw Access Project

author: Guernsey, P. J.

license: Public Domain

text:
    Layne, Appellant, v. Baker et al., Appellees.

      (No. 505
    — Decided June 1, 1949.)

      Mr. Joe M. Moorhead, Mr. Donald A. DieUch and Mr. John G. Firmin, for appellant.

      Mr. Fred L. Eberhart and Messrs. Betts S Betts, for appellees.
   Guernsey, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Hancock County, in an action wherein the appellant, Emil E. Layne, was plaintiff, and the appellees, Richard J. Baker, Albert E. Baker, T. T. Perkins, justice of the peace, Findlay township, Hancock county, Ohio, and J. W. Crates, constable, Findlay township, Hancock county, Ohio, were defendants.

The action is one to enjoin the defendants from enforcing a judgment of restitution and eviction against the plaintiff, rendered by such justice of the peace in an action in forcible entry and detainer before him, wherein the defendants Richard J. Baker and Albert E. Baker were plaintiffs, and the plaintiff, Emil E. Layne, was defendant, and for other equitable relief.

The cause was submitted to the Common Pleas Court upon the application of plaintiff for a temporary injunction, and the motion of the defendants to dismiss the case, and judgment was rendered by the court denying the application for a temporary injunction, dissolving a restraining order issued by it prior to that time against the defendants, and dismissing the case at the costs of the plaintiff. And this is the judgment from which this appeal is taken.

At the time the judgment was rendered the amended petition of the plaintiff was the only pleading on file in the cause.

The motion of the defendants to dismiss the case, omitting caption and signatures, is in the words and figures following, to wit:

“Now come the defendants by their attorneys and move the court for an order dismissing all matters in this case excepting the question of damages suffered by any of the defendants by the temporary restraining order issued on September 21, 1948. The reasons for this motion are:
“1. The issues presented in the petition of this case have previously been decided in case number 28179 of the Common Pleas Court of Hancock County, Ohio. Said case also bears number 495 in the Court of Appeals, Third Appellate District, Ohio. Thus, such matters are res judicata.
“2. The issues presented in the petition of this case were decided in the justice of the peace court of T. T. Perkins, city of Findlay, county of Hancock, Ohio, in case number 237. Said case also bears the number of 2855 in the Common Pleas Court of Hancock County, Ohio. Thus such matters are res judicata.
“3. Plaintiff in this case is trying by this petition to collaterally attack the judgment rendered in the case mentioned in reason number two (2).
“4. This Common Pleas Court has no jurisdiction of this case.”

The bill of exceptions shows that no evidence was introduced upon the hearing of the application and motion.

The plaintiff assigns error in the following particulars :

1. The trial court erred in considering the defense of res judicata raised by defendants in the motion to dismiss.

2. Even if the trial court did not err in so considering the defense of res judicata, it erred in deciding that the two former actions, or either of them, constitutes a bar in the present action.

3. The trial court erred in dismissing the case when the undenied facts pleaded in the amended petition stated a good cause of action.

4. Other errors of law apparent on the record and excepted to by the plaintiff.

These claimed errors will be considered in the order mentioned.

1. The defendants, at the time the judgment appealed from was rendered, had filed no pleading in the case, and, as shown by the bill of exceptions, no evidence was introduced at the hearing, so there is no pleading or proof of any defense of res judicata.

The court was without , authority in the case to take judicial notice of the proceedings had and judgment rendered in the case referred to in the first ground for dismissal assigned in the motion. 17 Ohio Jurisprudence, 66, 67, Evidence, Section 43.

The court was also without authority to take judicial notice of the case referred to in the second ground assigned in the motion to dismiss.

The adjudication of the case referred to in the second ground of the motion is pleaded in the amended petition, but the court on the motion could consider the pleaded adjudication only for the purpose of determining whether upon the allegations with reference thereto, together with the other allegations of the amended petition, the plaintiff was entitled to the injunctive and other equitable relief asked for by him in his amended petition.

Whether such allegations stated a cause of action of the character mentioned will be hereafter discussed under assignment No. 3.

A defense of res judicata cannot be raised by motion but must be pleaded and proved. Norwood v. McDonald, 142 Ohio St., 299, 52 N. E. (2d), 67; Clark v. Baranowski, 111 Ohio St., 436, 145 N. E., 760; Fanning v. Insurance Co., 37 Ohio St., 344.

There being no pleading or proof of any defense of res j%i.dicata and the court being without authority to take judicial notice of the proceedings had and judgment rendered in either of the cases referred to in the first and second grounds for dismissal assigned in the motion to dismiss, the court erred in sustaining the motion on either of those grounds.

2. The case referred to in the first ground assigned in the motion to dismiss, is case No. 28179 in the Court of Common Pleas of Hancock County, which, on appeal from that court to the Court of Appeals for Hancock county, was designated as case No. 495 in the Court of Appeals for Hancock county.

It was an action in which Emil E. Layne, plaintiff herein, was plaintiff, and Biehard J. Baker and Albert E. Baker, two of the defendants herein, were defendants. It was instituted by plaintiff to enjoin the threatened eviction of the plaintiff by the defendants from the premises occupied by him under written lease from the defendants and was brought before any action seeking to evict the plaintiff from the premises had been instituted by the defendants.

It is predicated upon the ground that plaintiff had not violated the lease or in any way given the defendants cause for eviction, and that the plaintiff had no adequate remedy at law.

It differed from the instant action in that it was brought to enjoin threatened eviction and not to enjoin the enforcement of a judgment in an action in forcible entry and detainer of restitution and eviction, and in that it was not predicated upon the claim that by the terms of the written lease forfeiture thereof was not prescribed and could not be declared or adjudicated.

This court, upon the trial of the cause on appeal from the Common Pleas Court, rendered judgment holding that the plaintiff had an adequate remedy at law and was, therefore, not entitled to the remedy of injunction, and dismissed plaintiff’s petition.

The issues presented in the instant case differ from the issues presented in the former injunction case in that this is an action to enjoin enforcement of a judgment of restitution and eviction rendered by a justice of the peace prior to the expiration of the term of a lease of real estate, in an action in forcible entry and detainer, based on a written lease wherein there is no provision for forfeiture or re-entry upon failure of tenant to pay rental as therein prescribed or otherwise to perform the terms thereof on his part to be performed.

The question raised by the motion to dismiss is whether a judgment of forfeiture and evidence in an action based on a written lease which contains no provision for forfeiture, rendered by a justice of the peace in a forcible entry and detainer action, prior to the expiration of the term of the lease, may be enjoined by a court of equity where the defense of nonforfeiture by reason of the terms of the written lease was available as a defense in the action.

As the issues determined in the former action for injunction differ from the issues for determination in the instant action, the defense of res judicata in this action, based on the judgment in the former action for injunction, even if properly pleaded, would not constitute a defense to the instant action.

For the reasons stated-in our discussion of the first assignment of error, the judgment of the justice’s court could not constitute a basis of a defense of res judicata in the instant action.

The instant action constitutes a direct and not a collateral attack of the judgment Va the justice’s court, and if the remedy sought comes within the equitable jurisdiction of the Common Pleas Court, that court had jurisdiction of the cause.

Whether the Common Pleas Court had such equitable jurisdiction will be hereafter discussed under assignment of error No. 3.

For the reasons mentioned, ever if the defense of res judicata attempted to be raised by defendants in their motion to dismiss had been properly raised by pleading and sustained by proof, such defense would not have constituted a bar to this action.

3. In considering this assignment of error it is essential to keep in mind that a juitice court is a court of limited jurisdiction, having o^lv such jurisdiction as is expressly conferred on it bystatute, and that its judgments have only the legal efect expressly given them by statute.

Section 10450, General Code, fcrmerly Section 6601, Revised Statutes, appearing in Chapter 13 of Part Third, Remedial, Title II, of th{ General Code, prescribes that judgments in fordbi entry and detainer actions, either before a justice € the peace or in the ■Court of Common Pleas, shall no! be a bar to later action by either party.

The two leading cases in whiel that statutory provision is construed and applied, are Raitz & Co. v. Dow, 10 C. C. (N. S.), 249, 20 C. D., 284; and Foster v. Ellison, 12 C. C. (N. S.), 399, 21 C. D., 513, which have not been overruled in. any subsequent decision.

The first was a case whefo tie tenant, seeking reformation of the lease and an injunction against the enforcement of a judgment of ouster rendered by a justice’s court, was in possession of the premises under an imperfectly executed lease and was held to be entitled to reformation by having the lease properly executed, and to an injunction to enforce the lease as reformed.

In the second paragraph of the syllabus in that case the court held:

“2. An action in forcible entry and detainer in such a case, in which a judgment of ouster has been taken by the purchaser, is not a bar to injunction proceedings brought by tie tenant to prevent interference with his possession.”

