author: Doyle, J.

text:
    Williams, Appellant, v. Williams, Appellee.
    (No. 22181
    Decided October 1, 1951.)

      Mr. Morris Morgcmstern, for appellant.

      Mr. Charles A. Jilek, for appellee.
   Doyle, J.

An award of alimony in an action for divorce was denied the appellant, Marguarite O. Williams, for the reason stated in the court’s judgment entry that “alimony, temporary or permanent, is an incident- of a valid marriage, and "by reason thereof the plaintiff is not entitled to alimony. ’ ’

The sole question before this court, in this appeal on questions of law from the judgment of the Court of Common Pleas of Cuyahoga County, is whether the unusual factual situation presented in the evidence shows the existence of a valid marriage relationship between the parties at the time of the divorce.

Sufficient facts to support a conclusion will be set out chronologically. They are:

January 16, 1934: Appellant entered into a ceremonial marriage with Melvin Rich in Ripley, New York. Lothario Melvin was at the time legally married to one Arlene Robinson Rich. Three weeks later the fraud was discovered by the deceived bride, whereupon she severed all relationship with him.
April, 1936: The appellant entered into a ceremonial marriage with the appellee, Samuel R. "Williams. The evidence is in conflict whether he was told of her previous marriage to Rich. Her testimony tends to prove that he knew in detail the circumstances and that he suggested that she not spend any money for legal services in an annulment action — her testimony being that he said: “After all, that marriage means nothing anyhow, so what difference does it make?” His testimony denies any knowledge. Suffice it to say, however, that he was fully aware of the fact in the year 1942, as evidenced by his pleading in a court of record.
December 9, 1947: A girl, Barbara, was born to the couple as an issue of the marriage.
May 16,1949: Pursuant to the filing of a petition for divorce by the appellant, Marguarite, against Melvin Rich, the bigamist, a hearing was held in the Court of Common Pleas of Cuyahoga County, and a decree of divorce was subsequently entered in favor of the plaintiff.

The appellee, Samuel Williams, had knowledge of this proceeding and the order of the court. They continued to live together as husband and wife thereafter.

January, 1950: An action for divorce was instituted by Marguarite against Samuel. On August 17 a judgment was entered in her favor, including an award of alimony; but later, a motion by the defendant to vacate that part of the judgment which awarded alimony was sustained, and alimony was denied’ to the plaintiff, the journal entry reciting as follows: “Upon due consideration of all the evidence, the court finds that, at the time of the marriage of the parties hereto, the plaintiff, Marguarite O. Williams, was married to another man, and that she had full knowledge thereof, and therefore the marriage which is the subject of this action was void ab initio * * *. The court further finds that alimony * * * is an incident of a valid marriage, and by reason thereof the plaintiff is not entitled to alimony. ’ ’

Bigamy is and always has been in this state forbidden. The legal impediment against the marriage of one who has a husband or wife living has its roots in a prohibition and policy as old as the state and nation. If one of the parties to a marriage comes within this prohibition of the law, he or she is incapacitated to contract, and the marriage is void from its very inception. Innocence, good faith and other similar excuses have no qualifying effect on the legal status of the parties. Such is likewise the law of the state of New York, in which state the appellant married the bigamist, Rich. 55 Corpus Juris Secundum, Marriage, Section 17, and. cases therein cited.

The evidence in the record before us conclusively establishes a void ceremonial marriage between the appellant and Melvin Rich.

“A void marriage imposes no legal restraint upon the party imposed upon, from contracting another. However proper and prudent * * * it may be that a party to a void marriage should not remarry until the invalidity of the purported marriage becomes a matter of general knowledge or has been pronounced by a court, the law imposes no restraint in this regard. The innocent participant in a bigamous marriage may legally marry another without waiting for the dissolution of the bigamous union either by death or divorce * * *. In other words, a marriage is not void by reason of a previous void marriage although there has been no sentence of nullity of the previous void marriage, and a judicial invalidation of marriage at any time * * V’ 35 American Jurisprudence, Marriage, Section 156. And see: Patterson v. Gaines, 47 U. S. (6 How.), 550, 12 L. Ed., 553; Taylor v. White, 160 N. C., 38, 75 S. E., 941, L. R. A., 1916C, 704.

The following statement in 26 Ohio Jurisprudence, Marriage, Section 55, is apposite to the foregoing citations, and we quote it in establishing the law for the case under consideration:

“As no decree of nullity is necessary to the existence of the original rights of the parties, an innocent participant in a bigamous marriage may legally marry another, without waiting for a dissolution of the bigamous union either by death or divorce * *

By way of additional reasons, however, for the judgment to be entered in this case, it may be succinctly observed that, even if the law were not as stated above, nevertheless, when the decree of divorce from Rich was entered in 1949, the evidence is such as to compel the conclusion that a legal common-law marriage from that time on existed. Where proofs show a ceremonial marriage between two persons, one of whom at the time is incompetent to marry because of a husband or wife living, and they live together as husband and wife, claim to be such and have children, following which occurs the removal of the impediment to their original marriage by way of a divorce, and a continuation from then on of their ostensible status in the community as husband and wife, and they are received in society and treated by their friends and relations as having and being entitled to that status, the law will presume that they are legally married. Such cohabitation and repute are presumably matrimonial, as distinguished from the occasional, hidden and limited cohabitation which marks the meretricious relation. The law presumes under such circumstances a ratification of their original agreement to marry, following the removal of the disability.

See: Hale, Exrx., v. Graham, 85 Ohio App., 447, 86 N. E. (2d), 330; Ryan v. Ryan, 84 Ohio App., 139, 86 N. E. (2d), 44; 26 Ohio Jurisprudence, Marriage, Section 57, and cases cited.

The judgment is reversed, and the cause is remanded for reinstatement of the alimony and property rights that were awarded the appellant in the judgment entry of August 17, 1950.

Judgment reversed.

Skeel, P. J., and Thompson, J., concur.

Doyle, J., of the Ninth Appellate District, sitting by designation in the Eighth Appellate District.


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    Johns, Appellee, v. Corley, Appellant.
    (No. 4542
    Decided April 30, 1951.)

      Mr. Wm. A. Finn and Mr. Thomas J. Manahan, for appellee.

      Mr. Stephen L. Marhowshi, for appellant.
   Carpenter, J.

After a trial in the Municipal Court of Toledo, a judgment for $200 was entered against the defendant. Notice of appeal on questions of law to the Common Pleas Court was timely filed. That court, on motion by the plaintiff, dismissed the appeal because defendant had not filed an appeal bond as provided in Section 1579-310, General Code, and so stated in its journal entry. From that order, this appeal to this court on questions of law was taken by the defendant.

The sole question presented is whether a bond is necessary to perfect an appeal on questions of law from the Municipal Court of Toledo to the Court of Common Pleas. In other words, is the filing of a bond jurisdictional for such'appeal?

The municipal courf acts control the methods of appeal from those courts. Saslaw v. Weiss, 133 Ohio St., 496, 14 N. E. (2d), 930. Such appeals from the Municipal Court of Toledo are provided for in Sections 1579-307 to 1579-312, General Code. At the time of the enactment of the Toledo Municipal Court Act in 1917 (107 Ohio Laws, 704), Section 1579-307, General Code, provided for proceedings in error and that they might be prosecuted “in the same manner and under the same conditions, including proceedings for stay of execution, as provided by law for proceedings in error from the Court of Common Pleas to the Court of Appeals.” Section 1579-308, General Code, provided: “In all civil cases not otherwise specially provided by law, either party may appeal from the final judgment of the Municipal Court to the Court of Common Pleas of Lucas County. * * * ”

A retrial of the cause followed such “appeal.” Section 1579-310, General Code, required “the party appealing” to execute and file a bond. Clearly this related to an “appeal” as that term was then understood.

This being the terms of these sections before the Appellate Procedure Act of 1936, it is clear that Section 1579-307 meant an error proceeding, whereas Sections 1579-308 and 1579-309 referred to what was then known as “appeal” and resulted in a retrial of the appealed cause.

Since 1936, proceedings in error have been appeals on questions of law, and “appeals” have been appeals on questions of law and fact with a trial de novo. Section 12223-1, General Code.

In 1945, Section 1579-307, General Code, was amended (121 Ohio Laws, 177), changing the term, “proceeding in error,” to “appeals on questions of law.” Otherwise that section stating the procedure to be followed in proceedings in error is unchanged. At the same time, in Section 1579-308, General Code, the term, “appeal,” gave way to “appeal on questions of law and fact.” In 1947, Section 1579-310, General Code, was amended (122 Ohio Laws, 467) to make the time for filing an appeal bond 20 days instead of 10 days, thereby making it conform to the time for filing notice of appeal as stated in Section 12223-7, General Code.

