text:
    In re Lorok, a. k. a., Kragen.
    (No. 22613
    Decided November 10, 1952.)

      Messrs. Beach £ Warner, for appellants Chester C. Woods and Florence Woods.

      Messrs. Payer, Bleiweiss, Grow £ Mollison and Messrs. Nazor £ Nazor, far appellee Emma Elizabeth Torok.
   Skeel, P. J.

This appeal comes to this court from a judgment entered for the respondents after the granting of respondents’ motion to dismiss the petitioners’ petition. The action, instituted in the Common Pleas Court, was one in habeas corpus. The petition alleges that the petitioners, with the consent and approval and upon the express request of Emma Elizabeth Torok, the unwed mother of Patricia Ann Lorok (now about three years of age) and her father, Frank Cragon, continuously from the child’s early infancy until May 28, 1952, had the exclusive custody and control and during that time rendered parental care to the minor child; that since May 28, 1952, the mother and father have taken possession of the child; that the petitioners are unlawfully deprived of the child’s custody; and that they, the petitioners, are entitled to the immediate custody, said child now being unlawfully restrained of its liberty by the respondents.

The petition alleges further that the respondents, the mother and father of such child, are unsuitable persons to have her custody and that it would be for the best interest of the child that she be restored to the custody of the petitioners.

The petition alleges further that during the time the petitioners had the custody of such child, the respondents promised that they would consent to its adoption by petitioners, but that the respondents delayed doing so until the petitioners, because of growing affection for the child, notified respondents to either take the child away or consent to its adoption. Upon the failure of respondents to act upon petitioners’ demands, the petitioners say that they instituted an action in Juvenile Court of Ashtabula County, charging the child to be a neglected and dependent child within the purview of Section 1639-23, General Code. Upon trial, because of the care given the child by the petitioners, the court found against the petitioners, holding that the child was not neglected or dependent and, after finding against petitioners on their complaint, retained jurisdiction for the purpose of determining the right of custody of the child, and, by its decree, gave custody to the child’s mother, Emma Elizabeth Torok, ordering petitioners to turn the child over to its mother. When these petitioners, the applicants in the Juvenile Court action, refused to follow the order of the court, a citation for contempt was issued.

After this decision, the mother filed an application in the Juvenile Court of Ashtabula County, pursuant to Section 1639-16, General Code, asking the court to determine the right of custody of said child, to which action the petitioners herein were made parties. The Juvenile Court, upon hearing on April 29, 1952, overruled petitioners’ objection to the court’s jurisdiction of the subject matter of the action and awarded custody of Patricia Ann Lorok to her mother. Thereafter, upon failure of petitioners to carry out the court’s order, a citation for contempt was issued and served upon them on the evening of May 28, 1952.

The petition alleges further that the Juvenile Court of Ashtabula County was without jurisdiction to determine the custody of the minor child, and that its order was void and unenforceable.

The petition alleges further that on May 28, 1952, the respondents, with another, entered the home of petitioners and committed an assault and battery upon the person of Mrs. Florence Woods, one of the petitioners herein, and that they took the child from her custody and carried it to Ashtabula where it is now in the custody of its mother.

The prayer of the petitioners is to have restored to them, the custody of said minor child, Patricia Ann Lorok (now three years of age).

The undisputed facts disclose that Patricia Ann Lorok was born out of wedlock to Emma Elizabeth Torok on July 3,1949, at Bedford Municipal Hospital; that the father was Frank Cragon, also known as Jasper Kragen; and that shortly after the birth of the child, the mother employed Chester C. and Florence Woods (husband and wife and petitioners herein) to care for her until other arrangements could be made. During the period of time that the child was in the care of the petitioners, they received from the mother about $2,000 for their services, and the mother was a constant visitor of her child.

Some conversation was had at various times between Chester and Florence Woods and the mother of the child looking toward the mother giving consent to the Woods’ adopting Patricia Ann. The mother having failed to give such consent or to comply with the Woods’ demands that she either so consent or remove the child because of the growing affection that was developing between the child and the Woods, the petitioners filed an application in the Juvenile Court of Ashtabula County on December 17, 1951, charging Patricia Ann Lorok as being a neglected and dependent child.

The court on March 7, 1952, upon final hearing of such application found against Chester and Florence Woods on their claim that the child was dependent and neglected and also found that Chester and Florence Woods were not entitled to the custody of the child and awarded custody to her mother, Emma Elizabeth Torok.

To this holding, as to custody, the petitioners herein filed an appeal on questions of law and fact to the Court of Appeals for Ashtabula County, which appeal is still pending in that court.

On the 22nd day of March, 1952, Emma Elizabeth Torok (mother of the child) filed an application in the Juvenile Court of Ashtabula County under authority of Section 1639-16, General Code, to determine the right of custody of Patricia Ann Lorok, seeking to have the custody of said child granted to her. Chester and Florence Woods were cited to appear and service was had upon them by the sheriff of Cuyahoga county.

On April 16, 1952, Chester and Florence Woods filed a motion seeking to have the application dismissed for want of jurisdiction. Notice of such motion was served upon counsel for the applicant. A hearing was had upon the motion on April 17, 1952, and at the conclusion of such hearing the motion was overruled, the court holding that it was vested with jurisdiction to determine custody without finding such child neglected or dependent, as provided by the provisions of Section 1639-16 (a) 2, General Code. The application was thereafter heard on April 25, 1952. The court found that Emma Elizabeth Torok was entitled to custody of her minor child, and the Woods were ordered to deliver the child to her mother within one week.

The order overruling the motion to dismiss the application of Emma Elizabeth Torok, filed by Chester and Florence Woods and the ruling of the court on such application granting custody of Patricia Ann Lorok to her mother, was journalized April 29, 1952, and an amended journal entry was filed by the court on May 8, 1952. No appeal was taken from that judgment. The Woods having failed to comply with the order of the court, a contempt proceeding was instituted and an alternative writ was served on them on the evening of May 28, 1952.

During the daytime of May 28, 1952, Emma Elizabeth Torok, Frank Cragon and Emma Torok’s sister went to the home of Chester and Florence Woods in Parma Heights and by force took Patricia Ann Lorok from the custody of the Woods and returned to Ashtabula county where such minor child has ever since been in the custody of her mother, Emma Elizabeth Torok. Florence Woods claims to have been assaulted and beaten by Emma Elizabeth Torok, her sister, and Frank Cragon. A warrant was issued for their arrest upon the complaint of Florence Woods, and they were notified to return for trial on a charge of assault and battery in the mayor’s court of Parma Heights on Monday morning June 2, 1952 at 9 o’clock.

The petition for a writ of habeas corpus was filed by petitioners in Cuyahoga county on May 29, 1952. Counsel for petitioners filed the following “instructions to sheriff” for the admitted purpose of getting service on the respondents:

“Frank Cragon, a. k. a. Frank Kragon, and Emma Elizabeth Torok, the respondents herein, are to be at Parma Heights police station (city hall) at 9 o’clock a. m. Monday morning, June 2, 1952, to answer to criminal charge before the mayor of said village where they should be served as they will thereafter likely return to Ashtabula, Ohio.”

Service of summons was had upon the respondents in accordance with the foregoing instructions when they came from their homes in Ashtabula county to defend themselves against a criminal charge (assault and battery) instituted by one of the petitioners and service was had while they were actually attending said prosecution.

On June 4, 1952, the respondents filed a motion to quash service of summons and to dismiss the petition for lack of jurisdiction. This motion, came on for hearing on June 17th and was granted by the Common Pleas Court of Cuyahoga County, the petition being dismissed and a judgment for costs entered against the petitioners. The allegations of the motion were:

“1. The defendants were not duly served with process in accordance with law.

“2. The purported service of process was invalid, defective, irregular and void.

“3. The court has no jurisdiction over the purported cause of action set forth in the petition.

“4. The court has no jurisdiction of the parties.

“5. The court has no jurisdiction over the subject matter;***.

“6. Prior and exclusive jurisdiction over the subject matter has attached and vested in the Juvenile Court of Ashtabula County.”

It is the claim of the petitioners that “the trial court erred in dismissing their petition and entering judgment against them for costs and the judgment so entered is contrary to law and unconstitutional. ’ ’

Two principal questions are presented: (1) Were the respondents legally served with summons? (2) Can the Common Pleas Court of Cuyahoga County, under the admitted facts, take jurisdiction of the question of the legal custody of Patricia Ann Lorok?

The first of these questions seems not to have been considered by the trial court. No entry, either granting or overruling the motion to quash service, is found in the transcript. It may be that because the court dismissed the petition the court felt it unnecessary to rule separately on each motion inasmuch as the entry made disposed of the case. In any event, it is our conclusion that the service of summons was improper and ineffective. According to the undisputed facts, service was had on the respondents in the mayor’s court of Parma Heights, Ohio. The respondents had come to the mayor’s court from their residence in Ashtabula county, of necessity, in response to a criminal charge instigated by one of the petitioners. They had been advised of the warrant by their counsel and had responded at his direction. Under such circumstances, the respondents were exempt from service in a civil action until a reasonable time passed in which to leave the jurisdiction after the conclusion of the trial.

