text:
    Finley et al., Appellees, v. Duffy et al., Appellants.

      (No. 671
    Decided May 19, 1950.)

      Messrs. Tobin & Tobin, for appellees.

      Messrs. Broolces d> Lynch and Messrs. Woll, Glenn & Thatcher, for appellants.
   Skeel, P. J.

This cause comes to this court on appeal on questions of law and fact from a decree and judgment of the Common Pleas Court of Columbiana County, granting an injunction as prayed for by the plaintiffs against the defendants on June 28, 1948, and in its final form on December 29, 1948.

The trial before this court being de novo, the fact that the decree was entered before the defendants were afforded the opportunity to submit evidence to substantiate by proof the affirmative allegations of their supplemental answer, filed by leave of court, need not be considered.

The plaintiffs are members of the National Brotherhood of Operative Potters. The defendants are likewise members and are the national officers of such union. The membership of such union is composed of operative potters belonging to separate local unions located throughout the United States and Canada, which unions, about 114 in number, are affiliated with and under the jurisdiction of the National Brotherhood of Operative Potters. The home office of the National Brotherhood of Operative Potters is at Bast Liverpool, Ohio..

The issues presented by the pleadings and the evidence are, first, as to the power of the convention of the brotherhood to amend the constitution and by the force of such amendment increase the salaries of its national officers; second, the power of the executive board to translate an hourly wage increase into a percentage increase for the national officers; and, third, the power of a court to interfere with the internal affairs of the brotherhood. -

The officers, under the terms of a resolution amending the constitution of the brotherhood, passed at the regular convention of the brotherhood in 1944 amended section 75 of the constitution, in part authorizing changes in the compensation to national officers . This convention upon the authority of section 75 as amended and upon advice of the finance committee then fixed the following salaries for national officers: President, $12,000; secretary, $8,500; 1st vice-president, $7,500; 2nd vice-president, $7,500; organizers, $5,000; members of national committee, work, $15 per day.

Thereafter on the occasion of the national convention of 1946, the constitution as then amended provided by section 77 as follows:

“Sec. 77. Whenever the general ware and china ware trade is granted an increase in wages, the same amount of increase shall also be passed along to the-President, Secretary-Treasurer, First Vice-president, Second Vice-president and National Organizer and whenever the trade takes a decrease, said decrease shall apply to the President, Secretary-Treasurer, First Vice-president and Second Vice-president and National Organizer.

“Any salary increase or reduction for said officials which may be proposed in the future, other than as stated above, shall conform to sec. 75.”

Also, section 33 of the 1946 constitution provided:

“The third, fourth, fifth, sixth, seventh' and eighth vice-presidents shall constitute the hoard of trustees -and together 'with the president, first and second vice-presidents and secretary-treasurer shall constitute the national executive board. The third vice-president shall be chairman of the board of trustees.”

In June 1946, an 18% cent per hour raise was'granted the general ware and china ware trade. This was a totally different method of increasing the wages of the members of the union. Theretofore all raises had been on a percentage basis. This necessitated developing a formula under the provisions of section 33 of the constitution, supra, to apply such raises to the officers’ salaries. This was accomplished by computing the 18% cents per hour increase on a 60-hour week basis. The increases of eight and one-half cents per hour granted on February 1, 1947, and six cents per hour as of September 17, 1947, with regard to officers’ compensation, were treated in like manner.

■ Thereafter the national executive board translated the cents per hour increases into percentage increases for the officers as follows:

The increase of 18% cents per hour was changed to 12%% increase. The increase of 8% cents per hour was changed to 7%% increase. The increase of 6 cents per hour was changed to 5% increase.

As thus figured, the increases to the officers were somewhat greater than the cents per hour increases to the.trade generally. Prior to the filing of this action the convention of the union in 1946 and 1947 approved the national officers’ salaries as then being paid.

At the 1948 convention, after notice to all local unions, the subject of the national officers’ compensation was again brought up for consideration. This action was then pending. Upon consideration a resolution was adopted fixing- the national officers’ compensation as follows: National president, $294.09 per week; national secretary-treasurer, $207.57 per week. This was the same rate of compensation as had -been paid since the last revision.

The resolution provided also that all deductions in salary suffered by the national officers because of this lawsuit should be restored to them and that “this proposition [the subject of the national officers’ compensation] be submitted to a referendum of the trade.”

A canvassing committee was appointed who counted the votes and found that a majority of those who were legally entitled to vote and who had voted in a legal manner approved the’resolution.

It is the claim of the plaintiffs, as the bqsis for the injunction prayed for, that the increases granted as in 1944 and the percentage increases in place of the cents per hour increases of 1946 and 1947 were unauthorized and in violation of the constitution and that the canvassing committee erroneously found that the resolution of the 1948 convention had received a majority vote when in fact more votes were cast against it than in its favor.

In considering the issues presented by the pleadings and the evidence it is well to remember that courts will not assume to act in place of those authorized to interpret the constitution and bylaws of a voluntary association unless those upon whom the duty is placed act in an arbitrary and unreasonable manner. This is true also with respect to the determination of all questions of policy and internal management. Oaks on Organized Labor and Industrial Conflicts, 93, Section 91.