The defendant urges, and apparently the Court of Common Pleas followed, the decision of Wertz, a Minor, v. Hunter, a Minor, 144 Ohio St., 18, 56 N. E. (2d), 245, which was decided in 1944 and affirmed a judgment of this court. Applying Section 1579-310, General Code, that decision does require ‘ ‘ a party appealing from a judgment of the Municipal Court of Toledo” to furnish an undertaking as required by that section. Such was the language of paragraph one of the syllabus, and the Chief Justice in the opinion said that that section “is controlling as to appeals from that court to the Court of Common Pleas. ’ ’ However, in the statement of facts it is clear that that was an appeal “on questions of law and fact,” thus distinguishing that decision from the case at bar.

An appeal on questions of law and fact supersedes the judgment of the trial court, hence the importance of the appellant securing by bond the payment of the judgment. See Section 12223-6, General Code. An appeal on questions of law does not stay execution on the judgment unless a supersedeas bond is given to protect the rights of the judgment creditor pending the result of the appeal. Section 12223-9, General Code.

This being an appeal on questions of law to the Court of Common Pleas, a bond was not a jurisdictional requirement. In the absence of a motion to require the defendant to file a supersedeas bond to stay execution, no bond was required, and the court erred in dismissing the appeal. Therefore, its order will be reversed and the cause remanded for further proceedings.

Judgment reversed and cause remanded.

Fess and Conn, JJ., concur.


author: Hornbeck, J.

text:
    Stewart v. Alvis, Warden.
    (No. 4498
    Decided December 19, 1950.)

      Mr. George Bailes, for petitioner.

      Mr. Herbert 8. Duffy, attorney general, and Mr. Alan E. Schwar&walder, for respondent.
   Hornbeck, J.

This action in habeas corpus originated in this court.

It is the claim of the petitioner, a prisoner in the Ohio Penitentiary, that he is illegally and unlawfully restrained of his liberty. He is serving a sentence of from one to twenty years in the penitentiary on a commitment from the Court of Common Pleas of Hamilton County, after conviction of the crime of sodomy.

The record and established facts disclose that the original indictment charged the petitioner with committing the offense of sodomy upon one Elmer C. Glahn. After petitioner had entered a plea of not guilty and counsel had been assigned for him, the indictment was amended by changing the name of Elmer C. Glahn to John Glahn. The defendant then waived a jury, was tried to the court and was found guilty as charged. Before sentence, inasmuch as the conviction was upon a charge of sodomy under Section 13043, General Code, the court, following the provisions of Section 13451-20, General Code, appointed three psychiatrists to examine the petitioner and report to the court. The report concluded with the following:

“We do not believe that this man is psychotic (insane). * * * A formal psychometric test would settle this point but the undersigned are of the opinion that Stewart is a psychopathic offender under the provisions of Section 13451 of the Ohio General Code. We recommend his commitment to a suitable institution for psychopathic offenders.”

The petitioner and his counsel were given a certified copy of the report and notice of the time fixed for the hearing thereon. The court, upon finding petitioner to be a psychopathic offender as defined in Section 13451-19, General Code, imposed the sentence hereinbefore mentioned, suspended the sentence, and committed petitioner to the Department of Public Welfare of the State of Ohio. Petitioner was placed in the Lima State Hospital and later, pursuant to the provisions of Section 13451-22, General Code, was transferred to the Ohio Penitentiary, where he was incarcerated at the time this cause was submitted.

It is the claim of the petitioner that he is illegally restrained for two reasons:

1. Because of the amendment in the indictment changing the Christian name of the person upon whom the offense was alleged to have been committed.
2. Because of the procedure adopted by the trial judge at the time of the trial and subsequent thereto whereby he was committed to the Lima State Hospital and later to the Ohio Penitentiary.

We might appropriately dispose of the grounds upon which petitioner seeks his release by holding that neither affected the jurisdiction of the trial court to hear the cause and determine the guilt or innocence of the petitioner and to pronounce sentence upon that judgment.

Section 13451-20, General Code, specifically provides that every order of indefinite commitment made thereunder and any finding that a person is a psychopathic offender shall constitute a final order. If petitioner’s rights were transgressed by the action taken by the court, under the aforesaid section of the Code he was granted the benefit of an appeal from the order.

It should also be noted that Section 13451-22, General Code, accords to the petitioner the advantage of reckoning his eligibility for parole or discharge from the date of his reception into the institution to which he is committed and accords him further the mandatory right to have consideration for parole when he has been confined for a period equal to or exceeding the maximum sentence for the offense of which he has been convicted. In other words, the petitioner is assured all rights as to parole or discharge to which he would have been entitled had he been immediately committed to the penitentiary under his sentence.

The matters sought to be urged in this action, if they have merit, could and should be urged by appropriate error proceedings.

We briefly give attention to the merits of the grounds urged for the issuance of the writ. The amendment of the indictment by changing the name of Elmer C. Giahn to John Giahn was clearly authorized by the express terms of Section 13437-29, General Code. The amendment did not affect the substance of the crime charged, nor could there have been any confusion of the identity of the person upon whom it was eventually alleged the offense had been committed, else petitioner could not have been convicted. It is asserted by counsel for respondent that the amendment was made with the consent of petitioner and his counsel. This may be true, but the record does not establish it. In any event, with or without the consent of the defendant, the trial judge permitted the amend ment under authority of the controlling statutes. It is urged in the brief of petitioner that because of the difference in the names in the indictment as originally returned and as amended, the grand jury must have acted upon the testimony of John Giahn and not Elmer Giahn and that such procedure is not authorized. This contention would not be well grounded even if the facts were as contended. The grand jury may properly indict upon any sufficient, competent evidence and it need not come from the one upon whom the offense was committed.

The second ground for the granting of the relief sought is that the trial judge tried and found guilty a defendant who he had reason to believe was insane. This is not supported by the record for two reasons. First, nothing appeared at any time to put the trial judge on notice that the petitioner was legally insane or incapable of appreciating the consequences of committing the act with which he was charged. The report of the commission of psychiatrists is to the effect that Stewart was not insane but a psychopathic offender as defined in Section 13451, General Code. The definition referred to, although not found in Section 13451, General Code, but in Section 13451-19, General Code, did not bring the petitioner within the classification of one who was legally insane.

Second, an examination of the proceedings followed by the trial judge from the time the petitioner was arraigned until he was finally sentenced and committed is convincing that the judge meticulously observed the provisions of the controlling sections of the Code and that petitioner had every right accorded him to which he was entitled under the law.

No basis appears for the granting of the relief sought.

Petitioner remanded to custody.

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


author: Conn, J.

text:
    Ray Caldwell, Inc., Appellee, v. General Ins. Co., Appelllant.

      (No. 4552
    Decided October 30, 1951.)

      Messrs. Effler, Eastman, Stichter S Smith and Mr. Jamille G. Jamra, for appellee.

      Messrs. Rowe, Williams & Shawaher, for appellant.
   Conn, J.

The plaintiff has filed its motion in this court to dismiss the appeal and also to strike the bill of exceptions from the files on the ground that the notice of appeal and the bill of exceptions were not filed within the time fixed by the statutes.

It is disclosed by the transcript of the docket and journal entries that upon the trial the jury returned a verdict for plaintiff on January 15, 1951. On the same day the trial judge made an entry on the trial docket as follows:

“Judgment on verdict in favor of plaintiff, Ray Caldwell, Inc., against defendant, General Insurance Company of America, in the sum of $729 and its costs herein expended.”

This docket entry was signed by the trial judge. A journal entry thereof was immediately prepared by the clerk of courts and the judgment was entered on the journal of the trial court.

On January 23rd, following, a journal entry approved by counsel for the parties was submitted to the" trial judge and signed by him. On the same day he made the following entry on the trial docket:

“Judgment on verdict in favor of the plaintiff against defendant for $729 and court costs. Defendant excepts.”

This journal entry, omitting the formal parts, is as follows:

“The jury, having on the 15th day of January, 1951, rendered a general verdict herein for plaintiff against defendant in the amount of $729 and court costs and the court coming now to render judgment, it is therefore ordered that judgment be, and the same hereby is, rendered for plaintiff and against defendant in the amount of $729 and for costs taxed in the amount of $........, for all of which execution is hereby awarded, to which judgment and award of execution, defendant duly excepts.
“John M. McCabe
“Judge.
“Approved:
“Effler, Eastman, Stichter & Smith attorneys for plaintiff
“Rowe, Williams & Shawaker attorneys for defendant.”

On January 30th, a motion for a new trial and to vacate and set aside the verdict was filed, which motion was overruled on February 15th.

On February 26th, notice of appeal and a praecipe were filed by defendant and, on March 20th, defendant’s bill of exceptions was filed.

As already pointed out, the motion to dismiss the appeal and to strike the bill of exceptions from the files is grounded on the claim that the notice of appeal and the bill of exceptions were not filed within the period fixed by statute.

