author: Doyle, J.

text:
    Home Owners’ Loan Corp., Appellee, v. Baker et al., Appellees; The Weisberger Realty Co., Appellant.
    (No. 1084
    Decided March 29, 1944.)

      Messrs. Weygandí $ Ross, for appellee Martha J. Baker.

      Messrs. Buckingham, Doolittle & Burroughs, for appellant.
   Doyle, J.

The question for determination is whether a note and mortgage given by the mortgagor to compensate the mortgagee for a part of a loss sustained by the said mortgagee in accepting bonds of the Home Owners’ Loan Corporation in payment of a prior note secured by a mortgage on the same real estate, is unenforceable and void.

The Court of Common Pleas of Wayne county so held, in an action on a cross-petition for judgment on the note and foreclosure of the mortgage given as security therefor, and the present appeal on questions of law is from that judgment.

The legal contest is solely between the mortgagee (The Weisberger Realty Company), and the mortgagors (the Bakers, husband and wife). The Home Owners’ Loan Corporation did not plead to the cross-petition of the mortgagee, although it is in the case as the original petitioner for a foreclosure of its first mortgage.

Walker H. and Martha J. Baker, husband and wife, owned a house and lot in the village of Rittman, Ohio. They bought it from The Weisberger Realty Company. They assumed a note and first mortgage held by the Peoples Savings & Loan Company of Wooster, Ohio, and gave a note secured by a second mortgage to their grantor for the balance of the purchase price.

The Bakers experienced difficulty in carrying the two mortgages, and in the year 1934 negotiated with the Home Owners’ Loan Corporation for the purpose of refinancing the tax and mortgage liens upon their property. They were informed that approximately $2,900 or its equivalent in bonds could be made available for payment of the liens; that sum being 80% of the appraised value of the property.

This figure revealed that, after the paramount liens were paid, there would not be sufficient balance to pay in full the additional lien of The Weisberger Realty Co. and that, if the said realty company voluntarily released its note and second mortgage, it would sustain a loss of more than $300.

Possessed of this information, the realty company instructed the Bakers that it would co-operate in the contemplated refinancing arrangement, by releasing its note and mortgage and accepting the bonds made available to it, in the event and upon the condition that the Bakers would execute a new mortgage and a note secured thereby in the sum of $300, so that its loss in the transaction would be thereby lessened.

This was acceptable, apparently, to the Bakers, and the instruments were executed and dated April 30, 1934, and placed in escrow with one Bodager far the purpose of being held until the refinancing was completed and the new Home Owners’ Loan Corporation mortgage recorded as a first lien upon the premises.

At about the time of the year the refinancing was completed, the Home Owners’ Loan Corporation accepted a note and first mortgage on the property and paid approximately $2,900 in bonds and cash, which ■was accepted by the various lienholders. After the corporation’s mortgage was recorded, the realty company recorded its mortgage as a second lien.

The Home Owners’ Loan Act of 1933, 48 Stats, at L., 128, Title 12, Section 1461 et seq., U. S. Code, did not in terms prohibit the owners, Baker, from giving the note in the amount of $300, secured by a second mortgage on the property. The act did, however, give the Home Owners’ Loan Corporation authority to adopt rules and regulations to govern collateral agreements between the parties. Many rules were accordingly adopted. Whether such rules have the force and effect of law we are not called upon to decide, nor are we called upon to decide whether judicial notice must be taken of them.

(On this point, it is observed that the rules and regulations of the departments, bureaus, agencies, corporations, etc., of the federal government, numbering in the hundreds of thousands, could not be read and certainly not understood in an ordinary judge’s lifetime, if such judge were able to find them, with their daily additions, subtractions, modifications and alterations. Further, the observation is made that some of the bureaus, agencies, etc., officially interpret their own rules and regulations, which in some cases are held secret within the agency itself.)

There is, however, sufficient evidence in the record to show that collateral agreements and second mortgages are permitted by the corporation as a part of its refinancing program under certain circumstances. And in this connection, the general rule extant at the time in question was to allow in some instances the giving of a note and second mortgage to make up a loss, if the total of all liens did not exceed 90% of the appraised value, and the giving of which would not likely work an undue hardship on the owner and deprive him of reasonable opportunity to keep up the necessary payments.

Several cases involving the instant question have heretofore been before the Ohio courts. The statement of Judge Barnes in Dayton Mtg. & Invest. Co. v. Theis, 62 Ohio App., 169, at p. 179, 23 N. E. (2d), 511, seems to accurately pronounce the generally adopted rule:

“* * * where full disclosures are made, and in the absence of fraud, secrecy, duress or collusion, the home owner may contract with the original lienholder to take care of the difference between the total amount due and the face of the bonds, subject only to limitations under the Home Owners’ Loan Act. However, where the loan corporation administrators are not advised of such independent contract, and the lienholder has agreed to accept the bonds in full settlement of his claim, such contract is thereby rendered void as against public policy. ’ ’

See, also, First Federal Savings & Loan Assn. v. Ansell, 68 Ohio App., 369, 41 N. E. (2d), 420; Weber v. Sternad, 69 Ohio App., 258, 39 N. E. (2d), 623, affirmed, Weber v. Sternad, 140 Ohio St., 253, 43 N. E. (2d), 227; Collation of cases in 110 A. L. R., 250; 121 A. L. R., 119; 125 A. L. R., 810.

Faced with a record which shows no fraud, secrecy, duress or collusion, and a note and mortgage which, added to the Home Owners’ Loan Corporation note and first mortgage, does not make the total exceed 90% of the appraised value of the property, we direct our attention to the question of proper notice to the corporation.

Subsequent to the escrow of the note and mortgage heretofore noted, and during the preliminary negotiations with the Home Owners’ Loan Corporation, The "Weisberger Realty Company wrote the Home Owners’ Loan Corporation at its Canton office and enclosed its consent to take bonds with the following comment:

“The reason that we did not return these sooner was that we were not able to get any sort of agreement with Mr. Baker to take care of the balance on our mortgage which the settlement would not take care of. We were over to see Mr. Baker several times and could not get anywhere but saw him a few days ago and finally compromised with him and he will take care of part of our balance and we will agree to take bonds as per the enclosed consents.” (Italics ours.)

This letter, although not specifically stating to the corporation how the “balance” was to be “taken care of” did put them on notice that a balance was to be “taken care of.”

Later, on December 20, 1934, the realty company wrote the corporation’s fee attorney in Wooster (who handled the entire matter for the corporation) as follows :

“I received a call today from Mr. H. P. Henley (counsel for the realty company) who advised me that you wrote him asking that we give you another release of mortgage by separate instrument. I was in his office and he prepared what he believes is what you want on the matter; I trust that this one will be satisfactory. We also have a second mortgage that ive are taking for part of our loss on the property in the sum of $300 which was signed by both Mr. and Mrs. Baker some time ago and which is being held in escrow until such time as the other second is released as of record. It is being held by a real' estate man in Rittman who will release one and put the other one on at once on word from us. I just thought that I would explain all this to you so that everything would be clear and show that we are more than fair on the whole matter.” (Italics ours.)

This letter, written before the closing of the deal, to the attorney in charge, explicitly notified him of the collateral agreement with the owner, and amplified the previous letter to the corporation in Canton.

Two days later — December 24, 1934 — the attorney for the corporation answered to Mr. Henley, attorney for the realty company:

“Today I received a letter from The Weisberger Realty Company in which it was stated that they proposed to take a second mortgage. The rule of Home Owners’ Loan Corporation is where a second mortgage is proposed to be taken, that fact should be made a part of the file originally sent in by me and that all the mortgages dare not exceed 90% of the appraised value of the property. With this information, I do not see how I can close this case, and the Peoples Savings and Loan Company [holder of first mortgage] has advised me that if I do not close it they expect to commence foreclosure.”

However, despite the corporation attorney’s statement, he did effect a closing of the case, by mailing the final closing papers to an associate corporation attorney in Barberton with instructions, and a subsequent disbursement of the corporation’s bonds and cash.