The second case, as shown by the decision mentioned, and the decision in the case from which error proceedings to the Circuit Court were perfected, Ellison v. Foster, 6 O. L. R., 666, 19 O. D. (N. P.), 849, was a case in which ;he tenant held under a written lease for the term of three and one-half years, renewable forever, which ease, among other things, contained a covenant foi re-entry for failure to pay rent for 30 days after deiand made personally or on the premises. In that cse, the court held, in the first paragraph of the syllbus:

“The provision of lection 6601, that a judgment in an action for forcibl entry and detainer shall not be a bar to a second iction, constitutes an exception to the general rule that equity will not enjoin the enforcement of a judgment where a defense at law was available; and if the -facts alleged by one praying for. an injunction against the enforcement of such a judgment entitle him to a decree quieting his title or fixing the extent of his title, injunction which is merely ancillary to the main issue of title, will lie until the question of title has been determined.”

Under the provisions of Section 10450, General Code (formerly Section 6601, Revised Statutes), as construed in those cases, it is clear that a judgment of ouster in an action in forcible entry and detainer does not bar any subsequent action, either at law or in equity, between the parties to determine the right of possession to the real estate which is the subject matter of such action.

In 32 American Jurisprudence, 720, Landlord and Tenant, Section 848, the rule applicable to the forfeiture of the term of a lease is stated as follows:

“Unless there is an express stipulation for a forfeiture, the breach of a covenant in a lease does not work a forfeiture of the term.”

This rule was approved and applied by this court in the case of Thomas v. Kirkbride, 15 C. C., 294, 8 C. D., 181, in the following words: “Forfeiture is very rarely decreed or enforced, unless specifically provided for by the contract. To call for such action, forfeiture must be clearly nominated in the contract,” and is, as shown by numerous other Ohio decisions, the established rule in this state.

As shown by the amended petition in the instant case, no forfeiture was provided for by the contract of lease, and the justice’s court was, therefore, without authority to render judgment of ouster before expiration of term of lease which was necessarily based on. forfeiture of the term of the lease.

As under the provisions of Section 10450, General Code, the plaintiff is not barred by the judgment in the forcible entry and detainer action from maintaining an action, either at law or in equity, to determine the right of possession to the real estate leased to him, he, while in possession of the real estate, had the right to maintain this action to enjoin the enforcement of the judgment, the action being in the nature of an action to quiet his title to the possession of the premises.

Equity abhors a forfeiture and will relieve against it.

The plaintiff, in his amended petition in this case, alleges facts sufficient to constitute a cause of action for injunction and the quieting of his title, and the court, therefore, erred in sustaining the motion to dismiss and in dismissing plaintiff’s amended petition, as set forth in this assignment of error.

4. In his fourth assignment of error plaintiff refers to “Other errors of law apparent on the record and excepted to by plaintiff-appellant, ” but does not specify or argue any such errors in his brief, so the court, under its statutory prerogative, will not consider this assignment.

For the errors hereinbefore mentioned, the judgment of the Common Pleas Court will be reversed, at costs of defendants-appellees, and the cause remanded to it with instructions to overrule the motion of defendants to dismiss, and for further proceedings according to law.

Judgment reversed.

Middleton and Jackson, JJ., concur.


author: By the Court.

text:
    Prugh, Appellant, v. Hughel, Appellee.
    (No. 2051
    — Decided May 19, 1949.)

      Mr. Gus W. Byttner, for appellant.

      Messrs. Harshman & Young, for appellee.
   By the Court.

This cause is submitted on motion of defendant-appellee to dismiss the appeal on the grounds that plaintiff-appellant has failed to comply with the requirements of rule VII, and that the order appealed from is not a final order.

On November 18, 1948, the appellant gave notice of intention to appeal on questions of law. More than 50 days have elapsed and the record shows that appellant has failed to file an assignment of errors, brief and bill of exceptions. The motion will be sustained for failure to comply with the provisions of rule VII.

The order appealed from is specifically designated as the order overruling the motion for new trial. After the verdict of the jury was returned, a motion for new trial was filed which was overruled. No judgment, was entered on the verdict. It is well settled that an order overruling a motion for new trial, without more, is not a final order from which an appeal on questions-of law may be prosecuted. 2 Ohio Jurisprudence (Rev.), 204, Section 106; Robertson v. Penn-Ohio Coach Lines Co., 137 Ohio St., 136, 138, 28 N. E. (2d), 358; Champs v. Stone, 73 Ohio App., 319, 56 N. E. (2d), 251; Mahaffey v. Stine, 28 Ohio Law Abs., 361; Hauck v. Hauck, 29 Ohio Law Abs., 575; Covington Building & Loan Assn. v. Yost, 31 Ohio Law Abs., 672; Martin, Admr., v. New York Central Rd. Co., 32 Ohio Law Abs., 152. The motion to dismiss is sustained on tbe ground that tbe order appealed from is not a final order.

Motion sustained.

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


author: Hornbeck, J.

text:
    Hill, Appellee, v. Moseley, Appellant.
    (No. 4275
    — Decided July 6, 1949.)

      Mr. Rudyard Russ, for appellee.

      Mr. William A. Walter, for appellant.
   Hornbeck, J.

This is an appealfrom a judgment of the Common Pleas Court, affirming a judgment of the Municipal Court of Columbus, granting a writ of restitution to plaintiff in her action in forcible entry and detainer. In the Municipal Court defendant moved to quash the service of summons “inasmuch as the summons does not provide for any answer date.” The court overruled the motion, which action the Common Pleas Court affirmed, and the sole determinative question here is whether the motion should have been overruled.

Assuming, but not deciding, that the summons should have set forth an answer date, it does not appear that the defendant, appellant herein, was prejudiced thereby. Summons was issued and was duly returned showing service on defendant. He was served 12 days before the date fixed for trial, at which time he was represented by counsel. Rule X of the Municipal Court of Columbus penalizes a defendant for failure to answer within the time fixed. If this rule had been enforced, default judgment could have been taken against the defendant. The rule was not invoked. Trial was had, and defendant, through counsel, was cognizant of defendant’s rights but declined to make a defense. How could it be said that he was prejudiced by the action of the court in overruling the motion to quash service of summons and later, at the conclusion of the trial, by the overruling of the motion upon its renewal, defendant electing to stand solely upon the denial to him of the right to have rule day for answer fixed in his summons? There is no showing that the defendant was denied the right to file an answer or to assert any defense which could have been stated in the answer had it been filed. It has been held that service of process will not be set aside because of a mere irregularity in the writ which is no way prejudicial to the defendant. Lyle Publishing Co. v. Wright, 3 Ohio Law Abs., 100; Morris v. B. & O. Rd. Co., 18 C. C. (N. S.), 167, 32 C. D., 662.

We are in full accord with the conclusions of the Common Pleas Court on the review of this cause, and of the trial court that the italicized portion of the language of paragraph 4 of Section 1558-59, General Code, as hereinafter quoted, has no application to shape the procedure in the Municipal Court, for the reason that there are no like proceedings to forcible entry and detainer in the Common Pleas Court. Paragraph 4 of Section 1558-59, General Code, reads:

“4. The laws relating to practice and procedure in actions before the Common Pleas Court defining the rights and obligations of parties and prescribing the powers and duties of officers thereof, shall apply to like proceedings in the Municipal Court in so far as consistent with the provisions of this act and with other laws relating to said Municipal Court.”

There is inconsistency between the rules of the Municipal Court relating to its procedure and the procedure set out in the Code in forcible entry and detainer in justice of the peace courts. The case of Schmidt v. Hummell, 81 Ohio App., 167, 170, 73 N. E. (2d), 806, which holds that, although an answer is permissible, it is not required in a forcible entry and detainer case, was decided without the specific rules of the Municipal Court being called to the attention of this court. The inconsistency was recognized by the trial judge, who also said that the rules were under consideration by the court and it is to be inferred that any inconsistencies will be corrected. It is manifest that a rule of court, the 'effect of which is to penalize a defendant for failing to answer at a certain fixed time may be waived by a member of that court. No good purpose would be served by discussing the rules of the Municipal Court at length because, if disregarded, the action was favorable and not prejudicial to the defendant.

It does not appear that any substantial right of the defendant was denied by the proceedings under review. The judgment will be affirmed.

Judgment affirmed.

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


text:
    The State of Ohio, Appellee, v. Wildermuth, Appellant.
    (No. 148
    — Decided August 13, 1949.)

      Mr. Rodney R. Blake, prosecuting attorney, and Mr. Carroll V. Lewis, for appellee.

      Mr. 8am J. Hetsler, for appellant.
   By the Court.

This cause is submitted on motion of the state to dismiss the appeal and affirm the judgment of the trial court upon the ground that the bill of exceptions was not filed within the time prescribed by law.