The basic question here involved comes clearly within the sphere the internal management of the brotherhood. The compensation of the national officers in no wise effects a property right of any of the members. The continued course of conduct upon this or any other subject of internal policy comes under the complete control of the membership, either by action at the convention of the members or by a referendum. The record discloses that after the amendment to section 75 of the constitution of 1941, by the 1944 convention, the subject of the change in compensation of the national' officers came up for consideration in each of the conventions of 1946, 1947 and 1948, and in each instance the opposition to the basic increases granted by the convention of 1944 and those subsequently given •because of wage increases obtained by the trade generally failed to obtain the support of the membership. If, in fact, the desire of the brotherhood is to revoke on the one hand or approve on the other what has heretofore been done on this subject, the convention of 1950 has full power and authority to make whatever order seems just, no matter what this court does in the instant ease. The matter is therefore one which, there being no claim of fraud, the court should leave to the regularly constituted tribunals of the brotherhood.

Section 3 of the constitution of 1941 provided as follows:

“The Convention of the National Brotherhood of Operative Potters shall have power and authority to make or repeal any laws deemed necessary. It may also tax the members for the maintenance of the organization. ’ ’

Section 26 provides:

“All resolutions adopted by the Convention which do not specify the time they shall become effective— «excepting resolutions affecting the wage scale — shall take effect on the first day of the month following the adjournment of the Convention. ”

Section 255 provides:

“These laws shall not be altered or amended except at a stated meeting of the National Union or by referendum vote of the National Brotherhood of Operative Potters. ’ ’

Section 257 provides:

“Should any doubt arise respecting the true intent and meaning of any article or section of this constitution, the question shall be referred to the President and Officers of the National Brotherhood.of Operative Potters.”

The convention of 1944 upon the authority of the foregoing sections and within the general powers conferred by Section 8623-105, General Code, proceeded to amend section 75 of the constitution of 1944, which then provided:

“Resolutions calling for changes in the salaries of the National Officers may be introduced in Convention or in .Local Unions, but such resolutions must be inferred to the trade for adoption or rejection,'and each officer shall be voted upon individually; resolutions pertaining to National Officers’ salary is permitted only on the off year.”

The amendment struck out the last part of the provision, that is, the words, “but such resolution must be referred to the trade for adoption or rejection and each officer shall be voted upon individually; resolutions pertaining to National officers’ salary is permitted only on the off year.” (It is suggested in the record that by “off year” was meant odd number years.)

Upon the adoption of such amendment the convention proceeded as above indicated to increase the national officers’ compensation. It interpreted its constitution as amended, as conferring upon the convention the right to do so. This duty was imposed on the officers by section 257, supra, constitution of 1941. (Same provision is to be found in section 277 of the constitution of 1946.) There were certainly grounds upon which to come to that conclusion and the court cannot substitute its judgment for that of those who by the fundamental law of the brotherhood are vested with 'such power. The rule is well stated in the case of Allen v. Southern Pacific Co., 166 Ore., 290, at 305, 110 P. (2d), 933:

‘ ‘ The contention that the officers of the Brotherhood misconstrued .and misinterpreted the provisions of the constitution in respect to the matters involved here cannot be sustained. As was said by the court in Pratt v. Amalgamated Assn. of S. & E. Ry. Employees, 50 Utah, 472, 167 P., 830, 834:

im * * ^ any event, the officers not only possessed the right but it was their duty to construe and apply the provisions of the constitution to the best of their understanding and ability. The fact that different officers have arrived at different conclusions regarding certain provisions of the constitution is but natural. What interpretation we might now place upon the constitutional provision in question is of no importance, since we are not authorized to review the rulings of the regularly constituted officers of the association relating to the internal affairs of the association.’ ”

The Allen case involved a dispute on a question of seniority rights between members of the same union. Under the powers conferred upon the officers of the union by the constitution, the dispute had been considered and determined by the officers. The court refused to substitute its judgment or review the conclusions reached-by those empowered by the constitution of the union to resolve the controversy.

The same result must follow here, first, from the determination of the executive board with regard to the percentage increases above set forth, and, second, from the determination of the canvassing committee as to the result of the referendum of 1948.

The right to seek the power of injunctive relief in a court of equity cannot be invoked unless and until it is made to appear that a property right is-being invaded for which there is no other adequate remedy afforded. Here the plaintiffs have recourse to the procedure provided by the constitution of the brotherhood of which they are a part. By their membership in the brotherhood they have adopted the rules created by the constitution and bylaws as the basis of conducting the internal affairs of the brotherhood. By such rules they must be bound. . <

For- the foregoing reasons a decree will be entered for the defendant appellants.

Decree for appellants.

Hurd and Doyle, JJ., concur.

Skeel, P. J., and Hurd, J., of the Eighth Appellate District, and Doyle, J., of the Ninth Appellate District, sitting by designation in the Seventh Appellate District.


source: Caselaw Access Project

author: Wiseman, J.

license: Public Domain

text:
    In re Estate of Murphy.

      (No. 4352
    Decided March 1, 1950.)

      Mr. Walter R. Snycler and Mr. Oiven B. Sherwood, for appellant.

      Mr. Fred W. Postle and Mr. H. E. Peters, for the estate of Dellot H. Murphy, deceased.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Probate Court of Franklin County. This matter was presented to a judge of the Common Pleas Court acting as probate judge. ’

The decedent, Dellot H. Murphy, died testate in June 1947. The widow, Gladys Murphy, was duly appointed executrix of the estate. In March 1948, the executrix filed an account showing the payment of certain claims against the estate and resigned as such executrix. On March 31, 1948, Fi;ed W. Postle was appointed administrator de bonis non with the will annexed. The administrator immediately filed an action to sell the real estate to pay debts. In the inventory filed the real estate was appraised at $6,000. In the land sale proceeding the original appraisement was not adopted and the court ordered a new appraisement, the value returned being $4,750. The widow purchased the real estate at private sale at the appraisement. The sale was confirmed and the proceeds distributed.