There is no dispute over the fact, as heretofore stated, that the $300 note and second mortgage, added to the corporation’s note and first mortgage, did not make the entire indebtedness exceed 90% of the appraised value of the property. It therefore came within the corporation’s regulation, as shown in the record, that “no second trust or second mortgage will be allowed under any circumstances that is for more than the difference between our appraisal and the amount of our first mortgage. ’ ’ The record further shows that the second mortgage contains the following provision: “It is mutually agreed by and between the parties hereto that no court action or foreclosure proceedings will be instituted on the within mortgage or the note secured hereby for a period of three years.” This provision is likewise within the regulations of the corporation.

There is nothing before this court which parallels in legal aspects the case of Weber v. Sternad. 140 Ohio St., 253, 43 N. E. (2d), 227. The note and mortgage in controversy were obtained before the mortgagee consented to take Home Owners’ Loan Corporation bonds, and the fact that some type of financial settlement for a partial repayment of the loss had been made between the Bakers and the realty company, was made known to the office of the corporation in Canton, seasonably and in proper time. In addition to this, the attorney for the corporation was specifically and accurately notified of the entire agreement in sufficient time to notify the Canton office (approximately twenty miles away) and stop the completion of the loan.

(The debated question of whether notice to the fee attorney is notice to the corporation we do not decide. We recognize such notice, however, as evidence of probative value which, coupled with other evidence of the kind depicted in this record, may be sufficient to prove notice to the corporation.)

It is reasonable to infer from the evidence that the Canton office had full knowledge of all the details, and with this knowledge directed the closing of the loan. This inference is given strength by the fact that the rules and regulations of the corporation permitted the giving of a second lien to make up a loss to the mortgagee under certain conditions. None of these conditions were violated, but on the contrary were complied with in every detail. Certainly the vice pointed out by the Supreme Court of Ohio in Weber v. Sternad, supra, of a note “secretly obtained from the mortgagor in known violation of the terms and conditions of the refinancing agreement” (italics ours) does not obtain in this case, because here we have a transaction openly arrived at, with no intention of concealment.

The cpurts of this state hold that secret collateral agreements in violation of the terms and conditions of the refinancing agreement are illegal and void. And this court would so hold in such a case, and follow the legal pattern set out by the Supreme Court in Weber v. Sternad, supra, and in other Ohio cases cited.

However, in cases where there is a seasonable disclosure of a collateral agreement, without the element of fraud or duress, and within the corporation’s rules-as to an allowed total debt, made before an acceptance of an agreement to take bonds, such collateral agreement becomes a part of the entire transaction, when made known to the Home Owners’ Loan Corporation and directly or constructively accepted, and the formal language of the consent to take bonds in full satisfaction of the debt is altered in legal contemplation so-as to make the collateral agreement a part of the entire Contract; and under such circumstances a note and second mortgage given by the owner to the original mortgagee is based upon consideration, is not against public policy, and is valid.

We think the case at bar therefore presents only, the factual question qf seasonable and reasonable notice to the Home Owners ’ Loan Corporation, and the members of this court are of the opinion that, on this question, reasonable minds can conclude only that such notice was given.

The judgment is reversed, and the cause is remanded to the Court of Common Pleas, with instructions to enter judgment on the note and of foreclosure of the mortgage.

Judgment reversed.

Stevens, P. J., and Washburn, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    The State of Ohio, Appellee, v. Kominis, Appellant.
    (No. 1070
    Decided July 23, 1943.)

      Mr. William G. Wickens, prosecuting’ attorney, for appellee.

      Mr. J. W. Dilgren, for appellant.
   Doyle, J.

John Kominis was charged by affidavit with aiding, abetting and inducing the delinquency of William Gamble, a fifteen-year-old boy, in that he furnished the child with intoxicating liquor, ‘ ‘ causing his intoxication.” Trial was had in the Probate Court, without the intervention of a jury, the defendant was found guilty, and sentence was imposed.

He now prosecutes this appeal on questions of law from the judgment rendered, and assigns as error, first, that “the judgment of conviction and the sentence thereunder is manifestly against the weight of the evidence,” and second, that “the facts, as disclosed by the record, do not justify a finding of guilty beyond a reasonable doubt. ’ ’

The charge was predicated upon Section 1639-45, General Code, which is in the following language:

“Whoever abuses a child or aids, abets, induces, causes, encourages or contributes toward the dependency, neglect or delinquency, as herein defined, of a child or a ward of the court, or acts in a way tending to cause delinquency in such child, or who aids, abets, induces, causes or encourages a child or a ward of the court, committed to the custody of any person, department, public or private institution, to leave the custody of such person, department, public or private institution, without legal consent, shall be fined not less than five dollars, nor more than one thousand dollars or imprisoned not less than ten days nor more than one year, or both. Each day of such contribution to such dependency, neglect or delinquency, shall be deemed a separate offense.”

Tinder Section 1639-1, General Code, the word “child” as used in the act “includes any child under eighteen years of age.”

There is testimony in the record to the effect that the defendant sold whiskey to the child and that he became intoxicated. There is likewise testimony countering this evidence. The trier of the facts believed the evidence of the prosecution, and the members of this court are of the opinion that, after taking into consideration the degree of proof required in criminal cases, such a finding is not manifestly against' the weight of the evidence. See Glowaski v. State, 20 Ohio App., 112, 153 N. E., 157.

In considering the elements necessary for conviction under the statute, the question arises as to whether a conviction can be had in the absence of evidence tending to prove knowledge on the part of the liquor dispenser of the age of the delinquent. In the instant case William Gamble, while only fifteen years of age, was 6 feet 2 inches tall, weighed 170 pounds, and appeared older than his actual age.

It is almost universally held that when a statute makes an act an offense irrespective of guilty knowledge, then ignorance of fact, no matter how sincere, is no defense. There are annotated in 115 A. L. R., 1230, many authorities which hold that “in a prosecution for selling liquor to a minor, under a statute which forbids or makes unlawful such a sale, but does not expressly or by clear implication make ignorance of minority a defense, the seller’s ignorance that the buyer was a minor, •or bona fide belief that he was of legal age, is not available as a defense.”

This is the general rule, and the Ohio statute forbidding sale of liquor to minors (Section 12960, General Code) does not make ignorance of minority a defense, and therefore a saloonkeeper or bartender in this state who sells liquor to a minor for his consumption violates the statute even though he may honestly believe the minor is of legal age. '

It likewise follows that the offense of inducing or ■causing the delinquency of a child as defined by statute may be consummated by an unlawful sale of liquor to .such child, thereby causing his intoxication, even though there was an honest belief that such child was •of proper age. The question of guilty knowledge is :not involved.

The law imposes the peril of an unlawful sale upon •.the seller, and ignorance or honest belief is no defense.

The judgment is affirmed.

Judgment affirmed.

•.Stevens, P. J., and Washburn, J., concur.


author: Ross, P. J. Matthews, J.,

text:
    Giglio, Appellant, v. Lasita, Appellee. (Two cases.)
    (Nos. 6285 and 6286
    Decided June 28, 1943.)

      Mr. Walter K. Bibb aid, for appellants.

      Mr. Robert Adair Black and Mr. Robert F. Badgley, for appellee.
   Ross, P. J.

These appeals on questions of law were argued by counsel, under stipulation, as companion cases, and are to be considered together. The cases were so tried in the Common Pleas Court of Hamilton county, and from judgments in that court these appeals are taken. There was in fact one trial and one jury, but separate verdicts and judgments.

In the first case (6285) which was an action brought by Angelina Giglio, the trial court rendered a judgment upon a verdict in favor of the defendant.

In the second case (6286), the trial court sustained a motion for judgment non obstante veredicto and rendered judgment in favor of the defendant, notwithstanding a verdict in favor of the plaintiff.

The first action (6285) was based upon a claim for personal injuries suffered by the plaintiff, Angelina Giglio.

The second action (6286) was based upen a claim of the husband of the plaintiff in the first case, for care and treatment of his wife, physicians’ fees, nursing charges, and hospital bills.