The defendant was charged, tried and convicted of operating a motor vehicle while under the influence of intoxicating liquor. A motion for new trial was filed, which was overruled May 7, 1949. The bill of exceptions was not filed in the trial court until June 14, 1949. Thus it appears that the bill was filed more than 30 days after the overruling of the motion for a new trial. The period of time prescribed in-Section 13445-1, General Code, within which a bill of exceptions must be filed in a criminal case, is mandatory. Where the bill is not filed within the statutory time, the trial judge is without authority to allow and sign the bill. Luff v. State, 112 Ohio St., 102, 146 N. E., 892; Kenney v. State, 18 Ohio Law Abs., 76; State v. McFarland, 36 Ohio Law Abs., 97; State v. Kenney, 43 Ohio Law Abs., 63. It appearing that there are no errors complained of which can be considered in the absence of a bill of exceptions, the reviewing court has no alternative but to affirm the judgment. 2 Ohio Jurisprudence (App. Rev.), 1713, Section 920; Luff v. State, supra; State v. Kenney, supra; Leitzy v. State, 6 Ohio Law Abs., 427.

An examination of the record shows that the defendant duly filed a notice of appeal and, also, within 30 days after sentence and judgment, filed in this court his motion for leave to appeal and a petition on appeal requesting the court to review the order and judgment of the trial court. Presumably the motion and petition were filed pursuant to Section 13459-4, General Code, which provides for such procedure after 30 days from sentence and judgment. No showing is- made which would require this court to give favorable consideration to the motion or petition, both of which are denied. The judgment is affirmed.

Judgment affirmed.

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


text:
    Kromer, Appellee, v. Kear, Appellant.
    (No. 4318
    — Decided August 8, 1949.)

      Mr. E. Searles Morton, for appellee.

      Mr. Henry A. Beinhard, for appellant.
   By the Court.

This cause is submitted on motion by the plaintiff-appellee for an order dismissing the appeal on the following grounds:

1. The appeal is noted as one on questions of law and fact and the same is not in a chancery case.

2. That no notice of appeal was filed within 20 days after the judgment of the Court of Common Pleas of Franklin County.

The record discloses that the action is one in forcible entry and detainer, which is not a chancery case and is, therefore, not appealable on questions of law and fact. See Shafer v. Stein, 78 Ohio App., 47, 62 N. E. (2d), 297.

Now considering the second branch of the motion, the appellant would be permitted under Section 11564, General Code, to perfect his appeal on questions of law providing the notice of appeal was filed within the-statutory period. The appellee contends that it was not and therefore this court has no jurisdiction to hear the appeal. The record discloses that the action arose in the Municipal Court of Columbus, and on appeal on questions of law to the Court of Common Pleas the judgment was affirmed on April 30,1949. On May 5, 1949, a motion for a new trial was filed which was overruled on June 6, 1949. The notice of appeal was filed on June 14, 1949. The question here presented is when the statutory 20-day period begins to run. We are aware of no provision in the Code for the filing of a motion for a new trial in appellate court in a case where the appeal is on questions of law only. Section 11575, General Code, defines a new trial as follows: “A new trial is a re-examination, in the same court, of the issues, after a final order, judgment or decree by the court.”

A trial is a formal examination of the matter in issue on a cause before a competent tribunal for the purpose of determining such issue, which may be one on law or fact or both. The trial was, therefore, had in the Municipal Court and Section 11575, General Code, requires that the new trial, if granted, must be in the same court. We are, therefore, of the opinion that the provisions of Section 12223-7, General Code, with reference to the filing of notice of appeal within 20 days after the entry of an order overruling or sustaining a motion for a new trial, means a motion for a new trial in the trial court. Such provisions do not refer to a motion for a new trial in an appellate court, where the appeal is on questions of law only. Since the notice of appeal was not seasonably filed, the motion to dismiss will be sustained.

Motion sustained.

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


author: Wiseman, J.

text:
    Potts, Admr., Appellant, v. Adams, Appellee.
    (No. 4241
    — Decided October 13, 1949.)

      Messrs. Potts & Schmidt, for appellant.

      Messrs. Briclter, Marburger, Evatt & Barton, for appellee.
   Wiseman, J.

This is an appeal on questions of law and fact from a judgment rendered in favor of the defendant by the Common Pleas Court of Franklin County.

The plaintiff, Robert C. Potts, as administrator of the estate of Fannie L. Adams, brought an action to set aside a deed executed by plaintiff’s decedent, whereby she conveyed a piece of real estate to the defendant.

The facts were stipulated by counsel, which in substance are as follows:

In 1936, Fannie L. Adams, deceased, made an application to the Division of Aid for the Aged, State Department of Public Welfare, for old age assistance and in the application she agreed that upon her death the Division of Aid for the Aged should be reimbursed to "the extent of the benefits received, with interest, from the residue of her estate, if such residue existed. The application was allowed and she received assistance up to and including the month of June 1946, in the total sum of $3,827.82. During her lifetime the decedent was the owner of a parcel of real estate located in Franklin county. On or about August 9, 1946, the decedent conveyed this real estate to the defendant, Moma L. Adams, her daughter. The deed recited that the consideration was “one dollar and other valuable considerations.” The decedent died approximately four weeks after the transfer was made and subsequently the plaintiff was appointed administrator of her estate. The state of Ohio filed its claim with the administrator, which was allowed. The administrator was unable to discover any assets in decedent’s estate and thereafter instituted this action to set aside the conveyance. Actual fraud was not alleged or proven. The plaintiff relies on a showing of facts which he claims constitutes constructive fraud.

The plaintiff contends that the state of Ohio was a creditor of the decedent by virtue of the provisions of Section 1359-7, General Code (119 Ohio Laws, 241), which in part provided that “upon the death of a person, the total amount of aid paid to said person and to his or her spouse under this act, shall be a preferred claim against the estate of such deceased person, ’ ’ etc.

It is claimed also that the state of Ohio was a creditor within the meaning of Section 8618, General Code, which in part provides that ‘ ‘ every gift, grant, or conveyance of lands, tenements, hereditaments, rents, goods or chattels, and every bond, judgment or execution, made or obtained with intent to defraud creditors of their just and lawful debts or damages, * * * shall be utterly void and of no effect. ’ ’

It is urged that under the facts' the state of Ohio was a contingent creditor. In support of this proposition plaintiff cites the case of Squire, Supt. of Banks, v. Cramer, 64 Ohio App., 169, 28 N. E. (2d), 516, which held that the contingent liability of the owner of bank stock constituted the Superintendent of Banks a creditor within the meaning of Section 8618, General Code.

The defendant relies on Scobey v. Fair, Admr., 70 Ohio App., 51, 45 N. E. (2d), 139, which held that the Old Age Pension Law did not create contractual relationships between the state and the recipients, and that the relationship of debtor and creditor did not exist.

Both cases are of doubtful authority for the two propositions urged here.

The Cramer case can be distinguished on the ground that it has been held that the superadded liability of a shareholder in a bank is a primary contractual obligation created by operation of law. Squire, Supt. of Banks, v. Standen, Gdn., 135 Ohio St., 1, 18 N. E. (2d), 608, 120 A. L. R., 952.

The Scobey case presented an entirely different factual situation. In that case the question was whether any advances by the state to the wife and the husband were a charge against that part of the estate of the deceased wife which passed to the husband. If the state had been permitted to recover against the husband, it would have amounted to a reimbursement during the lifetime of the recipient. This the state may not do.

The state has no claim which it can assert during the life of the recipient. The money paid by the state was a gratuity. However, we can conceive of a situation where the recipient might convey property for the sole purpose of defrauding the state and thus deprive the state of its right to reimbursement out of the estate of the recipient.

Under the facts stated the state is placed in a position of a subsequent creditor. In 19 Ohio Jurisprudence, 715, Section 35, a subsequent creditor is defined “as one who becomes a creditor after a transfer sought to be impeached as fraudulent is made. ’ A conveyance may be held to be fraudulent as to subsequent creditors as well as to existing creditors. However, subsequent creditors are in a less favorable position than existing creditors, in attempting to set aside a conveyance. As to subsequent creditors transfers will be set aside only upon proof of actual intent to defraud such creditor. The burden of proof to establish such intent is upon the party asserting it. 19 Ohio Jurisprudence, 713, Section 34; Pfisterer v. Toledo, B. G. & S. Traction Co., 89 Ohio St., 172, 106 N. E., 18; Waxenfelter, Admr., v. Rouch, 30 Ohio Law Abs., 376. See, also, Edwards, Admx., v. Monning, 63 Ohio App., 449, 27 N. E. (2d), 156.

It is urged by the plaintiff in the case at bar that the burden of proof is upon the defendant to prove that the consideration, if any, for the transfer was bona fide and adequate. In support of this proposition plaintiff cites the case of Allen v. Toth, 22 Ohio Law Abs., 457, which held that “fraud as a matter of law will be implied from the fact that a debtor gives his property away without retaining sufficient to pay his debts.” We readily accept that statement as sound law. However, a consideration of the facts in the instant case shows that it does not fall into that category. There is no showing that the decedent gave away her property. The deed recited that the consideration was “one dollar and other valuable considerations.” No effort was made to show that the deed was not given for a valuable consideration, or that the consideration was inadequate. Neither does the record show that decedent, by the transfer, rendered herself insolvent or intended thereby to defraud her creditors. The existence of these essential facts will not be presumed as a matter of law from the fact that the administrator was unable to find any assets in the estate of the decedent.