In 32 Ohio Jurisprudence, 476, Section 86, of the article on “Process” it is said that the authorities are in disagreement as to whether the reasons which exempt a party to a civil suit from service of civil process apply in a criminal proceeding.

“As to extradition defendants, the Ohio rule is that of privilege. As to other defendants, the rule thus followed is in denial of any privilege.”

The case cited for this last statement is not in point. It concerns a defendant who made a voluntary entry into a county other than his residence for purpose of obtaining a hearing before the grand jury.

Goldman, Recr., v. Krumholz (Cincinnati Superior Court, 1923), 1 Ohio Law Abs., 791, the only other cited case, holds that a nonresident, present in Ohio to answer a criminal indictment is not exempt from service of summons in a civil action, and attempts to distinguish such holding from Compton, Ault & Co. v. Wilder, 40 Ohio St., 130, where it was held:

“W, a citizen of Pennsylvania, was extradited from that state upon a requisition by the Governor of Ohio, upon application of C., A. & Co., in a criminal prosecution instituted by them in Hamilton County. Held, that the service of summons and an order of arrest, issued in a civil action brought by C., A. & Co. against W., and made upon W. directly after he had entered into a recognizance to appear before the Court of Common Pleas at its next term, and before conviction and before he had an opportunity to return to his home, was rightfully set aside. ’ ’

The Wilder case is based entirely on the proposition that the defendant was forced to come to Ohio by an extradition proceeding instituted by C., A. & Co.

We can find no decision of a reviewing court of this state dealing with the right to be exempt from civil processes while within the jurisdiction of a court in a county of this state as a defendant who has come into such county to plead or to be tried in a criminal proceeding, the defendant having come from his residence in another county solely for that purpose.

In 72 Corpus Juris Secundum, 1121, Section 82 of the article on “Process” it is said:

“Although not universally followed, it is a general rule that a nonresident who enters a jurisdiction to appear, plead, or be tried in a criminal action against him is exempt from service of civil process.”

Also, in 21 Ruling Case Law, 1313, Section 60, it is said:

“ As to nonresidents charged with crime, or brought within the jurisdiction of the court by compulsory process, the general rule seems to be that they are exempt from service of civil process while coming into the jurisdiction, while necessarily in attendance on the court, and while returning to their place of residence, provided no unnecessary delay occurs in returning. So one charged with a criminal offense in another county than that of his residence and who on trial is discharged, is privileged from civil suit in that county until the lapse of a reasonable time to enable him to return home. It is said that the demands of public policy which require the invalidation of a service of process where the case is a civil one are not stronger nor more logical or philosophical than where attendance on the court is in a criminal case. ’ ’

The article then notes some cases which hold to the contrary.

In the Oklahoma case of Thomas v. Blackwell (1935), 172 Okla., 487, 46 P. (2d), 509, the defendant, a nonresident of Washita county, was involved in an automobile accident in that county. He returned to his home or residence in Caddo county. The plaintiff filed a criminal complaint before a justice of peace in Washita county,, charging defendant with driving while under the influence of intoxicating liquor. The plaintiff also instituted a civil action in the District Court for damages. A warrant was issued in the criminal action; the defendant was arrested in the county of his residence and taken before the justice of peace in the county where the accident took place and while there was served with process in the civil action. The court held, in ruling on a motion to quash service, as disclosed by the first paragraph of the syllabus:

“A nonresident who is compulsorily brought into a county other than his residence, to attend court in answer to a criminal charge pending against him, is immune from service of civil process for a reasonable time,' while going to, attending at, or returning from court, in the furtherance of the administration of justice and as a matter of public policy, when timely application is made to claim such immunity from service.”

See, also, Palmer v. Rowan (1887), 21 Neb., 452, 32 N. W., 210, 59 Am. Rep., 844; Barnes v. Moore (1950), 217 Ark., 241, 229 S. W. (2d), 492; and the note in 18 Ann. Cas., 127, 128.

< The petitioners contend that the respondents, by filing a motion to dismiss for want of jurisdiction as well as a motion to quash service, entered a general appearance and thereby waived the right to challenge the .service of summons. Under ordinary circumstances, that would be true. But where a party has abused the process of the court, the court may, when the question is promptly brought to its attention, determine the question of the propriety of exercising its jurisdiction. 32 Ohio Jurisprudence, 405, 406, Section 31 of the article on “Process.”

We hold, therefore, that the right to challenge the service 6f summons was not waived when promptly brought to the court’s attention, because a motion to dismiss for want of jurisdiction of the subject matter, was filed at the same time. The court should have ordered that service of summons quashed.

The petitioners’ second claim of error deals with the order of the court dismissing their petition for want of jurisdiction of the subject matter. The facts upon which this order was made are those alleged in the petitioners’ petition, supplemented by the undisputed evidence introduced upon the hearing of the motion, which evidence has hereinbefore been fully set forth. It is the contention of the petitioners that a Juvenile Court is not vested by law with jurisdiction to determine tbe right of custody of a minor child unless and until it has found such child to be either delinquent, dependent or neglected, and for that reason that the order of the Juvenile Court of Ashtabula County, journalized May 8, 1952, was absolutely void. It is the contention of the respondents that the Juvenile Court of Ashtabula County was empowered by Section 1639-16 (a) 2, General Code, to determine such custody and, having done so upon application properly made, the petitioners being parties to the action, that such judgment is conclusive between the parties until reversed or modified by a reviewing court upon appeal on questions of law. (No appeal was taken from such order.) The respondents claim further that the Juvenile Court of Ashtabula County is vested with power to determine its jurisdiction and that when such jurisdiction is challenged, as it was in this case by the petitioners, and the court has determined that question adversely to them, they cannot thereafter attack such judgment collaterally in a habeas corpus proceeding.

It should be kept in mind that the Legislature more than 40 years ago created the Juvenile Court. Its purpose was to provide a separate tribunal to take jurisdiction over'the problems of child delinquency and neglect. Since that time, the jurisdiction of the Juvenile Court has been expanded to include supervision of child care under certain circumstances and many other juvenile problems. One of the great advantages of the Juvenile Court in dealing with children is the simplification of its procedure and its right to determine by rule the method of invoking its jurisdiction.In interpreting the Juvenile Court Act, it should be considered in the light of the broad purposes for which it was created.

Section 1639-16, General Code, provides in part:

“[Jurisdiction.] (a) The court shall have exclusive original jurisdiction under this chapter or under other provisions of the General Code:

“1. Concerning any child who is (1) delinquent, (2) neglected, (3) dependent, crippled, or otherwise physically handicapped.

“2. To determine the custody of any child not a ward of another court.”

The foregoing provision (Section 1639-16 [a] 2, General Code) in no way affects, in the first instance, the power of the Common Pleas Court in proceeding in habeas corpus under Section 12161, General Code, or with regard to custody of children in divorce actions, under Sections 8003-22 and 8005-4, General Code.

Repeals by implication are not favored, and no such result was obtained in any part of these sections as they were successively passed by the Legislature. These sections are not in conflict, each providing an important link in protecting the rights of minors. In expanding the jurisdiction of the Juvenile Court over children, it is provided by Sections 8005-4, 8005-5 and 8005-6, General Code, that courts having questions of care, support or custody of minors under 18 years of age before them, may certify that part of the case dealing with the child’s custody or support to the Juvenile Court. This fact is mentioned* to show the legislative trend toward enlarging the Juvenile Court’s jurisdiction in dealing with juveniles.

The contention of the petitioners that the Juvenile Court does not have jurisdiction to determine custody of a minor, except it be found to be delinquent, neglected or dependent, would read out of the statute Section 1639-16 (a) 2, General Code, which reads:

“To determine the custody of any child not a ward of another court.”

Such holding would also nullify the full import of Section 8005-6, General Code, where it is provided in part:

“Any court, other than a Juvenile Court, having jurisdiction in any case respecting the care, custody, or support of a child under eighteen years of age, may, on its own motion or on motion of any interested party, with the consent of the Juvenile Court, certify the record in the case or so much thereof and such further information in narrative form or otherwise as the court deems necessary or the Juvenile Court may request, to the Juvenile Court for further proceedings; and thereupon the Juvenile Court shall have exclusive jurisdiction.”

Cases of the kind that may be certified to the Juvenile Court are many, where the child concerned was neither delinquent, neglected or dependent as defined by Sections 1639-2, 1639-3 and 1639-4, General Code.

The appellants cite Paddock v. Ripley, 149 Ohio St., 539, 80 N. E. (2d), 129, as supporting the claim that the Juvenile Court was without jurisdiction to deal with the custody of Patricia Ann. It is true that the syllabus in that case provides :

“The Juvenile Court has jurisdiction of a child only if such child is found to be delinquent, neglected or dependent. The Court of Common Pleas has jurisdiction to issue a writ of habeas corpus to a father who is a fit person for the custody of a child which, is neither delinquent, neglected nor dependent.”