Prom the record of the evidence introduced, as contained in the bill of exceptions, it appears that Angelina Giglio was a neighbor, friend, and customer of the defendant who conducted a produce business or market stand on the south side of Elder street in the city of Cincinnati. The defendant’s stand was located directly opposite the place of business of the husband’ of Mrs. Giglio, which was on the north side of Elder street.

At about noon on September 14, 1940, Mrs. Giglio, who hereafter will be called plaintiff, made certain purchases of fruits and vegetables from the son of the defendant at the latter’s market stand. She then, in company with her brother-in-law, made other purchases in stores on Elder street. The plaintiff at this time was some eight months pregnant, and her brother-in-law accompanied her in order to carry her purchases. These latter purchases were carried to her husband’s store on the north side of Elder street.

The plaintiff had made an arrangement with the son of the defendant, who operated his father’s stand, to convey all of her purchases, including purchases from others than defendant, in the truck of defendant to her home. The defendant had so accommodated the plaintiff many times before. She testified that she did not ride on defendant’s truck at any time until after her injuries were received. The court struck out the statement that she rode in defendant’s truck after the accident.

After she collected her purchases, plaintiff waited at her husband’s store until the defendant’s son called to her from across the street that the truck had arrived. The plaintiff and her brother-in-law then carried the purchases across the street to the truck. This crossing was made at some distance from the regular street crossing and at no regularly designated crossing. The defendant’s stand was located in the street, adjacent to the south curb of Elder street. The truck was parked in the street along the north side of the stand, further to the north. The plaintiff and her brother-in-law then began to place the purchases in the back of the truck. While doing so, the driver of the truck came from the stand, passed around the rear of the truck, where plaintiff was standing, went to the front of the truck, entered the driver’s seat, started the motor, and without warning backed the truck against plaintiff and her brother-in-law, crushing the plaintiff between the rear of the truck and the front of an automobile parked some six feet back and to the west of the truck. The plaintiff suffered certain injuries and later gave premature birth to a stillborn child.

The driver of the automobile to the west against which the plaintiff was pushed by the 'truck, was called by the defendant and testified that the plaintiff and her brother-in-law together crossed Elder street to the south; that the plaintiff then returned to the north side of Elder street for more packages and as she again reached the truck, and while parallel to it, it began to move backward; that she placed her packages in the truck and was pushed backward until she reached the front of the automobile of the witness, where she sat down upon the license plate; that the plaintiff was not “pinned” against his car; and that she had her arms extended, her hands resting on the tail gate of the truck, which was hanging down.

This witness further stated that when plaintiff made the first trip, “Mr. Lasita” helped plaintiff put her packages in the “cab” of the truck.

The fact that plaintiff made more than one trip across Elder street was corroborated by the son of the defendant. This witness also stated that there was room enough between the truck and car for him to step in and carry plaintiff out, and that the truck had not pulled forward after it had backed up.

In proceeding to consider and pass upon the several assignments of error it is necessary to bear in mind that two distinct cases were tried together in the trial court, and the appeals from the judgments therein must be here considered as separate proceedings. This necessity is emphasized by the results of -the 'trial in the Court of Common Pleas, and the verdicts rendered therein.

In the case in which Mrs. Giglio was the plaintiff, the verdict was in favor of the defendant. The appeal as to this case will now be considered.

A special interrogatory was. submitted to the jury by the defendant. The answer to this interrogatory was not responsive. The verdict was read by the clerk, the jurors questioned as to whether the verdict was their verdict, and the replies of three-fourths or more of them were in the affirmative. The following circumstances then transpired, as appears from the portion of the record.set forth: -

“The Court: Unless there is some matter that counsel want to call to my attention, the jury are instructed to retire to the jury room, deliberate upon the ease and when you have arrived at a verdict return it into court. When you go to the jury room you will select one of your number as a foreman, deliberate upon the case and when nine or more have agreed, you will sign the two forms of verdict to which you agree. In addition to that, if you arrive at a general verdict, that is if your verdict is for the plaintiff or for the defendant, you will answer the following interrogatory: Did the crossing of Mrs. Giglio of Elder street, between intersections, contribute in the slights est degree, directly or proximately to her injury? And whatever answer you may desire to give in this case must be by a concurrence of nine or more of your number, the same as in regard to the verdict and the nine or more of your number agreeing upon the answer will sign the answer. You may now retire.

“Mr. Badgley: General exception.

“Mr. Sibbald: General exception.

“And thereupon the jury retired and after consideration returned to the court room with the verdicts and the answers to the interrogatory as the same appear of record, which verdicts were received from the jury and read by the court.

“Thereupon counsel for defendant stated to the court that he believed the jury had not answered the interrogatory.

“Court adjourned until nine o’clock Monday morning, with the usual caution to the jury.

“Monday, April 20,1942, nine a. m. Morning session.

“Thereupon counsel for the defendant argued with the court to require the jury to make its answer to the interrogatory responsive to the question, and thereupon counsel for both sides conferred with the court in the court’s chambers.

“Counsel for defendant did not press his motion to require the jury to make the answer responsive to the question. The court treated the actions of counsel as a withdrawal of the motion and the jury thereupon returned to the jury box.

“The Court: Members of the jury, the court is going to discharge you from further consideration of this case and you may return to the general jury room.

“And thereupon on April 20,1942, defendant moved for judgment notwithstanding the general verdict in case' No. A76534; and the defendant [sic} Angelina Giglio moved the court to set aside said verdict and for a new trial, which motion was filed on April 22, 1942, supported by an affidavit, a copy of which is made a part hereof, which motion the court overruled, to all of which the said plaintiff by counsel then and there excepted.

“ And the court granted the motion for judgment notwithstanding the general verdict in case No. A-76534, to all of which the plaintiff by counsel then and there excepted.”

The plaintiff filed her motion for new trial, on Wednesday, April 22, 1942, more than three days from the return of the verdict, but within three days of the discharge of the jury on Monday, April 20, 1942. It is the contention of plaintiff that her motion was “duly” filed as is required by Section 11578, General Code, which provides in part: ‘ ‘ The application must be made within three days after the verdict or decision is rendered * * *.”

When is the verdict of a jury “rendered”?

Section 11420-9, General Code, provides:

“In all civil actions a jury shall render a verdict upon the concurrence of three-fourths or more of their number. The verdict shall be in writing and signed by each of such jurors ■ concurring therein, and they must then be conducted into court, where their names shall be called by the clerk, and the verdict handed to the clerk by the foreman. The clerk must then read the verdict to the jury and make inquiry if it is the verdict of three-fourths or more of their number ” Section 11420-10, General Code, provides:

“Either party may require the jury to be polled, which shall be done by the clerk of court, asking each juror if it is his verdict. If on polling the jury more than one-fourth of the jury answer in the negative, or if the verdict in substance is defective, the jury must be sent out again for further deliberation.”

Section 11420-11, General Code, provides:

“If the disagreement of more than one-fourth of the jury be not expressed and neither party requires the jury to be polled, or on the polling three-fourths or more of the jury answer affirmatively, the verdict is complete and the jury shall be discharged from the ease. But when the verdict is defective in form only, with the assent of the jurors and before their •discharge the court may correct it.”

This matter was considered at length in Landon v. Holzberger, 43 Ohio App., 434, 439, 183 N. E., 446.

It is true that under Section 11420-17, General Code, the verdict and finding must be entered on the journal and filed with the clerk, but it is obvious from the sections quoted that such entry and filing are not precedent conditions to the rendering of a verdict from which latter incident the time for filing a motion for a new trial is calculated.

The irrelevant answer of the jury to the special interrogatory caused some confusion in the minds of counsel. The transcript of the docket and journal entries shows the following entries:

“April 17, 1942, at nine o’clock, a. m.

“4/17/42 Min 199 Cause progressed third day and continued until Monday, April 20,1942 at nine o ’clock, a. m.