After the land sale proceeding wasx completed the administrator filed an application for an order declaring the estate to be insolvent. Apparently the application was drawn to conform to the provisions. of former Section 10509-130, General Code (114- Ohio Laws, 430). That section was repealed, effective August 22,1941 (119 Ohio Laws, 394, 425), for the reason that it served no useful purpose in the administration of an insolvent estate. On the same date Section 10509-127, General Code, and other related sections were amended. Section 10509-127 in part provides:

“If it appears at any time that the estate is insolvent, the executor or administrator may report that fact to the court and apply for any order that he. deems necessary in connection therewith.”

This provision' is permissive and contemplates an ex parte hearing. At present there is no section in the Probate Code which provides for the filing of a proceeding to declare an estate insolvent. While the application filed in this case was for the purpose of securing an order declaring the estate insolvent, a procedure prescribed by former Section 10509-Í30, General Code, nevertheless, it may be regarded as a report of insolvency and an application under the provisions of Section 10509-127, General Code. It will be observed that under the latter section the executor or administrator simply reports the fact of insolvency and applies “for any order that he deems necessary in connection therewith. ’ ’ The authority of the Probate Court under this provision is limited to giving instruction to the executor or administrator, in the distribution of the proceeds of the estate in view of the insolvency. The' executor or administrator is required to distribute the assets of the estate to creditors in the order of priority provided in Sections 10509-121 and 10509-122, General Code. In view of the provisions of these two sections, in a hearing on the application, which is ex parte in character, the court can inquire whether the report of insolvency is correct and instruct the administrator in what manner and to whom the assets shall be distributed, but is without authority to do more.

The appellant is a creditor whose claim was reduced to judgment, and was served with notice of the pendency of the application. The appellant filed a motion to dismiss the application, raising certain issues which could not be determined in a hearing on such application or on the motion. The motion requested the trial court, first, to dismiss the representation of insolvency; second, for an order setting aside the confirmation of the land sale; third, for an order setting aside the appraisal in the land sale proceeding; fourth, for-an order requiring the administrator to account for the former appraised value of the real estate made in the administration proceeding; fifth, for an order setting .aside the homestead exemption and an allowance of dower in the distribution order in the land sale proceeding; sixth, for an order requiring the administrator to account for all the assets in the estate; seventh, for an order requiring the administrator to reject the claim of Mildred Bagby; eighth, for an order requiring the administrator to pay all claims falling within the same class.on a pro rata basis; and ninth, for an order requiring the administrator to account for moneys held by the decedent and the widow in a joint and survivorship bank account.

The administrator de bonis non was served with a notice of the hearing on the motion. Neither the widoav nor Mildred Bagby was served with a notice of the hearing on either the application or the motion.

The trial court overruled the first, second, third, fourth, fifth, sixth and ninth branches of the motion and sustained the seventh and eighth branches. The seven assignments of error are directed to the order of the court overruling the several branches of the motion.

The court very properly overruled the first branch of the motion. The application was properly filed as a report of insolvency and if the court found the estate to be insolvent the court could make an order which it deemed proper under the provisions of Section 10509-127, General Code.

The second, third, fourth and fifth branches of the motion relate to orders made in the land sale proceeding. The regularity and validity of the land sale proceeding could not be challenged in a hearing on such application. However, the record submitted to this court shows no authority for allowance of dower in the distribution order in the land sale proceeding, as vested dower has been abolished in Ohio, with certain exceptions which are not shown to exist in this case. If the appellant takes the appropriate steps in the land sale proceeding these matters may be' determined by the Probate Court. The court properly overruled the second, third, fourth and fifth branches of the motion.

On the sixth branch of the motion the court took testimony to determine the ownership of office furniture and accounts receivable which were listed in the inventory and appraised at $100 and $583, respectively. The court found that the office furniture and accounts receivable were not owned by the decedent but belonged to the widow, and overruled the motion of appellant to require the administrator to account for such assets. The inventory was approved by the court, no objections being filed thereto. The accounts receivable were set off to the widow under Section 10509-54, General Code. Later the widow elected to take the office furniture at the appraised value, under Section 10509-89, General Code. This proceeding does not chailenge the correctness or validity of the inventory, or the court’s approval thereof, or the order made on the election of'the widow to take'the office furniture at the appraised value. So long as the office furniture and accounts receivable remained in the inventory as assets of the estate, the administrator should be required to account therefor. There is evidence tending to prove that the office furniture and the accounts re-' ceivable did not belong to the decedent and were owned by the widow, but an adjudication as to the ownership of such property cannot be made in this proceeding. This question can be raised in an appropriate proceeding brought for that purpose. On the record as it now stands the motion of the appellant to require the administrator to account for the office furniture as estate assets should have been sustained. The administrator is not required to account for property selected under Section 10509-54, General Code.

On the issue raised by the seventh branch of the motion the court took testimony to determine whether the claim of Mildred Bagby was a valid claim against the estate. The court disallowed the claim and sustained the seventh branch of the motion. The court was without authority in this proceeding to hear and determine the validity of the claim. No notice was served on Mildred Bagby, and the judgment of the court was not binding on her for still another reason. The claim had been presented to the fiduciary, had been allowed and was- so listed on the schedule of debts. After a claim has been allowed by the executor or administrator and a creditor or an heir desires to have the claim disallowed, it may be done by requisition under Sections 10509-135 and 10509-136, General Code. The appellant, being upheld on this branch of the motion, has assigned no error in respect thereto, and the administrator has not filed a cross-appeal. However, the action of the court on this matter is a nullity and may be corrected by taking the appropriate action in the trial court.