The question to be decided in the Paddock case did not require an interpretation of Section 1639-16 (a) 2, General Code. The facts there involved were that a father had placed his child with her maternal grandparents after the death of his wife. He was thereafter remarried and requested the return of his daughter, which request was refused. Thereupon a proceeding in habeas corpus was instituted. The principal question to be decided was whether by oral agreement, the father had permanently surrendered the child to the grandparents. The trial court held there was no such agreement, which holding was affirmed by the Court of Appeals and the Supreme Court. At some stage of the proceedings it was argued that by Section 1639-16, General Code, the Juvenile Court was given exclusive original jurisdiction to determine the rights of custody of a minor child. All that was needed to decide the case, therefore, aside from the question of the oral agreement, was that the right to determine custody of a minor child as provided by Section 12161, General Code, had not been repealed by implication by the passage of Section 1639-16, General Code. It is one thing to hold that rights under existing statutes are not repealed, by implication, by the enactment of new legislation that may, in part, deal with the same subject, but it is quite a different thing unnecessarily to wipe out as meaningless a valid provision of a statute by judicial interpretation. In any event, since the Paddock case was decided in 1948, the Legislature has passed a revised divorce code and one dealing with the subject of minors wherein the jurisdiction of the Juvenile Court may be called into use on a broader scale than was before provided. Such changes might require a reconsideration of the first part of the syllabus of the Paddock case.

A case directly in point, upholding the jurisdiction of the Juvenile Court, as provided by Section 1639-16 (a) 2, General Code, is McFadden v. Kendall (1946), 81 Ohio App., 107, 77 N. E. (2d), 625. At page 110, the court said:

‘ ‘ By the provisions of Section 1639-16, General Code, the Juvenile Court is granted exclusive original jurisdiction (1) concerning any child who is dependent, and (2) to determine the custody of any child not a ward of another court.

“It is urged by the plaintiff that under this latter provision the Juvenile Court has jurisdiction to determine the custody of a child only if such child is not a ward of another court, and that the provision of this subsection is a limitation of the jurisdiction granted to the Juvenile Court over dependent, neglected, delinquent, or crippled children.

“With this view we cannot agree.

“Such a construction is not supported by a study of the section. On the contrary, the only fair construction which can be given is that subsection 2 of Section 1639-16, General Code, is a grant of jurisdiction and not a limitation of jurisdiction.”

From the foregoing, it must be perfectly clear that when the petitioners herein challenged the jurisdiction of the Juvenile Court of Ashtabula County to hear and determine the mother’s application for custody of Patricia Ann under the provisions of Section 1639-16, General Code, the question of jurisdiction of the court over the subject matter of the application was put in issue. A justiciable dispute was presented by such motion. It is the duty of a court to examine into the claim of a litigant that the court is without jurisdiction either of a party or parties, or the subject matter.

In 21 Corpus Juris Secundum, 174, Section 113 of the article on “Courts” we find the following:

“Every court has judicial power to hear and determine, or inquire into, the question of its own jurisdiction, both as to parties and as to subject matter, and to decide all questions, whether of law or fact, the decision of which is necessary to determine the question of jurisdiction.”

It being admitted that the question of the jurisdiction of the Juvenile Court of Ashtabula County was litigated when challenged by the- petitioners herein, and that the decision was adverse to them, the question remains as to whether they can now collaterally attack that decision in this proceeding.

In cases where the determination of the jurisdiction of the court is dependent upon questions of fact and the trial court, upon having its jurisdiction challenged upon questions of fact determines that it is vested with jurisdiction of the subject matter, such judgment cannot be collaterally attacked. State, ex rel. Halchak, v. Doyle, Judge, 41 Ohio App., 569, 180 N. E., 388.

Where the basis of the challenge is other than on questions of fact, a collateral attack will be permitted only if the policy against permitting a court to act beyond its jurisdiction outweighs the reasons underlying the doctrine of res judicata.

In the Restatement of the Law of Judgments, page 57, Section 10, the rule is stated as follows:

“(1) Where a court has jurisdiction over the parties and determines that it has jurisdiction over the subject matter, the parties cannot collaterally attack the judgment on the ground that the court did not have jurisdiction over the subject matter, unless the policy underlying the doctrine of res judicata is outweighed by the policy against permitting the court to act beyond its jurisdiction.

“(2) Among the factors appropriate to be considered in determining that collateral attack should be permitted are that

“ (a) the lack of jurisdiction over the subject matter was clear;

“(b) the deteimination as to jurisdiction depended upon a question of law rather than of fact;

“(c) the court was one of limited and not of general jurisdiction;

“(d) the question of jurisdiction was not actually litigated;

“(e) the policy against the court’s acting beyond its jurisdiction is strong.

“Comment: A. Determination of jurisdiction over the subject matter as res judicata. The rule stated in this section is an application of the general principle of res judicata, precluding the parties from relitigating a matter determined by a court after a fair opportunity has been afforded to them to litigate the matter. Even though the decision of the court is erroneous, the parties are bound by it. This is true although the matter decided is the question of the jurisdiction of the court over the subject matter of the suit. Although the court does not have jurisdiction over the subject matter, it may have jurisdiction to determine the question whether it has jurisdiction over the subject matter and to bind the parties by its determination, with the result that thereafter they are precluded from successfully contending that the court had no jurisdiction over the subject matter.”

And on page 60, under the subhead “b. Factors determining public policy of permitting or denying collateral attack” it is said:

“Although a court, having jurisdiction over the parties, determines that it has jurisdiction over the subject matter, the unsuccessful party is not precluded from collaterally attacking the judgment if there are sufficient grounds of public policy for denying to the determination,of the court the effect of res judicata.

“Where a court which has jurisdiction over the parties but does not have jurisdiction over the subject matter of the action determines that it has jurisdiction over the subject matter and gives judgment for the plaintiff, and the defendant takes no proceedings directly to attack the judgment, the question whether he should be permitted collaterally to attack the judgment is a question of weighing the policy underlying the rules of res judicata against the policy prohibiting a court from exceeding the powers conferred upon it.

“Various factors may enter into the determination of the question whether there are sufficient grounds of public policy for denying to the determination of the court the effect of res judicata. Among these factors are the following: (1) whether the lack of jurisdiction over the subject matter is clear or doubtful;. (2) whether the determination as to the jurisdiction depended upon questions of fact or of law; (3) whether the court was one of general or of limited jurisdiction.;. (4) whether the question of jurisdiction was actually litigated; (5) the strength of .the policy underlying the denial to the court of jurisdiction.

“Where the determination by the .court that it has jurisdiction over the subject matter is obviously erroneous, and particularly where it is based upon an obvious misconception of the law, and especially where the court is one of limited jurisdiction, there is a policy against making the determination res judicata and precluding the unsuccessful party from collaterally attacking the judgment. Thus, for example, if a suit for divorce is brought in the court of a justice of the peace, which has no jurisdiction to grant a divorce, and judgment is given granting a divorce, the judgment is void and subject to collateral attack even though the defendant appeared in the action and the question of the jurisdiction of the court to grant a divorce was litigated and determined adversely to the defendant.”

Where a court, without color of right, attempts to exercise jurisdiction clearly beyond that provided by law, even though challenged during trial, such judgment is void and may be collaterally attacked. As for example, where a judge of a municipal court, over the objection of the defendant, attempts to try and finally determine an action in divorce or attempts to try one charged with a felony. There could be no question that such judgment could be attacked collaterally.

In Spoors v. Coen, 44 Ohio St., 497, 9 N. E., 132, the action was to sell land to pay debts in the administration of an estate. The title to the land had been transferred to another by the decedent before death. The Probate Court attempted to set aside the conveyance as a part of the land sale proceeding. The statute (Section 6140, Revised Statutes) then provided, inter alia, that:

‘ ‘ Where such land is included in the application before a recovery of the possession thereof, the action shall be in the Court of Common Pleas.”

Paragraph three of the syllabus provides:

“An order made by the Probate Court for the sale of such lands, upon a judgment of its own, setting aside the conveyance as null and void, is of no validity whatever, and may be impeached in a collateral proceeding to recover the land. ’ ’

The Spoors case is quite different from the case now being considered. Here, the statute by clear language conferred upon the Juvenile Court the jurisdiction which it exercised and, upon challenge, found it had the right to exercise. Not having been appealed, such decision cannot now be collaterally attacked in other proceedings. Here the policy which supports the rule of res judicata should prevail.

One other question should be briefly considered, and that is the right of the petitioners to maintain habeas corpus proceedings to regain custody of Patricia Ann from her mother. The petitioners claim no right by agreement or contract for the custody of the child, as was claimed in the Paddock case, supra. There was no family relationship, nor had the mother in any sense abandoned the child to the petitioners. On the face of the petition, it is made clear that petitioners were hired to take care of Patricia Ann and by the opinion of the juvenile judge it was found that they had received the sum of $2,000 in a little over two years for their services. If it be claimed that the mother is not a propér person to have custody of Patricia Ann, then the matter should be referred to the Juvenile Court of Ashtabula County, the residence of the minor, upon complaint properly filed.

For the foregoing reasons, the judgment of the Common Pleas Court is affirmed.

Judgment affirmed.

Hurd and Thompson, JJ., concur.


source: Caselaw Access Project

author: Matthews, J.

license: Public Domain

text:
    Hanna, Appellee, v. Hanna, Appellant.
    (No. 7647
    Decided November 24, 1952.)

      Mr. J. Louis Warm, for appellee.

      Messrs. Dinsmore, Shohl, Sawyer & Dinsmore, for appellant.
   Matthews, J.