“This day again came the parties herein by their attorneys, also came the jurors heretofore impaneled and sworn and the trial proceeded. The said jury having heard the testimony adduced in part and the hour of adjournment having arrived, said cause was continued until April 20, 1942, at nine o’clock, a. m.

“4/20/42 Min 229 Cause progressed 3rd day. Verdict for defendant [sic] Augustino Lasita this verdict entered nunc pro tuno as of Friday, April 17, 1942.

“4/25/42 Min 230 Interrogatory answered, nunc pro tunc as of Friday April 17, 1942.

“The following question of fact, submitted to the jury, who was instructed by the court to answer the same, is hereby returned with the general verdict, . fully answered, as follows: Did the crossing by Mrs. Giglio of Elder street, between intersections, contribute in the slightest degree, directly or proximately to her injury? Ans. Both plaintiff and defendant at fault.

“4/21/42 Min 230 Cause progressed 4th day. Jury discharged. Cause continued.

“This day came the parties herein by their attorneys, also came the said jury heretofore impaneled and sworn, whereupon the court ordered the jury discharged and the cause continued.

“4/22/42 Motion for a new trial filed.”

There is nothing in the bill of exceptions to indicate that any time elapsed from the return of the jury to the court room to the rendition of its verdict which, again, according to the bill of exceptions, was on Friday, the 17th of April, 1942. This court is bound by the record of the trial below, as found in the bill of exceptions, the original papers and the docket and journal entries of the court. The only effect of the nunc pro tunc order of the trial court was to order the journalizing of the verdict on the following Monday, which order the court realized should have been made on the previous Friday. As has been noted, the journalizing or entering of the verdict does not affect the time of its rendition. The record, shows nothing to indicate that the verdict was not rendered on Friday, April 17,1942. The motion for new trial was not filed until April 22, 1942, more than three days after the rendition of the verdict, and it consequently was not duly filed, and is unavailing to allow this court to pass upon the weight of the evidence. Such a situation, however, does not prevent a review of the record to determine the existence of other errors, prejudicial to plaintiff, affirmatively appearing therein. See 2 Ohio Jurisprudence, 269, Section 233 et seq.

Such assigned errors in case No. 6285, in which Mrs. Giglio was plaintiff, are now considered.

The trial court permitted the introduction into evidence of an ordinance of the city of Cincinnati, making it a misdemeanor to cross a street at other than a designated crossing. It also submitted a special charge to the jury, stating that a violation of such ordinance was “negligence in itself” and if such negligence “proximately caused or contributed to the accident” the plaintiff could not recover. It also submitted a special interrogatory to the jury, requiring-an answer as to whether such crossing contributed in “the slightest degree directly or proximately to her injury.”

Now all of this was totally irrelevant to any issue created by the evidence. It is obvious, taking-either the statements of witnesses for the plaintiff or for defendant, that the crossing of the street had absolutely nothing to do with the situation which produced plaintiff’s injury. In any event she had crossed the street and was behind the truck of the defendant. She did violate the law in crossing the street at a place-other than a designated crossing, but the crossing had ceased when she stopped behind the truck. She was not continuing to cross the street. Whether the truck was stationary or moving, or whether she had made-two trips or one, she was putting the packages on the-truck when it moved backward. What possible connection could her path to the truck have with her presence behind it. The negligence involved in her illegal passage across the street had ceased. An entirely new situation was presented. There was no-factual issue presented involving her negligent action in crossing the street. The admission of the ordinance-was erroneous, the giving of the special charge was-erroneous, the submission of the interrogatory was erroneous, and the answer to the interrogatory was-wholly irrelevant to the question.

All of these incidents of the trial undoubtedly led the jury to believe that her obvious violation of law in illegally crossing the street had something to do with her injury, when it is quite apparent that the only issues involved were whether or not the plaintiff was negligent in stepping behind the truck, and whether the defendant’s employee was negligent in backing it, under the circumstances shown in the record.

All of such errors were, therefore, manifestly prejudicial to plaintiff, Mrs. Giglio.

The. court also erred to the prejudice of plaintiff in the following special charge:

“3. I charge you that the mere fact that there was an accident in which plaintiff was injured, does not give her a right of recovery. Sometimes accidents happen without the fault of any one. There can be no recovery, unless defendant’s negligence directly caused the injury; and such negligence cannot be inferred; it must be proved, to avail plaintiff, and proved by a preponderance of all the evidence. There also can be no recovery, if you find, from the evidence, that the plaintiff herself was guilty of negligence contributing directly and proximately in the slightest degree to her -injury. ’ ’

The phrase “such negligence cannot be inferred” renders the charge prejudicially erroneous. Miller, a Minor, v. Harpest, 39 Ohio App., 184, 177 N. E., 233.

For the reasons given, the judgment in case No. 6285, entered upon a verdict rendered in favor of defendant, is reversed and such case is remanded for a new trial.

In case No. 6286, the jury found in favor of the plaintiff. The court sustained a motion for judgment non obstante veredicto and rendered judgment also in this case for defendant, Certainly, the evidence, being the same as that heretofore noted, presented factual issues upon which reasonable minds might differ as to the conclusions to be reached. It may be reasonably inferred that here again the fallacy of considering the illegal crossing of the street by plaintiff as a controlling factor, indicating contributory negligence on her part, was a dominating influence in causing the judgment contrary to the verdict of the jury.

As no motion for a new trial was filed by the defendant, the court has therefore no course but to here render the judgment on the verdict which the trial court ought to have rendered. Had a motion for new trial been filed by the defendant, as well as a motion for judgment non obstante veredicto, the court not ruling upon such motion for a new trial, the case would have had to be remanded to the trial court for appropriate action. Thompson v. Rutledge, 32 Ohio App., 537, 168 N. E., 547, in which the fourth paragraph of the syllabus is:

“Where trial court denied motion for new trial on account of having granted judgment notwithstanding the verdict, reviewing court, on adjudging .that judgment notwithstanding verdict should not have been given, should remand case to trial court for disposing of motion for new trial on the merits.”

It is, therefore, the conclusion of this court that judgment on the verdict in case No. 6286 be here rendered for plaintiff.

Judgment reversed and cause remanded in case No. 6285.

Judgment reversed and final judgment for appellant in case No. 6286.

Hildebrant, J., concurs.

Matthews, J.,

concurring. I concur in the results reached, but not in the interpretation of the legal significance of what took place on April 17th and 20th during the trial of these cases. In 39 Ohio Jurisprudence, 1087, Section 361, it is said: “The delivery and recording of a verdict are essential to its validity, because it is not perfected until recorded and a trial cannot be considered as ended until this is done.”

It seems manifest that on April 17th the court halted the rendition of the verdict, so that it could consider counsel’s contention that the answer to the special interrogatory was not responsive, and, thereupon, adjourned court until April 20th, with the jury still undischarged from its duty in the case. On April 20th, after some colloquy between court and counsel, the objection to the sufficiency of the answer to the interrogatory was withdrawn, and then, and not till then, was the jury discharged from further consideration of the case. .

My interpretation of these events is that, while the verdict was in process of being rendered, the process was not completed and the verdict rendered, as that term is used in Section 11420-9 et seq., General Code, until April 20th.

The motion to set aside the verdict and for a new trial filed within three days thereafter was in time. The fact could not be changed or the time reduced by a nunc fro tunc entry.


author: Matthews, J.

text:
    Wilson, Appellee, v. The Cincinnati Street Railway Co., Appellant.

      (No. 6268
    Decided June 1, 1943.)

      Mr. D. T. Rachett, for appellee.

      Mr. Leo J. Brumleve, for appellant.
   Matthews, J.

At the first trial, the jury returned a verdict for the plaintiff, which the court set aside. At a second trial, the jury returned a verdict for the defendant, which was likewise set aside. At the second trial the defendant moved for an instructed verdict and for judgment at the close of all the evidence. This motion was overruled. When the court set aside the verdict for defendant the defendant renewed its motion for judgment by filing a motion for judgment on the pleadings and the evidence. The court overruled that motion. It is from the rulings of the court on these motions that the defendant appealed to this court.