It is the contention of the plaintiff that the record shows the judgment on the verdict in its favor was journalized on January 15tli. If this be true, it is apparent both the notice of appeal and the bill of exceptions were not filed within the time fixed, respectively, by the statutes. Sections 12223-7 and 11564, General Code.

Defendant contends that the entry journalized by the clerk on January 15th was placed on the journal contrary to the provisions of the statutes and for this reason that entry is a nullity.

We call attention to the pertinent parts of three sections of the General Code, to wit, Sections 11599, 11578 and 12223-7, as amended October 11, 1945 (121 Ohio Laws, 366).

Section 11599, General Code (121 Ohio Laws, 366), in part, provided:

“When a trial by jury has been had, a journal entry of judgment in conformity to the verdict shall be approved by the court in writing and filed with the clerk for journalization * *

This section was further .amended by the Legislature, effective September 27, 1947 (122 Ohio Laws, 686), but the addition to the section is unrelated to the matter before us.

Section 11578, General Code, as pertinent, provides:

“The application for a new trial must be made within ten days after the journal entry of a final order, judgment or decree has been approved by the court in writing and filed with the clerk for journalization * # * 3 3

Section 12223-7, General Code, provides, in part:

“After the journal entry of the final order, judgment or decree, has been approved by the court in writing and filed with the clerk for journalization, * * * the period of time within which the appeal shall be perfected, unless otherwise provided by law, is as follows :
“1. In appeals * * * to courts of appeals * * * within twenty (20) days.
“Provided, that, when a motion for new trial is filed by either party within ten days after a journal entry of a final order, judgment or decree-has been approved by the court in writing and filed with the clerk for journalization, then the time of perfecting an appeal shall not begin to run until the entry of the order overruling or sustaining the motion for a new trial.”

The uniform provisions found in these sections— “approved by the court in writing” and “filed with the clerk” — imply that docket entries of the subject matter specifically defined therein shall not be journalized by the clerk until approved in writing by the trial judge and filed, in the absence of special author ity from the trial court.

It is apparent from the fact that amendments to the foregoing statutes were made in the same enactment that the Legislature intended to simplify and clarify the procedure in relation to the preparation, approval and filing of journal entries so far as they relate to the journalization of a “final order, judgment or decree.”

Counsel for plaintiff call attention to Section 11604, General Code, and contend that the journalization of the entry by the clerk in the instant case is governed by that section; that the approval of the entry by the court is provided for by Sections 11599 and 12223-7, General Code; and that the preparation of the entry is controlled by the rules of practice of the trial court. With this contention we are not in complete agreement.

Section 11604, General Code, is a statute dealing generally with the subject of entering judgments ou the journal and contains certain directory provisions as to the clerk. The three sections of the Code, as above pointed out, are specifically related to the procedure in the journalization of final orders, judgments and decrees.

Referring more particularly to the contention of plaintiff that the preparation of the journal entry is governed by the rules of practice of the trial court, it is our opinion that the provisions of the several subsections of rule 10 cited by plaintiff (and conceded by counsel to be in force at all times herein), to wit, subsections (a) to (g) inclusive, appear consistent with the statutes to which attention has been called. Sub section (a) is a general provision for the journalization of docket entries, as authorized by Section 11604, General Code. The subsections following relate to certain details not particularly important here.

However, we call attention to subsection (e), which provides:

“All entries prepared by counsel or the court as distinguished from entries prepared by the clerk shall be signed by the court before filing.”

The method of preparing the journal entry of January 23rd harmonizes with the requirements of subsection (e), it having been prepared by counsel and submitted to the trial judge and signed by him before filing.

In argument it was conceded that counsel for the parties, when they presented this entry to the trial judge, had no knowledge of the prior journalization by the clerk of the docket entry of January 15th, and it may be inferred that the trial judge was not informed of such journalization when he made the docket entry of January 23rd and signed the journal entry prepared and approved by counsel.

It is our opinion that it was the intention of the Legislature in amending Sections 11599, 11578 and 12223-7, General Code, to clarify the procedure in the matter of the journalization of final orders, judgments or decrees of the trial court and provide for a uniform rule of practice, and that this procedure was not followed in the journalization by the clerk of the docket entry of January 15th.

Our conclusion is that the journalization of the entry of January 23rd, in the manner and form shown by tbe record, fixes the time for the computation of the filing of the notice of appeal and the bill of exceptions. From this conclusion, it follows that plaintiff’s motion to dismiss should be and it is overruled.

Motion overruled.

Fess and Savord, JJ., concur.


author: Per Curiam.

text:
    Adams et al., Appellees, v. Morrison et al., Appellants.
    (No. 7351
    Decided February 19, 1951.)

      Mr. Simon Leis and Mr. E. G. Schuessler, for appellees.

      Mr. Henry M. Bruestle, city solicitor, and Mr. Ed. F. Alexander, for appellants.
   Per Curiam.

The relief sought in this action is an injunction restraining the members of the Civil Service Commission of the City of Cincinnati from allowing any one other than the plaintiffs to compete in a promotional examination for the grade or rank of police chief of the police force of the city of Cincinnati. From a judgment granting the relief sought, the defendants appeal on questions of law and fact.

At the trial de novo in this court, the cause was submitted upon a transcript of the testimony introduced in the Common Pleas Court, a stipulation of counsel, and copies of certain ordinances. The defendants offered in evidence also a copy of an ordinance and a copy of an amendment of the charter of the city of Cincinnati, adopted during the pendency of this action, to which the plaintiffs objected. The court reserved its ruling upon this objection until such time as it could be considered in the light thrown upon it by the briefs of counsel.

The plaintiff William C. Adams is assistant police chief ranking immediately below the police chief and is the only member of the police force of that rank. The exact status or rank of the plaintiff Clem Merz is the disputed point in this case. The plaintiffs contend that Merz’ rank is that of superintendent of crime bureau; that this places him in rank immediately below the assistant police chief; that Merz is the only member of that rank in the police department; and that plaintiffs, and they alone, are the only members eligible to take the promotional examination to fill the position of police chief.

On the other hand, the defendants contend that the rank or grade of the plaintiff Merz is that of major, next in rank to that of assistant police chief, and, as such, he is eligible to take the promotional examination for the position of police chief, but that as there are several other members of the police force of equal rank, they are all eligible to take the examination. In effect, the injunction granted excludes these other majors from entering the contest for promotion to police chief.

As disclosed by the testimony and ordinance in this case, as we consider the period material here, members of the police department of the grade or rank of captain were eligible to take an examination for promotion to tbe rank of police chief. All captains were of the same rank or grade and all were equally eligible. Sometime in the late nineteen-twenties or early nineteen-thirties a rank or grade styled “major” was created, but whether the authority was at any time different from or higher than that of captain is not clear and is unimportant, as many years ago the position or grade was consolidated with that of captain, the only vestige remaining being the honorary title of major applied to those captains who had been majors.

In the course of time these captains or majors were assigned specific duties by their superior officers and these assignments acquired a certain permanency. In time, they came to be -designated by names indicating the nature of the duties, such as superintendent of crime bureau, superintendent of highway safety, etc., and for one reason or another the thought developed that a captain or major assigned to perform certain services should receive additional compensation. Finally, in recognition of an existing condition in the department, the city council, by ordinance, established six positions with salaries somewhat greater than the base salary of a captain. However, the city council was careful to expressly provide that the occupants of these positions should have the grade or rank of captain or major. In one instance only was this omitted, and that was in the codification. As soon as the omission was discovered the city council, by ordinance, restored the designation.

So we are of opinion that so far as the city of Cincinnati had the power, it exercised that power to place all captains or majors in the same grade or rank, and, if the grade or rank established by the city of Cincinnati at the time this vacancy occurred is given effect, they are all equally eligible to contest at the promotional examination for police chief, and that this condition continued to the time this action was instituted.

It has not been suggested that the captains or majors occupying these other positions within that rank or grade are any less qualified by their experience to discharge the duties of police chief than is the superintendent of the crime bureau. It is not claimed that placing all captains or majors on an equality of eligibility for promotion to the position of police chief would be arbitrary and a disregard of essential differences. Nor is it contended that the civil service commission acted arbitrarily in ruling that all captains or majors were eligible to take the examination for promotion to police chief.'

After the Common Pleas Court had entered its judgment in this case, the council of the city of Cincinnati passed an ordinance to ‘ ‘ clarify the procedure governing rank and promotions in the police force, ’ ’ in which it was expressly ordained that “within the ranks below that of assistant chief, the council shall establish such special positions having special duties, with preferential pay as the council deems necessary; but the existence of such special positions -shall not establish eligibility for promotion to the next higher rank. No special position established by council within the ranks below that of assistant chief shall be filled without promotional examination.”

At the same meeting of the council, it passed an ordinance to submit to the electors at the election to be held on November 7, 1950, an amendment to the city charter identical in terms with that of the ordinance. This amendment was approved by a majority of the voters at that election.