This is an appeal on questions of law in an action for divorce from an order overruling a motion to vacate a final decree for divorce and for a new trial. The defendant, appellant herein, alleged in her motion several reasons for setting aside the divorce decree, but all were predicated upon her contention that the court had not acquired jurisdiction because of inadequate sérvice. In oral argument and by their brief her counsel confined themselves to the jurisdictional question.

The question of whether the jurisdiction of the court to enter the divorce decree can be considered by this court in the absence of a showing of an abuse of discretion was discussed in the briefs and at the bar, but as the only ground presented or which is necessary to consider goes to the jurisdiction of the court, and, if sustained, would render the divorce decree entirely void, we do not consider the order, as regards its appealability, as a motion for a new trial, but rather as an order made on a motion to have the court rectify its journal by entering an order setting aside the void decree. If the court has acted beyond its jurisdiction, its record should be corrected. Overruling a motion to set aside such a decree is a final order.

This action was begun by the filing of a petition for divorce, in which plaintiff alleged facts constituting extreme cruelty as the ground for divorce. There was attached to the petition a praecipe for summons. The clerk of courts on the same day issued the summons and mailed an attested copy of the petition and the summons to the defendant at her home in Pittsburgh, Pennsylvania. An affidavit for constructive service was filed with the petition. The notice was duly published and proof thereof duly filed on May 22, 1951, and approved by the court on the same day.

While the publication was in progress the plaintiff filed a motion for leave to file an amended petition, which was granted. Thereupon the amended petition was filed and summons issued and mailed to the defendant at her home in Pittsburgh, together with a copy of the amended petition, in conformity with Section 11360, General Code, applicable in civil actions. Notice of the filing of the amended petition was not published.

• The amended petition, without referring in terms to the original petition, repeated all its allegations relating to residence and extreme cruelty as" a ground of divorce, and, in addition, alleged the existence of a prior marriage at the time the defendant went through the marriage ceremony with the plaintiff.

The defendant not having answered or otherwise entered her appearance, the cause came on for hearing on September 25, 1951, and the court granted the decree of divorce. The decree recited that the cause came on to be heard on the amended petition and the evidence, the defendant being in default although duly served. The court thereupon found that the plaintiff had the required residence and that the defendant had been guilty of extreme cruelty and granted the plaintiff a divorce on that ground, which was the ground alleged in both the petition and amended petition. On September 27, 1951, the defendant filed this motion, the overruling of which is the predicate for this appeal.

Constructive service in divorce actions is authorized by Section 11984, General Code, which provides:

“If the defendant is not a resident of this state or his residence is unknown, notice of the pendency of the action must be given by publication as in other cases. Unless it be made to appear to the court, by affidavit or otherwise, that his residence is unknown to the plaintiff, and could not with reasonable diligence be ascertained, a summons and copy of the petition, forthwith on the filing of it, shall be deposited in the post-office, directed to the defendant at his place of residence.”

It is not disputed that this section would have been complied with had the hearing been on the petition and the divorce granted thereon. The claim is that by filing the amended petition the plaintiff, ipso facto, abandoned his original petition, so that if he desired to proceed, it was necessary for him to obtain the same kind of service upon the defendant as though the filing of the amended petition constituted the commencement of the action. Counsel assert that such has been the settled law of Ohio, for more than 100 years, and cite various cases and the text of Ohio Jurisprudence as supporting their position. Let us examine those authorities.

Counsel rely on the guarded statement in 14 Ohio Jurisprudence, 417, Section 35, which is as follows:

“Compliance with the provisions as to process cannot, as a general rule, be waived by the defendant, and it has been held, under this doctrine, that neither the voluntary entry of the defendant’s appearance, nor an acknowledgment of acceptance of service by counsel, on behalf of the defendant, is sufficient to confer jurist-diction in a divorce proceeding. This rule is applicable also to process on an amended petition. ”

It will be observed that the author of that text purported to state the general rule and not the exceptions. It will be noted also that the statement is limited to' an enumeration of certain acts that would' not serve' as a substitute for process. The caution of the text writer has been vindicated by the tenor of later Supreme Court decisions.

The decisions at the time the text was written justified a statement that no waiver, express or implied, would serve as a substitute for an entire absence of any attempt to obtain service. They do not hold that defects in service can not be waived.

In the case of Smith v. Smith, Wright, 643, it does not appear except, perhaps, by implication, that any service was had on the original petition.

In Harter v. Harter, 5 Ohio, 318, there was no attempt whatever to make the only service authorized by law, to wit, service by publication.

In Edwards v. Edwards, 20 N. P. (N. S.), 605, 29 O. D., 46, there was no attempt to serve the defendant either actually or constructively. The court pointed out that in the absence of a publication or service of Summons,-there was aii absence of datum from which to calculate the six-week period that must elapse before the court would have jurisdiction to hear the cause under Section 11985, General Code. The court pointed out also that where parties to a divorce action come, into court in agreement as to the court and the relief desired by each, the facts establish a prima facie case of collusion for the purpose of obtaining a divorce.

Black v. Black, 110 Ohio St., 392, 144 N. E., 268, cited and commented on in 14 Ohio Jurisprudence, rather clearly indicated the later trend of Supreme Court decisions. The language of the opinion is broad enough to justify the conclusion that the holding was that in all circumstances the appearance of the defendant in open court and the filing of pleadings constitute a waiver of any question of jurisdiction. However, as pointed out later in Tucker v. Tucker, 143 Ohio St., 658, 661, 56 N. E. (2d), 202, there was an attempted service on Black, and he filed an answer and defended the action.

Of the cases decided since 14 Ohio Jurisprudence was published, counsel relies, it seems, chiefly upon Calvert v. Calvert, 130 Ohio St., 369, 199 N. E., 473. However, all that case decided was that the provisions for service applicable on a petition for divorce were equally applicable on a cross-petition for divorce and that the granting of a divorce on a cross-petition on the day the cross-petition was filed without any kind of service or notice was erroneous. Even so, the court qualified it's statement by saying:

“It does not necessarily follow that divorces granted on a cross-petition without process are ipso facto void and of no effect, for many a decree of this kind is granted upon full hearing and adequate opportunity for defense.”

It doesn’t seem to us that a consideration of Calvert v. Calvert helps in the solution of the problem presented in the case at bar.

Of the later cases, the first is that of Tucker v. Tucker, supra, already referred to. In that case the defendant was a resident of California. No notice to him was published or attempted. The only service was by a summons issued to a sheriff in California, which was served personally upon defendant in California. Later, the defendant filed a “waiver and answer,” signed personally by him, in which he waived service of summons, entered his appearance, and, after admitting the marriage and residence of the plaintiff, denied all other allegations. Still later, he wrote a letter to the clerk of courts in which he stated that he did not want to take advantage of his rights under the Soldiers and Sailors Relief Act, that he withdrew his answer, and that he was “willing to permit the case to go forward as an uncontested matter.”

The Common Pleas Court refused a divorce on the ground that it had no jurisdiction. The Court of Appeals affirmed the judgment. The Supreme Court reversed the judgments and remanded the case for further proceedings according to law. In the course of the opinion, at page 660, the court said:

“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.”

Further on, on pages 661 and 662, the court said:

“There was actual service of summons upon defendant Tucker. The service was subject to a motion to quash because there is no statutory authority for service out of the state in the manner made. No such motion was filed and the service was not quashed. • By the filing of an answer in which was incorporated a waiver of summons, an entry of appearance and a denial of material averments of the petition, the defendant entered his appearance and submitted his person to the jurisdiction of the court. There was a substantial compliance with Section 11985, General Code, for in view of the foregoing circumstances the six-week period hereinbefore referred to would be deemed to have run from the service of summons, though such service was irregular. Jurisdiction over the person having attached, it was not lost when the defendant requested withdrawal of his answer and consented that the case go forward as an uncontested matter. Whether there was collusion is an entirely different consideration.”

Disregarding for the moment the defendant’s contention in relation to the effect of the filing of the amended petition, it seems to us that if the service attempted in Tucker v. Tucker, supra, taken in conjunction with defendant’s appearance was sufficient to give the court jurisdiction, certainly the service of summons in this case plus the failure of the defendant, knowing the facts, to take any action for months after the expiration of the six-week period, should be sufficient to confer jurisdiction.

Next is State, ex rel. Haun, v. Hoffman, Judge, 145 Ohio St., 31, 60 N. E. (2d), 657, which was an original action in the Supreme Court, invoking its jurisdiction in procedendo to compel the defendant, a judge of the Common Pleas Court, to hear a divorce action. The defendant in the divorce action was a nonresident. Eight days after the petition for divorce was filed, he filed a written waiver of the issuance and service of summons and an entry of appearance. More than six weeks thereafter, the plaintiff appeared with his witnesses and requested a hearing. The court refused, whereupon the action in procedendo was filed. On demurrer to the petition setting forth these facts, the court held that they did not state a ease for the writ and sustained the demurrer.

In distinguishing the case from Tucker v. Tucker, supra, where there was service, though irregular, and subject to a motion to quash, and an answer, the court said: “In the present ease there was no service of any kind and no answer.” In reaching its conclusion, the court commented on most of the eases that had been decided prior thereto.