The plaintiff alleged in her petition that she had received personal injuries by being struck by one of the defendant’s buses used by it as a common carrier of passengers. In her petition she alleged:

“Plaintiff says that on or about the 17th day of January 1941, she left her place of employment at the northwest corner of Florida and Chase avenues, Cincinnati, Ohio, and crossed said Chase avenue to the south side thereof, and stood upon the sidewalk near the curb west of Florida avenue awaiting for the approach of one of defendant’s city bound buses; that she signaled said bns to stop as it approached city bound but said bus failed to slacken its speed preparatory to taking this plaintiff on as a passenger.

“Plaintiff says that instead of coming to a stop in response to her said signal and permitting her to board as a passenger, said bus swept by at great speed and so close to the said curb as to brush this plaintiff off into the street.”

There are other allegations setting forth the respects in which the bus was being operated in a negligent and unlawful manner.

The defendant admitted that the plaintiff came in contact with one of its buses on Chase avenue in the vicinity .of Florida avenue, and denied all other allegations.

In support of her claim the plaintiff testified:

“A. * * * I had my shopping bag in my right hand and when I crossed the street I set my shopping bag down by the post and got my purse out, my pocketbook, and it had a little purse down in it and got it, and got my fare and just at that time I looked towards Virginia down here and I saw a trolley bus coming.

“Q. You say you had a shopping bag and a purse? A. Yes, I had a shopping bag.

“Q. The shopping bag was in your right hand ? A. In my right hand when I crossed the street.

“Q. And your purse in your left hand? A. My purse was in my shopping bag when I crossed the street.

“Q. In your shopping bag? A. Yes.

“Q. You crossed Chase? A. I did.

“Q. Over to the bus stop? A. Yes, sir.

“Q. You were standing on the sidewalk? A. Right at the side of a post with ‘car-stop’ right on it.

“Q. How far was that from the corner of Florida? A. Well, now I wouldn’t say. I don’t just definitely know but it isn’t vei-y far from the intersection of Florida across Chase but just the feet I wouldn’t just exactly know.

“Q. Well, can you come over to this here diagram or plat and sort of indicate, this is Chase, this is Florida, there is the Knosp house? A. Yes, sir.

“Q. Will you just give the course you took when you left Knosp’s house and where you stopped. A. When I went, I went out the back door, I presume it is back here.

££Q. Yes.' A. I mean they are well up on the northwest-side and I went out and into Florida avenue here, on the street, on the sidewalk and I came right down here and I looked, when I got here to cross Chase street, I looked towards Kirby and I didn’t see anything and I looked down-this way and I didn’t see one and I crossed over here to this car stop. This seemed to me would be'the car stop because it isn’t just straight across here, it is kind of diagonally this way across and I come in and set my shopping hag down and got my pocketbook out of my shopping bag and went into it and got a dime out of it and at that time I looked and I seen the car coming right for the stop and I just thought it was coming fast and I waved for the car to stop for me.

“Q. You can take the witness stand again. What happened after that, after you waved? A. Well, the only thing I know I waved for the car, the bus to stop for me.

££Q. I know, but what happened? A. Well,—

££Q. Do you know whether the bus stopped for you or not? A. Well, it knocked me unconscious, I didn’t know what happened. I knew something knocked me unconscious. I didn’t know.

££Q. Your-hand was injured, was it? A. Yes, my hand was injured badly.

££Q. Your right hand? A. Yes, sir.

“Q. Is there a scar there? A. Yes, there is a scar there.

“Q. Will you come over here and show the jurors the scar on your right wrist? (Witness indicates to the jury.)

“Q. Right along here. Then what happened after that? A. Well, I really don’t know. When I know anything I was in the hospital after then.

“Q. How long were you in the hospital? A. Twelve weeks. ’ ’

It is said by the defendant that it appears that plaintiff was standing eight or nine inches from the curb and away from the vehicular part of the street at the time she was struck. We find no evidence in the bill of exceptions to that effect. It may be that, by means of the drawing on the blackboard which apparently was used, it might appear that that was the position of the plaintiff, but neither the blackboard nor a replica of any sort is in the record — 'and it is the record that controls this court.

Analyzing the plaintiff’s evidence, we find that she “looked and I seen the car coming right for the stop and I just thought it was coming fast and I waved for the car to stop for me,” that she did not know what happened but “it knocked me unconscious” and at that time she “was on the curb, up on the curb. * * * There is a little piece of practically plain ground, not no cement, about that much, and I was standing right on the right side of this street by the post. * # * That is right, on the curb, just by the post on the curb.”

Now it is admitted that the bus struck the plaintiff. The plaintiff says the bus was coming fast, that she had waved for it to stop, and that she was on the curb anticipating that it would stop to take her on and instead of doing so,' it went by her going fast and as a result the bus struck her.

It is common knowledge that a large, heavy bus, going rapidly by would have a tendency to cause a person near its course to lose equilibrium. That may have paused the collision. I believe it is such an inference, which, if drawn, could not be said by this court to be unreasonable. And, as the plaintiff had signaled and was expecting the bus to stop and not pass so close to her as to cause her to lose her equilibrium, it could not be said as a matter of law that she was negligent in occupying the position on the curb. Furthermore, the plaintiff testified without equivocation that she was on the curb and that the bus did strike her. Now there is no unvarying natural law that held that bus in the vehicular part of the street and prevented it from going upon or over the curb.

I consider it a case presenting sufficient circumstantial evidence in the record to make it impossible for this court to say that the trial judge who had a better opportunity to understand the meaning of the-language used by the witnesses, was wrong in overruling the defendant’s motions for judgment.

The court is unanimously of the opinion that the evidence of the defendant taken with that evidence introduced by the plaintiff which favored the defendant undoubtedly preponderated and justified the trial court in granting a new trial and a majority of the court feels that the analysis which I have made shows no substantial evidence or reasonable inference supporting the plaintiff’s cause and that, therefore, the trial court should have sustained the defendant’s motions for judgment.

The judgment of this court, therefore, is that the judgment of the trial court should be reversed and final judgment entered in this court for the defendant.

Judgment reversed.

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


author: Ross, P. J.

text:
    Smith et al., Appellants, v. Rymkus et al., Appellees.
    (No. 6187
    Decided May 3, 1943.)

      Mr. Joseph Lemkuhl and Mr. Charles 8. Furber, Jr., for appellants.

      Mr. Francis A. Hoover, for appellees.
   Ross, P. J.

This is an appeal on questions of law and fact from a decree in partition entered by the Court of Common Pleas of Hamilton county.

The trial here is, therefore, de novo. In lieu of evidence an agreed statement of facts is presented to the court. From this it appears that one Antoni Rymkus died intestate on June 6, 1930, leaving surviving him a widow and seven children, two by a former wife and five by his second wife, the widow. For some reason, not apparent, the existence of the two children by the first wife was ignored by Joseph Rymkus, a child of the decedent and widow, who was appointed administrator of his father’s estate. In the routine affidavits filed in the administration of the estate, no mention was made of the two children by the first wife.

The widow and the five children of the second marriage occupied the family homestead, the property herein involved, for some nine years. The following is a quotation from the agreed statement of facts:

“Oñ November 18, 1939, tbe five children of the second marriage, conveyed their interests in the Rosemont avenue property to their mother, by deed of general warranty, in which they stated that they were the true and lawful owners of the property. Mary Rymkus, one of said five children, a minor at the time of said conveyance, reached legal age on July 11,1942.

“Mrs. Anna Rymkus then purchased a new home on Prosperity Place, Price Hill, and to finance it, she borrowed seven thousand three hundred and fifty ($7,350) dollars from the First Federal Savings ■& Loan Association, and gave this building association a ‘first mortgage’ on the Rosemont avenue property and also on the Prosperity Place property.

“Mrs. Rymkus moved into the Prosperity Place property about the latter half of November, 193.9, and since that date, the Rosemont avenue property has been for rent, although not always occupied. But between June 6, 1930, and the latter half of November, 1939, Mrs. Rymkus and her five children occupied the Rosemont avenue property as their home.”