We do not stop to consider what effect, if any, this later ordinance could be given as an independent legislative act in its application to a vacancy occurring prior to its enactment. In any event, we think it is competent to remove any doubt or uncertainty in the then existing ordinances. (50 American Jurisprudence, 318, Section 326.) We do say, however, that no public employee — civil service 'or otherwise — has any vested right in the position he occupies, and by the same token no civil service employee has a vested right in a promotion status. Civil service employees are protected in their position and status against arbitrary interference, and that is all. No one has a vested right in a law.

The controversy, long continued as to the division of power between the state government and municipal governments, effected by Article XVIII of the Constitution, need not be reviewed here, although defendants’ counsel call attention to a recent decision of the Supreme Court, in which no opinion was handed down, which they assert is inconsistent with prior pronouncements of that court. The appeal as of right was dismissed because no debatable constitutional question was presented. The record shows that there were other than constitutional questions involved in that case, and, as constitutional questions are not decided unless necessary, we think we may presume that this appeal was dismissed because the Supreme Court found that the judgment could be supported without deciding the constitutional issue.

The Supreme Court in City of Cincinnati v. Gamble et al., Bd. of Trustees, 138 Ohio St., 220, 34 N. E. (2d), 226, held that “matters relating to police and fire protection are of state-wide concern and under the control of state sovereignty” and, therefore, that a municipal pension system could not be made to apply to the police and fire departments contrary to general laws of the state. The court held that the home-rule provision of Article XVIII of the Constitution did not confer superior authority in such matters upon municipalities that had adopted home-rule charters. This was emphasized in State, ex rel. Arey, v. Sherrill, City Mgr., 142 Ohio St., 574, 53 N. E. (2d), 501. Both of those cases involved the power of the city of Cincinnati over its police and fire departments, just as the case at bar does. A change of attitude as shown by those cases should be evidenced by more than an implication from the lurking presence of the question in a later record. Defendants’ counsel do not ask us to conclude otherwise.

But both of those cases (Cincinnati v. Gamble and State, ex rel., v. Sherrill, supra) involved conflicting actions by the state and municipality. They assumed that in the absence of conflicting state legislation the municipality could legislate on the subject. It is expressly so stated as follows in State, ex rel. Arey, v. Sherrill, City Mgr., supra, at 582 and 583:

“It is claimed by virtue of these provisions of the charter and the administrative code the respondent is granted power and authority to hear and determine the charges against relator.
“This claim must be sustained unless applying those provisions of the city charter and the administrative code to cases involving members of the police department creates conflict with general laws.”

Plaintiffs’ counsel do not contend that the state has enacted any law for the establishment of police departments by municipal corporations with provisions fixing duties, authority, salaries, order of precedence, etc. The only general law on that subject to which our attention has been called is Section 4374, General Code, which provides that the police department of each city shall be composed of a chief of police “and such other officers, patrolmen and employees as counsel shall, from time to time, provide by ordinance. ’ ’ This statute not only does not limit municipal action, it expressly authorizes such action. Its only requirement'is that there must be a chief of police.

But plaintiffs’ counsel so construe Section 486-15a, General Code, that it would operate as a limitation upon the power of the municipality to fix the order of precedence for promotion, and put it in conflict with the attempt of the defendants to treat all captains or majors as eligible to take the promotional examination for the position of police chief. Let us consider that section. We quote it in full:

“No position above the grade or rank of patrolman or regular fireman in the police or fire department shall be filled by original appointment. Vacancies in position above the rank or grade of patrolman or regular fireman in a police or fire, department shall be filled by promotion from among persons holding positions in a grade or rank lower than the position to be filled. Appointments to such vacancies shall be limited to members of the respective departments. No positions above the grade or rank of patrolman or regular fireman in a police or fire department shall be filled by any person unless he shall have first passed a competitive promotional examination. Promotion shall be by successive grades or ranks so far as practicable and no person in a police or fire department shall be promoted to a position in a higher grade or rank who has not served at least twelve months in the next lower grade or rank. No competitive promotional examination shall be held unless there are at least two persons eligible to compete. Whenever a municipal civil service commission determines that there are less than two persons holding positions in the grade or rank next lower than the position to be filled and who are eligible and willing to compete, such commission shall allow the persons holding positions in the then next lower grade or rank, and who are eligible, to compete with the person or persons holding positions in the grade or rank lower than the position to be filled. For the purpose of this section, an increase in the salary or other compensation of any one holding a position in a police or fire department, beyond that fixed for the grade or rank in which such position is classified, shall be deemed a promotion. Whenever a vacancy occurs in a position above the grade or rank of patrolman or fireman in a police or fire department, and there be no eligible list for such grade or rank, the municipal civil service commission shall, within sixty days of such vacancy, hold a competitive promotional examination. After such examination has been held and an eligible list established the civil service commission shall forthwith certify to the appointing officer the name of the person receiving the highest rating. Upon such certification the appointing officer shall appoint the person so certified, within thirty days from the date of such certification. If there is a list, the civil service commission shall, where there is a vacancy, immediately certify the name of the person having the highest rating and the appointing authority shall appoint such person within thirty days from the date of such certification.”

This section is a part of Chapter A, Division II of Title III, Part First of the G-eneral Code, by which the civil service of the state and its political subdivisions are governed. By its terms, it provides for municipal civil service commissions to execute its provisions. The defendants are the members of the Civil Service Commission of the city of Cincinnati. In the discharge of their duty, they have ruled that all captains and majors are of the same grade or rank for the purpose of eligibility to take the promotional examination to fill the vacancy in the position of chief of police, and that ruling was based on the classification established by the municipal council. Of course, if that classification and ruling are purely arbitrary, they cannot stand. If it had been shown that officials having entirely dissimilar duties to perform had been thrown into one class or grade arbitrarily, a different question would be presented. If it had been shown that the experience as superintendent of the crime bureau was entirely different from that of other captains or majors, and that such experience was clearly such as to give him greater qualifications for the position of police chief, it might be said that placing him in the same class with captains or majors generally would be arbitrary action by the city council and civil service commission, and that under such circumstances a court would be justified in enjoining such arbitrary action. No such showing has been made or attempted in this case.

Plaintiffs’ counsel rely solely on the terms of Section 486-15a, General Code, for their position that the superintendent of the crime bureau cannot be placed in the same grade or rank as captains or majors generally, and that it makes void the attempt of the city council and the civil service commission to so do.

We have been unable to find anything in Section 486-15a, General Code, defining the meaning of the phrase, “grade or rank.” It assumes that there are grades or ranks, but it prescribes no standard by which to determine which is higher and which is lower. Counsel point to that portion of Section 486-15a, General Code, providing that “for the purpose of this section, an increase in the salary or other compensation of anyone holding a position in a police or fire department, beyond that fixed for the grade or rank in which such position is classified, shall be deemed a promotion.”

The case at bar does not involve a situation resulting from an increase of salary. We fail to see the relevancy of that portion of the section to the issue in this case. The range of the salary of captains or majors was between the minimum of $3,240 to $4,200. To say that the latter is the salary of the superintendent of the crime bureau, and not that of a captain or major, is to disregard his classification as a captain or major. From the context of this section, it seems clear to us that the Legislature was considering and determining what positions should be filled by promotional examinations only. It was not, at that point, legislating as to eligibility to take the promotional examination. At no place in this section, or any other section, so far as we have discovered, has the Legisture prescribed any order of promotion. The most that it has done has been to say that there should be an order of promotion according to grades or ranks. It has not defined the terms or fixed a standard which a court can apply. It has left that to the sound discretion of the administrative department of the government — state or municipal.

We have been cited to no case, and have found none, setting forth indicia by which to determine gradations of rank. That results, we presume, from the fact that the agency having the authority to create the positions has the authority to prescribe the order of their importance. The intent of the creator of the positions as to their grades might be left to inference or, as we think appears in this case, could be expressly stated.

In State, ex rel. Taiclet, v. Cull et al., Civil Service Comm., 140 Ohio St., 207, 42 N. E. (2d), 983, the relator sought a writ requiring the respondents to “certify, appoint and classify him as a permanent incumbent in the rank of engineer.” He had been a regular fireman and was promoted to a permanent position in the rank of marine engineer. He held this rank for several years, when he was notified that the city was discontinuing the use of fire boats and that as of that date he was appointed temporarily to the lower rank of engineer. The action was to require his recognition as a permanent engineer. So it is obvious that the case involved a question of demotion, not promotion, and the rank or grade after demotion. The court held he was entitled to the relief sought. At page 209 the court said:

“The respondents contend that there is no difference in ‘rank’ between an engineer and a marine engineer. If left to inference, a difference in salary might not connote a difference in rank. However, the intention of the General Assembly in this respect is manifested by cognate Section 486-15a, General Code, which provides that for ‘the purpose of this section, an increase in the salary or other compensation of anyone holding a position in a police or fire department, beyond that fixed for the grade or rank in which such position is classified, shall be deemed a promotion.’ ”

We cite that case for three reasons: (1) That a difference in salary does not necessarily connote a difference in rank, in the absence of a statute to the contrary; (2) that the case did not involve any issue of eligibility to enter a promotional examination; and (3) that it does appear from the record that engineers and marine engineers had been placed by ordinance in distinct grades or ranks.