Finally, in State, ex rel. Engh, v. Hoffman, Judge, 146 Ohio St., 193, 65 N. E. (2d), 59, the court granted a writ of procedendo, requiring the judge of the Common Pleas Court to proceed to hear a divorce action in which the situation presented was almost identical with the facts in Tucker v. Tucker, supra.

The syllabus, which we quote, sufficiently indicates the decision:

“Under Section 11979 et seq., General Code, an entry of appearance of itself does not give jurisdiction over the person of the defendant in a divorce case; but where in such a case personal service of process, though irregular, is neither quashed nor sought to be quashed and is followed by an entry of appearance by the filing of an answer or otherwise, the safeguards provided for in the statutes are preserved and the court acquires jurisdiction of the person of the defendant. (Tucker v. Tucker, 143 Ohio St., 658, approved and followed.)”

In the case at bar we have service in every respect in conformity to law on the filing of the original petition. Had the case proceeded to trial upon the original petition and a decree been granted on the ground of extreme cruelty, the validity of the decree could not have been questioned. On the filing of the amended petition, a service was made having the same irregularities that existed in the service in Tucker v. Tucker and State, ex rel. Engh, v. Hoffman, Judge, supra. While an answer was filed in the Tucker case, it had been withdrawn, and no answer was filed in the other case or in the case at bar. The situations are so nearly identical that should we regard the filing of the amended petition as supplanting the original petition for all purposes, we would still be required to sustain the jurisdiction of the court and the validity of the decree.

However, we are of the opinion that the filing of the amended petition did not constitute an abandonment of the cause of action alleged in the petition. It is the statement of that cause of action that is abandoned. By filing an amended petition rather than an amendment to his original petition, the plaintiff manifested an intention to restate the cause of action alleged in his petition. Accordingly, the courts so consider the amended petition and refrain from looking to the allegations of the original petition to strengthen or weaken the allegations of the amended petition. That is our understanding of the reasoning of the cases cited by the appellant. As is said in the syllabus to Raymond v. Toledo, St. L. & K. C. R. R. Co., 57 Ohio St., 271, 48 N. E., 1093, on the effect of filing an amended petition it “will be regarded as implying an abandonment of the case made in the original petition, and as selecting this as the pleading on which he founds his suit, and the only petition which the court is to consider in determining the issues to be tried. ’ ’

That a plaintiff could withdraw an amended petition, whereupon the original petition would be regarded as the statement of the plaintiff’s cause of action is not' doubted.

In Harding v. Talbott, Exr., 60 Ohio App., 523, 526, 22 N. E. (2d), 221, the court said:

“In the instant case the defendant was in court by summons issued on the original petition, which was based on quantum meruit. The second amended petition is really a restatement of the original claim. True, the position taken in the first amended petition was abandoned, but plaintiff simply reverted to her original position taken in the petition in which summons was issued. Plaintiff could at any time, by leave of court, have withdrawn her first amended petition and refiled the original petition. Her position was not changed by the redrafting of the same cause of action, denominated a ‘second amended petition.’ ”

That the plaintiff had no intention of abandoning the cause of action for divorce is equally clear. All he did was to add an additional breach of the marriage contract. The cause of action remained the same. No new cause of action was added. Arnold v. Arnold, 110 Ohio St., 416, 144 N. E., 261.

In 31 Cyclopedia of Law and Procedure, 464, it is stated:

“It is a well-recognized principle that an amended pleading based on the same cause of action * * * as the original relates back to the date when such original pleading was filed.”

And at page 465, ibid., it is said:

“An amended pleading, filed as a substitute for the original pleading, supersedes it and the original pleading ceases to be part of the record, except for the purpose of deciding when the action was in fact commenced, and whether a new cause of action has been introduced.” (Emphasis added.)

The same principle is stated in bold type in 71 Corpus Juris Secundum, at page 713:

“Amendments introducing no new cause of action * ® * relate back to the date of the original pleading or commencement of the action.”

We think it requires no citation of authorities to fortify the statement that the original service conferred jurisdiction upon the court over the defendant to grant relief to the full extent of the prayer based on the cause of action alleged and proven. It also forewarned the defendant that the court might make interlocutory orders without further notice. We are advised of no rule of court requiring notice of the filing of an amended petition before answer day. Certainly, causing summons and a copy of the amended petition to be served by mail upon the defendant satisfies ail reasonable requirements. If the filing of the amended petition related back to the filing of the petition, which we think it did, then clearly no further service or notice was required.

When we consider that service in all respects regular was made upon filing the petition and that actual notice was brought to the defendant by an irregular service on the filing of the amended petition, and that the divorce was granted on the ground of extreme cruelty alleged in both the original and amended petition in exact terms, we cannot doubt that the court acted within its jurisdiction.

The bill of exceptions in this case recites that at the hearing the plaintiff offered evidence in support of the ground of extreme cruelty and that the court granted the divorce on the ground stated in the decree, which was the ground of extreme cruelty. We are not advised of the evidence other than its probative tendency. We must assume its adequacy.

We cannot say that the court erred in overruling the defendant’s motion to set aside the judgment and for a new trial.

For these reasons, the judgment is affirmed.

Judgment affirmed.

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


author: Hurd, J.

text:
    The State of Ohio, Appellee, v. Lucear, Appellant.
    (No. 22516
    Decided June 30, 1952.)

      Mr. Frank T. Cullitan, prosecuting attorney, and Mr. Theodore Williams, for appellee.

      Messrs. Minor, McCurdy & Haynes, for appellant.
   Hurd, J.

On Sunday, October 14, 1951, the defendant, Marvin Lucear, purchased at a local drugstore two forms of rat poison — one a white powder which was odorless, the other a paste which carried an odor. He hid the poison behind the stove in the kitchen of his home at 9910 Pierpont avenue, Cleveland, Ohio, where he resided with his wife, Ocie Mae. On the following Tuesday, October 16, 1951, he placed a quantity of the odorless white powder in a bottle of his wife’s medicine, a white liquid which he had previously purchased with other medicine on October 12, 1951, on the prescription of a doctor who had been treating his wife for illness. On the same day, Tuesday, October 16th, Lucear administered three doses of the poisoned medicine to his wife. When she became violently ill, he took her to Mt. Sinai Hospital where she died the morning of October 17th.

A post mortem examination was performed on the deceased on October 17 at Mt. Sinai Hospital, which disclosed that death was due to arsenic poisoning. The bottle containing the white liquid medicine was taken to the laboratory of the county morgue where, upon analysis, it was found to contain arsenic sufficient to kill a human being.

Some time after these events Lucear was arrested and on October 30, 1951, signed a confession admitting that he had placed the rat poison in his wife’s medicine and then administered the same to her. In his confession, among other things, he stated that he had been having trouble with his wife “for about the last six months.”

On November 13, 1951, the grand jury returned an indictment against the defendant charging murder in the first degree in the purported killing of his wife by means of poison. Upon arraignment on November 15, 1951, the defendant entered a plea, of “not guilty” and “not guilty by reason of insanity.” A special venire for a jury was issued on December 14, 1951, and on January 7, 1952, the case came on for trial. In the midst of impanelling a jury, the defendant withdrew his plea of “not guilty” and in writing waived his right to trial by jury and elected to be tried by three judges before whom he entered a plea of “guilty” as charged in the indictment, all as shown by the record. Upon trial had, the judges on the basis of defendant’s plea of guilty and the evidence sentenced the defendant to death.

During the course of the trial the defendant on cross-examination testified as follows:

“Q. NcAv, you put some of this powder, is that right, into her medicine ? A. Yes, I did.

“Q. And how much did you put into her medicine, do you know? A. It wasn’t as much as I could pick up in my little fingernail.

“Q. Did you talk with anybody before you put that poison into your wife’s medicine? A. No, I didn’t.

“Q. You know what rat poison was didn’t you? A. No, I didn’t. I never had bought any before.

‘ ‘ Q. Why did you buy it ? A. I bought it to kill her.

“Q. You bought it to kill her? A. That’s right.

“Q. You mean you bought it to kill Ocie? Is that right? A. Yes, I did.

“Q. After you bought it, you had it in the house from Monday morning, about one o’clock until Tuesday morning before you used it; is that right? A. Sunday until Tuesday.

“Q. Yes. Now, how many doses of this white medicine did you, yourself, actually give your wife after you put the poison in the medicine? A. Just three, three doses.

“Judge Silbert: I don’t hear you.

“The Witness: Just three, three teaspoons.

“Judge Silbert: You gave her three doses?

“The Witness: One every three hours.

“Q. That was after you put the poison in it? A. Yes, it is.”.

Blythin, J., announced the decision of the court and in part summed up as follows:

“There is no question in the world about thorough premeditation and ability and capability in premeditation in °this case. Here was a purchase on a Sunday of poison, here was immediately a hiding of it and a keeping of it until Tuesday, and then we find that there is an elimination of the poison which had an odor attached to it and the use of the one that did not have the odor. Then there comes the administration of it. Here the man admits that he administered and states frankly on the witnesss stand that he secured it for the purpose of doing away with his wife. His wife was hospitalized and she lived for some time after being admitted to the hospital. He did not even then disclose, but kept to himself, the deep dark secret of what had happened. He gave no information to anyone. The bases or grounds for granting mercy in a case of this kind must be found in the evidence produced in the case. This case has certainly been capably, ably, forcefully and carefully presented. As Judge Silbert, the presiding judge, has indicated, we are unanimous in our belief that the evidence in this case does not disclose a case where mercy is to be recommended.”