The burden of proof at all times rested on the plaintiff to prove all the essential elements in the case. From the facts appearing in the record the plaintiff failed to make a prima facie case, which would have required defendant to go forward with the evidence. The record clearly shows a failure of proof.

Section 1359-20, General Code, which in substance provides that when the consideration does not approximate the fair market value of the property, or when the consideration for such transfer is not paid, such transfer shall be deemed prima facie fraudulent, has no application to the facts in this case as this section was enacted after the transfer was made. However, the enactment of this section is indicative of the fact that the General Assembly realized that without such statutory provision the state was without a remedy.

Judgment is rendered for the appellee.

Judgment for appellee.

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


text:
    The Univis Lens Co., Appellee, v. United Electrical, Radio & Machine Workers of America et al., Appellants.
    (Nos. 1994 to 2004
    — Decided June 8, 1949.)

      Messrs. Smith, Schnache S Compton, for appellee.

      Messrs. Davis, Davis & Kandelman and Mr. John S. Ober, for appellants.
   By the Court.

This is an appeal on questions of law from the Court of Common Pleas of Montgomery County, finding 11 separate defendants guilty of contempt of court for violation of an order relative to picketing during the strike at the Univis Lens Company plant in the city of Dayton, Ohio.

On June 10,1918, the court issued an order restraining the defendants and other persons from interferfering by violence, force, intimidation, threats, or in any manner whatsoever with any person or persons desiring to enter or leave the plant; from aiding, abetting or assisting anyone in the commission of any of the acts herein enjoined; but provided that the defendants should be permitted to peacefully picket plaintiff’s plant with placards or banners if desired, but such pickets were not permitted to block or obstruct any gate or driveway leading to the plant or interfere with or molest anyone desiring to enter or leave the plant or premises.

The defendants were charged with engaging in mass picketing on June 15, 1948. It was also charged that the defendants and other persons blocked the entrance to the plant; that employees of the company who desired to enter for the purpose of working in the plant were blocked and prevented from entering by the pickets; that one gate was padlocked by one of the defendants; and that physical violence was used in preventing the entrance by the employees of the company.

After a prolonged hearing the defendants were found guilty of contempt of court and were sentenced.

Defendants assign as error: That they were denied the right to a bill of particulars and other rights under the statutes of Ohio; that there was erroneous admission or exclusion of evidence; that the sentences were severe, harsh and excessive; that the judgment is not sustained by sufficient evidence and is contrary to law; and other errors appearing on the face of the record.

We have carefully read and scrutinized the entire record, which is very voluminous, and have given due consideration to all the errors assigned by defendants. In pur judgment the errors assigned are not supported by the record. There is ample evidence from which the trial court was justified in making a finding of guilt.

The factual .situation requires only brief comment. There was sufficient evidence of a credible character which, if believed by the trial court, warranted a finding that all the defendants, with the exception of the two named organizations and K. M. Kirkendall, engaged in physical violence while on picket duty. While the charge that Kaplan placed the padlock on the gate is disputed, it is clear that he and other pickets used physical force to prevent an employee of the company from cutting the chain and padlock. True, the evidence does not show that K. M. Kirkendall was in the picket line or engaged in physical violence, but according to his own testimony he was responsible for the picket line. There is abundant evidence to support the charge that on the day in question the leaders of the labor group involved and those responsible for the picket line were determined not to let pass through the picket line any employees of the company who were called back to work on the morning of the day in question. The evidence clearly shows that there were from 150 to 250 persons in the picket line and that the word was given by the leaders to close the picket line. The pickets moved in close formation on the sidewalk and in front of the entrances to the plant and in such close proximity to the entrances as to prevent any of the nonstriking employees from entering. All the defendants, including the organizations and Kirkendall, were responsible for the mass picketing as charged.

There is sufficient evidence to support the judgment of the trial court that the defendants have violated the order and as a consequence were guilty of contempt of court.

The sentences of the court were reasonable under the circumstances. In sentencing the defendants the court considered the degree of guilt and imposed lighter sentences on some of the defendants than on others.

Because of the view we take of this case we are not required to determine the question whether all the errors assigned are reviewable because of the failure of defendants to file a motion for new trial.

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

Judgment affirmed.

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


text:
    Deercreek Local Board of Edn. of Deercreek Twp., Madison County, Appellant, v. Payne et al., Appellees.
    (No. 169
    — Decided August 30, 1949.)

      Mr. Frank J. Murray, for appellant.

      Mr. H. H. Grabbe and Mr. D. H. Jackman, for appellees.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Madison County in a land appropriation proceeding instituted by the Deercreek township board of education for the purpose of acquiring three lots for playground purposes in the unincorporated village of Lafayette, Madison county.

The land appropriated is described as lots Nos. 42, 43 and 44 upon the recorded plat of the village of Lafayette. These lots are contiguous and have no improvements. The lots extend in an easterly and westerly direction and front on West street, which extends in a northerly and southerly direction across the easterly end of the lots. South of the lots and separated by a public alley are lots Nos. 5, 6 and 7, which extend in a northerly and southerly direction and front on U. S. route 40. The rear of these three lots abuts on the aforementioned alley. The famous Red Brick Tavern is located on lot No. 7. The land taken and the last-mentioned lots are owned by the defendant-appellee Nellie S. Payne.

The jury assessed as compensation for lots Nos. 42, 43 and 44 the sum of $4,500 and allowed as damages to lots Nos. 5, 6 and 7 the sum of $4,000.

The principal error assigned is that the court erroneously assumed, in its charge to the jury, that lots Nos. 42, 43, 44, 5, 6 and 7 constituted one tract of land and erroneously considered lots Nos. 5, 6 and 7 as the residue of the tract from which the land appropriated was taken. The court charged as follows:

“After determining the value of the part actually taken you will next determine the damages, if any, to the residue of the tract other than that taken, which will'be occasioned either by the severance therefrom of the part taken or the use for which the appropriation is made, or both.”
“It is your duty to determine and fix the value of the property taken, and the damage to the residue, from the testimony and the evidence alone.”

With reference to the verdict the court charged as follows:

“There will be but one form of verdict furnished you in this case. It is simple and self-explanatory. In the line indicated for that purpose you will place in dollars and cents the amount which you find to be the value of the land taken, and then on the line indicated for such purpose you will place in dollars and cents the amount of damages which you find resulting to the residue of the premises, and on the next line total these two sums.”

It is apparent that the court failed to submit the above-mentioned question of fact for determination by the jury.

Section 4834-11, General Code, provides that appropriation proceedings applicable to municipalities shall apply in cases such as the instant one. Appropriation of private property by municipalities is controlled by Section 3677 et seq., General Code.

The rule is well established that in appropriation proceedings the landowner is entitled to compensation for the land taken and damages, if any, to the remaining property as a result of the taking. Grant v. Village of Hyde Park, 67 Ohio St., 166, 65 N. E., 891; 15 Ohio Jurisprudence, 791, Section 99. The rule assumes that there is a part of the tract remaining after the land appropriated has been taken. The question to determine is whether the facts in the instant case bring it within the rule. Do lots Nos. 5, 6 and 7 constitute the remaining portion of one single tract?

In 15 Ohio Jurisprudence, 792, Section 101, the following statement is found:

“The mere fact that other land adjoins the land taken, and is owned by the same person, does not make it remaining land, whether it is farm land or city lots. Bnt if other land which adjoins, and is owned by the same person, is used in connection with the land taken for a single purpose or business, it is remaining land, and damages may be had for damage caused thereto by the appropriation, whether the property is farm land or city lots. ’ ’

In 29 Corpus Juris Secundum, 981, Section 140, is the following statement:

“Where several contiguous lots or tracts constitute an entire parcel used for a general purpose by the owner, all injuries which may be caused to the entire body of the land by the taking of a part may be considered; but, even where lands are contiguous, the owner is not ordinarily entitled to damages accruing to tracts which are separate and distinct from the lands taken. * * *
“To constitute a unity of property within the rule, there must be such a connection or relation of adaptation, convenience, and actual and permanent use as to make the enjoyment of the parcel taken reasonably and substantially necessary to the enjoyment of the parcels left, in the most advantageous and profitable manner in the business for which they are used. If the separate tracts of which a part of one is taken are not put to a joint use, they cannot be considered as one parcel in assessing damages to the land not taken, and this is especially true where the tracts are separated by a street, or a watercourse.”

