author: By the Court. By the Court.

text:
    In re Duffy.
    (No. 3859
    Decided January 22, 1946.)

      Mr. Walter B. Moore and Mr. Joseph L. Meenan, for appellee.

      Mr. John H. Matthews and Mr. Wm. Harvey Jones, for appellants.
   By the Court.

This matter comes before this court on an appeal on questions of law from the judgment of the Common Pleas Court, Division of Domestic Relations, Juvenile Branch, of Franklin county.

This action is one in habeas corpus wherein Leo F. Duffy requests a writ restoring custody to him of his daughter Karen Jean Duffy who is now approximately three years of age.

The case came on for hearing before the juvenile judge, at which time testimony was taken relative to the manner in which temporary custody of the child had been given to the respondents, appellants herein, William Bergen and Elizabeth Bergen, husband and wife. Mrs. Bergen is the maternal aunt of the child. At the conclusion of the hearing the trial court granted the custody and control of the child to the petitioner, appellee herein. From that judgment the respondents prosecute this appeal and assign as error that “the finding and judgment of the Court of Common Pleas, Division of Domestic Relations, is contrary to the manifest weight of the evidence and is .contrary to law. ’ ’

We have read the entire record in this case and do not find the judgment of the trial court to be contrary to the manifest weight of the evidence. The evidence in this case shows that when the child was a few weeks old the mother died and a few weeks thereafter the child was placed in the home of a maternal aunt who, after keeping the child for a number of weeks, returned the child to the father. After a few weeks had passed the child was again returned to the same maternal annt where it resided for a short period of time. Thereupon the maternal aunt requested the father for permission to take the child to her sister’s home, Mrs. Bergen, another maternal aunt, who resided in Columbus, Ohio. The father consented to have the child cared for by Mr. and Mrs. Bergen. The child remained in this home for approximately two years, at the end of which period of time the father remarried and requested the custody of his child, which request was refused.

The question is presented as to whether the natural father of the child or the maternal aunt is entitled to the custody of this child.

This is not a case between the father and mother of the child; neither is it a case where a question is presented as to the suitability or fitness of the home of either the parent or a third person.

Counsel for respondents contend that the welfare of. the child is paramount to the rights of the parent and that the judgment of the trial court was contrary to law in that the court ignored the question of the welfare of the child. The welfare of the child was not made an issue in this case. It was conceded that both homes offered moral and Christian influence in rearing and caring for the child. While we recognize the principle of law that the parent’s right to custody of a child is paramount to that of all other persons, such right is not absolute under all circumstances. The parent may relinquish his right to custody by contract, forfeit it by abandonment or lose it by being in a condition of total inability to afford his minor child necessary care and support. Clark v. Bayer, 32 Ohio St., 299, 30 Am. Rep., 593. As a general rule, however, parents are entitled to the custody of their minor children. When it is found that the parent is a suitable person and the fitness of the home is not in dispute and such parent is able and willing to support and care for such child, the parent’s right is paramount to that of all other persons. We grant that the welfare of the child could have been made an issue in this case, but this issue was eliminated when it was conceded that the father would be able to furnish a suitable home and was able to support the child properly. If this court should give consideration to the question of the welfare of the child it would be disposed. to find that since it has bee» conceded that the father was the proper person to rear the child and -the fitness and suitability of his home in not disputed, the welfare of the child would be best served by being reared in its parent’s home in the custody of its father and thereby be permitted over the years to form and develop ties of.mutual love and affection with its own flesh and blood. However, this court may well rest this case on the right of the parent to the custody of its child against all other persons unless and until it is shown that the father is unfit or unable to provide a suitable home for the child. Clark v. Bayer, 32 Ohio St., supra, at page 310; In re Konneker, 30 Ohio App., 502, 165 N. E., 850; In re Coons, 20 C. C., 47, 11 C. D., 208; In re Lutkehaus, 22 N. P. (N. S.), 120, 29 O. D., 543; In re Swentosky, 25 Ohio Law Abs., 601.

We do not find the judgment of the trial court to be either against the manifest weight of the evidence or contrary to law.

The judgment of the trial court is affirmed. The case will be remanded for further proceedings.

Judgment affirmed.

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

(No. 3859 — Decided February 16, 1946.)

On Application for rehearing.

By the Court.

This matter comes on to be heard on an application for rehearing filed by the respondents in which they claim that the court in its opinion did not take into consideration the question as to the welfare of the child. The gist of the respondents’ argument is that the facts in this case in and of themselves, as a matter of law, show that the petitioner abandoned the child and that the future welfare of the child would be best served by. leaving it in the custody of the respondents.

Counsel for the respondents rest their claim on the case of Clark v. Bayer, 32 Ohio St., 299, 30 Am. Rep., 593, the question in which arose on a demurrer to a petition in which it was alleged that the parents of the children had entered into an oral agreement for the transfer of custody of their two minor children to the children’s grandparents, who agreed to accept the care, custody and possession of such children, and to maintain, protect and educate them, and had renounced and abandoned all rights as parents to the custody of the children. For the purposes of the demurrer, those allegations are admitted to be true. In the case at bar, sufficient facts have been stated in the original opinion, and need not be reiterated here, which distinguish this case from the case of Clark v. Bayer, supra. At no time did the respondents expect or claim compensation for the care and custody of this child. Counsel for the respondents make the point that the mere failure of the father to contribute to the support of the child amounted to abandonment as a matter of law. While this may be true under certain circumstances, we do not believe that the father can be considered to have abandoned the child under the facts in this case.

The application for rehearing does not raise any question which has not already been considered by this court. The court approves of its original ruling in this matter and overrules the application for rehearing.

Application overruled.

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


source: Caselaw Access Project

author: Skbel, P. J.

license: Public Domain

text:
    Tanno, Appellant, v. Eby, Appellee.
    (No. 20203
    Decided March 4, 1946.)

      Mr. George J. MoMonagle, for appellant.

      Messrs. McKeehan, Merrich, Arter & Stewart, for appellee.
   Skbel, P. J.

This appeal comes to this court on questions of law. The action as it was originally filed was concerned with injuries sustained by the plaintiff in an automobile accident. The plaintiff was a passenger in the defendant’s automobile. In her petition she alleged that through the defendant’s wilful and wanton misconduct in the operation of his automobile he ran into a tree whereby plaintiff was injured. The accident occurred on March 5, 1944. This action was filed on April 8, 1944. Thereafter, on July 8,1944, the parties were married. Before the marriage ceremony was performed the parties entered into an ante-nuptial contract .whereby it was agreed that the marriage should in no way affect the plaintiff’s right to maintain the case against the defendant and retained to herself the right to prosecute the action to a final conclusion, after their marriage.

After the marriage of the parties the defendant’s counsel filed an amended answer setting foi;th the fact of the marriage as a defense to the action.- The plaintiff demurred to the amended answer. The demurrer, upon hearing, was overruled. The plaintiff then filed a reply admitting the marriage of the parties and setting forth the ante-nuptial agreement. When the case was called for trial the court granted a motion of defendant for judgment on- the pleadings and final judgment was entered for the defendant.

Ohio has never recognized the right of a husband or wife to bring an action in tort against his or her spouse. Such an action is declared to be against public policy.

In the case of Leonardi v. Leonardi, 21 Ohio App., 110, 153 N. E., 93, the syllabus provides:

“ A wife cannot maintain an action against her husband to recover damages for a personal injury caused by*his negligent act.”

The facts as to the cause of plaintiff’s injuries in the Leonardi case involved the operation of an automobile in which she was riding as a passenger. The court, on page 112 of the opinion, considers the statutes of Ohio defining married women’s rights which define her right to hold property. Those sections are 7995 to 8004, inclusive, ánd 11245, General Code. On pages 116 and 117 of the opinion the court says:

“To give either the husband or wife the right to sue the other for injury sustained by reason of a negligent act would strike at the very heart of the peaceable domestic relation of the husband and wife, and, further, at the happiness of the family.

‘ ‘ The Legislature will not be held to intend a repeal of the settled rules of common law, unless the language employed by it clearly imports such an intention * * *.

“None of the sections of the General Code from Section 7995 to 8004, clearly expresses the intention on the part of the Legislature to abrogate the common-law principle that a married woman cannot maintain an action against her husband for a personal injury caused by his neglect; nor does Section 11245, General Code, so do.

“Until the Legislature does so express.its intentions the wife cannot maintain such an action against her husband to recover damages for a personal injury caused by his negligent act.”

The fact that the marriage did not take place until after the accident which caused, plaintiff’s injuries had occurred, does not change the rule. The policy of the law is to promote domestic peace and felicity.

In the case of Lubowitz v. Taines, 293 Mass., 39, 198 N. E., 320 (Mass. Sup. Jud. Ct. 1935), the facts were identical with those of the case at bar. There the plaintiff before she was married brought an action against the defendant claiming gross negligence.