■ On June 5, 1940, the two children of the first marriage instituted the present partition proceeding which culminated in a decree for partition. Again, it is recited in the agreed statement of facts, as follows:

“This decree, entered December 19, 1940 (missing from the files at this time), found that plaintiffs were entitled to partition; that Anna Rymkus had a right of dower in an undivided fractional interest of the premises, and that the property should be sold free of said dower interest. The opinion of the lower court states: ‘The decree containing the provision for dower in only an undivided portion of the real . estate involved was submitted bearing the signatures of counsel then of record.’ The original of this decree is -missing from the files. The court’s statement for the purpose of this appeal is assumed to be correct, although the counsel then handling the matter for Anna Rymkus does not remember whether she did or did not sign this decree.”

Thereafter, the property was appraised, the appraisement confirmed, the property ordered sold and offered at public sale which failed for lack of bidders. No objection was made by anyone to the sale. The widow and one of her attorneys were present.

Again turning to the agreed statement of facts,, we find the following:

“After the property failed to sell at sheriff’s sale for the required two-thirds, namely, three thousand ($3,000) dollars, an offer was filed in court, whereby a prospective purchaser offered twm thousand seven hundred ($2,700) dollars cash for the property

“On September 15, 1941, Victoria Rymkus, as guardian of Mary Rymkus, a minor, filed a motion to be made a party defendant, and on the next day, the guardian filed a motion to have the dower interest of Anna Rymkus set off to her.”

The widow then moved the court for an order setting off her dower in the entire premises.

The agreed statement also contains the following statement:

“It is only at this stage of the proceedings, namely, in September, 1941, when a buyer was ready to purchase the property, that the claim was made for the first time that Anna Rymkus had dower in the entire property and that the property should be sold subject, to Anna Rymkus getting one-third of the annual rents during her lifetime.

“Other facts are shown in the pleadings, affidavits and other papers filed in the lower court and which are . now before this court on this appeal.

“The original decree and partition entered December 19, 1940, the motion to confirm appraisement and for order for public sale, filed January 3, 1941, and entry confirming appraisement and ordering public sale entered March 20, 1941, have' been missing from the files for some time, and by stipulation, copies are included in the appeal.”

It is the contention of the plaintiffs that the first decree of partition is not subject to modification by the trial court after term.

It appears that the statutory method of attack upon this decree was followed. While the soundness of the court’s action in finding grounds to set the first decree aside may be questioned we consider that question not now before this court in this proceeding de novo, which, by attacking the final decree of partition entered by the trial court, presents the entire case for consideration.

An appeal from a decree in a partition proceeding may be upon questions of law and fact, as such proceeding constitutes a chancery ease. Wagner v. Armstrong, 93 Ohio St., 443, 113 N. E., 397.

Such an appeal on questions of law and fact is a trial de novo, and permits a review of the entire case, upon the pleadings and the evidence submitted to this court. Kiriakis v. Fountas, 109 Ohio St., 553, 143 N. E., 129.

A simple question is, therefore, presented: Is the widow entitled to have her dower set off as a continuing charge on 1/3 of the rents and profits upon the entire estate?

Our conclusion is that she is not so entitled, for the . reason that her dower interest in 5/7ths of the estate was absorbed by the fee conveyed to her by her five children. It does not appear that the minor grantee has disaffirmed her conveyance.

Before assignment of dower and after the same had become consummate, a widow (even before the enactment of Section 10502-1, General Code) had a bare chose in action, not a vested estate. See Kunzelman v. Harris, 31 N. P. (N. S.), 407, and the authorities therein noted. The conveyance of the fee title of the widow’s five children certainly vested in the widow the entire and complete title to the 5/7ths of the estate conveyed, and any dower interest was thereby completely absorbed. To say that she thereafter possessed a dower interest in such 5/7ths, which could thereafter be isolated from the fee, is to maintain that she continuously possessed a vested dower interest in her own property. It is true that where the interests of others will be jeopardized, equity will, in their behalf, isolate such dower interest in order to do substantial justice. 14 Ohio Jurisprudence,, 690, Section 77.

The defendants claim that this can be done in the interest of the widow also if she has not estopped herself to make a claim to isolation of her dower interest.

Accepting for the moment this position of defendants, the facts agreed upon show that the widow and her attorneys stood by without protest or objection while a decree for partition and an order for sale free of dower were entered, and a sale pursuant thereto was carried on; and that it was not until some months later that they advanced this new theory of her interest. Beside all this, she accepted a deed from her five children. She exercised complete ownership over the property and executed a first mortgage to a loan association, in which it is reasonable to suppose she declared herself to be the owner of the premises, although she knew of the existence of the two children by the former marriage. By such acts she implied ownership of the entire fee. Her signature with that of her children would have accomplished the result of perfecting the lien of the association, as far as the 5/7ths interest in the property was concerned.

Can she now ask equity to ignore the fact that on every possible occasion she had held herself out as the owner of the entire fee to the exclusion of those she must have known had an interest in the property? For what purpose? In order that she may place a continuing burden upon the property which renders it of such a character that no purchaser would accept it? Such a state of facts certainly would bénd the inclination of the chancellor away from her claim.

After the deed from her five children, the widow became a tenant in common with the two children, by the first marriage, in the entire estate, possessing concurrently therewith a dower interest, merely in the nature of a chose in action, in the 2/7ths interest of the two children.

By virtue of the provisions of Section 12042, General Code, she is not now entitled to assignment of dower because her “right of’ dower extends only to an undivided interest in the estate.” See 14 Ohio Jurisprudence, 649 and 717, Sections 34 and 96; 30 Ohio Jurisprudence, 930, Section 114.

It is the conclusion of the court, therefore, that the first decree of partition is proper and applicable to the facts in this case and a similar decree may be entered herein as the decree of this court, with a further provision in such decree that this case be thereupon remanded to the Court of Common Pleas for such further proceedings as may be in accordance with law.

Decree accordingly.. ■

Hildebrant and Matthews, JJ., concur.


author: Stevens, P. J.

text:
    Epinger, Admx., Appellee, v. Wade, Appellant.
    (No. 3554
    Decided March 8, 1943.)

      Messrs. Gottwalcl, Hershey S Hatch and Messrs. Brouse, McDoivell, May $ Bierce, for appellee.

      Mr. Raymond J. McGotvan and Messrs. Welch <& Mason, for appellant.
   Stevens, P. J.

Before this court, this cause appears as an appeal on questions of law. Plaintiff (appellee) brought an action as administratrix of the estate Of her deceased husband, to recover for his alleged wrongful death.

The action under the statute (Section 10509-167, General Code) was necessarily brought for the sole benefit of the next of kin of the decedent.

The defendant (appellant) filed her answer to plaintiff’s petition, and also a cross-petition wherein she attempted to set up a counterclaim against the estate of the. decedent for personal injuries to herself, sustained in the same automobile collision which resulted in the death of plaintiff’s decedent.

The trial court ordered a separation of the two actions, and that the action set out in defendant’s cross-petition be docketed as an independent action. From this ruling the instant appeal has been taken.

It is urged by appellant that the trial court erred when it ordered a separation of her cross-petition; further, that said order operated as a dismissal of the cross-petition, and is hence a final order reviewable on appeal.

To test the verity of appellant’s contention it is necessary to consider the propriety of the counterclaim attempted to be interposed by her.

If the counterclaim is a valid and proper one, then the denial of the right to be heard thereon in the action below deprived defendant of a substantial right, and constituted a final, appealable order. On the other hand, if the counterclaim was not one which could be properly interposed in this kind of action, then defendant lost nothing to which she was entitled by reason of the trial court’s order, and there was no final order.

It must be conceded that personal representatives of decedents may and do act in different legal capacities, under different sets of circumstances. Wolf, Admr., v. Lake Erie & Western Ry. Co., 55 Ohio St., 517, 45 N. E., 708, 36 L. R. A., 812.