We conclude that the plaintiffs have failed to establish their right to an injunction, and that their petition should he dismissed.

Petition dismissed.

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


author: Wiseman, J.

text:
    The State of Ohio, Appellee, v. Dean, Appellant.
    (No. 4535
    Decided February 13, 1951.)

      Mr. Ralph J. Bartlett, prosecuting attorney, Mr. George T. Tarbutton and Mr. Edmund B. Paxton, for appellee.

      Mr. James F. Henderson and Mr. John H. Baker, for appellant.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County in a criminal case wherein the defendant was found guilty of murder in the first degree with recommendation of mercy.

For his first assignment of error defendant claims there was no evidence produced to show that the crime was committed in Franklin county. An employee of the county engineer’s office, who had prepared a plat of certain locations in Franklin county, was called as a witness, and this plat was introduced as state’s exhibit C. The plat shows roadways and streets extending from downtown Columbus to the place where the body was found on a bridge shortly after the crime was committed. During the examination of the employee who prepared the plat, this question was propounded :

“Q. At the request of the prosecuting attorney did you prepare a plat of certain locations in Franklin county? A. I did. ”

A deputy sheriff who was called as a witness testified as follows:

“Q. You were the first there? A. No, we had a cruiser there.
“Q. Who was in that cruiser? A. Frank Martin and John A. McFerin.
“Q. They got there before you did? A. Yes, they patrol that end of town and county. ’ ’

In the case of State v. Dickerson, 77 Ohio St., 34, 82 N. E., 969, 13 L. R. A. (N.S.), 341, 122 Am. St. Rep., 479, 11 Ann. Cas., 1181, it was held:

“In the prosecution of a criminal case, it is not essential that the venue of the crime be proven in express terms, provided it be established by all the facts and circumstances in the case, beyond a reasonable doubt, that the crime was committed in the county and state as alleged in the indictment. ’ ’

In Fry v. State, 43 Ohio App., 154, 158, 182 N. E., 695, it was held that “venue of criminal prosecution may be laid in general terms. ’ ’

In State v. Schroyer, 66 Ohio App., 30, 31 N. E. (2d), 469, and in State v. Stewart, 79 Ohio App., 340, 64 N. E. (2d), 252, this court held that venue need not be established by direct evidence, but it is sufficient if all the facts and circumstances in the case show beyond a reasonable doubt that the crime occurred in the city, county and state alleged. In 22 Corpus Juris Secundum, 291, Section 185, it is stated:

“Aside from any statutory provision, the finding of the body in a county would warrant a finding that the murder was committed in that county. ’ ’

In our opinion, there were sufficient facts presented to the jury from which it could conclude beyond a reasonable doubt that the crime was committed in Franklin county, Ohio.

In his second assignment of error the defendant claims that the court committed error in permitting Clyde Blanton, a brother of the wife of the man who was killed, to testify after he had been in the courtroom during the testimony of the preceding witness. At the beginning of the trial the court ordered a separation of witnesses. During the progress of the trial Clyde Blanton was called from Kentucky to testify. Upon arriving, he entered the courtroom and was sitting in the courtroom while a certain portion of the testimony was being given. It appears from the record that the witness was not informed that the court had ordered a separation of witnesses. The prosecuting attorney made a statement to the effect that he did not know the witness was in the courtroom. Under these facts it became; a matter of judicial discretion on the part of the trial judge to permit the witness to testify. There is no charge made in this case that the witness remained in the courtroom through connivance of the prosecuting attorney or in deliberate violation of the court order. Even under such circumstances the court is vested with discretion to refuse or permit the examination of the witness. Dickson v. State, 39 Ohio St., 73. See, also, Laughlin v. State, 18 Ohio, 99, 51 Am. Dec., 444.

Under the present state of the record, this court is of the opinion that the trial judge properly exercised his discretion in permitting the witness to testify and that no prejudicial error resulted in so doing.

Defendant claims that the court committed prejudicial error in instructing the jury after it had been deliberating for several hours. The charge of the court was identical with the charge given by the court in the case of Andrews v. State, 15 C. C. (N. S.), 241, 23 C. D., 564, in which it was held:

“It is not an abuse of discretion for a trial judge to keep a jury out for forty hours in an important case and then send them back to their room with an admonition as to the importance to all concerned that they should agree upon a verdict. ’ ’

We find that the charge was in all respects proper and that prejudicial error was not committed.

We do not find any prejudicial error in the court reading a portion of its general charge to the jury when the jury was returned for further instructions. Section 11420-6, General Code, expressly provides for giving additional instructions' when requested by the jurv. See Richards v. State, 43 Ohio App., 212, 183 N. E., 36,

The defendant claims that the court committed prejudicial error in not granting a motion for new trial on the basis of newly discovered evidence which could not have been obtained with reasonable diligence prior to the trial. In our opinion, the evidence which defendant incorporated in affidavit form in support of the motion for new trial and which is made a part of the bill of exceptions does not constitute newly discovered evidence. It does not appear that this evidence is of such a character as probably would produce a different verdict on retrial. See 30 Ohio Jurisprudence, 75, 81.

There being no error in the record prejudicial to the rights of the defendant, the judgment is affirmed.

Judgment affirmed.

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


author: Hurd, J.

text:
    In re Estate of Paull.
    (No. 21711
    Decided November 20, 1950.)

      Mr. Fred H. Mandel and Mr. Judson Herns, for appellee.

      Messrs. Davis, Davis (& Handelman, for appellant, Lucretia Russu, executrix.
   Hurd, J.

This is an appeal on questions of law from an order of the Probate Court removing the appellant, Lucretia Russu, as executrix of the estate of Henry Pauli, deceased. The principal ground of error assigned is the refusal of the court to hear evidence on the issues joined upon the application for removal and opening statements of counsel.

The record shows that the appellant is the sole devisee and the executrix named in the will of the decedent; .that the state of Ohio through the Division of Aid for the Aged is the sole remaining creditor by reason of a judgment obtained against the executrix in the sum of $1,904.40 for aid and assistance furnished during the lifetime of the decedent; that the only asset of the estate is a parcel of real property consisting of a single frame dwelling house located at 3068 Erin avenue in the city of Cleveland, valued at $3,000, according to the inventory and appraisal filed in the estate.

The application for removal of the executrix was filed by special counsel for the Attorney General of Ohio under the provisions of Section 10506-53, General Code, ten days notice thereof having been given as required by law. It sets forth as the principal ground for removal “that she has been guilty of gross neglect of duty and inexcusable delay in closing the estate * * * that the partial account of the executrix did not contain a statement of funds collected by her as rental of the real estate and that the executrix has taken no steps to sell the real estate to pay the debts due.

The bill of exceptions shows that upon the hearing of the application for removal, the executrix appeared with counsel to defend against the charges made against her. Opening statements were made by counsel for the Attorney General and by counsel for the executrix.

The opening statement of special counsel for the Attorney General charged that no steps had been taken by the executrix to sell the real estate to pay the judgment obtained by the Division of Aid for the Aged of the state and that the account of the executrix did not contain funds collected by her as rental of the real estate devised to her by will.

The opening statement of counsel for the executrix denied that there were any funds unaccounted for belonging to the estate, so that a sharp issue was made on this charge. Counsel admitted that proceedings to sell the real estate to pay the claim of the state had not been commenced but gave as the reason justifying the executrix in not proceeding with the sale “that at the time the motion was filed and for some time past he had been in negotiation with the Division of Aid for the Aged for a compromise settlement of the claim, in view of the fact that the value of the property is such that in a forced sale the creditor would not get the amount claimed by it and that a compromise settlement would be for the best interest of all concerned; that the first proposal made by him was rejected but he had made a further proposal to W. E. Lawler (representing the Division of Aid for the Aged of the State of Ohio) who agreed * * * that the Division of Aid for the Aged would not insist on a sale until the settlement proposal was exhausted and that he would notify * * * counsel for the executrix as soon as he had heard from his superior in Columbus; that it was understood with Mr. Lawler the land sale proceedings would be withheld until he notified counsel in order to save the hundreds of dollars of expense which would be incurred in a land sale proceeding. ’ ’ Counsel added that Mr. Lawler was present in court and that he would like to put him on the stand along with other witnesses and confirm his claim that the delay in commencing land sale proceedings was for all practical purposes intended to serve the best interest of the estate. The bill of exceptions shows that the trial judge then stated that he would hear no witnesses on either side in view of the statements of counsel and thereupon ordered the removal of the executrix.