The court very properly sustained the eighth branch of the motion requiring the administrator to pay all claims falling within the same class on a pro rata basis. This order conforms to the provisions of Section 10509-122, General Code.

On the ninth branch of the motion the court took’ testimony to determine the ownership of joint and survivorship bank accounts held in the names of the-decedent and his wife. The court found that the bank accounts, upon the death of the decedent, passed to the widow by virtue of the joint and survivorship contract. While we find no fault with the conclusion of the trial court in holding that the bank accounts belonged to the widow, nevertheless, the court was without authority to determine the question of ownership in this proceeding. This branch of the motion was properly overruled but the finding of the court did not amount to an adjudication on the question of ownership. Evidence as to the ownership of such property was properly admitted in determining whether the estate was solvent or insolvent, but for no other purpose. The action of the court, so far as it attempts to adjudicate the question of ownership of the -bank accounts, is a nullity and may be corrected by the Probate Court if the appropriate proceedings are instituted for that purpose.

We hold that the court was without authority to pass on certain issues raised by the motion. While it is true that under Section 10501-53, General Code, the Probate Court has ‘ ‘ plenary power at law and in equity fully to dispose of any matter properly before the court,” etc., it will be observed that a necessary prerequisite to the exercise of such plenary power is that the matter at issue be properly before the court. Neither the ownership of the office furniture, accounts receivable and the bank accounts nor the allowance or disallowance of the claim of Mildred Bag'by was a matter properly before the court.

Since all the assignments of error are directed to the judgment of the trial court in overruling the first, second, third, fourth, fifth, sixth and ninth branches of the motion, we find no. assignment of error well made, except as to the sixth branch of the motion.

The judgment entry of this court should show that the judgment of the trial court in overruling the firsi; branch of the motion is affirmed; that the judgment of the trial court in overruling the second, third, fourth and fifth branches of the motion is affirmed on the ground 1hat the court in this proceeding was without authority to adjudicate the issues raised therein with respect to the land sale proceeding, and the affirmance in no manner shall be considered as an adjudication of such issues; that the judgment of the trial court in overruling the sixth branch of the motion is reversed, as the administrator should be required to account for the office furniture as assets of the estate so long as such property remains in'the inventory; that the judgment of ihe trial court in sustaining the seventh branch of the motion is disaffirmed, but in the absence of a cross-appeal we cannot reverse, and the finding of the trial court in disallowing the claim of Mildred Bagby is a nullity; that the judgment of the trial court in. sustaining the eighth branch of the motion is affirmed; and that the judgment of the trial court in overruling the ninth branch of the motion is affirmed, but the affirmance is not to be considered as an adjudication of the matters raised on the ground that the court was without authority in this proceeding to determine the question of ownership of the bank accounts and that the action of the court in attempting to adjudicate this question is a nullity.

Judgment accordingly.

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


author: Conn, J.

text:
    The State, ex rel. VanAusdale, v. Board of Education of Monclova Local School District et al.
    (No. 4391
    Decided December 5, 1949.)

      Messrs. Hayward é Smith, for relator.

      Mr. Joel S. Bhinefort, prosecuting attorney, for respondents.
   Conn, J.

This action originating in this court was instituted by relator against respondents for a writ of mandamus. The cause was submitted to the court on the petition, answer, supplemental answers, replies thereto, stipulations, evidence, oral arguments of counsel and briefs of relator.

We will briefly restate the material allegations in the pleadings.

Relator is now and has been employed for the past 18 years by respondent board as teacher, supervisor or in such other educational positions for which the board of education required certification. On June 2, 1941, relator was the holder of a permanent or life certificate and had completed more than five years of employment with such board. Thereafter, on October 16, 1941, a continuing contract was entered into with relator. Beginning with the school year of 1945-1946 to the present, upon the recommendation of the county superintendent of schools, relator has been a teacher employed as principal, supervisor or other administrative head of the Monclova School. On July 18, 1947, the board of education gave relator notice that his salary for the year 1947-1948 and for the year 1948-1949 would be $3,750 annually.

On March 26, 1949, the board of education, by resolution, ordered that relator be notified it desired to terminate his employment at the close of the present contract period, which action relator claims was unlawful. Subsequently the board of education reaffirmed its previous action and informed relator that it was willing to employ him as teacher at the present salaiy provided in the salary schedule for teachers, and that the county superintendent had not recommended that relator be transferred to a lesser administrative or to a teacher position.

Relator further alleges that his annual salary is now $3,750; that the present salary schedule for teachers ranges from $2,800 to $3,000 annually; that, unless a writ'of mandamus is issued, respondents will unlawfully prevent relator from occupying the position to which he is lawfully entitled and refuse to pay him the salary to which he is entitled under the law; and that relator is without any adequate remedy at law.

In the answer of respondents, it is admitted that relator had a continuing contract with the board of education entered'into October 16, 1941, and that it again executed a continuing contract with relator April 16, 1942. Respondents aver that the board of education, by resolution duly adopted, employed relator as superintendent of schools for the school years 1947-1948 and 1948-1949 at an annual salary of $3,750; that on March 26, 1949, the board of education determined not to re-employ relator as superintendent of schools and advised relator it would employ him as a teacher at the regular salary for teachers; that prior to relator’s appointment as superintendent he was employed as teacher; and that upon his appointment as superintendent he was relieved of all teaching duties.

Supplemental answers were filed in which it is alleged that relator was never certified as an elementary principal, high school principal, supervisor, superintendent, assistant superintendent or in any school supervisor capacity as required by Sections 4857-1 and 4857-9, General Code. After a hearing, as provided for in Section 4842-12, General Code, the board of education did terminate any contract of employment with relator.