After the jury was impaneled it was agreed by counsel in open court that the plaintiff had married the defendant, whereupon defendant’s counsel filed a motion to dismiss the action, which motion the court granted. The syllabus provides:

“A wife cannot maintain an action against her husband for negligence, though the cause of action arose, and the action was brought, before their marriage.”

In considering this case as authority upon the subject of the right of a wife to maintain an action in tort against her husband, it must be remembered that the court in deciding the case, referred to the statutory law of the state of Massachusetts. Chapter 209, Section 6, of the General Laws of the Commonwealth of Massachusetts (Ter. Ed.) provides that:

“A married woman may sue or be sued in the same manner as if she were sole; but this section shall not authorize suits between husband and wife.”

It is clear that, while that statute enlarges the rights of married women, it does not change the common law as to tort actions between husband and wife.

The court in the case of Coster v. Coster, 289 N. Y., 438, 46 N. E. (2d), 509, 146 A. L. R., 702 (Court of Appeals of New York, 1943), was called upon to give consideration to the law of Massachusetts on this subject. Pauline Dansey, a resident of New York, was riding as a passenger in the automobile of defendant, Coster, which he was then driving on a public highway in the state of Massachusetts. An accident occurred in which the plaintiff (Pauline Dansey) was injured. She began action against the defendant in New York on January 16, 1939. The defendant filed an answer on February 4, 1939. On July 12, 1939, before the case came on for trial, the parties were married and after their marriage they continued to reside in New York. On page 242 of the opinion the court says:

“Under the laws of Massachusetts, the plaintiff was competent to sue Coster to recover damages for personal injuries due to his negligence since she was not Ms wife at the time of the occurrence of the accident and at the time of bringing suit, but her subsequent marriage to Coster extinguished her right to maintain the action. (Massachusetts General Laws, ch. 209, §6; Lubowitz v. Taines, supra.) The doctrine of identification still bars the maintenance of such a suit in that state by a married woman against her spouse. In this state, our public policy is to the contrary. (Domestic Relations Law, §57; Cons. Laws, ch. 14; Insurance Law, §167, sub. 3; Rozell v. Rozell, 281 N. Y., 106, 110), [22 N. E. (2d), 254, 123 A. L. R., 1015].”

We include the latter part of the above quotation to show that because of statutory changes of the,common law in the state of New York, the holding of its courts upon this subject cannot be urged as authority for the rule for which the plaintiff herein contends.

In Patenaude v. Patenaude, 195 Minn., 523, 525, 263 N. W., 546, the Supreme Court of Minnesota declared the rule as follows:

“In Drake v. Drake, 145 Minn., 388, 391, 177 N. W., 624, 625, 9 A. L. R., 1064, this court said:

“ ‘But the welfare of the home, the abiding place of domestic love and affection, the maintenance of which in all its sacredness, undisturbed by a public exposure of trivial family disagreements is so essential to society, demands and requires that no new grounds for its disturbance or disruption by judicial proceedings be engrafted on the law by rule of court not sanctioned or made necessary by express legislation.’ Quite generally, one of the reasons why a husband or wife cannot bring suit for a personal tort against the other, during coverture at least, is that so to do would disturb and tend to disrupt the marriage and family relations, which it is the public policy of the state to protect and maintain inviolable.”

The Court of Appeals of the Second Appellate District of Ohio in the case of Wirrig v. Harter, 29 Ohio Law Abs., 587, held as indicated by the headnote:

“An action for damage for a tort committed by the husband against the wife before marriage does not lie after divorce.”

See, also, 41 Corpus Juris Secundum, 877, Section 396-a.

A contract which attempts to grant a right which is against public policy is absolutely void.

In Key v. Vattier (1823), 1 Ohio, 132, the Supreme Court in considering a contract tainted with champerty, said:

“* * * The right of making contracts at pleasure is a personal privilege of great value, and ought not to be slightly restrained; but it must be restrained where contracts are attempted against the public law, general policy, or public justice.”

Also, in Kershner v. Kershner, 244 App. Div., 34, affirmed in 269 N. Y., 655 (1936), the plaintiff made an ante-nuptial agreement with his wife, which agreement provided that, to permit him to continue his education in medicine, he was not to be held responsible for his wife’s support. After marriage the wife refused to carry out the contract and plaintiff brought action for the' annulment of the marriage. In holding the ante-nuptial agreement void as against strong public policy, the court held that the promise upon which the plaintiff relied to obtain the annulment was not only invalid as against public policy, but that the alleged agreement between the parties was expressly prohibited by Section 51 of the Domestic Relations Law.

The judgment of the Court of Common Pleas is, therefore, affirmed.

Judgment affirmed.

Lieghley and Morgan, JJ., concur.


author: By the Court.

text:
    The State, ex rel. Ehmann, v. Schneider, Judge.
    (No. 6629
    Decided February 4, 1946.)

      Mr. Eli Q. Frankenstein, for relator.

      Judge Louis J. Schneider, in propria persona.

   By the Court.

In this action originating in this court, the relator seeks a writ of prohibition restraining the respondent from vacating a judgment entered by him at a prior term of the Court of Common Pleas of Hamilton county.

No answer has been filed, but the respondent appeared personally and stated he had concluded that he had exceeded his jurisdiction in entering the judgment, and, for that reason, would, on his own motion, vacate it unless prohibited by this court. He submitted the matter to this court for its decision.

Prom the positions and representations of relator and respondent, it appears that the relator was a co-plaintiff in action No. A-93079 on the docket of the Court of Common Pleas of Hamilton county, in which various parties were made defendants, including Ruth E. Ramsey, as trustee under the last will and testament of Caroline Ehmann, deceased. He prayed for a declaratory judgment as to the rights of the parties under the trust created by the will of Caroline Ehman, deceased, whose estate was administered in the Probate Court of Hamilton county, Ohio, and for affirmative relief based on the declared rights.

Under the terms of the trust, Ruth E. Ramsey, trustee, was directed to hold and manage certain real estate for the benefit of plaintiff and another during their lifetime. It was not clearly disclosed what is to be done with the trust corpus thereafter, but there was provision for a future-estate — perhaps, however, not a trust estate.

In the Common Pleas Court it was alleged and proven that it was impossible to administer the trust corpus at a profit; that as a result the beneficiaries of the trust were receiving no income therefrom and charges against the corpus were accumulating for taxes, insur-. anee premiums, and interest and principal requirements on a mortgage loan placed thereon by the testatrix; that the property was being allowed to fall into disrepair for lack of funds to make repairs; and that as a result the property was depreciating in value and the parties were threatened with foreclosure proceedings.

The affirmative relief prayed for was that authorized by Section 11925 et seq., General Code, known as the “disentailing statute.”

On September 4, 1945, the court, entered a decree authorizing the trustee to sell the real estate forming the corpus of the trust estate at not less than the appraised value, and thereafter the trustee entered into a contract to sell the real estate for a sum in excess of the appraised value.

On December 3, 1945, which was at a subsequent term of court, the respondent having concluded that he had exceeded his jurisdiction, notified the relator’s attorney that it was his intention to set aside and vacate the judgment.

We assume that, if the judgment was void for want of jurisdiction, it would be within the jurisdiction of the court entering such a void judgment, to journalize its invalidity by an appropriate entry, without being moved to do so by any one. Certainly, this court would not prohibit the journalization of a correct legal conclusion. We also assume that mere error in'the entering of the judgment would not justify setting it aside on the court’s own motion at a subsequent term.

That brings us to the crucial question in this case, which is: Did the Common Pleas Court have jurisdiction?

It is suggested that by virtue of Section 10501-53, General Code, the Probate Court is given exclusive jurisdiction over testamentary trusts and their administration by fiduciaries. By that section, the Probate Court is given jurisdiction, inter alia, to construe wills, to render declaratory judgments and to direct and control the conduct of fiduciaries and settle their accounts. That section then provides that “such jurisdiction shall be exclusive in the Probate Court unless otherwise provided by law”; and that “the Probate Court shall have plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is expressly otherwise limited or denied by statute.”

In Unger v. Wolfe, 134 Ohio St., 69, 15 N. E. (2d), 955, the Supreme Court held:

“Under the provisions of Section 10501-53, General Code, the Court of Probate has exclusive jurisdiction as to- the allowance of fees to an attorney for his services in the unsuccessful prosecution of an application for the removal of the guardian of an incompetent.”

Accordingly, the Supreme Court held that the Com-, mon Pleas Court had no jurisdiction of an action in quantum meruit by the attorney against the incompetent and his guardian, notwithstanding the provisions of Section 11215, General Code, conferring jurisdiction on the Common Pleas Court “in all civil cases” with a certain limitation unimportant here. In reaching that conclusion, the court said, at pages 74 and 75:

“The difficulty with this contention of the plaintiffs is that Section 11215 is an old and general statute while Section 10501-53 is recent and special. Therefore under the canons of statutory construction the latter must take precedence over the former. It is difficult to escape the effect of specific provisions that ‘such jurisdiction shall be exclusive in the Probate Court unless otherwise provided by law’ and that ‘the Probate Court shall have plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is expressly otherwise limited or. denied by statute.’ The application for the removal of the guardian was properly before the.Probate Court. The request was denied. Since the court concededly was charged with the responsibility of continued control over the guardian, the ward and his estate, and since any fees allowed the ward’s attorneys must come from the estate, this matter therefore would seem to be peculiarly within the province of that tribunal. Furthermore that is the court in which a substantial part of the attorneys’ services were performed.