No grounds for removal are stated in the court’s journal entry ordering the removal, other than “the court being fully advised in the premises finds that the statements contained in said application are true. ’ ’

The sole question presented on this appeal is whether the court erred prejudicially to the rights of the appellant in refusing to hear evidence upon charges contained in the application for her removal as executrix.

At the outset it should be noted that the allegations contained in the application for removal are not evidence, neither are the opening statements of counsel to be considered as evidence. Consequently, we must conclude that there was no evidence before the court in support of the application for removal upon which to base a judgment.

The applicable part of Section 10506-53, General Code (as amended effective August 22, 1941), providing for resignation or removal of fiduciary reads as follows:

“The Probate Court at any time may accept the resignation of any fiduciary, upon his proper accounting, if such fiduciary was appointed by, or is under the control of, or accountable to, such court.
“If a fiduciary fails to make and file an inventory in the manner and within the time required by law, or to render upon oath a just and true account of his administration at the time or times required by law, and if such failure continues for thirty days after he has been notified by the Probate Court of the expiration of such time, the fiduciary may forthwith be removed by the court and shall receive no allowance for his services unless the court enters upon its journal that such delay was necessary and reasonable.
‘ ‘ The Probate Court may remove any such fiduciary, he having not less than ten days’ notice thereof, for habitual drunkenness, neglect of duty, incompetency, fraudulent conduct, because the interest of the trust demands it, or for any other cause authorized by law. ’ ’ 18 Ohio Jurisprudence, 127, 128, Executors & Administrators, Section 85, contains in part the following statement:
“When an executor is once appointed, a removal cannot be had except for the reasons and upon the grounds set out in the statute, and these alone, and in the manner prescribed. Certain causes for the removal of executors or administrators are specified in the general statute as to fiduciaries: Habitual drunkenness, neglect of duty, incompetency, fraudulent conduct, because the interest of the estate demands it, or any other cause authorized by law. ’ ’ ’

In support of the text, the case of Fox, Exr., v. Keister, 6 N. P., 327, 9 O. D. (N. P.), 316, affirmed without opinion by the Circuit Court, is cited. In that case at page 327 the court states:

“Upon the filing of such application for removal, the court must give due notice that such application has been made and that such executor or administrator is required to appear and show cause why his authority should not be revoked. 21 Ency. of Law, 360, Note 1. And the court cannot remove such executor or administrator unless such petitioner for the removal has fully established his case by proper evidence. ’ ’

In another opinion in the same case, involving the same parties reported at 6 N. P., 216, 8 O. D. (N. P.), 636, at. pages 217, 218, the court says:

“It seems to me equally clear that when once appointed, a removal cannot be had except for the reasons and upon the grounds set out in the statute and these alone, and in the manner prescribed. This doctrine will be undisputed, I think. It is so laid down in 1st Woerner, Sections 268, 271 and 272; and cases cited; and in the Encyclopedia of Law, under the title of Revocation, 21 Enc. of Law, 360, after the preliminary remarks, the authority says: ‘The court cannot remove an executor or administrator without giving him due notice that an application for that purpose has been made to the court. He must, in most all states, be cited to appear to show cause why his authority shall not be revoked. And upon a hearing, the petitioner must establish his case by proper evidence. ’ 21 Enc. of Law, 362.”

In the case of In re Estate of Breckenridge, 7 C. C. (N. S.), 86, 17 C. D., 688, in an opinion by Henry, J., concurred in by Winch and Marvin, JJ., the court at page 88 says:

“It is urged, however, that the statute under consideration is remedial in its nature and should be liberally construed so that upon the mere suggestion of fraud, or, at least upon the proof of facts showing that there may arise a bona fide controversy or litigation of the sort contemplated by the statute, the executor may be removed and deprived of his vantage ground, and the issue litigated before a court and jury as an adversary action, in the same manner as other civil actions, and subject to the same rules of evidence.
“We can not agree that the statute contemplates such an ex parte or summary proceeding for an executor’s removal.
“It must at least be made to appear that the claim made is on its face meritorious, and the executor should be permitted to show, if he can, that it is without merit. Any other construction would be harsh and oppressive.
“We think the court below erred in excluding the evidence offered by the executor, and in concluding as a matter of law, upon the facts found, that there are unsettled claims and demands existing between said W. B. Durand and said estate, which may be the subject of controversy or litigation between said Dur- and and said estate or persons interested therein.
“For these errors the judgment of the Court of Common Pleas is reversed and the cause remanded for further proceedings.”

It should be observed that since the rendition of the decisions in cases above cited and quoted, the statute has been amended to provide for the removal of a fiduciary if he fails to make and file an inventory in the manner and within the time provided by law as set forth in the second paragraph of Section 10506-53, supra. This ground is not set forth in the application for removal and was not assigned as a ground in the order of removal. In respect of the inventory and appraisal, the record shows that there was a delay in filing the inventory and appraisal. The record shows also that the court appointed three appraisers on March 24, 1947, including one J. H. Zinner and the court thereafter found on August 8, 1949, that said J. H. Zinner was unable to serve as such, and appointed another appraiser to take his place. After the appointment of the substitute appraiser the inventory and appraisal was filed August 22, 1949, and approved by the court.

In oral argument, counsel for appellee cited the case of In re Trust of Marshall, 78 Ohio App., 1, 65 N. E. (2d), 523, which holds, inter alia, that a broad discretion is given the Probate Court in the removal of a fiduciary, under the provisions of Section 10506-53, General Code, and emphasizes that a fiduciary may be removed “because the interest of the trust demands it.” Undoubtedly this is a correct statement of the law but an examination of the opinion in that case clearly shows that the Probate Court heard evidence on the motion for removal and on the basis of that evidence entered an order removing the trustee. Whereas, in the instant case, the Probate Court refused to hear evidence. The opinion in that case hy Wiseman, J., concludes:

‘ ‘ For this court to reverse the judgment of the trial court it would be incumbent upon this court to find that the trial court, after hearing all of the evidence, abused its discretion in ordering the removal of the appellant.” (Emphasis supplied.)

We have heretofore alluded to the proposition that the executrix herein is the sole legatee and devisee under the will of decedent, and that the state of Ohio, through the Division of Aid for the Aged is the sole creditor. Other than its interest as a judgment creditor the state of Ohio has no interest in this estate. Once its claim or judgment is satisfied, settled or discharged, the assets of the estate are the sole property individually of the appellant. Under this factual situation we think the appellant was entitled to present evidence in support of her claim that her delay in commencing land sale proceedings of the single piece of real property appraised at only $3,000 for a debt approximating $2,000 was due to the agreement to that effect of the Division of Aid for the Aged, for the purpose of avoiding a forced sale of the real estate. Section 10506-53, General Code, provides for ten days notice for removal of a fiduciary on any of the specific grounds set forth in paragraph 3 of the statute and by clear implication contemplates a hearing, and a hearing contemplates that evidence shall be presented.

The situation here presented is most unusual in that one department of the state government, the office of Attorney General, and another department of the state represented by the Division of Aid for the Aged is in apparent conflict in respect of the procedure to be followed in the disposition or settlement of the only claim against this particular estate, if the proffer of proof on behalf of the executrix should be sustained.

. Under these unusual circumstances as shown by the record it appears to us that a summary removal of the executrix without a hearing is not consonant with the applicable statutory provisions or in accord with the weight of authority in Ohio.

For the reasons stated, we are of the opinion upon reason and authority that it was error prejudicial to the rights of the.executrix, appellant herein, to cause her removal without according a hearing and the opportunity to present evidence on the issues joined.

The judgment will therefore be reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

Skeel, P. J., and McNamee, J., concur.


text:
    The State of Ohio, Appellee, v. Forty-Five Hundred East Broad, Inc., Appellant.
    (No. 4454
    Decided June 4, 1951.)

      Mr. C. William O’Neill, attorney general, and Mr. Thomas R. Lloyd, for appellee.

      Messrs. Herbert <& Dombey and Mr. Edwin M. Tuttle, for appellant.
   Per Curiam.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County affirming an order of the Board of Liquor Control, state of Ohio, in revoking a D-5 permit issued in the name of the appellant, Forty-five Hundred East Broad, Inc.

The permit of the appellant was revoked on the ground that appellant had made a false material statement in the application for the renewal of the permit. The false material statement, in answer to question No. 31 of the application, is shown by the facts presented to the board by way of stipulation and testimony.