In the case at bar, the lots appropriated and the lots remaining .abut on either side of a public alley. The fact that the alley separated the two blocks of lots did not necessarily establish the two blocks of lots as separate tracts. The use to which the lots were put determines whether it was one tract or two separate tracts. Unity of use is the principal test. There was convincing evidence presented to the effect that the lots taken were not used in connection with the operation of the Red Brick Tavern. There was ample evidence from which the jury could find that there was no unity, physical or functional, between the lots taken and the lots remaining. Whether the lots taken and the lots remaining were used for one common purpose so as to constitute a single tract was a factual matter to be determined by the jury under proper instructions. Seither v. City of Cleveland, 17 C. C. (N. S.), 552, 32 C. D., 288, affirmed without opinion in 86 Ohio St., 357, 99 N. E., 1123; Chicago & E. Rd. Co. v. Hoffman, 67 Ind. App., 281, 119 N. E., 169; Charleston & Southside Bridge Co. v. Comstock, 36 W. Va., 263, 15 S. E., 69; Sharo v. United States, 191 U. S., 341, 354, 48 L. Ed., 211, 24 S. Ct., 114; 29 Corpus Juris Secundum, 1297, Section 289; 18 American Jurisprudence, 1004, Section 362. In the instant case, the judge in his charge to the jury assumed the existence of a material fact which was in dispute. The error was one of commission and not of omission. In so charging the court invaded the province of the jury and committed reversible error. Plotkin v. Meeks, 131 Ohio St., 493, 499, 3 N. E. (2d), 404; 39 Ohio Jurisprudence, 997, Section 292.

The plaintiff-appellant contends that the court charged incorrectly as to the burden of proof. The court charged as follows:

“This sort of case, is different from the ordinary jury trial in that there are no issues in the normal sense of the term, and no burden of proof in regard to the evidence.”

The appellant contends that, on the question whether the two blocks of lots were used for a common purpose and constituted a single tract, the landowner carried the burden of proof; and that the landowner carried the burden of proof to prove the damage to the residue, if all the lots were found to constitute a single tract. '

In Martin v. City of Columbus, 101 Ohio St., 1, 127 N. E., 411, the court held:

“1. An action brought by a municipality to condemn private property under the Constitution and laws of Ohio is a proceeding in rem.
“2. In such proceeding, there are no formal pleadings or definite issues, which admit of affirmation upon one side and denial upon the other, and hence the doctrine of ‘burden of proof’ has no application.
“3. The jury acts merely as an appraising or assessing board, determining the fair market value of the property from all the evidence submitted.”

This rule has been followed in Kraemer v. Bd. of Edn. of Cincinnati, 8 Ohio App., 428; Muccino v. B. & O. Rd. Co., 33 Ohio App., 102, 104, 168 N. E., 752; City of Bellevue v. Stedman, 63 Ohio App., 150, 152, 25 N. E. (2d), 695; City of Cincinnati v. Tuke, 70 Ohio App., 47, 49, 44 N. E. (2d), 748. For a contrary holding see Holtsberry v. State, ex rel. Fauver, Supt., 14 Ohio App., 86.

In Bank of Edenton v. United States, 152 F. (2d), 251, 253, the court made the following statement:

“It may be noted that the entire conception of the burden of proof does not lend itself too readily to application in condemnation proceedings and, in at least one jurisdiction, it has been entirely rejected. Martin v. City of Columbus, 101 Ohio St., 1, 127 N. E., 411.”

■ A distinction must be made between burden of proof and the right to open and close the case, a right conferred upon the landowner by Section 3684, General Code. It does not follow that the landowner carries burden of proof on any issues or that there is a burden of proof in such a proceeding.

On the question of proof of damages, the general' rule is that the burden to prove damages rests on the landowner. 29 Corpus Juris Secundum, 1257, Section 271, and cases cited. However, the rule in Ohio is contrary to the general rule. Martin v. City of Columbus, supra. We have no hesitancy in applying the principle of law announced in the Martin case to the question of proof of damages to the residue of the tract, if there was a residue. On this matter we definitely hold that there was no burden of proof resting on either party. However, the question presented for determination is not related solely to the proof of damages to the residue; the issue is clearly made by the evidence whether lots 5, 6 and 7 constituted the residue of a single tract. It is important to point out that this question was not raised in the Martin case. The court in that case had before it only the question as to the burden of proof with respect to compensation. That the court in the Martin case was considering only the matter of compensation for the land to be taken is gathered from the concluding paragraph of the opinion, which is as follows:

“Clearly we have in the action at bar a proceeding in rem, a proceeding to take this specific property by an inquiry before a jury in order to make full compensation at the fair market value of the property. It is a proceeding in rem because it relates solely to the question of ascertaining or assessing the fair market value of the property, in order to make compensation to the owner, which is done solely in order to enable the public to get title and possession of the property for the public use. The jury serves merely as an assessing board or appraising body to fix the value,' wholly apart from any formal technical issues or rules touching the proceedings, whether raised by pleadings or proof. This proceeding does not admit of any definite, formal, technical issue touching value. It therefore does not admit of the technical doctrine relating to burden of proof.” (Emphasis ours.)

In the instant case the issue whether lots 5, 6 and 7 constitute the residue of a single tract was clearly made and its determination was not affected by the question of compensation or damages. The jury was first required to determine whether there was a residue, and, if so, then to determine the damages, if any, to the residue by reason of the taking of a part of the tract. In our opinion the question of damages and the issue whether there is a residue are so dissimilar as to require the application of a different principle of law. The condemner instituted this proceeding to appropriate lots 42, 43 and 44 as a tract. The landowner contends that she owns lots 5, 6 and 7, and that all six lots were devoted to a common purpose and constituted a single tract. The appellant contends that lots 5, 6 and 7 were not used in common with lots 42, 43 and 44 and did not constitute a residue of a single tract. Prima facie the two blocks of lots were separate parcels. 18 American Jurisprudence, 912, Section 270. Under the circumstances we are persuaded to apply the general rule that he who asserts the affirmative of an issue has the burden of proving it. We are of the-opinion that on this issue the court should have charged' the jury that the burden of proof was on the landowner. In support of this conclusion we cite the following: Minneapolis-St. Paul Sanitary Dist. v. Fitzpatrick, 201 Minn., 442, 277 N. W., 394, 124 A. L. R., 897; Pittsburgh, C., C. & St. L. Ry. Co. v. Crockett, 182 Ind., 490, 106 N. E., 875; Illinois Power & Light Corp. v. Talbott, 321 Ill., 538, 152 N. E., 486; Essex Storage Electric Co., Inc., v. Victory Lumber Co., 93 Vt., 437, 108 A., 426. See 29 Corpus Juris Secundum, 1257, Section 271, and cases cited.

We find no prejudicial error in the record relative to the admission of evidence.

It is urged that the verdict is not sustained by the ■evidence and is contrary to the manifest weight of the •evidence. There was evidence submitted on the question whether all the lots constituted a single tract, and ■on the question of value of the lots taken and, also, as tó damages to lots 5, 6 and 7. There was a wide diversity of opinion expressed by the witnesses as to values and damages. Whether upon the theory that the trial judge was correct in submitting the matter to the jury under the instructions given, or upon the theory expressed by this court, we cannot conclude that the verdict is not sustained by the evidence or that it is contrary to the manifest weight of the evidence.

For errors in the charge the judgment is reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

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


author: Montgomery, J.

text:
    Roberts, Appellant, v. Jones et al.; Radebaugh, Appellee.

      (No. 257
    — Decided September 28, 1949.)

      Messrs. Shumaker, Loop, Kendrick <& Winn, Mr. Robert G. Dunn and Messrs. Silbaugh <& Silbaugh, for appellant.

      Messrs. Drinkle & Martin, for appellee.
   Montgomery, J.

On February 4, 1924, William R. DeLay, being the owner in fee simple of certain real estate in the city of Lancaster, executed and delivered a deed therefor to Ms wife, Laura E. DeLay. However, there had been deleted from the granting and habendum clauses of that deed the words, “heirs and assigns forever.” This deed was executed before the enactment of Section 8510-1, General Code, which provides that the use of terms of inheritance or succession shall not be necessary to create a fee simple estate. Therefore, by this deed there was vested in Laura E. DeLay a life estate, with the reversion in her husband, the grantor.

William R. DeLay died intestate September 22, 1936, leaving more than enough personal property to pay the debts of his estate and the costs of administration, and leaving his widow and the appellee, Louise Radebaugh, his only child and heir at law.

At his death, therefore, there was vested one-half of this reversionary estate in the widow and one-half in his daughter, under and by virtue of the provisions of Section 10503-4, subsection 2, General Code.

On October 8, 1936, the widow and the daughter entered into a written contract, which provided as follows :

“This agreement by and between Laura E. DeLay and Louise Radebaugh, both of the city of Lancaster, witnesseth:
“That whereas, Wiliam R. DeLay died intestate on September 22, 1936, leaving an estate of both real and personal property and also leaving the said Laura E. DeLay as his widow or spouse and the said Louise Radebaugh as his only child and heir at law, and
“Whereas, it is desired by and between the parties hereto that a distribution of said estate shall be made in accordance with their wishes and desires, and it is therefore
“Mutually agreed by and between the parties hereto :
“(1) That the said Laura E. DeLay shall be appointed administratrix of the estate of the said William R. DeLay and proceed with the settlement of the same according to the laws of the state of Ohio, and the said Laura E. DeLay shall pay all the debts and expenses of said estate in the settlement thereof, and
“ (2) That the said Louise Radebaugh shall receive-as and for her full interest in said estate the undivided one-half interest in and to the entire real estate known as the Fairfield Builders Supply Company, and the-note of Arthur Radebaugh in the sum of eight thousand dollars ($8,000), and upon the receipt of the same the said Louise Radebaugh shall execute and deliver a full release and aquittance to the said Laura E. DeLay of her entire interest in said estate; and the said Laura E. DeLay shall have and hold as her own separate property all the remainder and balance of said estate whatsoever, of any kind or description.
“ (3) The said Laura E. DeLay agrees to sell to the-said Louise Radebaugh the other undivided half of said real estate known as the Fairfield Builders Supply Company in West Lancaster, Ohio, for the sum of five thousand dollars ($5,000) cash, to be paid upon the execution and delivery of a proper deed thereof,, subject to and excepting all taxes and special assessments against said property due and payable in December 1936 and thereafter, which the said LouiseRadebaugh assumes and agrees to pay, and the said Louise Radebaugh agrees to purchase said property upon said terms and pay the purchase price thereof as herein provided.
“(4) Each of said parties agree to execute the necessary papers, releases, waivers, documents and whatever other papers may be required to carry this-agreement into effect. ’ ’

The construction of this contract, and the effect given-thereto, determine the result of this lawsuit.