“It is the view of this court that the recent, special statute relating to the jurisdiction of the Probate Court must be accepted as decisive of the question here presented. ’ ’

See, also, Gregg v. Kent, 27 Ohio Law Abs., 628, and Morehead v. Central Trust Co., 54 Ohio App., 9, 5 N. E. (2d), 932.

Were Section 11215, General Code, the only basis for jurisdiction of the Common Pleas Court, we would consider Unger v. Wolfe, supra, as conclusive against the jurisdiction of that court. But in that case the court took pains to point out that Section 11215, General Code, was both old and general, and, for that reason, must yield to Section 10501-53, General Code, which is both new and special.

It is, of course, a matter of legislative intent. What is meant by the phrase, “unless otherwise provided by law?” The court held that a provision conferring jurisdiction generally upon another court wa's not a provision conferring jurisdiction over the specific matters listed in Section 10501-53, General Code, as within the exclusive jurisdiction of the Probate Court. But where the specific subject matter by express provision is placed within the jurisdiction of another court, can it be said that it has not been “otherwise provided bylaw?” We think not. To so hold would require us to declare that the specific statute had been repealed— and would drive us to the conclusion that in all cases embraced within Section 10501-53, General Code, the jurisdiction of the Probate Court was exclusive, which would render the phrase, “unless otherwise provided by law, ’ ’ totally inoperative as a limitation.

Now we find that by- Section 11925, General Code (the “disentailing statute”), jurisdiction is expressly conferred upon the Common Pleas Court in this special class of cases, and by subsequent sections the procedure whereby such jurisdiction should be exercised is set forth in considerable detail. It is a special statute conferring jurisdiction over a specific subject upon a specific court — and in express terms. It would seem to come clearly within the class referred to by the use of the words, “unless otherwise provided .by law. ’ ’

For purposes of interpretation of legislative enactments, enactments have long been classed as either general or special, and given different effect upon other enactments dependent as they are found to fall in one class or the other. While not entirely applicable, it serves some purpose to keep this distinction in mind. On this subject, it is said in 37 Ohio Jurisprudence, 408:

“The special statute, in many cases, remains wholly unaffected by the later general act. Indeed, the presumption is that the special is intended to remain in force as an exception to the general act. In order to work a repeal by implication, the inconsistency between the general and special provisions must be manifest and irreconcilable.”

If Section 10501-53, General Code, is a special statute, Section 11925 et seq., General Code, are equally so, and in fact confer jurisdiction in greater detail upon the Court of Common Pleas to authorize sales of real estate in which there are life estates, estates tail or conditional, or qualified estates, and this power is expressly made to extend to real estate held in trust created by will.

For these reasons, we hold that Section 11925 et seq., General Code, are still operative to confer jurisdiction upon the Common Pleas Court.

We, therefore, hold that the respondent was without authority to vacate the judgment entered at a prior term except in the manner and on the grounds set forth in the statutes, and was without authority to vacate it upon his own motion.

A writ may issue as prayed for.

■Writ allotoed.

Hildebrant, P. J., Matthews and Boss, JJ., concur in the opinion and judgment.


author: Sherick, P. J.

text:
    Maier, Exr., Appellee, v. Wyandt, Gdn., et al., Appellants.
    (No. 2198
    Decided October 3, 1945.)

      Mr. Franhlin L. Maier, for appellee.

      Mr. Henry W. Harter, for appellants, C. C. Wyandt, guardian, and Sally Elizabeth and Mary Wyandt, minors.
   Sherick, P. J.

This is an appeal from a judgment of the Probate Court and concerns the construction to be placed on item 28 of the last will and testament of Sallie Wyandt Menuez, deceased. The matter was heard upon the pleadings, that is# the executor’s petition for construction and the answer of the guardian for the minor defendants. There is no bill of exceptions. The judgment of the court was adverse to the minors’ interests. -Appellants now maintain that the trial court erred as a matter of law.

Item 28 is the only portion of the will of the testatrix set forth -in the pleadings. It is that instrument’s residuary clause. Part of its substance, only, need be quoted.

All the rest and residue of testatrix’s estate is given to her surviving spouse for life. After his death, the same is given to her two grandnieces, share and share alike, provided they be living at the time of the widower’s demise; “but in the event of the prior decease of either the share which such beneficiary would have taken if living shall pass to and I hereby give, bequeath and devise the same to the children of such decedent, share and share alike, if any, otherwise to the survivor or the children of such survivor; but upon the failure of all of which the same shall pass to Elizabeth Wood * * * or her heirs.”

What complicates matters is that the surviving •spouse elected to take under the law and to reject the provisions made for him under the will; and that the widower has not as yet departed this life.

Appellants urge that the election of the surviving spouse to take under the law is equivalent to death; that they now hold a vested estate therein; and that, being vested, the gift is accelerated and they are now entitled to the immediate possession of the remainder. Appellee asserts, and the trial court held, that appellants’ estate is a contingent remainder, to which the doctrine of acceleration can not and does not apply, and that the contingency hinges upon lite death of the surviving spouse.

This court is of opinion that the trial court’s judgment is correct, but that the reasons upon which it is predicated are unsound. If the minor appellants had or now have only a contingent remainder, and the life tenancy never came into being because of the surviving spouse’s election to take under the law, then just in whom does the fee repose? Surely not in the remaindermen subsequent to the appellant minors.

It is settled law by a host of authorities that the fee never stands in abeyance. It must and always does rest in someone. The answer is that the minor defendants, at the time of admission of the will to probate, secured a vested fee simple estate in remainder in the residuary estate, subject, however, to being divested, if either or both of the grandnieces died before the death of the surviving spouse. It is the remaindermen, subsequent in point of taking to the grandnieces, who are possessed of contingent remainders. Appellants correctly point out by reference to 16 Ohio Jurisprudence, 467, Section 91, that “it is a fundamental principle in the law of remainders that a remainder is vested when there is a person in being who would have the right of possession immediately upon the determination of the intervening particular estate.”

Were the grandnieces the only named beneficiaries in the residuary clause, after the defeated life tenancy sought to be created, then without doubt the doctrine of acceleration would apply, and they would be imme-. diately, upon the spouse’s election, entitled to possession. But this is not the case here encountered.

The fact that vested remainders may be accelerated does not warrant the assertion of an arbitrary rule that all such remainders are entitled to acceleration. Appellants cite the first paragraph of the syllabus of Holdren, Admr., v. Holdren, 78 Ohio St., 276, 85 N. E., 537, 18 L. R. A. (N. S.), 272, and quote it. We do likewise, but desire to emphasize its last portion:

“Under the doctrine of acceleration of remainders a devise' to A for life, and at his death to B, is to be read as a limitation of a remainder, to take effect in every event which removes the prior estate out of the way; bid this doctrine rests upon the presumed intention of the testator and will be applied only when pro-motive of his intention.” (Italics ours.)

Hence, it is observable that the doctrine is to be applied only when promotive of testator’s intention, which is, of course, the first rule of will construction. Now, just what was the intention of Sallie Menuez?

She wanted her husband to possess the residuary estate during his lifetime. His election defeated that intention. But her scheme of distribution contemplated and intended something further, that is, if her grandnieces did not survive her husband, she then wanted their children as a class, or rather two classes, to finally take the estate granted. She even intended something further, i. e., if there were no great-grandnieces surviving their mothers when her husband died, then the estate was to go to Elizabeth Wood, “or her heirs” if she be dead.

. It ought to be clear that, if appellants are to prevail and the estate be accelerated and they be placed in possession thereof, these contingent remaindermen might never come into possession of their contingent estate even if the contingencies happened and they ultimately, became entitled to the immediate possession of the estate.

The author of the note appearing in 18 L. R. A. (N. S.), 275, which accompanies the report of the Iloldren case, supra, makes this observation and lists the authorities supporting it:

“The so-called equitable doctrine that a renounced testamentary provision will be sequestered for the benefit of legatees or devisees whose portion has been diminished as a result of the election of the widow against the provisions of the will is, as the case reported [Holdren v. Holdren] well illustrates, in reality a form of the rule that the presumed intention of the testator that a gift over shall take effect upon the termination. of the particular estate or interest, however such termination is effected, must yield to a manifest intention to the contrary,: — the manifest intention in cases presenting this aspect of the question being deduced from the scheme of distribution created by the testator, which it is presumed he desires to be given effect so far as possible.”

As we see it, present acceleration might defeat the intention of the testatrix, and only upon the death of the surviving spouse can her intention be definitely ascertained and carried out. Only in the event of the death of the grandnieces, their children and Elizabeth Wood survived by her legal heirs, before the death of the surviving spouse, could the estate be properly accelerated in favor of the heirs of Elizabeth Wood. It follows that the court’s judgment is affirmed.