After the imposition of sentence by the trial judges a notice of appeal was filed, the pertinent part of which is as follows:

. “Comes Marvin Lucear * * * and gives notice that sentence imposed upon defendant Lucear is being appealed to the Court of Appeals * * *.”

Thus it appears that there is no appeal from the judgment of guilty as charged in the indictment, but that the sentence of death only is appealed to this court, there being a single assignment of error as follows:

“The language and attitude of the presiding judge led counsel to believe that mercy would be extended and therefore resulted in the waiving of a jury to the great prejudice of the defendant.”

The question of whether or not a recommendation of mercy in cases of conviction of murder in the first degree creates an issue which is subject to review has heretofore been considered and decided by the courts of this state.

The leading case is Howell v. State (1921), 102 Ohio St., 411, 131 N. E., 706, 17 A. L. R., 1108, where, in paragraph one of the syllabus, the court declared:

“1. Section 12400, General Code, giving the jury discretion to recommend mercy in cases of conviction of first degree murder, confers an absolute discretion which should not be influenced by the court. However, this discretion should be exercised in view of all the facts and circumstances disclosed by the evidence.”

In paragraph three of the syllabus, the court announced :

‘‘3. In such a case, it is not error for the court, in its charge, to say to the jury that it was their duty ‘to consider and determine whether or not, in view of ail the circumstances and facts leading up to, and attending the alleged homicide as disclosed by the evidence,’ they should or should not make such recommendation.”

In the case of State v. Caldwell, 135 Ohio St., 424, 21 N. E. (2d), 343, the court approved and followed the doctrine of Howell v. State, supra. To the same effect is the earlier case of State v. Ellis (1918), 98 Ohio St., 21, 120 N. E., 218, where the question arose on the voir dire examination.

To the same effect also are the cases of State v. Ames (1948), 50 Ohio Law Abs., 311, 80 N. E. (2d), 168 (appeal dismissed, 149 Ohio St., 192, 78 N. E. [2d], 48); In re Knight (1944), 73 Ohio App., 547, 57 N. E. (2d), 273; Shelton v. State, 102 Ohio St., 376, 131 N. E., 704; Ashbrook v. State, 49 Ohio App., 298, 197 N. E., 214; State v. Tudor, 154 Ohio St., 249, 95 N. E. (2d), 385; and State v. Reed (1948), 85 Ohio App., 36, 84 N. E. (2d), 620 (motion for leave to appeal overruled March 2, 1949), a decision by this court.

In the instant case the defendant elected to be tried by three judges under and by virtue of Section 13442-5, General Code, which in part provides as follows:

“* * * provided, however, that if the accused is charged with an offense punishable with death, he shall be tried by a court to be composed of three judges consisting of the judge presiding at the time in the trial of criminal cases and two other judges to be designated by the presiding judge. * * * Such judges or a majority of them shall have power to decide all questions of fact and law arising upon the trial, and render judgment accordingly; and provided further, that if the accused plead guilty of murder in the first degree, a court composed of three judges as herein provided shall examine the witnesses, determine the degree of crime and pronounce sentence accordingly. In rendering judgment of conviction of an offense punishable by death upon plea of guilty or after trial by the court without the intervention of a jury the court may extend mercy and reduce the punishment for such offense to life imprisonment in like manner as upon recommendation of mercy by a jury.”

It is clear from an examination of this statute that the rule in respect to granting or withholding mercy is the same as that in effect when trial by jury is had, because the judges “have power to decide all questions of fact and law” and may “extend mercy and reduce the punishment * * * in like manner as upon recommendation of mercy by a jury.”

It follows, therefore, that Section 12400, General Code, giving to the jury discretion to recommend mercy to be exercised in view of all the facts and circumstances disclosed by the evidence has equal application to a three-judge court sitting instead of a jury.

We think that based solely upon the evidence adduced at the trial and applicable law as established by the cases the appeal from the sentence is not well taken. However, because this is a capital case, we have given careful consideration to the claim of counsel that “the language and attitude of the presiding judge led counsel to believe that mercy would be extended and therefore resulted in the waiving of a jury.”

It should be noted that counsel does not claim that a commitment of any kind was made to him. Apropos this proposition, the following excerpts from the record of a post trial hearing, beginning at page 223, is significant:

“Judge Silbert: * * * And I said, I wanted you to know that what you are doing you are doing entirely on your own; that is, I told you definitely, the very last thing I said to you because I was afraid you would get the wrong impression. What you were trying to do was to get the individual notion of each judge and, of course, we are not in a position to tell you in advance what we are going to do. And I wanted to make that clear and I told you that very definitely, I said ‘don’t bank on the judges. You are entirely on your own.’

“Judge Blythin: I will say this for Mr. Minor: He has told me on more than one occasion, and has never told me differently, that he had no commitment whatever from any judge involved in the case. I will say that.

“Mr. Minor: Thank you, Your Honor.

“Judge Blythin: That is what I said.

“Mr. Minor: I said that before I made this allusion, I thought I said that it is very definite that I received no commitment * *

Considering the entire record in this case, the members of this court have arrived at the unanimous conclusion that the defendant had a fair trial in which no prejudicial error appears and indeed none is claimed. The record shows that the defendant presented no less than 12 witnesses who testified to his reputation as a peaceful and law-abiding citizen of good character, but a good reputation and previous good character will not avail to acquit under such facts and circumstances as are here presented. Undoubtedly this testimony was presented for the purpose of influencing the judges in favor of the extension of mercy. However, the judges decided to withhold the extension of mercy, a determination which rested solely within their sound discretion in the light of the facts and circumstances disclosed by the evidence. "We are satisfied that not anything which occurred outside the trial, including the rather unusual extra judicial conferences with the judges, would justify this court in a reversal of the judgment or sentence.

The judgment of the Common Pleas Court is therefore affirmed.

Judgment affirmed.

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


author: Griffith, J.

text:
    The State of Ohio, Appellee, v. Kuchmak, Appellant.
    (No. 1264
    Decided June 2, 1952.)

      Mr. Charles H. Anderson, prosecuting attorney, for appellee.

      Mr. Burton Duck and Mr. Mark J. Williams, for appellant.
   Griffith, J.

Morris P. Kuchmak was indicted by the grand jury of Trumbull county for assault with intent to kill, under the provisions of Section 12421, General Code, which reads:

“Whoever assaults another with intent to kill, or to commit robbery or rape upon the person so assaulted, shall be imprisoned in the penitentiary not less than one year nor more than fifteen years.”

To that indictment, a plea of “not guilty” was entered. Upon the trial, the court charged the jury on assault with intent to kill. Then the court proceeded in its charge, as follows:

“The crime as charged in this indictment includes certain lesser offenses, one of which is the crime defined in Section 12416 O. G. C. and known as the crime of ‘maiming or disfiguring another.’ The portion of that section which is applicable to this case defines this crime as follows:

“ ‘Whoever, with malicious intent to maim or disfigure, cuts, bites or slits the nose, ear or lip * * or assaults another with a dangerous instrument * * * is guilty of a felony.’

“In event you find this defendant not guilty of ‘assault with intent to kill’ as heretofore defined, you will consider whether or not he is guilty of the crime of ‘maiming or disfiguring another’ as now defined to you. Upon such consideration, should you find from the evidence in this case by that degree of proof heretofore defined, that this defendant, Morris P. Kuchmak, did assault Andy Suhar with malicious intent to cut, bite or slit his nose, ear or lip, or did assault him with a dangerous instrument, you should find him guilty of the crime of maiming or disfiguring. ’ ’

The jury returned a verdict of guilty of maiming, as defined by the court in its charge. A motion for a new trial was filed based upon numerous alleged errors in the proceedings, and upon the major alleged error in the court’s charge that the crime of assault with intent to kill included the inferior offense of maiming or disfiguring another.

A new trial was denied by the court, and the defendant was sentenced to the Ohio Penitentiary for not less than three or more than thirty years, the punishment provided for the offense of maiming.

The matter is before this court on appeal on questions of law only.

When the indictment charges an offense in which other offenses are included within the offense charged, the jury may find the defendant not guilty of the offense charged but guilty of an inferior or lesser included offense. Section 13448-2, General Code.

The important question before us is whether the crime of maiming is comprehended within the crime of assault with intent to kill. Just what is an “included offense”? All crimes in Ohio are statutory. Every crime charged consists of certain specific elements.

If from the crime charged certain constituent parts may be chopped off or removed, leaving the necessary elements of another complete crime, the latter is an included offense. Or to state it in another way, where the inferior offense is necessarily an elementary part of the greater offense, then the inferior or minor offense is included in the greater.

Certain elements are necessary to the crime of maiming, and if these elements plus certain other elements make the necessary elements of assault with intent to kill, then the crime of maiming is included in the crime of assault with intent to kill.

The rule is that where offenses are included one within another, a person indicted for a higher one may be convicted for one below, provided the allegation in the indictment, in form, charges the lesser offense as well.