Laura E. DeLay did not remarry and died intestate- and without issue on October 21, 1943.

The original plaintiff in this action, the substituted' plaintiffs and the defendants, other than Mrs. Radebaugh, individually and as administratrix, and Colonel Silbaugh, as administrator, are the next of kin of Laura E. DeLay. It is agreed that the pleadings and record show clearly their respective interests in this property, if any interests they have.

Upon submission of the case, the trial court made a finding that the defendant, Louise Radebaugh, is the sole owner of the whole of such real estate in fee simple, and dismissed the petition.

From that order of the court this appeal was perfected to this court on questions of law.

There are a few suggestions to be made with reference to questions raised in briefs, before a discussion of the merits of this case.

Counsel on both sides use rather carelessly the terms, “ancestral” property and “nonaneestral” property. The distinction between them was eliminated by Section 10503-1, General Code, effective January 1, 1932. These terms, however, in the course of the briefs seem to have been used more or less interchangeably with the terms, “estate by inheritance” and “estate by purchase.” These latter terms and their application will be discussed hereinafter.

Counsel for appellant argue in both the brief and reply brief that there has been no attempt by the appellee to rescind or reform this contract. This is of no particular consequence, but there are a number of suggestions which could be made in response to this argument, to wit:

The appellee claims nothing under this contract, but claims that it is altogether ineffective so far as this real estate is concerned, and that the same was not included in the provisions thereof. If it were claimed that there was a mistake, then, doubtless, the argument would be presented that the mistake was one of law from which there could be no relief by reformation or rescission. Furthermore, it is conceivable that, with one of the parties to the contract dead, and the other, consequently, disqualified from testifying, there might be no competent evidence to sustain the proposition that there had been a mistake, if any did in fact exist.

The question before us is, as stated, the effect of this contract, for without it this whole estate would unquestionably be vested in Louise Radebaugh.

As to the undivided one-half of this property, we encounter no difficulty. Upon the death of William R. DeLay it vested in fee simple in his widow. In that undivided one-half the daughter then at that time had no interest. All she agreed to do in this contract was “execute and deliver a full release and acquittance to the said Laura E. DeLay of her entire interest in said estate.” (Emphasis added.) She did not agree to convey to her stepmother something which did not belong to her, in which she had no interest and which in fact belonged to the stepmother exclusively. However, upon the death of Laura E. DeLay, this undivided one-half, under the laws of Ohio, passed directly to Louise Radebaugh and she took the same from Laura E. DeLay and not from her father, William R. DeLay. This is clearly the case under the provisions of Section 10503-5, General Code, which, so far as applicable, reads:

“When a relict of a deceased husband or wife dies intestate and without issue, possessed of identical real estate or personal property which came to such relict from any deceased spouse, by deed of gift, devise, bequest or descent, or by virtue of an election to take under the statute of descent and distribution, then such estate, real and personal, except one-half thereof which shall pass to and vest in the surviving spouse, if any, of such relict, shall pass to and vest in the children of the deceased spouse from whom such real estate or personal property came, or their lineal descendants, per stirpes.”

As to this undivided one-half interest, therefore, we hold that the title is vested in Louise Radebaugh, and that as to such undivided one-half the judgment of the lower court was correct and must be affirmed.

As to the other undivided one-half, we are forced to come to a different conclusion, and this we do rather reluctantly, because it is quite conceivable that in spite of the language of this contract the parties did not intend to include this particular real estate, and, further, because of the instinctive feeling that this real estate should descend to the daughter, rather than to-the collateral heirs of the deceased widow.

However, we are forced to the conclusion that this-contract, properly construed, was such as to divest Louise Radebaugh of the interest in such reversion which came to her upon the death of her father, because she agreed upon a release and acquittance “of her entire interest in said estate. ’ ’ And this undivided one-half of this estate in reversion clearly was a part of her interest in “said estate.” And following that conclusion, that the effect of this contract was to vest the title of Louise Radebaugh’s undivided half in Laura E. DeLay, we must add the conclusion that this vesting in Mrs. DeLay gave to her an estate by purchase and not one by inheritance.

The contract was not like an ordinary action in partition, where the parties seek to separate their joint interests and hold the same in severalty. Here was a contract for mutual conveyances and mutual releases of obligations and additional payments of money. The widow agreed to pay all the debts and expenses of the estate. She agreed to the surrender of a note of $8,000, evidently owed to the estate by the-husband of Louise Radebaugh. These things were a. part of the consideration for the vesting of the title in the widow, and in our judgment the only proper construction of this contract and its various terms is that the effect was to place this title in the widow, and, as the title to the widow came not from William R. DeLay, but from Mrs. Radebaugh by purchase, it follows that, as to this undivided one-half, the heirs at law of Laura E. DeLay inherit the same and are entitled to partition of this real estate and to the proceeds of the undivided one-half in proportion to their respective interests.

As to the one undivided one-half of such real estate, the judgment of the lower court is affirmed, and, as to the other one-half interest, the judgment is reversed, and this cause is remanded for further proceedings.

Judgment affirmed in part and reversed in part.

McClintock and Putnam, JJ., concur.


author: Doyle, J.

text:
    Liossis, Appellee, v. The Cavalry Riding Academy Co., Appellant.

      (No. 21220
    — Decided April 11, 1949.)

      Messrs. Krueger, Gorman S Davis, for appellee.

      Messrs. Crossen & Hurd, for appellant.
   Doyle, J.

This is an appeal from a judgment of the Court of Common Pleas of Cuyahoga County, for $10,000, in favor of Katharine N. Liossis and against The Cavalry Riding Academy Company.

It appears that on May 3, 1946, the complainant, a 20-year-old art student, rented a horse and equipment from the defendant (which operated a saddle horse rental establishment for the general public), for the purpose of riding; after the charge was paid, the defendant’s groom brought forth a saddled and bridled horse to a mounting platform, from which the animal was mounted by the plaintiff; the horse was then ridden at a walk four or five times around a ring, and then was directed across a highway and onto a bridle path; after a short distance, the horse commenced to trot, at which time the saddle (English riding saddle) began to slip and turn to the left; the rider thereupon took her left foot out of the stirrup, preparatory to throwing herself off, when her right foot became caught in the right stirrup. She fell from the horse’s back, with the saddle turning to a position beneath the animal’s belly and her right foot still engaged in the right stirrup; the horse then became frightened, commenced to gallop, and dragged the rider for about 100 feet. Severe and serious injuries resulted.

It was claimed in the petition — and evidence was offered for the purpose of proving — that the defendant was negligent (1) in failing to have the girth of the saddle securely tightened, and (2) in failing to inspect the equipment for proper adjustment before hiring it out to the plaintiff; and that as a proximate result of such failures, the plaintiff was injured.

Among the errors claimed for which reversal is sought, are:

“1. In submitting the case to the jury on the question of failure to inspect the equipment for proper adjustment before hiring it out to plaintiff.
“2. In submitting * * * the allegation of failing to have the girth of the saddle securely tightened. ’ ’

It is claimed that there is a “complete failure on (plaintiff’s) part to sustain the burden of proof # *

Examination of the record' reveals the following testimony of the plaintiff:

“Q. How did you mount the horse? A. I mounted on the block. * * *
“Q. What did anybody do if anything? A. He adjusted the stirrup for me.
“Q. Did the groom adjust the stirrup for you while you were on the block? A. While I was on the block.
“Q. By adjusting the stirrup, what do you mean? A. Well, he made them shorter, you know, and pulled them down to fit my feet, of course, on account of my height.
“Q. Was there any conversation between you and the groom? A. No.
“Q. None at all about the stirrup? A. No. I just asked him if it was all right to mount and he said, ‘Yes.’
“Q. You asked him what was all right? Did you indicate by motion or words? A. Well, the saddle.
‘ ‘ The court: I did not hear.
“The witness: I asked was the saddle, was it all right; whether I could mount. He said, ‘Yes.’
“Q. He said the saddle and everything was all right. What did you mean by everything? A. Well, the stirrup and saddle, the rest of the gear on a horse.
“Q. What did he say to you after that? A. He said it was all right. It ivas ready for me to mount.
“Q. What did you do then? A. I mounted. * * *
“Q. Going back just a few seconds prior to that, when you asked the groom if it was all right did he do anything at that time toward inspecting the gear? A. I don’t remember after I asked him. I don’t remember.
“Q. After you asked him do you remember whether he did anything at all? A. No.”