The factual development shows that Louis DeVietor, the president of the • appellant corporation and the owner of all but two shares of stock in the corporation, had, prior to June 1949, operated a restaurant at the same location. The corporation in this case owned a business known as “The Showboat” located on East Broad street, Columbus, Ohio, which was destroyed by fire, after which the D-5 permit, which was held by the corporation, was placed in escrow. Thereafter, on May 16, 1949, the shareholders in the corporation sold their stock to DeVietor. An application was made to the Department of Liquor Control to transfer the stock to the new shareholders. The department approved the transfer of stock to DeVietor on June 10, 1949. In the meantime, to wit, on May 6, 1949, DeVictor was arrested for violation of Section 13195, General Code, for the illegal sale of whisky at the restaurant which he was then operating. He pleaded guilty to the charge in the Municipal Court of Columbus on June 3, 1949, and was fined $100 and costs. On June 1, 1949, DeVictor, as president of the corporation, signed an application for a renewal of the D-5 permit under which the corporation formerly operated and which was about to expire. This application was not filed with the Department of Liquor Control until June 13, 1949. On the basis of the application and the representations made therein the permit was issued. Subsequently, upon discovery of the conviction, the appellant was cited before the board to show cause why the permit should not be revoked. Upon hearing, the board revoked the permit, which order was affirmed by the Common Pleas Court.

The pertinent part of the order revoking the permit, effective September 21, 1949, is as follows:

“The board finds from the evidence that on the 13th day of June, 1949, the Forty-five Hundred East Broad, Inc., filed with the Department of Liquor Control an application for a D-5 permit, which application contained a false material statement, as follows: Question No. 31, ‘Have you as an individual or any member of the partnership or corporation or officer thereof, or any person employed by you ever been convicted of violating any of the penal provisions of the Liquor Control Act or any statute relating to beer or intoxicating liquor?’ The answer contained in said application being ‘No’; in violation of provisions of the Ohio Liquor Control Act.
“It is therefore ordered and adjudged that permit (D-5) 31779 be, and the same is revoked, effective September 21, 1949.”

The provision of the Ohio Liquor Control Act, the violation of which the board relied on to sustain the revocation, is found in Section 6064-25, G-eneral Code, which in part provides:

“The Board of Liquor Control may suspend or revoke any permit issued pursuant to the Liquor Control Act for the violation of any of the applicable restrictions of this act or of any lawful rule or regulation of the board or other sufficient cause, and for the following causes:
ii* * *
“2. For making any false material statement in an application for a permit.”

The sequence of events presents the question for determination. On June 1, 1949, the application for the renewal of the permit was signed and the statement was made that there had been no conviction. On June 3, 1949, DeVictor was convicted of violation of a statute relating to intoxicating liquors. On June 13, 1949, the application for renewal of the permit was filed with the department.

On the date the application was signed there had been no convictions, but on the date the application was filed there had been a conviction. Does the application speak as of the date of its execution, or the date of filing? Manifestly, DeVictor knew of the pending charge at the time he signed the application and knew on the date of the filing of the application on June 13th that a circumstance had occurred which was material in determining whether the permit should be granted. The application could not have been filed before conviction, as the approval pf the transfer of stock was not given until after the conviction. The evidence shows that DeVictor was aware of the fact that the application had not been filed prior to conviction, although it had been signed. The execution of the application had no legal effect; only the filing of the application gave it legal effect. The answers to questions stated in the application were in the nature of representations to the department to be considered in determiniug whether the permit should be renewed. These representations could have legal effect only after the application was filed. To hold that the statements made in the application speak as of the date of signing the application would open the door to subterfuge.

The statement in the application in answer to question No. 31 was a “false material statement” within the meaning of the provisions of Section 6064-25, General Code. We find no abuse of discretion on the part of the board in revoking the permit.

We find no error assigned well made. There being-no error in the record prejudicial to the rights of the appellant, the judgment is affirmed.

Judgment affirmed.

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


author:
Wiseman, J.
      Per Curiam.

text:
    Jolley, Appellee, v. Martin Bros. Box Co., Appellant.

      (No. 692

    Decided July 28, 1951.)

      Messrs. Spidel, Staley & Hole, for appellee.

      Messrs. Boggs, Boggs & Boggs and Messrs. Marchal & Marchal, for appellant.
   Wiseman, J.

This case is submitted on motion of plaintiff-appellee to dismiss the appeal. A recitation of certain facts of record is essential in order to clearly present the issue raised.

The petition was filed in the Common Pleas Court of Darke County on November 28, 1947, in an action for damages for personal injuries. The matter was tried before a jury which rendered a verdict for the plaintiff on November 4, 1949. On November 7, 1949, before judgment was entered, defendant filed a motion for judgment notwithstanding the verdict. On May 1, 1950, an entry was journalized overruling the motion and entering judgment on the verdict. On the same day the defendant filed a motion to set aside the judgment and the verdict of the jury and for an order granting a new trial. From the file stamp it appears that the motion for new trial was filed after the entry overruling the motion for judgment notwithstanding the verdict and entering judgment on the verdict was filed. This conclusion is supported by the fact that in the entry entering judgment defendant was granted leave to withdraw his motion for new trial which had been prematurely filed, and was granted leave to fiie a motion for new trial.

On May 1, 1950, defendant, gave notice of appeal from the order overruling its motion for judgment notwithstanding the verdict and, also, from the order entering judgment upon the verdict. On appeal this court affirmed the judgment of the trial court. Jolley v. Martin Bros. Box Co., 89 Ohio App., 372, 99 N. E. (2d), 672, 59 Ohio Law Abs., 314. A motion to certify the record was overruled by the Supreme Court. The pertinent part of the entry of affirmance filed in this court is as follows:

“Upon consideration whereof the court finds no error in the action of the trial court in overruling said motion for judgment notwithstanding the verdict entered in said cause and in entering judgment on said verdict in favor of plaintiff and against the defendant.
“It is therefore considered, ordered and adjudged by the court that the judgment of said Court of Common Pleas of Darke County, Ohio, in overruling the motion of the defendant, the Martin Brothers Box Company for judgment in its favor notwithstanding the verdict of the jury rendered in said cause in favor of plaintiff, and that the action of the trial court in entering judgment on said verdict in favor of plaintiff and against said defendant be and the same are hereby affirmed, there being however in the opinion of the court reasonable grounds for this appeal.”

A mandate conforming to this judgment was sent to the trial court.

Thereafter on January 18, 1951, the motion for new trial filed on May 1, 1950, came on for hearing in the trial court. At this hearing evidence was introduced and a record made thereof, which record is presented to this court in the form of a bill of exceptions. On March 23, 1951, an entry was filed overruling the motion to set aside the judgment and for a new trial. On April 11, 1951, notice of appeal was filed from the order overruling defendant’s motion for new trial and entering judgment upon the verdict as shown by entry filed on May 1, 1950.

The plaintiff contends that in the former appeal two matters were presented to this court: First, did the trial court err in overruling defendant’s motion for judgment notwithstanding the verdict? Second, did the trial court err in entering judgment upon the verdict? Unquestionably these two matters were presented to this court by the former appeal, and the entry of affirmance filed in this court determined these two issues. In view of this state of the record plaintiff now contends that the questions raised by this appeal are res judicata; that by electing to appeal before the motion for new trial was determined, the defendant waived its right to complain by filing a motion for new trial; and that an order overruling a motion for new trial is not a final order.

We discuss the contentions of plaintiff in inverse order. Prior to recent amendments of the Code it was held that an order overruling a motion for new trial was not a final order from which an appeal may be taken. Under the amended sections of the Code a motion for new trial is directed to the judgment as well as the verdict. State, ex rel. Simons, v. Kiser, 88 Ohio App., 181, 96 N. E. (2d), 306; Liebbrand v. Butler, 88 Ohio App., 185, 97 N. E. (2d), 80. See Sections 11575, 11576 and 11578, General Code, as amended effective October 11, 1945. In McAtee v. Western & Southern Life Ins. Co., 82 Ohio App., 131, 81 N. E. (2d), 225, the court held that in an action commenced after October 11, 1945, an order overruling a motion for new trial is a final order. This same ruling has been followed in Williams v. Martin, 82 Ohio App., 395, 81 N. E. (2d), 806; Caswell v. Lermann, 85 Ohio App., 200, 88 N. E. (2d), 405; Miller v. Miller, 56 Ohio Law Abs., 280, 91 N. E. (2d), 804. Since the Supreme Court decided the case of Green v. Acacia Mutual Life Ins. Co., 156 Ohio St., 1, 100 N. E. (2d), 211, the correctness of this ruling may be questioned. However, this will be our ruling until the Supreme Court rules otherwise. This action being commenced in 1947, the order of the court overruling the motion to set aside the judgment and granting a new trial was a final order. It must be observed, too, that the second appeal, which is presently before us, is also from the judgment entered on May 1, 1950.