A typical example of included offenses may be found in the offense of murder in the first degree, in which second degree murder, manslaughter, assault and battery, and assault are comprehended. All the elements of each are included in the offense of murder in the first degree.

• May a conviction be had for a given felonious intent on an indictment which does not charge such intent, but charges another intent of an entirely different character?

Kuchmak was charged with assault with intent to kill and found guilty of assault with a dangerous instrument with malicious intent to maim or disfigure. In other words, the intents charged are of an independent and different nature.

The doctrine of included inferior offenses has never been applied by our courts to crimes which are inher ently and essentially so different in their nature, character and atrocity as to belong to an entirely different class of crime. State v. Labus, 102 Ohio St., 26, 130 N. E., 161.

Nothing in the crime of assault with intent to kill embraces the necessary element of “with malicious intent to maim or disfigure.”

“Whoever with malicious intent to maim or disfigure” modifies “or assaults another with a dangerous weapon,” thereby making malice a necessary ingredient of the crime of maiming. Not only is malice an element, but it must be “a malicious intent to maim or disfigure,” two independent necessary attributes which are not necessary or elementary parts of the offense of assault with intent to kill.

The specific intent to maim or disfigure is distinguishable and materially different from the criminal intent to kill. One means that the person charged must have intended to kill the person assaulted; the other that he intended, to maim or disfigure him. Nowhere in the charge do we find that the court defined malice.

The second paragraph of the syllabus in the case of Kilkelly v. State, 43 Wis., 604, reads as follows:

“A charge of an assault with intent to murder will not warrant a conviction of an assault with intent to maim or disfigure — the latter intent not being included in the former.”

That case seems to hold squarely that the offense of maiming is not included in the offense of assault with intent to kill, and where one is indicted for assault with intent to kill, he may not be found guilty of maiming.

The penalty for assault with intent to kill is imprisonment in the penitentiary for not less than one year or more than fifteen years, whereas the penalty for assault with a dangerous instrument with malicious intent to maim or disfigure carries a penalty of not less than three or more than thirty years. The crime of assault with intent to kill and thq crime of maiming are wholly different or independent crimes.

It may be presumed that the Legislature, in determing the severity of the punishment, considered the atrocity of the crime and provided more, severe punishment for the more heinous crime.

In the case of Brown v. State, 15 C. D., 130, 2 C. C. (N. S.), 409, this court, in discussing included offenses, said:

“It is, in fact, a crime of less heinous character than that of robbery. It is punishable by a shorter period of imprisonment in the penitentiary.”

This defendant has not been notified of the nature of the charge of maiming under which he now stands convicted. He was convicted of an offense which embraces two elements more than the indictment charged. This violates Section 10, Article I of the Ohio Constitution, which guarantees to a person accused of crime the right to demand the nature and cause of the accusation against him and to have a. copy thereof.

We do not believe that the crime of assault with intent to maim or disfigure is an inferior degree of the crime of assault with intent to kill; nor is it a lesser included offense.

Having reached this conclusion, it is unnecessary for us to pass upon the other assigned errors. The judgment, order and sentence, which succeeded the verdict of the jury finding the defendant guilty of assault with intent to maim or disfigure, on account of the infirmity in the charge, are all invalid. Since the defendant has been tried and found not guilty of the crime charged, it follows that the defendant must be and hereby is discharged.

Judgment reversed.

Nichols and Phillips, JJ., concur.


author: Hildebrant, P. J.

text:
    Smith, Appellant, v. Smith, Appellee.
    (No. 170
    Decided May 27, 1952.)

      Mr. Lawrence R. Lyons, for appellant.
    No appearance for appellee.
   Hildebrant, P. J.

Effective August 28, 1951, the Legislature, in amending Part Second, Title VI, Domestic Relations, Chapter 3, Divorce and Alimony, provided by Section 8003-9, General Code:

“On the filing of a petition for divorce or for alimony, the court may and in cases in which there are children under fourteen years of age involved, shall, cause an investigation to be made as to the character, family relations, past conduct, earning ability, and financial worth of the parties to the action. The report of such investigation shall be made available to either party or his counsel of record upon written request not less than five days before trial.

‘ ‘ The court, on its own motion, may cite either party to the action from any point in the state to appear in court and testify as a witness.”

No provision of any kind is made in the Code to guide the court in causing the required investigation to be made or to provide for payment of any expense or compensation, which it appears would be necessarily incident thereto.

The error assigned in this appeal on questions of law only is to the action of the Common Pleas Court in taxing as part of the costs the sum of five dollars paid or to be paid to the investigator appointed as required by Section 8003-9, General Code.

While the statute commands an investigation and report thereof, it includes no direction to the court in the selection of an investigator, nor does it make any provision for payment of any expense or compensation which would appear to be a necessary incident thereto and which one must assume was within the contemplation of the Legislature.

Under the language of the statute it, therefore, becomes the judicial prerogative and duty of the Common Pleas Court to exercise its sound discretion in the selection of an investigator and to direct and control any and all expenditures necessary thereto, including the mode and manner of payment.

The Clinton County Common Pleas Court has no constables appointed and compensated pursuant to Sections 1692 and 1693; General Code, so that the court exercised a sound discretion in appointing a qualified individual as investigator herein, and, in the absence of specific direction in the statute, in allowing a modest fee of five dollars to the investigator, in full of all expense and compensation for services rendered.

This amount was included in the costs taxed in the case payable by the plaintiff. In this, we hold that the court was in error.

Historically, “By the common law no costs were awarded to either party, eo nominee.” That the word, “costs,” has had a legal significance in Ohio for many years appears by reference to State, ex rel. Board of Commrs. of Gallia County, v. Board of Commrs. of Meigs County, 14 C. C., 26, wherein at page 29, it is stated:

“So early as 1832 it was held by the Supreme Court on the circuit that the word, ‘costs,’ has a legal signification, and also that ‘it includes only those expenditures which are by law, taxable, and to be included in the judgment.’ (McDonald v. Page, Wright’s R., 121; Ela v. Knox, 46 N. H., 16, 88 Am. D., 179; Bennet v. Kroth, 37 Kas,, 235. 1 Am. St., 248.)”

In City of Euclid v. Vogelin, 152 Ohio St., 538, 90 N. E. (2d), 593, the second paragraph of the syllabus is:

“Costs are allowed only by authority of statute.”

In 11 Ohio Jurisprudence, 10, Section 1, the author defines costs as follows:

“The word, ‘costs,’ has a legal signification. It includes only those expenditures incidental to the prosecution of an action or other legal proceeding, consisting principally of the fees of witnesses and court officers, which are, by law, taxable, and to be included in the judgment. It is not synonymous with ‘expense.’ Expenses are costs only when made so by statute.”

It is stated in 14 American Jurisprudence, 4, Section 2:

“ ‘Costs’ are statutory allowances to a party to an action for his expenses incurred in the action. They have reference only to the parties and the amounts paid by them * * *.

“The terms, ‘fees’ and ‘costs,’ are sometimes used interchangeably, but accurately speaking the term, ‘fees,’ is applicable to the items chargeable by law between the officer or witness and the party whom he serves, while ‘costs’ has reference to the expenses of litigation as between the parties. The latter term strictly includes only those expenditures which are by statute taxable and to be included in the judgment. ’ ’

Examination of the statute relating to costs and the taxing and apportionment thereof between the parties reveals no statute wherein the expense of investigation, made mandatory by Section 8003-9, General Code, is made a part of the costs of the case.

In noting the somewhat subtle distinction between “fees” and “costs” contained in the quotation from 14 American Jurisprudence, supra, we would call attention to the distinctive character of the divorce action as being impressed with a public interest.

The parties themselves are at all times free to produce and offer their own evidence with relation to the subjects of investigation outlined in the statute, so that the Legislature in requiring an independent investigation under the direction of the court might well have conceived and intended it to be primarily for the benefit of society and the public in maintaining the marriage status of the parties, once they have consummated the marriage contract, and in furthering the welfare of the children involved, which is always of paramount concern, and in discharging the paramount duty of the court to consider and provide for the welfare of the children involved.

If such is the case, payment from the public treasury is logical.

In Opinions of Attorney General (1951), 723, No. 913, rendered November 9, 1951, it is said in part:

“If a Court of Common Pleas desires to appoint one or more investigators who shall be paid in a manner different from the formula set forth in Section 1693, General Code, it may do so by virtue of a court’s inherent power to do those things necessary for the performance of its business, so long as such number of investigators are paid upon the allowance of the county commissioners in accordance with Section 2460, General Code, which provides:

“ ‘No claims against the county shall be paid otherwise than upon the allowance of the county commissioners, upon the warrant of the county auditor, except in those cases in which the amount due is fixed by law, or is authorized to be fixed by some other person or tribunal, in which case it shall be paid upon the warrant of the county auditor, upon the proper certificate of the person or tribunal allowing the claim. No public money shall be disbursed by the county commissioners, or any of them, but shall be disbursed by the county treasurer, upon the warrant of the county auditor, specifying the name of the party entitled thereto, on what account, and upon whose allowance, if not fixed by law.’ ”

This court is in general agreement with the conclusion reached by the Attorney General. We are, however, of the opinion that under the exception in the statute payment may be made upon the warrant of the county auditor upon the proper certificate of the Common Pleas Court judge allowing the claim.