In the instant case, the personal representative acted as a trustee for the benefit of the next of kin in the prosecution of the wrongful death action. In defending against the claim of defendant, the personal representative acts for and on behalf of the estate of the deceased.

In 36 Ohio Jurisprudence, Set-Off and Counterclaim, Section 63, under the heading “Mutuality of Parties,”' this statement appears:

“In General. — It is well settled that, as a general1 rule, mutuality of the parties is an essential condition of a valid set-off or counterclaim. That is, the-debts must be to and from the same persons and in the-same capacity.”

This rule was quoted with approval in Nichols v. Metropolitan Life Ins. Co., 137 Ohio St., 542, at page-545, 31 N. E. (2d), 224.

In 34 Corpus Juris Secundum, Executors and Administrators, Section 719, it is stated under “a. Debts-Due in Decedent’s Lifetime against Causes of Action Accruing after His Death”:

“In an action by the personal representative on a-cause of action accruing after decedent’s death, debts-due from decedent in his lifetime cannot be set off.”'

It seems apparent to us that the claim interposed by defendant against the administratrix, acting for the estate of the decedent, does not possess the required attribute of mutuality when opposed to an action-brought by the administratrix as trustee for the next of kin. There is no mutuality of parties as required' by the provisions of the rule above set forth, the debts- or claims not being to and from the same persons in-the same capacity.

There was consequently no error in the judgment of' the trial court ordering a separation of defendant’s counterclaim; there was likewise no final order from which this appeal could be properly taken, and the appeal must be dismissed.

Moreover, in the instant case — where the evidence on the controlling issue presented by the petition and by the counterclaim relate to the same transaction, and some of it is competent in the trial on the petition and not competent in the trial on the counterclaim —there was some degree of discretion vested in the trial court as to whether there should be separate trials; and under the circumstances of this case we find no abuse of discretion.

Appeal dismissed.

Washburn and Doyle, JJ., concur.


author: Montgomery, P. J.

text:
    The Henry H. Stambaugh Auditorium Assn. et al., Appellees, v. City of Youngstown, Appellant.
    (No. 1099
    Decided October 19, 1943.)

      Messrs. Manchester, Bennett, Powers £ Ullman, for appellees.

      Mr. John A. Willo, director of law, Mr. Homer E. Carlyle and Mr. I. Freeman, for appellant.
   Montgomery, P. J.

The defendant, the • city of Youngstown, perfected an appeal from the Court of Common Pleas of Trumbull county, and the notice of appeal recites that it is on questions of law and fact. However, it filed in this court an assignment of errors, with a prayer for a reversal of the judgment of the Court of Common Pleas, thereby apparently abandon- • ing the appeal on questions of law and fact. Thereafter the appellees filed in this court a motion that this action be- retained as an appeal on questions of law only, for the reason that it is not a chancery action. The appellant, apparently reversing again its position, insists in open court that appeal does lie on questions of law and fact, but acquiesced in the proposition that, as appellant, the burden was upon it.

In spite of these conflicting positions taken, we will. proceed to treat the appeal as one on questions of law and fact, in accordance with the original notice. We recognize the force and effect of the two authorities cited by the appellees. The case of Oglesbee v. Miller, Exr., 125 Ohio St., 223, 181 N. E., 26, was an action to forfeit a life estate on the ground of waste and was held to be legal in character and not appealable. The case of Kochs, Admx., v. Kochs, 49 Ohio App., 327, 197 N. E., 255, 19 Abs., 221, an opinion by this court, was to the effect that,- although the action is one for a declaratory judgment, the determination of whether a case is appealable to this court depends upon whether the cause of action is equitable in its nature.

In the instant case the whole controversy is based ■ primarily upon the determination of the powers given in the establishment of a charitable trust. Therefore, the case is equitable in its nature, and in our judgment appealable to this court on questions of law and fact.

Henry H. Stambaugh, by item 40 of his will which was admitted to probate on the 17th day of January, 1919, in Mahoning county, Ohio, provided:

. “Item 40: I give, devise and bequeath to The Realty Trust Company, in trust, my farm in Liberty township, Trumbull county, Ohio, just north of the Mahoning county line, and known as the ‘North Farm’ and ■extending from Logan avenue to about twelve hundred (1200) feet west of Fifth avenue extended, and about ■eight hundred (800) feet wide, and containing about •eighty (80) acres of land; also my farm in Youngstown township known as the ‘Oatesteane Farm,’ situated ■on the Salt Springs road, Youngstown township, Ma-honing county, Ohio, and containing about thirty-four <(34) acres of land; both of the above designated farms to be transferred and conveyéd to the city of Youngstown for a park and play-grounds purposes under such provisions, conditions and restrictions as the above named trustee may direct.”

Thereafter, on February 10, 1920, this named trustee executed and delivered to the city of Youngstown, 'Ohio, a deed for the real estate mentioned in this item 40 of the will. This deed was accepted and recorded by the city of Youngstown, and contains the following provisions and conditions:

“As a further consideration for this conveyance, said grantee covenants and agrees that it will devote and employ all of said lands herein conveyed for the uses and purposes of public parks and playgrounds only.

“This conveyance is subject to the opening and extension of Fifth avenue, a street in the city of Youngstown, through and across said lands, and as a further ■consideration for this conveyance said city of Youngstown, grantee, covenants and agrees that said Fifth avenue may and shall be opened and extended through said lands on its present course and of its present width and that it will at its own proper expense pay all the cost of opening said Fifth avenue and that it will improve the same at its sole and proper expense to the same degree and extent and with the same manner and kind of improvements that said Fifth avenue-is improved through and across the parcels of land; lying in said city and southerly of the lands hereby-conveyed, including those immediately adjoining the same.

“And as a further consideration for this conveyance said grantee covenants and agrees that if possible it will join with the proper officials of Trumbull county, Ohio, and co-operate with them, and pay such portion of the cost and expense thereof as may be agreed upon so that the county line road, so called, between Liberty township and Youngstown city, shall be opened and widened to a width of not less than sixty feet and improved by a macadam, brick or other suitable pavement from Logan avenue on the east to Belmont avenue on the west, of a width of not less than thirty feet; and it is further understood and agreed that all the-covenants by said grantee to be performed shall be performed by it within a period of ten (10) years from the date of this deed. This grantee further agreeing that in any event such improvement shall be made within the time limit hereinbefore set forth. This grant is-subject to the condition that shall the lands hereby conveyed cease to be used for purposes of public parks- and play-grounds, or if, for any reason, said grantee should neglect or refuse to perform all or any of the-covenants herein by it to be performed within a period of ten (10) years from date hereof, then said lands-shall revert to said grantor, as trustee, its successors and assigns.

“To have and to hold said premises unto said city of Youngstown, Ohio, its successors and assigns, forever for the purposes of public parks and playgrounds only, and subject to the above covenants as fully and' completely' as said The Realty Trust Company, aa trustee under and by virtue of said last will and testaraent and of Item 40 thereof might or should grant and convey the same.”

■ The petition in this action .set forth in substance the provisions of item 40 of the will and the conditions in this deed, and alleged the failure and the refusal of the city to comply with the terms and conditions.as to the opening and improvement of Fifth avenue, and it prayed for a forfeiture of the title to this real estate under the reversionary clause of this deed.

The answer, admitting generally the allegations of fact in the petition, averred in substance: First, that it was beyond the power of the trustees under the Stambaugh will to lay down and enforce such conditions; second, that it was an attempted encroachment upon the governmental powers of the city of Youngstown ; third, that the plaintiffs were estopped to maintain this action; and fourth, that they were guilty of laches and the statutes of limitation of Ohio applied;

. The record is voluminous and the briefs are long and exhaustive. As contrasted with the record and the briefs, the issues presented are comparatively simple and the essential facts are not seriously disputed. Much of the record seems to us immaterial, in view of the provisions of this item 40 of the will itself. It is not difficult of construction; It speaks for-itself.

“If the language used in the will expresses a definite unambiguous intention, the courts will not look to the surrounding circumstances for the purpose of varying the intention which is thus expressed in the will. Under such circumstances the court will construe the will without reference to such additional facts.” 1 Page on Wills (2 Ed.), 1373, Section 810.