Judgment affirmed.

Putnam and Montgomery, JJ., concur.


author: Wiseman, J.

text:
    Grove, Admr., Appellant, v. The City Railway Co., Appellee.

      (No. 1827
    Decided December 14, 1945.)
    . Messrs. Scharrer, Scharrer d> Hanaghan, for appellant.

      Messrs. Landis, Ferguson, Bieser S Greer, for appellee.
   Wiseman, J.

This is an action for wrongful death brought in the Court of Common Pleas of Montgomery county, Ohio, wherein a verdict was directed for the defendant.

Plaintiff gave notice of appeal on questions of law and- fact. The appeal on questions of law and fact cannot be maintained. Counsel have proceeded as an appeal on questions of law. We, therefore, so consider the appeal and in the entry journalizing this decision it may be so stated.

The plaintiff complains that the trial court committed error prejudicial to his substantial rights manifest upon the record and proceedings in the Common Pleas Court and has filed an assignment of errors as follows:

1. The finding and judgment of the Common Pleas Court of Montgomery county, Ohio, are contrary to law;

2. The finding and judgment of the Common Pleas Court of Montgomery county, Ohio, are ’ contrary to the law and the evidence;

3. The Common Pleas Court of Montgomery, county, Ohio, erred in overruling plaintiff’s motion for a new trial, to which he duly excepted;

4. The judgment of the Common Pleas Court of Montgomery county, Ohio, was given for the defendant, when it ought to have been given for the plaintiff;

5. For other errors manifest on the face of the record.

All the assignments of error revolve around one particular legal proposition. Did the trial court commit error in taking the case from the jury at the end of plaintiff’s case and directing a verdict for the defendant on the ground that, as a matter of law, plaintiff could not recover because of the contributory negligence of plaintiff’s decedent? We think the trial court was right in directing the verdict and did not commit prejudicial error in so doing.

The court has read the record, examined the authorities cited by counsel in their brief and has been assisted by the able presentation of this case in oral argument.

Only a brief statement of facts will be necessary. The collision occurred on the afternoon of February 22, 1941, between a street car of The City' Railway Company operated outside the city limits of Dayton, in the open country, and an automobile driven by the plaintiff’s decedent, as a result of which plaintiff’s decedent was killed almost instantly. The car tracks are on a private right-of-way which extends parallel to, and on the north side of and adjacent to the Eaton pike, west of Dayton, at about seven-eighths of a mile distant from the city limits. On the afternoon in question, the plaintiff’s decedent had made a visit to a friend who resides several hundred feet north of the pike and north of the defendant’s right-of-way. The decedent was driving a sedan and as she proceeded out of the private lane which extended north from the pike, she drove her automobile at a rate of speed of approximately five miles per hour. The testimony is overwhelming to the effect that over a distance of 100 or 150 feet before she.came to the tracks of defendant company, the speed of her automobile was not increased or decreased appreciably; that for some distance north of the right-of-way, the decedent had an unobstructed view of the defendant’s right-of-way for a distance of several hundred feet west of the point of collision; that the street car of the defendant company was proceeding eastwardly and was gaining speed from a point approximately 200 feet from the place of the collision up until the collision occurred; that the motorman was not looking in the direction in which the street car was moving, but had turned around and was talking to a passenger in the car; that the motorman did not see the decedent approaching and did not reduce the speed of the street car prior to the collision; and that the collision occurred in the late afternoon on a clear day.

Do these facts show that the decedent was guilty of contributory negligence? In order to determine this question, the court must decide whether the decedent exercised that degree of care which was required of .her at that time and place. If, in the exercise of ordinary care, she could have prevented the accident, she is guilty of contributory negligence. which bars a recovery. This accident happened in the open country and not on the streets of a municipality. The rule of law which controls in this case has been concisely stated in Electric St. Rd. Co. v. Lohe, Admr., 68 Ohio St., 101, at page 110, 67 N. E., 161, 67 L. R. A., 637, as follows:

“It seems reasonably clear that while operating the cars of an interurban railroad within a municipality, the regulations and powers of a street railroad company are applicable, but when it comes to running cars of such railroads in the open country, upon a track substantially the same as the track of a steam railroad, and at a high rate of speed, it would seem that the same rules as to negligence, and contributory negligence, should prevail, as are applicable to steam railroads.”

This rule of law is supported by many other cases, only two of which will be cited: C., D. & M. Elec. Co. v. O’Day, 123 Ohio St., 638, 176 N. E., 569; Youngstown & Suburban Ry. Co. v. Prigosin, 53 Ohio App., 189, 4 N. E. (2d), 599.

Did the decedent, as she,approached the car tracks of the defendant company, look and listen, and do so at such time and place and in such a manner as made her looking and listening effective? -The' evidence in this case indicates that she failed to do so, and that if she had done so, she would have been in a position to stop her automobile and to prevent the accident. Her failure to effectively look and listen and stop her automobile when she was in position to do so amounts to contributory negligence which prevents recovery.

This proposition of law, as it applies to this case, is supported by a number of authorities in Ohio. It will be sufficient to quote briefly from only a few of the authorities cited.

In the case of Detroit, Toledo & Ironton Rd. Co. v. Rohrs, 114 Ohio St., 493, 151 N. E., 714, the first two paragraphs of the syllabus state:

“1. It is the duty of a driver of a vehicle upon a public highway when approaching a grade crossing of a steam railroad to both look and listen for approaching trains and to do so at such time and place and in such manner as will make the looking and listening effective.

“2. When such driver upon the highway has a clear and unobstructed view each way along a straight railroad track when near to and before going upon such crossing, and fails, in broad daylight, to see an engine or train which is then very close to the highway, and so near thereto as that, if the driver of the vehicle goes ahead, a collision will be inevitable, such driver is guilty of negligence in going upon the crossing at that time and under those conditions.’’

That proposition of law is supported by the following cases: Penna. Rd. Co. v. Rusynik, 117 Ohio St., 530, 159 N. E., 826, 56 A. L. R., 538; C., D. & M. Elec. Co. v. O’Day, supra; The Cincinnati Traction Co. v. Renner, 13 C. C. (N. S.), 479, 23 C. D., 478; The Ohio Traction Co. v. Smith, 15 C. C. (N. S.), 124, 23 C. D., 610, affirmed 86 Ohio St., 351, 99 N. E., 1133; The Cincinnati Traction Co. v. Edwards, Admr., 22 C. C. (N. S.), 539, 28 C. D., 436; Griese v. Cleveland Electric Railway Co., 24 C. C. (N. S.), 60, 34 C. D., 479; Lynch, Admx., v. Penna. Rd. Co., 48 Ohio App., 295, 194 N. E., 31.

In C., D. & M. Elec. Co. v. O’Day, supra, the third paragraph of the syllabus reads as follows:

“The presence of an automatic signal alarm, voluntarily instituted and operated by an interurban railway company at a city street crossing, does not absolve a traveler upon tbe highway from the exercise of the care that a reasonably prudent person would exercise under all the circumstances. Such care upon the part of a driver of an automobile includes the obligation of exercising the faculties of sight and hearing, when such driver is far enough from the railway track to be able to stop his automobile before reaching the crossing.”

In the case of Ohio Traction Co. v. Smith, supra, the syllabus of the case reads as follows:

“It is the duty of one about to drive across a railway track to look and listen for an approaching car or train in such a manner as will make his looking and listening effective; and where obstruction to vision or the noise of his vehicle make it necessary for him to stop in order that his looking and listening may be effective, it is his duty to stop, and failure so to do constitutes contributory negligence requiring the taking from the jury of an action for injuries from being-struck under such circumstances.”

In the case of Griese v. Cleveland Electric Ry. Co., supra, the third paragraph of the syllabus reads as follows:

“One about to cross a street car track, is bound to use his senses to ascertain whether a car is about to cross or is approaching a crossing, and if he fails to see or hear anything, when a careful and prudent man by using- his eyes and ears with ordinary care would have discovered a car in so. close proximity to the crossing that he could not safely drive across, he is guilty of negligence and cannot recover for his injuries.”

In the case at bar the defendant company was guilty of negligence in operating- its street car in that its agent, the motorman, was looking in a direction other than that in which the car was being propelled, and in that the street car traveled a distance of several hundred feet while the motorman was not attending to his usual duties, but it is also quite clear from the record in this case that the decedent could not have failed to see and hear the rapidly approaching street car for quite a distance from the point of collision if she had looked and listened. It was her duty to use her faculties and to exercise ordinary care under the circumstances to avoid the accident.

We think the evidence introduced by the plaintiff conclusively shows that the decedent was negligent in driving her automobile upon the car tracks when, by the exercise of ordinary care, she could have avoided the collision. It is not explained in the record why she drove her automobile upon the car tracks. It is not for this court to judge why she acted in the manner in which she did. The court cannot indulge in pure conjecture. It is sufficient for this court to find that she failed to exercise ordinary care and that her failure to so exercise ordinary care was the proximate cause of the collision, and bars recovery.