Relator filed a reply dénying generally the averments in respondents’ answer, except admissions. In the supplemental replies, relator avers that on August 22, 1933, relator received a “state life high school certificate” which at all times since that date has qualified him for the position with the board for the past 5 years and for any position held by him prior thereto; that prior to September 5, 1933, lifetime certificates were not issued for special positions of “high school principal,” “supervisor” and “superintendent”; that on such date the General Assembly first enacted that various grades of certificates may be issued, and made provision for “high school principal,” “supervisor” and “superintendent”; that the state Superintendent of' Public Instruction might establish standards for the conversion of life certificates issued prior to such date into certificates of the various types; and that all such certificates issued prior to that act shall, without such conversion, retain their validity for the kind of position for which they were valid when issued.

It is further averred that the Superintendent of Public Instruction has never established standards for the conversion of life certificates into certificates of various types provided for by statute; and that since September 5, 1935, it has' been the policy of the Superintendent of Public Instruction and the superintendent of schools of Lucas county to certify a certificate issued prior to that date, as held by relator, as appropriate for the position held by him for the past 5 years.

Pursuant to right of appeal, relator, as plaintiff, filed a petition in the Common Pleas Court. Such action is now pending and the proceedings do not embrace and can not determine the issues in this action.

The respondents filed a motion herein to dismiss relator’s petition, for the reason that any contract which relator may have had has been terminated since the filing of this action, as provided in Section 4842-12, General Code. On consideration, the court finds this motion not well taken and overrules same.

Prom our study of the pleadings and stipulations, we-find that all the allegations of fact set forth in relator’s petition and supplemental replies have been admitted by respondents, and that the issues to be- determined are raised on the affirmative allegations in the supplemental answers, above referred to, and the following averments in the supplemental replies:

1. That the state life, high school certificate of relator under date of August 22, 1933, qualified him for relator’s position with the board of education for the past five years and for any position held by relator at any prior time.

2. That lifetime certificates were not issued for specific positions of high school principal, supervisor and superintendent prior to September 5, 1935.

3. That pursuant to Section 7805-1, General Code, effective September 5, 1935 (now Section 4857-1, General Code), various grades of certificates were authorized, including high school principal, supervisor and superintendent, and the Superintendent of Public Instruction was authorized to “establish standards in accordance with which he may convert provisional and life certificates issued prior to September 5, 1935, into various types provided for herein but such certificate, without such conversion, shall retain their validity for the kinds of positions for which they were issued.”

4. That the Superintendent of Public Instruction has never established standards in accordance with which he may convert life certificates pursuant to the statute.

5. That it is and has been the practice and policy of the Superintendent of Public Instruction and the Lucas county superintendent of schools to certify, a certificate such as issued to and held by relator as appropriate for the position relator held Avith the board of education for the past five years.

6. That the county superintendent of schools had not at any time recommended relator be transferred to a lesser administrative position or lesser teacher position, and that the board of' education had no authority to terminate relator’s contract of employment without cause.

It is admitted or established by the evidence that relator Avas first employed by the Board of Education of Monclova Local School District for the school year 1930-1931 as teacher; that on August 22, 1933, a state life high school certificate was granted to relator (he then being in the employ of the board as teacher), at which time lifetime certificates were not issued for specified positions; that on September 5, 1935, Section 7805-1, General Code (noAV Section 4857-1, General Code), was enacted and made provision for the issuanee of various grades of certificates, including high school principal, supervisor and superintendent; and that Section 4857-6, General Code, authorizes superintendents of public instruction to “establish standards in accordance with which he may convert provisional and life certificates issued prior to September 5, 1935, into certificates of the various types provided for herein.” This section further provides that “all such certificates * * * shall, without such conversion, retain their validity for the kinds of positions for which they were valid when issued.”

It appears further that at the time the Teachers* Tenure Act was enacted on June 2, 1941, the relator had been employed by the board as teacher for more than five consecutive years and Section 4842-8, General Code, provided “that on or before September 1, 1941, a continuing contract shall be entered into by each board of education with each teacher holding a professional, permanent or life certificate who, at the time of the passage of this act, is completing five or more consecutive years of employment by said board. ’ ’

The evidence shows further that the Superintendent of Public Instruction has never adopted standards for the conversion of state life high school certificates issued prior to September 5,1935, and that “under the practices and policies of the Superintendent of Public Instruction of the state of Ohio, a state life high school certificate issued prior to September 5, 1935, was and still is valid for teaching and for serving as a high school principal or supervisor and as the administrative head of a local school system under county supervision. ’ ’

After a careful study of the whole record, it satisfactorily appears that a state life high school certificate issued to relator in 1933 was valid when issued and has continued through the years to be valid as a basis for his employment as teacher, principal or supervisor of day school of the Monelova Local School District; that relator has had a continuing contract since October 16, 1941, within the meaning of the Ohio Teachers ’ Tenure Act; that relator was not at any time employed by the board of education as superintendent; that his continuing contract did not expire on June 1, 1949; that the county superintendent of schools has at no time recommended that relator be transferred to a teaching position with a reduction of salary; that the board of education has no authority to invalidate the continuing contract of relator without his consent or retirement, except for cause pursuant to the provisions of the statute for the termination of continuing contracts ; and that there should be a finding in favor of relator on the issues joined.

The temporary writ of mandamus is made permanent.

Writ allowed.

Carpenter and Fess, JJ., concur.


text:
    The State, ex rel. Simons, Appellant, v. Kiser, Appellee.
    (No. 684
    Decided August 22, 1950.)