This item 40 of the will directs the transfer and conveyance to the city of Youngstown of this real estate for park and play-ground purposes “under such provisions, conditions and restrictions as the above named trustee may direct.” Here is explicit and speciñe authority for the establishing of conditions by the trustee when a conveyance is made of the real estate. Clearly they were empowered to lay down any reasonable conditions to such a grant, and the conditions expressed in the deed were not, and are not, unreasonable.

As to the listed second defense of alleged encroachment on governmental powers, let it be suggested that there are three separate sections of the General Code of Ohio directly applicable to this proposition:

Section 18, General Code, provides generally for gifts, devises and bequests to public authorities, including a municipal corporation, and recites that “such gifts or devises of real estate may be in fee simple or of any lesser estate, and may be subject to any reasonable reservation.”

Section 3615, General Code, which enumerates the general powers of municipalities, lists among them authority to acquire real estate by purchase, gift, devise, etc., and to make rules and regulations necessary to carry out the provisions of any conveyance, deed or will in relation to such gift.

Section 4066, General Code, which provides for the care of property donated for park purposes, specifically directs that when such municipal corporation has become the owner of any such park for park purposes it ‘ ‘ shall be managed and administered in accordance with the provisions or conditions of such deed of gift, devise or bequest.”

The city of Youngstown was empowered to accept this deed subject to the conditions set forth. It was under no obligation to accept the same. But having accepted it, the obligation is then imposed to perform the conditions which formed the consideration for the conveyance.

The city authorities did not challenge or question these restrictions and conditions imposed in this deed. They consented to them. They have even made partial compliance with them, for they have improved the road known as Gypsy Lane, which is the southern boundary line of the tract in question, immediately adjoining the north line of Mahoning county.. They have made a beginning of this improvement and construction of Fifth avenue, because they have paved and curbed it to the extent of thirty feet beyond the .north line of what is termed Gypsy Lane.

IThe plaintiffs have not, so far as we can see from this record, in any way waived their right to this reversion or forfeiture. They have consistently insisted that the city carry out the conditions imposed by the deed.

It is urged as an additional ground for estoppel that a golf course has been constructed at a tremendous expense, and that the plaintiffs acquiesced therein. Of course this is true, but, under the record, the extension .and the improvement of this street would not substantially impair the golf course in its usage. At any rate, if'the golf course were impaired, or for practical purposes be destroyed, the real estate would still be available for park and playground purposes, which was the •■use specifically designated in this item 40 of the Stambaugh will.

And for the same reason the plaintiffs were not in ■our judgment guilty of laches because of their continued insistence upon the compliance with the provisions of the deed.

Certainly they are not barred by the statutes of limitation. Time would begin to run only from the expiration of the ten years from the date of the deed, and even now there has elapsed less than fifteen years.

It seems to us clear, and not subject to serious question, that the plaintiffs are entitled to the relief which they seek, and that this defendant, the city of Youngs-' down, cannot hold and enjoy this real estate without complying with the conditions of the grant which formed the consideration for the conveyance to it. The plaintiffs have indicated in brief and oral argument a willingness that any reasonable conditions be imposed to enable the city to avoid the forfeiture to which the plaintiffs claim they are entitled, and to which we hold they are entitled. We recognize, under present wartime conditions, the financial and labor difficulties which confront all cities of Ohio, and presumably all cities throughout the country, and that it might be an unwarranted hardship to require the immediate compliance with this condition imposed in this deed.

. It is the judgment of this court that there be a decree of forfeiture and reversion, as prayed for in the petition, but that the same may be avoided by the city of Youngstown on condition that there be complete and final compliance with the conditions- of this deed one year from the termination of hostilities between the United States, on the one hand, and Germany and Japan, on the other hand, or with the last of the two to so terminate hostilities.

Decree accordingly.

Sherick and Putnam, JJ., concur.


author: Carpenter, J.

text:
    The State, ex rel. Dudley, Mayor, et al., Appellants, v. Kromer, Appellee.

      (No. 492
    Decided October 18, 1943.)

      Messrs. Young é Young, for appellants.

      Mr. Earl 8. Miller, for appellee.
   Carpenter, J.

The appellant herein Joe E. Dudley, as mayor of the appellant the city of Norwalk, removed the appellee, Frank A. Kromer, from his office as chief of police of that city. The charges were incompetency, inefficiency and failure of good behaviour. Kromer appealed from the order of removal to the city’s civil service commission which, after a full hearing at which the counsel for the city was present, modified the order of removal to one of suspension for fifteen days.

Thereupon the mayor and the city gave timely notice of appeal on questions of law and fact from the commission’s order to the Court of Common Pleas which, on motion of Kromer, dismissed the appeal for the reason that the order of the commission was final as to the mayor and the city and that the law does not give them the right to such appeal. From that order, the mayor and city appealed to this court on questions of law.

Section 486-17a, General Code, in the general civil service law of Ohio, defines the right of appeal from the commission to the Court of Common Pleas. After providing that the tenure of every officer in the classified service, as the chief of police of a city, shall be “during good behavior and efficient service” and that he may be removed for incompetency, inefficiency, etc., the part material herein is-as follows:

“In all cases of removal the appointing authority [.the mayor in this case] shall furnish such employee or subordinate with a copy of the order of removal and his reasons for the same, and give such officer * * * a reasonable time in which to make and file an explanation. Such order with the explanation, if any, of the employee * * * shall be filed with the commission. Any such employee * * * so removed may appeal from the decision or order of such appointing authority to the * * # municipal commission * * # within ten days from and after the date of such removal, in which event the commission shall forthwith notify the appointing authority and shall hear * # * such appeal within thirty days * * * and it may affirm, disaffirm or modify the judgment of the appointing authority, and the commission’s decision shall be final; provided, however, that in the case of the removal of a chief of police or chief of the fire department or any member of the police or fire departments of a municipality an appeal may be had from the decision of the municipal commission to the Court of Common Pleas of the county in which such municipality is situated to determine the sufficiency of the cause-of removal. * * *”

This section deals only with “cases of removal” by the appointing authority. It has no application to lesser disciplinary orders provided for in Section 486-17, General Code. Curtis, Safety Director, v. State, ex rel. Morgan, 108 Ohio St., 292, 140 N. E., 522, paragraph two of the syllabus.

On removal, an employee in any branch of the classified service can appeal to the commission “and it may affirm, disaffirm or modify the judgment of the appointing authority” removing the employee, and “the commission’s decision shall be final.”

By the proviso which follows, the only qualification to the finality of the commission’s decision is as to members of the police and fire departments of municipalities who “in case of removal” are privileged to appeal to the Court of Common Pleas, and on inquiry de novo that court is limited “to determine the sufficiency of the cause of removal.” Kearns v. Sherrill, City Manager, 137 Ohio St., 468, 30 N. E. (2d), 805. The court’s judgment can be only an “affirmance or disaffirmance in toto” and it “is without authority to modify the same.” Hawkins v. City of Steubenville, 134 Ohio St., 468, 17 N. E. (2d), 641. As was said in the Kearns case, “An additional safeguard is thus provided members of the police and fire departments.”

Two reasons are apparent why the jurisdiction of the court is so limited:

1. The civil service commission is a part of the municipal government. Its members, in Norwalk, are appointed by the mayor. Hence, its decision is in fact the decision of the municipality itself, as it were, a check on the action of the municipality’s other agent, the mayor. An appeal by the municipality from its own decision would be unjust and inconsistent with the statute. This disposes of the contention made by appellants that “under the constitutional provision of due process the right of appeal must be reciprocal.”

2. The municipality by its agency, the commission, having reduced the punishment for its employee from removal to suspension, the matter became a mere disciplinary measure and its decision was final. It was no longer a “case of removal.”

The order of the lower court dismissing the appeal to it was right and it is affirmed.

Judgment affirmed.

Lloyd and Stuart, JJ., concur.