Under the rule of law which controls in this case, which has been uniformly followed by the courts of this state, the trial court did not commit error in directing the verdict for the defendant.

The court finds that counsel for plaintiff used the words “plaintiff-appellee” in place of “plaintiff-appeliant.” A correction has been made on the record by the court, and the court has used these terms in the manner in which the record was corrected, and has accordingly made the correction in the assignment of ' errors.

The judgment of the trial court is affirmed.

Judgment affirmed.

IIornbeck, P. J., and Miller, J., concur.


text:
    In re Trust of Marshall.
    (No. 3862
    Decided December 7, 1945.)

      Mr. Bay W. Kilbourne, for appellant.

      Mr. J. Paul McNamara and Mr. PL. E. Gingher, for appellee.
   By the Court.

This matter is submitted on motion to dismiss the appeal of Mary M. Von Schmidt, trustee, for the following reasons: (1) The proceeding and judgment below are not appealable on questions of law and fact; and (2) no valid reason exists to hold this appeal as an appeal on questions of law.

The record discloses that the action below was on motion of John L. Marshall, a beneficiary of the trust, to remove Mary M. Von Schmidt as trustee. The proceeding was instituted under the provisions of Section 10506-53, General Code. The Probate Court sustained the motion and ordered the trustee removed.

This appeal on questions of law and fact can stand as such only if the motion for a dismissal of the trustee is a chancery case within the meaning of that term as used in Section 6, Article IV of the Constitution of Ohio. It may be conceded that under the common law the administering of trusts and the appointment of guardians were chancery cases. However, in the case of In re Estate of Gurnea, 111 Ohio St., 715, 146 N. E., 308, the court held that probate matters have lost their chancery character in Ohio, and that such proceedings are not now chancery cases as that term is used in the Constitution. That decision was followed in Squire, Supt. of Banks, v. Bates, 132 Ohio St., 161, 5 N. E. (2d), 690; In re Guardianship of Moyer, 68 Ohio App., 319, 40 N. E. (2d), 695; and In re Estate of Bates, 142 Ohio St., 622, 53 N. E. (2d), 787. In the last cited case, the court said:

“The question before the Probate Court in this case related to exceptions to the inventory and appraisement filed by an executor. It is not a chancery case. If there had previously been any basis for controversy relative thereto, it was definitely determined by the decision of this court in the case of Squire, Supt. of Banks, v. Bates, 132 Ohio St., 161, 5 N. E. (2d), 690, where it is held in the first proposition of the syllabus as follows:

“ ‘The settlement of the account of a testamentary trustee in the Probate Court is not a chancery case and hence not appealable as such from the Probate Court to the Court of Appeals.’ ”

The appellant cites the case of Madden v. Shallenberger, 121 Ohio St., 401, 169 N. E., 450, which we hold is not in conflict with the views stated. That was an action in the Common Pleas Court, not the Probate Court, for the ostensible purpose of securing the advice and direction of the court as to the provisional settlement of a case to set aside the will of testatrix, instituted by her daughters and heirs at law, by and under which will the wards of the plaintiffs took all their interests in the estate of the testatrix. The court held that was a chancery case, but we do not think that it is in conflict with the doctrine announced in the case of In re Estate of Gurnea, supra.

Coming now to the second branch of the motion, we find that this appeal was made in good faith and the appeal should be allowed to stand as one on questions of law. The appeal on questions of law and fact will be dismissed. Leave is granted the appellant to prepare and file a bill of exceptions within thirty days from the filing of the entry.

Judgment accordingly.

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


text:
    Shafer et al., Appellees, v. Stein et al., Appellants.
    (No. 488
    Decided July, 5, 1945.)

      Messrs. Marshall £ Marshall, for appellees.

      Messrs. Pickrel, Schaeffer £ Ebeling, for appellants.
   By the Court.

The cause is submitted on motion of appellees (plaintiffs) to dismiss the appeal on three grounds, first, that the ease is not appealable, second, that notice of filing intention to appeal, or copy thereof, was not furnished the plaintiffs, and third, that the bond filed in the Municipal Court is wholly inadequate.

We consider the grounds of the motion in the order in which they are set forth.

First, that the case is not appealable.

The appeal is noted as on questions of law and fact. Obviously, forcible entry and detainer, being exclusively a statutory proceeding, is an action at law only with none of the aspects of chancery and, therefore, may not be appealed on questions of law and fact. However, we know of no reason to hold that the appeal may not proceed as on questions of law. Kelly v. Nichols, 10 Ohio St., 318; Pope v. Pollock, 46 Ohio St., 367, 21 N. E., 356, 15 Am. St. Rep., 608, 4 L. R. A., 255; Miller v. Raile & Morrison, 34 Ohio Law Abs., 608, 39 N. E. (2d), 172; and Rocca v. Rosenstiel, 20 Ohio App., 367, 152 N. E., 677. The first branch of the motion will be overruled, but the court on its own motion recognizes that this cause may not be tried upon the facts and must proceed as an appeal on questions of law. Ten days will therefore be given to appellants within which to have a bill of exceptions prepared, settled and allowed in the trial court. The time within which the bill will be prepared will begin to run from the filing of the entry journalizing the ruling on this motion, but the bill of exceptions, in any event, must be filed not later than July 20, 1945.

Second, that no notice of filing intention to appeal, or copy thereof, was furnished to appellees.

Section 12223-4, G-eneral Code, makes no requirement that the notice, or copy thepeof, be given or served upon appellee, it being incumbent upon the appellee to make such observation of the progress of the case as is necessary to determine whether an appeal is perfected by the filing of the notice within time. This branch of the motion will be overruled.

Third, that the bond filed in the Municipal Court is wholly inadequate.

This branch must be overruled because although it be conceded that the bond is inadequate, such inadequacy would not be a basis for the dismissal of the appeal. This branch of the motion will be overruled.

It is suggested in the brief of appellees that if the motion is overruled the cause be set down for trial on the merits. We are willing to accommodate counsel by assigning the cause for hearing on its merits between now and the first of August, but this could only be done by agreement. We cannot hear the case after the first of August and before fall because one or more members of the court will be on vacation.

Inasmuch as it is probable that, if appellants can prepare a bill of exceptions, the cause may not be heard in this court until fall, we consider the question of the adequacy of the bond.

The only information which we have as to facts which would reflect upon the adequacy of the bond appears in the respective briefs of the parties, as no affidavits accompany the motion.

It appears by statements of counsel of like tenor that $500 in cash has been deposited, presumably by the parties, in lieu of an appeal or supersedeas bond, but the transcript of docket and journal entries does not disclose that fact.

Accompanying the transcript is a bond designated supersedeas bond, signed by Phyllis S. Stein only and no reference is made to the cash deposit.

However, enough of the facts appear to convince us that the bond should be substantially increased. It should be in a sum which would meet any possible costs and damages which might be suffered by the appellees by the delay. The bond will be increased to $1,500, to be filed, if a .supersedeas bond, or to be deposited, if a cash bond, in the trial court, and the transcript should boar the certificate' of the clerk of courts, if a cash bond is deposited, that it has been done.

It is also suggested in the brief for counsel for appellees, although not a part of the motion, that ‘ ‘ there should be a bond in addition to the money, conditioned for the protection of plaintiff-appellees that plaintiffappellees would not be required to file separate action in order to collect damages.”

Section 12223-9, General Code, provides for a supersedeas bond, and Section 12223-14, General Code, authorizes the court to incorporate in the bond “such other conditions as the court may provide.” We would not, upon the meager facts before us, undertake to enlarge the terms of the bond bejmnd those included in the appropriate language of the statute.

The supersedeas bond, if given, should be conditioned as in the form attached to the transcript of docket and journal entries disclosing the judgment, mentioning both appellants and that the action was for forcible entry and detainer, should set forth the case number or some other definite identification of the cause of action, and should be further conditioned as follows:

“Now if said appellants shall abide and perform the order and judgment of the appellate court and pay all money, costs and damages which may be required of or awarded against said defendants or either of them upon the final determination of said appeal; then this obligation shall be void; otherwise it shall be and remain in full force and virtue in law.”

If a cash deposit is made in lien of a supersedeas bond, it should be deposited on the same conditions as in a supersedeas bond and these conditions may be set up in the entry journalizing the .ruling of the court upon this motion.

We are cognizant that, conceding the facts set out by counsel for appellees in their brief, the withholding of the premises for which they have fully paid and to which they have a deed is unusual, embarrassing and aggravating and possibly of a nature for which the law affords no remedy. We have no purpose, however, to -take away from the appellants their right to the orderly processes of the law. We will accord to the parties all the expedition possible in adjudicating the issues and if, as suggested by counsel for appellees, appellants cannot secure a bill of exceptions, or stipulation of counsel in lieu thereof, within the time herein fixed, we will entertain a motion, if filed, to affirm the judgment.