In addition to the evidence shown above, there is expert testimony indicating that the saddle turned and slipped because ‘ ‘ the girth of the saddle was not tight enough.” And it should be noted at this point that there is no evidence to indicate that the tackle (“tack”) used on the horse was in anything other than perfect condition.

At the outset of this discussion, it must be recognized that we are not here deciding a case in which injury is claimed because of some trait, condition or propensity of the horse. The law governing such circumstances is definitely declared in this state in Troop A Riding Academy v. Miller, 127 Ohio St., 545, 189 N. E., 647. It is there stated:

“1. One who rides a horse, which he has hired for that purpose, takes the ordinary risks incident to such pursuit.
“2. In order to recover for injuries received when a horse hired for riding runs and falls, one who sues in tort must show knowledge, on the part of the owner or Ms agents, of some trait, condition or propensity from wMch a probability of the horse’s running away or falling might reasonably be inferred.
“3. When there is no evidence of any known trait, condition or propensity of the horse, which would subject the rider to greater risks than ordinarily attach to horseback riding, it is error for the trial judge to submit such case to the jury. Defendant’s motion for an instructed verdict should be granted.”

Our question is whether there was or was not sufficient evidence of the alleged negligent saddling of the animal which proximately resulted in the injury.

There is nothing in the record to indicate that this accident was due to any voluntary action or contribution of the plaintiff. She did not improperly ride the horse; the saddle and girth were not interfered with nor handled by anyone after leaving the hands of the defendant’s servant, and the plaintiff’s explanation of her fall was that the saddle suddenly slipped and took her with it.

The defendant maintains that the accident was due to causes for which the defendant was not responsible; that the horse, by its own conduct, was the causative factor of the slipping of the saddle; “that a horse will frequently suck in air when the cinch is being tightened around him and that a few minutes later he may exhaust some of that air and the cinch may not be as tight around him as it was when the saddle was first put on. This in itself could cause the saddle to become slightly looser but does not prove in any way that the saddle was loose at the time that plaintiff mounted.”

Operators of riding academies, holding themselves out to the public as having horses properly equipped for pleasure riding, must, in the exercise of due care, take into consideration, before, at the time of, and following saddling, the many and various propensities of horses. In the ordinary course of things, a saddle does not slip to the belly of a horse if proper care has been used in cinching. And the slipping of a saddle is indeed reasonably foreseeable to any hostler if a girth is not properly tightened. In fact, the very purpose of a girth is to keep the saddle in proper place on the withers and back of the animal, and this is accomplished by tightening it sufficiently to keep it from slipping.

As we view the evidence before us and the reasonable inferences to be drawn therefrom, we believe it sufficient to establish the claims of negligence. We think it sufficient to establish the fact that the horse was not cinched, at the time he was turned over to the plaintiff, in the manner that proper skill and reasonable care demanded, and that reasonable 'inspection was not made of the equipment.

2. It is further claimed that the court erred “in failing to charge the jury that a person incurs or assumes usual and ordinary risks and dangers usually present in the mode of conveyance which he selects.”

As heretofore stated, “one who rides a horse, which he has hired for that purpose, takes the ordinary risks incident to such pursuit.” This rule of law, however, does not mean that one who rides a hired horse assumes the risk of an improper saddling of the animal of which he had no knowledge. The slipping of the saddle due to improper adjustment was not one of the assumed risks of the adventure. Authorities on this question are so numerous that citations seem unnecessary.

We find no error' in not charging the jury further on this point.

There are in all twelve separate claimed errors. Examination has been made of them all, and we find none prejudicial in character. Under this view of the record, the judgment will be affirmed.

Judgment affirmed.

Guernsey, P. J., and Middleton, J., concur.

Guernsey, P. J., and Middleton, J., of the Third Appellate District, and Doyle, J., of the Ninth Appellate District, sitting by designation in the Eighth Appellate District.


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    Home Owners’ Service Corp., Appellant, v. Hadley et al., Appellees.
    (No. 4134
    — Decided January 25, 1949.)

      Mr. Marion A. Ross, for appellant.

      Mr. George H. ChambUn, for appellees.
   By the Court.

This is an appeal on questions of law from the order of the Common Pleas Court of Franklin county sustaining the motion of defendants, appellees herein, for judgment on the pleadings. The action was instituted to recover a real estate brokerage commission.

Plaintiff’s second amended petition consists of three causes of action. In the first cause of action plaintiff alleges that the defendants executed an exclusive sales contract whereby plaintiff was authorized to list for sale and sell the real estate owned by defendants for $28,000; that the listing continued until withdrawn by a 30-day notice to the plaintiff; and that the listing contract provided that if plaintiff originated or was instrumental in securing a purchaser for the property, the defendants agreed to pay the plaintiff a commission. Plaintiff alleges that it obtained a purchaser at $28,000 but defendants refused to accept or complete the purchase. In the second cause of action plaintiff incorporates all the allegations contained in the first cause of action, and alleges further that while the listing contract was in force, the defendants sold the property to one, Rose M. Williams; and that the sale to Rose M. Williams originated and started and the terms of sale were agreed upon during the period of time that the listing contract was in force. In the third cause of action plaintiff incorporates all the allegations in its first and second causes of action, and alleges further that plaintiff was instrumental in securing or originating a purchaser for the property and that the defendants sold the property to the purchaser. Plaintiff alleges that the defendants refused to pay the the commission due under the listing contract.

The defendants in their answer “deny each and every allegation contained” in the second amended petition. Further answering, the defendants deny that the plaintiff was given an exclusive listing contract of the character alleged; deny that the sale was made to Rose M. Williams during the time the listing contract was in effect; deny that plaintiff originated or started the sale to Rose M. Williams; and deny that plaintiff was instrumental in securing or originating the purchaser. Further answering, the defendants allege that one of the defendants did execute an exclusive listing contract whereby they gave authority to the plaintiff to sell the real estate for a period of 90 days or until the authority was withdrawn by a 30-day written notice; that the 90-day listing period expired on November 11, 1945; and that at no time prior to November 11, 1945, did plaintiff present an offer to purchase the property for the list price of $28,000.

The plaintiff filed a reply which was in the nature of a general denial of all allegations in the answer not expressly admitted or alleged in the second amended petition.

To the answer the defendants attached seven interrogatories which were answered by the president of the plaintiff company. The answer to interrogatory No. 1 properly identified the listing contract attached to the answer as an exhibit. The answer to interrogatory No. 5 was to the effect that plaintiff is unable to state whether any of the officers or agents of the plaintiff had any conference with Rose M. Williams prior to November 11,1945. In answer to interrogatory No. 6 it is stated that plaintiff was instrumental in securing and originating the purchaser for the property in question by its advertising, placing its “For Sale” sign upon the property, soliciting of prospects, and securing at least three written offers from bona fide purchasers. In answer to interrogatory No. 7, plaintiff stated that no written offer to purchase the property at the list price of $28,000 was submitted to the defendants prior to November 11, 1945. It is obvious that the pleadings make up several issues of fact.

In Meyer v. Daniel, 147 Ohio St., 27, 67 N. E. (2d), 789, it was held that “A motion for a judgment on the pleadings is in the nature of a general demurrer and presents only questions of law.”

If the pleadings present an issuable fact which would require the introduction of testimony by the moving party to maintain such issue, a motion for a judgment on the pleadings should be overruled. 31 Ohio Jurisprudence, 878, 879, Section 287. In the instant case, the answer denies almost every material allegation in the second amended petition, and the reply denies new matter in the answer and, therefore, a motion for a judgment on the pleadings should have been overruled.

But it is claimed that the answers to the interrogatories may be considered by the court in passing on a motion for a judgment on the pleadings and that the answers to the interrogatories submitted do not support the allegations of the second amended petition and on the basis of such answers the plaintiff was not the procuring cause of the sale and, therefore, cannot recover.

In passing on a. motion for a judgment on the pleadings, only statements in the pleadings can be considered. McCoy v. Jones, 61 Ohio St., 119, 129, 55 N. E., 219; Challen v. Cincinnati, 40 Ohio St., 113; Crew v. Penna. Rd. Co., 21 Ohio App., 143, 153 N. E., 95.

Are the interrogatories and answers thereto a part of the pleadings? Section 11348, General Code, provides: “A party may annex to his pleading, other than a demurrer, interrogatories, pertinent to the issue made in the pleadings,” etc.

In Wild v. Cadwalader, 18 O. D. (N. P.), 565, 5 O. L. R., 477, it was held that the answers to interrogatories should be filed as a separate paper but may also be attached to a pleading. In Ward v. Mutual Trucking Co., 22 Ohio Law Abs., 636, Judge Carpenter, now judge of the Court of Appeals of the Sixth Appellate District, while serving as judge of the Common Pleas Court of Huron county, held:

“The right of a party to annex interrogatories to his pleading to be answered by his adversary as provided for in Section 11348, General Code, is intended only to aid the pleader in supporting his own case and not to help him to destroy his opponent’s cause.”