The judgment for costs is therefore modified, and the cause remanded for a retaxing of the costs in accordance with this opinion.

Judgment accordingly.

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


author: Wiseman, J.

text:
    The State of Ohio, Appellee, v. Griffin, Appellant.

      (No. 127
    Decided April 15, 1952.)

      Mr. Richard P. Faulkner, prosecuting attorney, for appellee.

      Mr. Harvey Gros, for appellant.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Juvenile Court of Champaign County; Defendant was charged with encouraging and contributing to the neglect or dependency of James Robert Dunlap, a minor two years of age. The jury returned a verdict of guilty, on which the court entered judgment and pronounced sentence.

Defendant assigns eleven separate grounds of error. First, the defendant contends that the affidavit does not charge an offense. The essential parts of the affidavit are as follows:

“On or about the 1st day of July 1951, and since that time in July, August and September, 1951, in the county of Champaign aforesaid, one Harold Griffin, residing at Springfield, Ohio, did encourage and contribute toward the neglect or dependency of the following child, to wit:

“James Robert Dunlap, age two years, in that he, the said Harold Griffin, encouraged and contributed to the lack of proper parental care due to the faults and habits of the mother of said child, namely, Martha Dunlap, and the neglect by the said mother of the care necessary for its health, morals and well-being; and encouraged and contributed toward conditions and environment such as to warrant the state, in the interests of said child in assuming its guardianship;

* ‘ Contrary to the statute in such case made and provided and against the peace and dignity of the state of Ohio.”

The affidavit charged an offense under the provisions of Section 1639-45, General Code, which provides that whoever encourages or contributes toward the dependency or neglect of a child shall be fined, etc.

Section 13437-34, General Code, as amended, effective August 23, 1945, in part provides: “The provisions of law as to form and sufficiency, amendments, objections and exceptions to indictments and as to the service thereof shall apply to such affidavits and warrants issued thereon.”

Section 13437-4, General Code, provides:

“In charging an offense, each count shall contain, and shall be sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified. Such statements may be made in ordinary and concise language without any technical averments or any allegations not essential to be proved. It may be in the words of the enactment describing the offense or declaring the matter charged to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is charged.” (Emphasis ours.)

In our opinion, these statutory provisions are applicable to this proceeding. It was sufficient to charge the offense in the language of the statute.

Section 1639-3, General Code, defines “neglected child” to be any child, “2. Who lacks proper parental care by reason of the faults or habits of its parents, guardian or custodian.” (Emphasis ours.)

The affidavit charged that the defendant encouraged and contributed “to the lack of proper parental care due to the faults and habits of the mother of said child.” Section 1639-4, General Code, defines “dependent child” to be any child, “3. Whose condition or environment is such as to warrant the state, in the interests of the child, in assuming its guardianship.” The affidavit charged that the defendant encouraged and contributed “toward conditions and environment such as to warrant the state, in the interest of said child in' assuming its guardianship.” In our opinion the affidavit was sufficient to give the accused notice of the offense of which he was charged.

In support of his contention that the affidavit failed to charge an offense by omitting to allege facts which constituted neglect or dependency and the failure to allege that the child was a neglected or dependent child, the defendant cites the following cases: Edmonds v. State, 30 Ohio App., 195, 164 N. E., 649; Peefer v. State, 42 Ohio App., 276, 182 N. E., 117; State v. Krauss, 81 Ohio App., 453, 80 N. E. (2d), 164; and State v. Zaras, 81 Ohio App., 152, 78 N. E. (2d), 74.

The first three cases cited were decided prior to the amendment of Section 13437-34, General Code, which became effective August 23, 1945. The Peefer and Krauss cases are distinguishable from the instant case on other grounds. In the case of State v. Zaras, the affidavit did not charge an offense in the words of the statute, or allege facts which constituted an offense under the statute. In the instant case the affidavit sufficiently charged an offense in the words of the statute, which is permissible under Section 13437-34, General Code. State v. Yudick, 155 Ohio St., 269, 98 N. E. (2d), 415; City of Columbus v. Highsmith, 85 Ohio App., 149, 84 N. E. (2d), 303. If seasonably requested, the prosecuting attorney could have been required to furnish a bill of particulars. Section 13437-6, General Code.

It was not essential to expressly allege in the affidavit that the child was a “neglected” or “dependent” child. Fisher v. State, 84 Ohio St., 360, 95 N. E., 908; State v. Van Horn, 32 Ohio Law Abs., 406.

It is contended that there is no proof that the child was a neglected or dependent child and that, therefore, the defendant could not be guilty of encouraging or contributing toward the neglect or dependency of such child. The prosecuting attorney presented as evidence, over the objection of the defendant, the record of a separate proceeding in the same court in which the child was adjudged to be a neglected and dependent child. The claim is made that with the exception of the court record in the other proceeding which involved the same acts of misconduct, there is no proof to support the verdict and judgment. After the close of the state’s case, the defendant moved for a directed verdict, which motion was overruled, and then rested. Thus, the case went to the jury on the evidence presented by the state. The principal witness for the state was the mother of the child, who testified that she and the defendant, who was not her husband, over a period of several months immediately prior to the institution of this proceeding, had engaged in illicit sexual relations which occurred in the presence of the child.

It was incumbent upon the state to prove the child to be a neglected or dependent child, and we are of the opinion there was sufficient competent evidence to prove the child to be neglected or dependent within the meaning of the statute. The case at bar is distinguishable from State v. Hannawalt, 26 Ohio Law Abs., 641, where the complaint not only charged “contributing to the delinquency” but, also, “acting in a manner tending to contribute to the delinquency.”

It is not a prerequisite that the child be adjudicated as a neglected, dependent or delinquent child in a separate proceeding before a charge of contributing toward such neglect, dependency or delinquency of such child can be maintained. State v. Zaras, supra, 155; Anss v. State, 16 Ohio App., 502, 504; State v. Van Horn, 32 Ohio Law Abs., 406, 408; Clements v. State, 3 Ohio Law Abs., 541. However, in this case it is contended that the admission of the court record in the separate proceeding constituted reversible error. In our opinion, the introduction of the court record in the separate proceeding was not erroneous. Fisher v. State, supra, 369; Anss v. State, supra, 504; Clements v. State, supra. However, if the admission of the record was erroneous we cannot say it was prejudicially erroneous. In the absence of the record, there was sufficient undisputed competent evidence to support the verdict. There was no conflict in the evidence to be resolved by the jury. The defendant presented no evidence. The admission of incompetent evidence does not constitute reversible error unless it affirmatively appears on the record that the accused was or may have been prejudiced thereby. Section 13449-5, General Code; State v. Hickman, 77 Ohio App., 479, 67 N. E. (2d), 815; State v. Fouts, 79 Ohio App., 255, 72 N. E. (2d), 286.

We find no prejudicial error in the admission of evidence; neither do we find that the court committed prejudicial error in its charge to the jury.

Failure to read the definition of “reasonable doubt” as set forth in Section 13442-3, General Code, does not constitute reversible error where the court’s charge on reasonable doubt is substantially in accordance with the definition set forth in that section. Although the court’s charge on reasonable doubt was not in the language of the statute, we are of the opinion that there was substantial compliance. Beck v. State, 129 Ohio St., 582, 196 N. E., 423; Youngstown v. Ponikwa, 54 Ohio Law Abs., 510. The failure to give in the charge the statutory definition of “neglected child” or “dependent child” was an error of omission and not commission, and does not constitute reversible error. If the charge as given is correct and .not misleading, the failure to charge on some aspect of the case is not reversible error unless the court’s attention was seasonably called to the omission and specific instructions requested and refused. Rhoades v. City of Cleveland, 157 Ohio St., 107, 105 N. E. (2d), 2; State v. Tudor, 154 Ohio St., 249, 95 N. E. (2d), 385; Bachman v. Ambos, 83 Ohio App., 141, 79 N. E. (2d), 177; Kleinhans v. American Gauge Co., 83 Ohio App., 453, 80 N. E. (2d), 626; 39 Ohio Jurisprudence, 1006 et seq., Section 297.

In the instant case, the complaint sets forth in the words of the statute the acts of which the defendant was charged. This complaint was read to the jury, and was followed by an instruction that before the jury could find the defendant guilty, the state must prove beyond a reasonable doubt the allegations in the complaint to be true. The charge as given was correct and not misleading to the jury.

In our opinion, prejudicial error was not committed in sending a copy of the court’s charge to the jury room. Section 13442-8, General Code, expressly provides that “written charges and instructions shall be taken by the jury in their retirement and returned with their verdict * *

We find no error committed in refusing to direct a verdict for the defendant, or in overruling defendant’s motion to dismiss; neither do we find the verdict to be against the manifest weight of the evidence or contrary to law.

In the trial of almost all cases of some consequence errors are committed, but a reviewing court is required to disregard any errors unless the accused is mislead or prejudiced thereby, or unless it affirmatively appears on the record that the accused was or may have been prejudiced thereby, or was prevented from having a fair trial. Section 13449-5, General Code.

After an examination of the entire record and a careful consideration of the errors assigned, we find no assignment of error well made. We are of the opinion that the defendant has had a fair trial and that justice has been done.

Judgment affirmed.

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