The entry prepared on this motion may carry the rulings thereon together with such other orders as the court has made on its own motion.

Judgment accordingly.

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


author: Boss, J.

text:
    Meyer, Appellant, v. Daniel, Appellee.
    (No. 6617
    Decided December 14, 1945.)

      Messrs. Kruslmg & Krusling, for -appellant.

      Mr. Robert F. Dreidame, for appellee.
   Boss, J.

The motion to dismiss the appeal from the order of the Court of Common Pleas of Hamilton county, on the ground that no final order was entered in that court is here considered.

In the trial court, shortly after a reply was filed and before the case stood for trial, a motion for judgment on the pleadings wag filed by the plaintiff. That motion was overruled. Thereafter, the court sua sponte struck certain matters from the plaintiff’s re-' ply and granted plaintiff’s motion to strike from the files the defendant’s motion to strike from the reply.

Plaintiff’s motion to strike from the files defendant’s motion to strike from the reply was filed after plaintiff’s motion for judgment on the pleadings.

This court has consistently held that the action of a trial court in overruling a motion for judgment on the pleadings lacks the finality required to give such action the qualifications of a judgment constituting such action a predicate for appeal to this court. J. & F. Harig Co. v. City of Cincinnati, 61 Ohio App., 314, 22 N. E. (2d), 540. The petition in the instant action was filed on March 9, 1945. There is nothing in the changes either in the Constitution or statutes which, in our opinion, requires a different conclusion.

We, however, find our judgment in conflict with that reached by the Court of Appeals for Mahoning county, in Marietta v. Nichol, 72 Ohio App., 387, 52 N. E. (2d), 647, and for this reason,, the case will be certified to the Supreme Court. •

Entries may be presented accordingly, to wit, dis- * missing the appeal and certification of this cause to the Supreme Court.

Judgment accordingly.

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


text:
    Appel, Appellee, v. Appel, Appellant. (Three cases.)
    (Nos. 3815, 3847 and 3848
    Decided January 17, 1946.)

      Messrs. Lurie & Gifford, for appellee.

      Mr. Roy J. Stone, for appellant.
   Wiseman, J.

These are appeals on questions of law from a judgment of the Common Pleas Court of Franklin county. There are three cases all involving the same parties and the same issues. The court proceeds to decide case No. 3815 which will determine the issues in cases numbered 3847 and 3848. The action originally arose in the Municipal Court of Columbus, which rendered a judgment for $700 in favor of the plaintiff based upon a judgment in a like sum in a court in the state of New York.

The defendant, appellant herein, claims error was committed in that the trial court failed to grant a continuance to permit the defendant to take a deposition in New York City to prove the law of the state of New York.

The court has read the record in its entirety and finds that the defendant in the Municipal Court filed an answer on April 22, 1944; that the plaintiff filed a deposition on May 26, 1944; and that on June 8, 1944, the defendant filed a motion and affidavit requesting the court for a continuance for sufficient time to take a deposition in New York City. The motion was overruled on June 14th and the case was assigned for trial, which took place on June 27,1944. The pleadings show that counsel for defendant knew what defense he would interpose and had ample time to prepare his case. A request for a continuance for whatever cause is addressed to the sound discretion of the court. The record does not disclose facts and circumstances which would show that the defendant was prejudiced in the court’s failure to grant a continuance. This court does not believe that the trial court abused its discretion in this matter and finds that no prejudicial error was committed.

The defendant contends that the plaintiff should not have been permitted to introduce certain depositions for the reason that the notice to take depositions did not contaiji the names of the witnesses. The deposition of the plaintiff was taken, together with those of two other witnesses. The court sustained the defendant’s motion by not permitting tbe deposition of tlie plaintiff to be presented, and overruled the motion with respect to the presentation of the depositions of the two other witnesses.

Section 11534, General Code, provides as follows:

“Written notice of the intention to take a deposition shall be given to the adverse party, except in cases in which it is to be taken under a special commission, and shall specify the action or proceeding, the name of the court or tribunal in which the deposition is to be used, and the time when and place where it will be taken. In case the deposition of a party to the suit be taken, it shall not be used in his oivn behalf, unless-the notice, specified that his deposition would be taken. (Italics ours.)

It will be observed that there is nothing in the statute which requires the names of the witnesses to be sot forth except that if the deposition of a party to the suit is to be taken the notice shall so state, otherwise the deposition of a party to the suit cannot be used in his own behalf. This court believes that the maxim “inclusio unius est exclusio alterius” applies with much force to the construction of this statute. In the application of this rule, this court is of the opinion that the notice to take depositions was not defective by reason of its failure to designate the names of the witnesses. The defendant cites the case of In re Automobile Co-Op. Assn. of America, 222 F., 345, which was decided by the United. States District Court for the Southern District of New York, in which it construed Section 11534, General Code, and held that the names of the witnesses should be stated in the deposition. This court does not so construe the statute. While it may be the better practice to set forth the names of the witnesses, we do not believe it is a statutory requirement. For this reason this court holds that no prejudicial error was committed in presenting the depositions of the two witnesses who were not parties to the case. See Neeley v. Harris, Tappan, 209.

The defendant contends that the judgment rendered for the plaintiff was contrary to law. The gist of the argument of defendant is that the judgment rendered by the New York court was not a final judgment and therefore was not entitled to full faith and credit by the Ohio court under the provisions of the “full faith and credit” clause of the United States Constitution. The section of the New York law (Section 1171-b of the Civil Practice Act) under which this judgment was rendered, provides as follows:

“Where the husband, in an action for divorce, separation, annulment, or declaration of nullity of a void marriage, makes default in paying any sum of money as required by the judgment or order directing the payment thereof, the court may make an order directing the entry of judgment for the amount of such arrears, together with ten dollars costs and disbursements. The application for such order shall be upon such notice to the husband as the court may direct. Such, judgment may be enforced by execution or in any other manner provided by law for the collection of money judgments. The relief herein provided for is in addition to any and every other remedy to which the wife may be entitled under the law.” (Italics ours.)

The defendant contends that under Sections 1165' and 1170 of the New York Civil Practice Act, the court which granted the separation and made an alimony award has the authority to annul, vary or modify the judgment. The record in this ease shows that the plaintiff filed her action for separation in the county of New York in July 1943; that on December 27, 1943, the court entered judgment in which it directed the defendant to pay to the plaintiff the sum of $350 a month for the remainder of her life, commencing November 23, 1943. Subsequently, to wit, on January 27, 1944, the plaintiff began a new proceeding wherein she sought to reduce the two monthly installments to judgment, the amount then due being $700. That proceeding was instituted under provisions of Section 1171-b. On February 10,1944, a judgment was entered against the defendant in the sum of $700. The judgment which was rendered by the New York court under the provisions of Section 1171-b could be “ enforced by execution or in any other manner provided by law for the collection of money judgments.” After that judgment was rendered, this court is of the opinion that the New York court was not permitted under the provisions of Sections 1165 and 1170 to annul, vary or modify such judgment, as the rights of the parties were fixed and merged in the judgment. The judgment had the same binding effect as any other judgment. The authority of the New York court thereafter to annul, vary or modify could extend only to other matters involved in the cause.

Counsel for the defendant relies on Gilbert v. Gilbert, 83 Ohio St., 265, 94 N. E., 421, 35 L. R. A. (N. S.), 521, and Collard v. Collard, 7 Ohio App., 53, which we believe are not applicable to the facts in this case.

This court is of the opinion that this case is controlled by the principle of law laid down in Armstrong v. Armstrong, 117 Ohio St., 558, 160 N. E., 34, and Barber v. Barber, 323 U. S., 77, 89 L. Ed., 114, 65 S. Ct., 137. In the Armstrong case, our Supreme Court held that full faith and credit should be given to a decree in the state of Kentucky where alimony was awarded in installments and there had been no modification of such judgment. In the Barber case a North Carolina court had reduced to judgment arrears of alimony with direction that execution issue. A suit was insti tuted in the state of Tennessee in which a question arose as to whether the court in that state was required to extend full faith and credit to the judgment of the North Carolina court. The same contention was made in that case as is raised by the defendant in the case at bar, and the statutes of North Carolina under which the judgment was rendered are similar to the statutes in the state of New York. The Supreme Court in discussing the effect of the so-called modification statutes on the judgment, and whether a judgment rendered for unpaid installments is such a judgment as to be entitled to full faith and credit under United States Constitution, says:

“We do not find in the language on which the Tennessee court relied any clear or unequivocal indication that the judgment for arrears of alimony, on which execution was directed to issue, was itself subject to modification or recall. True, as the opinion of the North Carolina court states, the judgment for arrears of alimony was not a final judgment in the separation suit. As to future alimony payments not merged in the money judgment, the allotments ordered are, by the terms of the statute; subject to modification. But it would hardly be consistent with the court’s statements, that accrued alimony is a debt for which a judgment may be rendered, that the defendant is bound by the judgment, and that ‘the plaintiff is entitled to all the remedies provided by law’ for its enforcement, to say that the judgment may be modified or set aside by virtue of a statute which in terms merely authorizes modification of the order for payment of allowances.”