      Messrs. Spidel, Staley db Hole, for appellant.

      Mr. T. A. Billingsley, for appellee.
   Wiseman, J.

This case is submitted on motion of defendant, appellee, to dismiss the appeal on the ground that the plaintiff, appellant, has appealed from an order granting a motion for new trial for one of the reasons contained in the motion for a new trial and that such order is not a final order from which an appeal may be taken.

The sole question presented is whether an order granting a motion for a new trial is a final order from which an appeal may be taken.

This action,. which is one in bastardy, was commenced February 13, 1948, and, therefore, the question presented must be determined under Section 6, Article TV, of the Ohio Constitution, as amended effective January 1, 1945, and the provisions of Section 12223-2, General Code, as amended effective September 30, 1947. We find no reported opinion deciding this precise question.

In 1937 Section 12223-2, General Code, which defines a “final order,” was amended by including in the definition “an order vacating or setting.aside a general verdict of a jury and ordering a new trial.” The effect of this amendment was before the Supreme Court in Hoffman v. Knollman, 135 Ohio St., 170, 20 N. E. (2d), 221. In that case, which was decided in 1939, the court held that the jurisdiction of the Court of Appeals was conferred by Section 6, Article IV of the Ohio Constitution, and could not be enlarged or ■ curtailed by legislative enactment; that Section 12223-2, General Code, as amended effective August 23, 1937, would, if given effect, enlarge the jurisdiction of the Court of Appeals and, therefore, was in conflict with Section 6, Article IV of the Constitution.

Finally, the court held that unless it clearly appears that the trial court abused its discretion in granting the order, an order of a trial court setting aside a general verdict of a jury and granting a new trial is not a final order reviewable by the Court of Appeals.

In 1944 Section 6, Article IV of the Ohio Constitution, was amended effective January 1, 1945. The constitutional provision which relates to the question presented is:

“The courts of appeals shall have * * * such jurisdiction as may be provided by law to review, affirm, modify, set aside, or reverse judgments or final orders of boards, commissions, officers, or tribunals, and of courts of record inferior to the Court of Appeals within the district * * *.” (Emphasis ours.)

The purpose of this amendment was to authorize the Legislature to enlarge the jurisdiction of the Court of Appeals, if the Legislature deemed it advisable. In 1947, the Legislature, acting under this constitutional grant of power, again amended Section 12223-2, General Code, effective September 30, 1947, by including in the definition of a final order “an order vacating or setting aside- a judgment and ordering a new trial.” Attention should be- called to the fact that the 1937 amendment to Section 12223-2, General Code, provided that an order vacating or setting aside a “general verdict of a jury” and ordering a new trial was a final order, whereas the 1947 amendment provides that an order vacating or setting aside “a judgment” and ordering a new trial is a final order. The 1937 amendment conformed to other provisions of the Code of Civil Procedure in effect at that time. However, certain sections of the Code have since been amended changing the procedure which necessitated the substitution of the word, “judgment,” for the word, “verdict,” in the 1947 amendment. Under Sections 11576 -and 11578, General Code, as amended effective October 11, 1945, an application for a new trial is no longer filed after the verdict is returned, but rather after judgment of the court has been entered. Consequently, the application for new trial is necessarily directed to the judgment as well as the verdict of the jury in cases tried to a jury. Under the present Code an order of the trial court sustaining an application for a new trial necessarily involves the vacating and setting aside of the judgment. In the instant case, the motion for new trial was in legal effect a motion to vacate a judgment as well as a motion for neAv trial. McAtee v. Western & Southern Life Ins. Co., 82 Ohio App., 131, 81 N. E. (2d), 225. In the McAtee case, Judge Ross, writing the opinion, raised the question as to whether, under the amendment to Section 6, Article IV of the Ohio Constitution, the Legislature “changed the character of the action of the court in overruling a motion for new trial by reason of the new function of a motion for new trial in its attack upon a judgment, rather than upon a verdict,” as provided in Section 11578, General Code, as amended effective October 1Í, 1945. The court concluded “that the overruling of a motion for new trial is a final order in that as to actions commenced after October 11, 1945, the motion is essentially a motion to vacate a judgment as well as a motion for a new trial.”

In the McAtée case the order appealed from was an order overruling a motion for new trial, whereas in the ease at bar the order appealed from is an order sustaining a motion for new trial. The order appealed from affects the substantial right of the appellant. We do not deem'it essential to a decision on the issue presented that this court hold that the order appealed from carries with it the finality of a judgment. In Hoffman v. Knollman, supra, the court was, confronted with the constitutional provision which limited the jurisdiction of a court of appeals to review of judgments. In that case the court held that ah order sustaining a motion for new trial and setting aside a general verdict of the jury did not carry with it the finality of a judgment. Section 6, Article IV of the Ohio Constitution, now provides that the Courts of Appeals shall have “such jurisdiction as may be provided by law to review * * * judgments or final orders. ” We conclude that the Legislature acted within its constitutional grant of power in amending Section 12223-2, General Code, by providing that a final order shall include “an order vacating or setting aside a judgment and ordering a new trial.” Unquestionably, the purpose of the amendment was to permit such action of the trial court to be reviewed, which in many cases would obviate the necessity of a retrial. See 2 Ohio Jurisprudence, 203, Section 106. ■ .

The motion to dismiss is overruled.

Motion overruled.

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


text:
    Liebbrand, Appellant, v. Butler, Appellee.

      (No. 4436
    Decided October 2, 1950.)

      Messrs. Draper, Lombardo & Morgan, for appellant.