Later, Judge Carpenter as a member of the Court of Appeals of the Sixth Appellate District, in Schuldt v. Associates Investment Co., 61 Ohio App., 213, 22 N. E. (2d), 572, held:

“The primary purpose of interrogatories appended to a pleading and required to be answered by an opposite party (Sections 11348, 11349 and 11350, General Code), is to enable the interrogating party to properly plead his cause or defense.”

Section 11350, General Code, provides in part:

“On the trial, such answers, so far as they contain competent testimony on the issue or issues made, may be used by either party.”

In the case of Schuldt v. Associates Investment Co., supra, it was held:

“Answers to interrogatories may be received in evidence only in so far as they are competent evidence and could be the subject of testimony by a party (Section 11350, General Code).
‘ ‘ When such answers are conclusions or self-serving declarations, the answering party cannot offer them in evidence.”

Section 11601, General Code, provides in part:

“When, upon the statements in the pleadings or upon the evidence received upon the trial, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court.” (Emphasis added.)

In view of the controlling statutory provisions and the judicial pronouncements on the subject, we are of the opinion that answers to interrogatories do not constitute any part of the pleadings and may not be considered by the court in passing on a motion for judgment on the pleadings. The submission of interrogatories by the defendants was for the purpose of aiding the defendants in supporting their own case rather than to destroy the plaintiff’s case. Answers to interrogatories may be considered in certain instances as evidence but become no part of the pleadings. The plaintiff was entitled to go to trial on the issues of fact made by the pleadings.

The trial court in overruling the plaintiff’s motion for a new trial took into consideration evidence in the form of a deposition of Rose M. Williams, the purchaser of the property. In passing on a motion for a new trial on a motion for judgment on the pleadings, the court is not permitted to consider evidence in any form. To do so would not necessarily constitute reversible error if the prevailing party was otherwise entitled to judgment on the pleadings. In the case at bar, in our opinion, the defendants were not entitled to a judgment on the pleadings. For this reason, the consideration of the answers to interrogatories and the deposition in passing on the motion for a judgment on the pleadings constitutes reversible error.

Finding error in the record prejudicial to the plaintiff, the judgment is reversed and the case is remanded to the trial court for further proceedings according to law.

Judgment reversed.

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

Hornbeck, J., concurs in judgment.


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    In re Trust of Deibel.

      (No. 4258
    — Decided June 1, 1949.)

      Mr. Allen Pretsman, Mr. Francis M. Thompson and Mr. Bay W. Poppleton, for appellees.

      Mr. Henry A. Beinhard and Mr. Clarence M. Addison, for appellant.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Probate Court of Franklin County rendered against the appellant, Joseph F. Deibel, in the sum of $28,823.25, because of maladministration as trustee of the trust created under the last will of Charles A. Deibel, deceased.

Charles A. Deibel died testate on September 24, 1920, leaving six' children and his widow surviving. The appellant, Joseph F. Deibel, a son, and Mary Deibel, the widow, were appointed as executor and executrix, respectively, of the estate of the testator. The estate was closed and subsequent thereto, to wit, on September 30, 1921, Joseph F. D,eibel and Mary Deibel, having been designated in the will as trustees, were appointed trustees of the trust therein created. At the time of the appointment of the trustees the estate consisted of real estate, appraised at $27,760, and personal property, consisting chiefly of securities, of the value of $34,165. The two trustees proceeded to administer the trust estate until the death of Mary Deibel, which occurred March 5, 1946, after which Joseph F. Deibel continued to act as sole trustee. During the administration of the trust, nine separate accounts were filed. The record shows that, while the two trustees were acting, Joseph F. Deibel exercised almost exclusive control and management over the trust estate, and Mary Deibel was a trustee in name only.

To the eighth and ninth accounts exceptions were filed by three of the children of the testator and the heirs at law and next of kin of a deceased child, the appellee herein. A motion was filed to open up all prior accounts, wherein it was alleged, among other things, that the trustee, Joseph F. Deibel, was guilty of fraud and collusion.

The Probate Court appointed a special master commissioner to take the testimony which was transcribed and is now presented to this court as a bill of exceptions. It was stipulated by counsel for Joseph F. Deibel that all nine accounts filed in the administration of the trust should be opened for exceptions. Accordingly, the special master commissioner took testimony relative to exceptions to all nine accounts.

The records were complicated, confused and voluminous. Great difficulty was experienced in securing accurate information relative to many transactions. Definite figures were not easily ascertainable. The exceptions filed involved hundreds of different items in the accounts. After a prolonged and painstaking hearing the special master commissioner rendered a report and indicated his conclusions on the law and the facts involved therein. Upon exceptions being filed thereto, the probate judge modified such findings.

The appellant has assigned 16 separate specifications of error. Because of the involved nature of the numerous items challenged by the exceptions, it will not serve any useful purpose to discuss or even comment on all the questions raised. After reading the bill of exceptions and making a close examination of the entire record, together with the report of the special master commissioner, the several well considered opinions of the probate judge, the judgment entry which sets out in considerable detail the amounts for which the trustees should be charged, surcharged and credited, and briefs of counsel, we are of the opinion that none of the errors assigned are supported by the facts in the record and the law applicable thereto.

Several determinative issues raised bear comment. Briefly, the Probate Court found, among other things, that under the will of Charles A. Deibel a trust was created, of which Joseph F. Deibel and Mary Deibel became trustees pursuant to their appointment by the Probate Court, and of which Joseph F. Deibel, at the time of the hearing, was the sole surviving trustee; that the widow, Mary Deibel, elected to take under the will; that Joseph F. Deibel, during the period of the trust, failed to make a proper accounting according to law, maladministered the trust, used the trust funds and property for his own personal purposes, failed to separately identify principal and income, failed to deposit the trust funds in a bank in the name of the trustee, but on the contrary deposited such funds in his own personal banking account, made unauthorized investments of trust funds, and made unauthorized loans, disbursements and advancements of trust funds to himself and other persons; that the Probate Court had no jurisdiction over the proceeds derived from the sale of the real estate, formerly trust assets, which was sold on partition in the Common Pleas Court of Franklin County; that the trustee is accountable for all rents and profits of such real estate and for the diminution of the fund created by the sale of the real estate by reason of the fact that the trustee borrowed certain funds and to secure the payment thereof placed a mortgage on the real estate a part of which remained unpaid at the time the real estate was sold on partition ; and that by reason of his maladministration and unlawful acts Joseph F. Deibel is not entitled to any compensation for services as trustee. The judgment entry sets forth specific items for which the trustee should be charged, and the amount due from the trustee in favor of'the trust is computed in eight separate schedules involving numerous items of charges, surcharges and credits. We approve of the findings and judgment of the trial court in every particular.

We have examined with considerable care the computation set out in the judgment entry and find no reason to disturb or modify the judgment in any respect.

In view of the several contentions made by appellant, the court deems it advisable to draw several conclusions. The widow, having elected to take under the will, took such interest as was given her, burdened by the conditions expressed in the will. Under the terms of the will the corpus of the trust consisted of the personal property in the possession of the executor and executrix at the close of the administration of the estate, and also the real estate. The widow was not required to make a conveyance of such property to the trustees as she never owned the trust property as an individual. The principle of estoppel was applied by the trial court in support of the validity of the real estate mortgage which was signed by the trustees and the children of the testator, but held that the principle had no application to the use which the trustees made of the fund, and that the exceptors were not estopped to raise a question as to the proper disposition of such fund. With that, we agree.

In our opinion, Section 10506-48, General Code, which provides that any action brought against a fiduciary for breach of duty must be brought within one year after the termination of the trust or the discovery of the fact of the loss, has no application to the facts in this case. Massachusetts Bonding & Ins. Co. v. Winters Natl. Bank & Trust Co. of Dayton, Ohio, 130 F. (2d), 5. This matter was submitted to the court on exceptions properly filed to the eighth and ninth accounts of the trustee and all former accounts were opened by stipulation of counsel. Consequently, the statutes relative to the filing of accounts and hearing of exceptions thereto apply.

The denial of compensation to the trustee who was found guilty of a breach of trust was largely a matter of judicial discretion with the trial court and will not be disturbed on appeal. In re Trusteeship of Stone, 138 Ohio St., 293, 34 N. E. (2d), 755, 134 A. L. R., 1306. See, also, Section 10506-53, General Code. While not applicable here, it is interesting to observe that in a proceeding against a fiduciary for concealing assets, etc., where judgment is rendered against the fiduciary, • the Probate Court can exercise no discretion in allow- ' ing or disallowing compensation to the fiduciary. In such case the fiduciary shall receive no compensation. Section 10506-74, General Code.

As we find no error in the record prejudicial to the rights of the appellant, the judgment is affirmed.

Judgment affirmed,.

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