Finally, the court holds:

“The present judgment is on its face an unconditional adjudication of petitioner’s right to recover a sum of money due and owing which, by the law of the state, is a debt. The judgment orders that execution issue. To overcome the prima facie effect of the judgment record, it is necessary that there -be some persuasive indication that North Carolina law subjects the judgment to the infirmity of modification or recall which is wanting here.”

In applying the law as we find it in the Armstrong and Barber cases, this court holds that the judgment rendered by the New York court for $700 for the unpaid installments of alimony was a final judgment and could not be modified under the provisions of the so-called modification sections of the New York law. It was an unconditional adjudication of the plaintiff’s right to recover a sum. of money due and owing from the defendant and under the provisions of Section 1171-b she was entitled to issue execution and use any other method provided by law for the collection of money judgments. This court holds that such a judgment should be given full faith and credit as a final' judgment when sued on in the courts of this state.

The defendant contends that error was committed in overruling the motion for new trial. However, under this assignment of error no new proposition is advanced. For this reason there is no necessity to discuss the matter further. .

This court has been furnished a copy of the well considered opinion of Judge Randall which we approve in every particular.

The judgment of the 'Court of Common Pleas is affirmed in all three cases. The cases are remanded to the trial court for further proceedings.

Judgments affirmed.

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


author: Miller, J.

text:
    O’Dell, Appellee, v. O’Dell, Appellant.
    (No. 644
    Decided November 19, 1945.)

      Mr. Floyd D. Smith, for appellee.

      Messrs. Murphy & Staley, for appellant.
   Miller, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Darke county, Ohio, wlierein the court refused to set aside a decree of divorce wliicli had been granted to the plaintiff at a former term of court.

The plaintiff, appellee herein, filed his petition for a divorce against the defendant on the 18th day of July 1944. At the time of the filing of the petition, the defendant, appellant herein, was in the city of Niles, Michigan. The plaintiff, without filing any affidavit or making any showing to the court that the defendant was not a resident of the state of Ohio and that service of summons could not be had upon her in this state, caused summons, and a certified copy of the petition to be issued to the sheriff of Berrien county, Michigan. The sheriff, thereupon, on the 7th day of August 1944 served the defendant with a copy of the summons and a certified copy of the petition. Proof of service was made by affidavit. Immediately upon receiving the summons and a certified copy of the petition, the defendant came to Ohio and shortly thereafter talked with-the plaintiff and held several other conversations with him prior to the granting of the decree. A day or two before the divorce was granted, the defendant met the trial judge and upon inquiry he advised her that in all probability her case would be heard on the following Saturday morning. On that morning the defendant was physically present iii the courtroom in the court house in Greenville, Ohio. During the course of the morning the plaintiff appeared with his witnesses and submitted his case. The defendant heard the testimony that was offered against her and also heard the trial judge announce that the plaintiff was entitled to a decree of divorce. At no time did the defendant file an answer nor did she, by writing, enter her appearance in court. At a subsequent term of court the defendant filed her petition to vacate the decree., on the ground that the court had not acquired jurisdiction. That petition was not allowed and the court found that the service, together with the subsequent acts of the defendant, conferred jurisdiction upon the Common Pleas Court, and that the decree of divorce was valid.

Several assignments of error are made, but only one is discussed in the brief of the defendant. We shall, therefore, confine ourselves to it. Such assignment of error is in substance that the court committed error in holding it had jurisdiction over the defendant at the time the decree of divorce was rendered.

The question here presented for our determination is whether a service which is irregular and invalid, followed by a discussion by the defendant with the trial judge, the physical appearance of the defendant in the courtroom at the time of the trial of the cause and her hearing the evidence and the decree of the court pronounced, is sufficient to confer jurisdiction upon the court in a divorce case. No answer was ever filed or appearance entered in. writing. Consequently, if defendant’s appearance was entered it was by her acts after the service of process upon her in the state of Michigan. No attempt was made to secure service upon her by publication. No affidavit was filed alleging that she was not a resident of the state of Ohio or that service of summons could not be had upon her within the state. Had this been done, service could then have been had upon the defendant by publication as provided for in Section 11984, General Code. No service was ever made upon her in Ohio under Section 11983, General Code. These two sections constitute the entire law relative to service in divorce cases, and neither was followed. It is well established that the foregoing provisions of the statute are mandatory and exclusive and that they are to be strictly construed. The general doctrine has been tersely stated as follows:

“The defendant in a divorce suit in Ohio is not in court without full and complete conformity to the provisions of the statute on the part of the plaintiff.” Ready v. Ready, 25 Ohio App., 432, 158 N. E., 493. See, also, 14 Ohio Jurisprudence, 416, Section 35.

Compliance with provisions as to process cannot, as a general rule, be waived by the defendant, and it lias been held under this doctrine that neither the voluntary entry of the defendant’s appearance nor an acknowledgment of acceptance of service by counsel oil belialf of defendant is sufficient to confer jurisdiction in a divorce proceeding.

On the question of jurisdiction the plaintiff seems to rely solely on the case of Black v. Black, 110 Ohio St., 392, 144 N. E., 268, where the following statement was made:

“Upon the question of jurisdiction it need only be further stated that the defendant, not merely by his pleadings, but by his appearance in open court, waived any question of jurisdiction over his person, as is well settled by a long line of decisions of this court; the latest one, wherein the previous ones are cited, being Klein v. Lust, ante [110 Ohio St., 197] * *

The facts with reference to the service of process in that case do not fully appear from the opinion, and it seems probable that the statement of the court, relative to the filing of pleadings by the defendant and his personal appearance in court as constituting a waiver of jurisdiction over his person, is intended to refer only to the alimony branch of the case or to the issue respecting the custody of the child, which was also involved. Judge Zimmerman, in commenting on that case in State, ex rel. Haun, v. Hoffman, 145 Ohio St, 31, 60 N. E. (2d), 657, said:

“Besides, the language of the court in the per curiam opinion in the Black case, that, by his actions, the defendant Black had waived any question of ‘jurisdiction over his person,’ seems to have been directed primarily to that phase of the suit having to do with the custody of the child.’.’

The difference between the case at bar and the Black case is that the defendant did not file any pleadings in court.

In commenting on the Black case, in the case of Tucker v. Tucker, 143 Ohio St., 658, 56 N. E. (2d), 202, Judge Williams said:

“The Black case is authority for the principle that the appearance of the defendant may he entered in a divorce action so as to give jurisdiction over the person of the defendant; but the opinion in that case should be read in the light of the surrounding facts. There was at least attempted service on Black, as an examination of the original record shows, and he filed a pleading and defended the action.” (Emphasis ours.)

The court held in that case that in an action for divorce the court acquired jurisdiction of the defendant where he, after personal service irregularly made on. him which was not quashed or sought by him to be quashed, filed an answer in which was incorporated an entry of appearance, a waiver of issuance and service of summons, and denial of material averments of the petition. It is further stated in the Tucker case, as follows:

“It is not contemplated that a party seeking a divorce may file his petition accompanied by a waiver of service and entry of appearance signed by the defendant and secure a divorce decree forthwith. The statutory safeguards must be preserved. * * * It cannot be soundly asserted that the defendant may never enter his appearance and submit his person to the jurisdiction of the court in a divorce action. In fact the weight of authority in outside jurisdictions sustains the view that pleading to the merits may constitute a valid and binding entry of appearance.” (Emphasis ours.)

In State, ex rel. Haun, v. Hoffman, supra, Judge Zimmerman said:

“In the Tucker case, supra, recently decided, there was personal service on the defendant outside Ohio) which, though irregular, was not quashed or sought to be quashed. Later, the defendant filed an answer containing an entry of appearance, a waiver of summons and a denial of some of the principal allegations of the petition. Upon that combination of facts this court took the view that the Court of Common Pleas acquired jurisdiction and possessed the authority to enter a decree of divorce in favor of the plaintiff. In the present case there was no service of any hind and no answer. We are of opinion that the Tucker case should not be extended beyond the particular facts there involved.” (Emphasis in last sentence ours.)

For us to hold that the presence of the defendant at the hearing of a divorce action constitutes an entry of appearance giving the trial court jurisdiction, would be extending the rule laid down in the most recent pronouncement of the Supreme Court in the case of State, ex rel. Haun, v. Hoffman, supra.

The plaintiff contends also that the petition to vacate is barren of an allegation which could be construed that the defendant had a defense to the plaintiff’s petition, citing Section 11637, G-eneral Code. We do not subscribe, however, to that theory. The decree of divorce was void for the reason that the defendant was never before the court. If such be true, it is not necessary to show a defense to the cause of action.

In the case of Kingsborough v. Tousley, 56 Ohio St., 450, 47 N. E., 541, it is stated at page 461:

“And where the judgment was obtained without jurisdiction of the party, he was not required to tender a valid defense to the cause of action on which the judgment was rendered, in order to obtain relief. against it.”