      Messrs. Schwartz & Gurevitz, for appellee.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County sustaining defendant’s motion to set aside the verdict and judgment entered thereon.

Defendant, appellee, contends that the order appealed from is not a final order from which an appeal may be taken under Section 12223-2, General Code. We do not agree. Under .Sections 11576 and 11578, General Code, as amended effective October 11, 1945, a motion for new trial is directed not only to the verdict but to the judgment entered on the verdict. In sustaining a motion for new trial the court not only vacates the judgment but sets aside the verdict of the jury. An order of the trial court sustaining a motion for new trial, in actions commenced after October 11, 1945, is a final order from which an appeal may be taken. In the instant case, the action having been commenced after October 11, 1945, the Code provisions in effect since the amendment control, and the order appealed from is a final order. For a more extended discussion of this question see McAtee v. Western & Southern Life Ins. Co., 82 Ohio App., 131, 81 N. E. (2d), 225; Haffner v. Schmeidl, 87 Ohio App., 143, 90 N. E. (2d), 700; Dyer v. Hastings, 87 Ohio App., 147, 94 N. E. (2d), 213; and State, ex rel. Simons, v. Kiser, ante, 181, 96 N. E. (2d), 306.

The plaintiff, appellant, contends the court erred in sustaining defendant’s motion for new trial. The motion for new trial was based on five grounds. The first, second, third and fourth grounds of the motion were not considered by the court. The fifth, ground was based on newly discovered evidence. The fifth ground was regarded by the trial court as dispositive and was sustained. The newly discovered evidence was presented to the court in the form of an affidavit, the substance of which is incorporated in the journal entry sustaining the motion for new trial. The error complained of appearing on the face of the record, the affidavit need not be brought before the court in the form of a bill of exceptions.

The newly discovered evidence was to the effect that plaintiff was adjudicated a bankrupt after the action was instituted but before trial. The trial court held that, after adjudication and appointment of the trustee in bankruptcy, ‘ ‘ to all intents and purposes in this suit the plaintiff became legally dead and has no further right to prosecute this'action” in his own name. Thereupon the court vacated the verdict and judgment and ordered a new trial.

Did the trial court commit reversible error? We think so. If the plaintiff transfers his interest in the action after the suit is instituted, the procedural steps which may be pursued are controlled by Section 11261, General Code, the pertinent part of which provides as follows:

“On any other transfer of interest, the action may be 'continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted for him.”

The verdict of the jury had been rendered and judgment entered thereon before the court was apprised of the fact that the plaintiff had been adjudicated a bankrupt, and no effort has been made to comply with the provisions of Section 11261, General Code.

In Cullen & Vaughn Co. v. Bender Co., 122 Ohio St., 82, 170 N. E., 633, the fifth paragraph of the syllabus is as follows:

“The assignment by a plaintiff of his interest in a controversy made during the pendency of a suit to recover is not a defense to the action, but the cause may proceed in the name of such plaintiff. ’ ’

The court, on page 87, stated:

“Another element was injected into the case during the course of the trial. It developed that, after the suit was begun the Cullen & Vaughn Company assigned its right to recovery to the receivers of the.R. L. Dollings Company. It is therefore contended that the Cullen & Vaughn Company is no longer the party in interest, and for that reason could riot further- maintain the action after such assignment. This position is untenable, and we need only refer to a former decision of this court, which, if sound, is controlling and decisive. Lowry v. Anderson, 57 Ohio St., 179, 48 N. E., 810. The syllabus reads:

“ ‘Upon the transfer by a plaintiff, during the pendency of an action, of all his interest therein, the action may proceed in the name of such plaintiff, or the court may allow the person to whom the transfer is made to be substituted; but such transfer is no deferise to the action.’ ”

In Detroit & Ironton Rd. Co. v. Vogeley, 21 Ohio App., 88, 153 N. E., 86, the third paragraph of the syllabus is as follows:

“Under Section 11261, General Code, if settlement between plaintiff, suing railroad for damage to her automobile, and insurance company, took place after commencement of action, cause could proceed against railroad in name of original plaintiff, notwithstanding subsequent assignment or transfer of right of action.”

On page 90, the court, in its opinion, stated:

“We think the second defense was insufficient and demurrable for the reason that it did not contain an averment that the alleged settlement between the plaintiff and the insurance company took place prior to the commencement of the action in the Court of Common Pleas. If such settlement took place after the commencement of the action, the cause could proceed in the name of the original plaintiff, under Section 11261, General Code of Ohio, notwithstanding subsequent assignment or transfer of a right of action.”

In American Bonding Co. v. Second Natl. Bank, 22 C. C. (N. S.), 177, 33 C. D., 502, the court in its opinion, on page 190, stated:

“Defendant urges, however, that the decision in Lowry v. Anderson, 57 Ohio St., 179, had been modified and distinguished by the several cases reported together under the name of Insurance Co. v. Carnahan, 63 Ohio St., 258, and for that reason can not be regarded as authority here. We fail to agree with this contention. In some of the cases in Insurance Co. v. Carnahan it was found that the rights of the plaintiffs had been assigned before the commencement of the action, and that the action was therefore not brought in the name of the real party in interest. The actions were all brought by a partnership in the firm name and during their pendency one of the partners died and there was no proper revivor or substitution of the representative or successor in interest in place, of the partnership. It was therefore held that the action was in abeyance and could not proceed. The case does not go to the extent of abrogating the provision of Section 11261, General Code, for a continuance of the action in the name of the original party where transfer of interest is made after the commencement of the suit, nor can the fourth proposition of the syllabus as claimed by counsel for defendant be so construed.