The order overruling the motion for judgment notwithstanding the verdict and, likewise, the order overruling the motion for new trial were final orders from which separate appeals could be prosecuted. The appellant had a right to pursue its remedy on both motions, neither being considered a waiver of the other. See Massachusetts Mutual Life Ins. Co. v. Hauk, 72 Ohio App., 131, 137, 51 N. E. (2d), 30. The appellant did not waive its right to pursue the second appeal unless the fact that the affirmance by this court of the order entering judgment on the verdict in the first appeal deprives the appellant of the right to prosecute this appeal. The appellant, at the time the first appeal was taken, could have appealed only from the order overruling the motion for judgment notwithstanding the verdict. After judgment on the verdict, a motion for new trial was in order and, if overruled, another appeal could have been taken. Does the fact that the first appeal included the order entering judgment on the verdict deprive the appellant from prosecuting this appeal? In an appeal from an order overruling a motion for judgment notwithstanding the verdict, the question presented is whether the appellant was entitled to judgment as a matter of law. In such appeal the reviewing court cannot weigh the evidence; neither can it pass upon such matters as misconduct of counsel or misconduct of the jury and similar matters which may properly be raised on motion for new trial. In the instant case the grounds for the motion for new trial are matters which the reviewing court can not determine in passing upon the question as to whether the trial court erred in overruling the motion for judgment notwithstanding the verdict.

But the plaintiff claims that since this court affirmed the action of trial court in entering judgment on the verdict, such affirmance operates as res judicata not only as to all matters which were raised but, also, with respect to ail matters which the appellant could have presented. 23 Ohio Jurisprudence, 963, 979, 986, Sections 731, 748, 753. In the first appeal, embracing as it did the order of the trial court in entering judgment on the verdict, the appellant could have raised any questions which would show error on the part of the trial court in entering judgment. In the instant case several of the errors assigned as the basis for the motion for new trial relate to actions of the court prior to or during the trial and before judgment was entered on the verdict. However, the error assigned, concerning misconduct of the jury involving a quotient verdict, on which evidence was presented at the hearing on motion for new trial, which evidence is part of the bill of exceptions, could not have been raised in the first appeal. Such matters could be presented only in the trial court on motion for new trial and in this court on an appeal from the ruling on the motion. Newly discovered evidence is not claimed as one of the grounds for new trial.

We find no reported opinion in Ohio deciding the precise question presented here. However, in 3 American Jurisprudence, 677, 678, Section 1166, we find a statement in the text which is applicable to the issue raised, which is as follows:

“It may be stated generally that a judgment of affirmance is a determination by the appellate court that the proceeding under review is free from prejudicial error. Such action ends the case in the appellate court and deprives such court of all power to add' to, or alter, the record as certified, by rescinding the order of affirmance and dismissing the appeal. All questions raised by the assignments of error and all questions that might have been so raised are to be regarded as finally adjudicated against the appellant or plaintiff in error, and the judgment affirmed must be regarded as free from all error, even though errors were present which were not raised by the assignment of error and the record contains defects not discovered until after the judgment had been affirmed and the petition for rehearing denied. * * *
‘ ‘ The affirmance of a judgment entered on a verdict-is a decision that the verdict was authorized by the evidence. * * *”
‘ ‘ The judgment appealed from is merged in a judgment of affirmance on appeal.” (Emphasis ours.)

In 2 American Jurisprudence, 912, Section 104, it is stated:

“A judgment on remand from an appellate court is not reviewable where the lower court complies with the mandate. Such a judgment or decree, when entered, is in effect the judgment or decree of the appellate court, and the appeal, if allowed, would be practically an appeal from the appellate court to itself.” See, also, 3 Corpus Juris, 344, 353, Sections 92, 107.

The first appeal embraced the order entering judgment on the verdict; the second appeal embraced the same order. An appellant is not permitted to appeal from a part of the judgment. 2 Ohio Jurisprudence, 91, Section 36; 4 Corpus Juris Secundum, 204, Section 109. A party cannot split an appeal. 4 Corpus Juris Secundum, 116, Section 38.

In the instant case any alleged errors of the trial court which could have been raised in determining whether the trial court properly entered judgment on the verdict and which could have been presented in the first appeal cannot be presented in this appeal. The first appeal constitutes res judicata as to such matters. A motion for new trial was not necessary to raise certain questions presented by appellant. Under Section 11576-1, General Code, a motion for new trial is not necessary to raise the question as to the sufficiency and weight of the evidence. Section 11576-2, General Code, provides that Section 11576-1, General Code, shall apply to pending actions. A complete bill of exceptions was before this court.

Any matter which could not have been raised in the first appeal can be raised in this appeal. Consequently, the judgment of the appellate court in the first appeal constitutes res judicata with regard to all matters which were raised or could have been raised in the first appeal in determining whether the trial court properly entered judgment on the verdict. There cannot be a second appeal from an order entering judgment on the verdict. The judgment in this court in the first appeal does not constitute res judicata with respect to those matters which could only be raised on a motion for new trial. Those issues were not and could not have been presented in the first appeal.

The motion to dismiss the appeal will be sustained so far as the appeal relates to the order entering-judgment on the verdict, and overruled so far as it relates to the order overruling the motion for new trial with respect to those matters which could have been presented only in support of a motion for new trial.

Judgment accordingly.

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

(Decided August 8, 1951.)

On Application for rehearing.

Per Curiam.

The application for rehearing is hereby overruled-. The journal entry may stipulate that all assignments of error are dismissed except the assignment of error designated “ J,” on the ground that the first appeal constitutes res judicata with respect to such matters. The question raised under assignment of error “J” is reserved for determination on this appeal.

Judgment accordingly.

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


text:
    Jackson et al., Appellants, v. Mannor, Appellee.
    (No. 7457
    Decided June 18, 1951.)

      Mr. Smith H. Tyler, Jr., for appellants.

      Messrs. Long <& Bloom and Mr. Charles Long, for appellee.
   Per Curiam.

This is an appeal from the Municipal Court of Cincinnati, which court rendered judgment for the defendant, Chollie Mannor, upon his cross-bill of particulars for the damage to his automobile caused by a collision with the automobile of the plaintiff, Coleman Jackson, in the intersection of Cutter and Richmond streets in the city of Cincinnati. The plaintiff and defendant were operating their respective automobiles at the time, and each sought to recover for the damage to his automobile.

The plaintiff testified that he was traveling westwardly at about 8:30 a. m.; that he was going at 20 miles per hour as he approached Cutter street and saw defendant in his automobile standing just south of Richmond street at the stop sign on Cutter street, apparently waiting for him to cross the intersection; that he was only 10 to 15 feet from the intersection; and that he did not see the defendant thereafter until he was right in front of his automobile when the collision occurred in the northeast quarter of the intersection. He also testified that there were several automobiles parked on the south side of Richmond street, just east of Cutter street.

The defendant testified that he was proceeding in a northerly direction on Cutter street and stopped at the stop sit£>n just south of Richmond street; that he “looked up” and not seeing or hearing anything he started up and after he was in the intersection he “looked out” and saw that he (plaintiff) was “right” on him; that he could not say how fast plaintiff was traveling; that there was about 20 to 25 feet of skid marks; that the front of plaintiff’s automobile struck the right front door of his automobile and pushed it westwardly four or five feet; that automobiles were parked on the south side of Richmond street, just east of Cutter; that he could see east on Richmond street, from where he stopped on Cutter street, a distance of about 25 feet; and that the collision occurred in the northeast quarter of the intersection.

A police officer who appeared on the scene shortly after the collision testified that the defendant’s automobile was almost wholly in the northeast quarter and the plaintiff’s automobile had just entered the northeast quarter of the intersection; and that he noticed some skid marks and estimated the speed as between 25 and 28 miles per hour.

The only other witness was in a storeroom at the northwest corner of the intersection, from which position the witness looked out through a window eastwardly on Richmond street. -She testified that defendant stopped at the stop sign on Cutter street and then started across the intersection; that she then looked up and saw plaintiff coming at a speed of 45 miles per hour; and that when she first saw him he was only from 10 to 15 feet from Cutter street.

The plaintiff’s automobile was a Buieli and the defendant’s a Mercury.

Other than as to damage, the foregoing is the substance of all the evidence.

It is clear from this recital that the defendant was obliged by Section 6307-40, General Code, to yield the right of way to the plaintiff since he was approaching the intersection from the right. And the stop sign required him to stop before entering the intersection. He obeyed the stop sign, but that act did not justify him in proceeding into the intersection and finally into the plaintiff’s path across the intersection, when he could see only 25 feet to his right along Richmond street.

We find nothing in the record which would suggest that the plaintiff had lost or forfeited his right of way other than the testimony of the witness who was in the store at the northwest corner and was looking directly at plaintiff’s automobile as it approached her. She testified that she did not see it until it was within 15 feet of Cutter street, when it was going 45 miles per hour. However, the defendant testified that the speed was not more than 28 miles per hour, and, of course, he is bound by his own testimony. Such a speed is no evidence of negligence and is no basis for a finding that the plaintiff had lost the right of way.

It seems to us that this is a classic case for the application of the statute giving the right of way to the operator of the vehicle approaching an intersection from the right.

No motion for judgment was made by the plaintiff. We are not required to indicate our conclusion had such a motion been made.

However, we find that the judgment is manifestly against the weight of the evidence and is contrary to law.

For these reasons, the judgment is reversed and the cause remanded to the Municipal Court of Cincinnati for further proceedings according to law’.

Judgment reversed.

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