In the case of Paulin v. Sparrow, 91 Ohio St., 279, 110 N. E., 528, it is stated at page 287:

“Where it affirmatively appears from the record of a court of general jurisdiction that the defendant has not been legally served with process, a decree purporting to determine the rights of such defendant is void.”

In the case of Hayes v. Kentucky Joint Stock Land Bank, 125 Ohio St., 359, 181 N. E., 542, the second paragraph of the syllabus is as follows:

“Such challenge is a direct attack upon the judgment, and it is not necessary in such petition to plead or at the hearing to prove that defendant has a valid defense to the action.”

For the foregoing reasons it is our conclusion that the trial court never at any time acquired jurisdiction over the defendant, and that the petition to vacate the judgment should have been allowed. The judgment is reversed and the cause remanded.

Judgment reversed.

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


text:
    City of Columbus, Appellee, v. Smith, Appellant.

      (No. 3853
    Decided February 15, 1946.)

      Mr. Glenn E. Kemp, for appellee.

      Mr. Evert E. Acldison and Mr. Abraham Gertner, for appellant.
   By the Court.

This is an appeal on questions of law from the judgment of'the Municipal Court of Columbus, Criminal Division, which found the defendant guilty of violating the provisions of Section 1089-1 of the city. ordinances of Columbus, Ohio. That ordinance provides as follows:

“Whoever shall within the city of Columbus have in Ms possession, or in his custody, or under his control, any ticket, check, writing, slip, paper or document, which represents or is a memorandum of, or is evidence of, or is intended to be used as a memorandum or evidence of, or which is designed or intended to be used in the process of making, settling, paying, registering, evidencing, or recording, a number of shares or an interest in a lottery, ‘policy,’ or scheme of chance, by whatever name, style, or title denominated or known, whether located or to be drawn, paid, or carried on within or without this city, shall be guilty of a misdemeanor- and upon conviction shall be fined, not more than five hundred dollars, or imprisoned not more than sis month[s], or both.”

The charge against the defendant was that he did “unlawfully have in his possession memorandum slips of a number of shares in a scheme of chance in violation of Section 1089-1 city ordinance.”

Before the trial on the merits, the defendant filed a motion to suppress the evidence. Evidence was taken on the motion, after which the court overruled the motion and proceeded to try the case on the merits. The court found the defendant guilty and imposed á fine of $200 ánd costs and a sentence of 60 days in the workhouse.

For his first assignment of error the defendant, appellant herein, contends that the trial court erred in overruling the defendant’s motion to suppress the evidence. The officers arrested the defendant without first having secured a search warrant. Under his first assignment of error the defendant contends that the admission of evidence obtained by an unlawful search and seizure deprives him of his rights or property without due process of law, contrary to the provisions of the Fourteenth Amendment to the federal Constitution. The trial court admitted into the evidence memorandum slips which were taken from the automobile which was used by the defendant at the time of his arrest. The Supreme Court of Ohio has changed its position twice on this legal proposition, the latest case being State v. Lindway, 131 Ohio St., 166, 2 N. E. (2d), 490. The pertinent parts of the syllabus of that case are as follows:

“4. In a criminal case, evidence obtained by an unlawful search is not thereby rendered inadmissible, and, if otherwise competent and pertinent to the main issue, will be received against an accused.

“5. An application or motion to suppress or exclude such evidence made before trial or during trial is properly denied. The court need not concern itself with the collateral issue of how the evidence was procured. (Fifth paragraph of the syllabus of Nicholas v. City of Cleveland, 125 Ohio St., 474, and Browning v. City of Cleveland, 126 Ohio St., 285, overruled.)

“6. The immunities from compulsory self-incrimination and unreasonable searches and seizures given by Sections 10 and 14, respectively, Article I, of the Constitution of Ohio, are not violated by the denial of such application or motion, and the admission of such evidence. ’ ’

This court is constrained to follow the rule laid down by our Supreme Court in the Liñdway case, holding that the evidence obtained by the officer was admissible even though it was secured without a search warrant first being issued.

The constitutional question presented in this case is an interesting one in the light of the opinion of the United States Supreme Court in the case of Martin v. Struthers, 319 U. S., 141, 87 L. Ed., 1313, 63 S. Ct., 862, in which it reversed the judgment of the Supreme Court of Ohio in the case of City of Struthers v. Martin, 139 Ohio St., 372, 40 N. E. (2d), 154. However, this court believes that it should adhere to the last ruling of the Supreme Court of Ohio on this subject.

For his second assignment of error, the defendant contends that the court erred in finding him guilty, for the reason that the two officers who testified did not qualify as expert witnesses, and for the further reason that the city did not prove in what manner the exhibits or memorandum slips came within the provisions of the ¿ordinance under which the defendant was tried. Thompson testified that he was a police officer of the city of Columbus and was assigned to duty on the vice squad for approximately a year and a half prior to the arrest. Officer Reeder testified that he also was employed as a police officer of the city of Columbus aud had been assigned to the vice squad for approximately a year and a half -prior to the arrest. An effort was made to have Thompson testify as to the use of the memorandum slips which were later introduced into the evidence. On objection, the court excluded his testimony. However, Reeder was permitted to testify relative to the memorandum slips and the use to which they were put in conducting a “number game.” He explained that the number on the slip referred to a number of the stock exchange with an indication as to how much money the purchaser had played on that number. He further testified that if the number stated on the slip comes out in the newspaper, “the party who is backing the slip up is supposed to pay him.” He further testified with reference to the amount which the holder of the slip would receive as 'gain if his number should win, i. e., the winner would win $5 or $5.50 on each penny paid. Reeder testified that the memorandum slips which were introduced into the evidence all containing different-numbers and different prices, were all used for the same purpose. He was asked this question :

“Q. Can you explain to the court what the meaning of those digits on that paper are? A. Why, they represent a number they get out of the paper — commonly known as a numbers game they call it.”

That testimony was admitted without objection. That evidence was properly admitted, and this court is of the opinion that the witness who testified showed that he had the necessary experience.,to testify relative to the so-called “number game.”

The defendant contends that the city did not make a proper case under the ordinance, for the reason that it did not show in what manner the memorandum slips were prohibited by the ordinance. The case of City of Toledo v. Johnson, 72 Ohio App., 46, 50 N. E. (2d), 675, is cited in support of his contention. In that case the charge was that the defendant “did unlawfully engage in a game of chance for money, to wit, number game, contrary to an ordinance.”- The affidavit was drawn under a section of the ordinances of the city of Toledo which made it unlawful for any person to conduct “any game of chance whatever, for any money, property, or other valuable thing.” The court held, and properly so, that it was incumbent on the city to show that the operation of a “number game” was a game of chance. In the instant case, the defendant is charged under an ordinance which makes it unlawful for any person to have “in his possession, or in his custody, or under his control, any ticket, check, writing, slip, paper or document, which represents or is a memorandum of, or is evidence of, or is intended to be used as a memorandum or evidence of, or which is designed or intended to be used in the process of making, settling, paying, registering, evidencing, or recording, a number of shares or an interest in a lottery, ‘policy,’ or scheme of chance, by whatever name.” It will be observed that the ordinance under which the defendant has been charged is quite different from that under which the defendant was charged in the Johnson case. In that case it was incumbent upon the city to show that the operation of the “number game” was a “game of chance” in order to show a violation of the ordinance under which the defendant was charged. In the. instant case, all that the city is required to show is that the defendant was in possession of or had in his custody or under his control the memorandum slips which were intended to be used as a memorandum or evidence of a number of shares or an interest in a scheme of chance. There is enough evidence in this case to support the judgment of the trial court in finding the defendant guilty of violating the ordinance under which ho was charged.

The defendant contends also that the trial court committed error in permitting the officer to testify as to prior convictions. It is contended that prior convictions should have been shown by producing the records of the courts in which the convictions took place. It is contended further that if such records were unavailable that showing must first be made before oral testimony could be given by the officers in regard to prior convictions. The record shows that after arguments of counsel were completed the court made this statement: “The court finds you guilty of the possession and promotion of a scheme of chance. I would like some information about this defendant’s record.” At this point, counsel for the defendant objected to the offering of the record. The court said, “I understood from the evidence that he was in here and convicted on this same charge about March, is that correct?” In answer to the court’s inquiry, Officer Thompson stated “March 1, 1945. Also the fourth month, eleventh day, 1945.” Counsel for the defendant objected to that testimony being offered. No ruling according to the record was made by the court. The contention of the defendant would have much force if those statements had been giade during the trial of the case on the merits and prior to the time the court had announced its judgment. Aftei" judgment, it is proper for the court to be advised as to any prior convictions at the time it passes sentence. Such information may be furnished by counsel or, as in this case, by the officer who may have the desired information.

We are of the opinion that no prejudicial error was committed and the judgment of the trial court is affirmed.

Judgment affirmed.

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