“Its proper .construction is rather that where an assignment had been made before suit it must be commenced in the name of the assignee, and when made after suit and revivor becomes necessary such revivor should be made in the name of the assignee.”

Again, on page 191, the court stated:

“In this case there is no dispute that Healy, trustee, was the real party in interest at the commencement of the action, that the action never abated, that it properly proceeded in the name of the original plaintiff until the bonding company was afterwards substituted as plaintiff under authority of Section 11261, General Codé. The action was never in abeyance and never abated.”

This court had this question before it in Colley v. Village of Englewood, 78 Ohio App., 501, 71 N. E. (2d), 150. This court followed the cases hereinbefore ciled and held:

“Where a plaintiff at the time of instituting his action owns real estate involved and, after disposal of the action in the trial court and subsequent to the taking of an appeal, sells such real estate, the action may be prosecuted in the name of such plaintiff.”

The trial court relied upon, and the defendant now cites in support of his contention, Buckingham v. Buckingham, 36 Ohio St., 68, and Vogt, Admr., v. Rush D. Hiller Co., 44 Ohio App., 244, 184 N. E., 34. In the Buckingham case, action was brought by a bankrupt upon a. cause of action which passed to his assignee. The court held that in order to maintain the action it would be necessary for the bankrupt to allege certain facts which authorized him to bring the action in his name as plaintiff. In the Vogt case the court cited and commented on Lowry v. Anderson and Cullen & Vaughn Co. v. Bender Co. but failed to apply the principles of law laid down in those cases. Instead, the court cited and followed Phoenix Ins. Co. v. T. & W. R. Carnahan, 63 Ohio St., 258, 58 N. E., 805, which holds, in paragraphs two and three of the syllabus:

“If in such case one of the partners dies, the plaintiff firm is under a disability within the meaning of Revised Statutes, Section 5012i, and the action is in abeyance and can not proceed without revivor by substitution of the representative or successor in interest, in place of the partnership, which revivor must be on motion of the party to be substituted, or by a conditional order, or upon a supplemental petition.

“A surviving partner can not be so substituted as the party in interest until he has- conformed to the provisions of Revised Statutes, Section 3167 to 3169, inclusive.”

In that case, the court applied the section of the Code relating to the revivor of an action upon the death of a party. However, this court is of the opinion that the question presented here is not the same as was presented in the Carnahan case and is controlled by different sections of the Code. The court in the Carnahan case cited the case of Lowry v. Anderson, and distinguished it on the basis of a different state of facts. On page 268, the court drew a distinction between transfers made before and after the commencement of an action, as follows:

“And the only difference in the effect of them was that, under the one first mentioned above, an action could riot be legally begun and prosecuted except in the name of the H. B. Claflin Company, while under the second mentioned assignment the .actions should have been revived by substituting the assignee of the interest as plaintiff. The case of Lowry v. Anderson, 57 Ohio St., 179, does not apply here. The point of that decision was that the transfer of interest, pending the suit, was no defense to the action, and that was the only point decided in the case.- It was expressly stated in the opinion that the assignee might be substituted for the original plaintiff. The case does not touch the point which arises here, viz.: that the actions were not begun or prosecuted in the name of the real party in interest. ’ ’

In the instant case, at the time the action was instituted the plaintiff was the real party in interest and had the right to prosecute the action. Under the provisions of Section 11261, General Code, when the fact that the plaintiff had been adjudicated bankrupt and a trustee was appointed was made known, the trial court was required to exercise its discretion to either order the action continued in the name of the plaintiff or to allow the trustee to be substituted for the plaintiff. In our opinion this order can be made before or after judgment. Bennett v. Dayton Memorial Park S Cemetery Assn., 87 Ohio App., 123, 93 N. E. (2d), 712. The trial court has not seen fit to exercise its discretion under the provisions of Section 11261, General Code.

The facts presented to the trial court did not form a proper basis for granting the motion for new trial. The action of the trial court was prejudicial to the rights of the plaintiff. The judgment is reversed and the cause is remanded to the trial court with instructions to pass on the other grounds of the motion for new trial and to exercise its discretion under the provisions of Section 11261, General Code.

Judgment reversed.

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


author: Carpenter, J.

text:
    Pierce, Appellant, v. Aid Investment & Discount Co., Inc., Appellee.
    (No. 4461
    Decided May 1, 1950.)

      Mr. Charles T. Lawton, for appellant.

      Mr. Marvyn R. Lachin, for appellee.
   Carpenter, J.

In this action plaintiff, George A. Pierce, seeks to replevin from defendant, Aid Investment & Discount Company, Inc., a manufacturer’s certificate of title to a certain 1949 Dodge automobile and damages for its detention.

The sheriff executed the writ of replevin and took possession of the certificate. The next day the plaintiff filed a redelivery bond for $100. The defendant filed two motions, one to require the court to cancel the bond as insufficient, the other to require the plaintiff and the sheriff to return to it the certificate, but it did not tender a bond therefor as authorized by Section 12059, General Code.

The court considered both motions at a pretrial hearing and ordered them withdrawn, and that the ■certificate “remain in the custody of the sheriff * * * until the cause is tried on its merits.” The court also •ordered the trial advanced, and it began 20 days after that order.

Although this procedure on the part of the court and parties did not in every respect conform to the .statute, the defendant was not prejudiced by it.

At the close of plaintiff’s evidence, the court directed ,a verdict for defendant upon the petition, and judgment was entered thereon.' From that judgment this appeal was taken as on questions of law and fact and as on questions of law. Replevin is not a chancery action and the appeal on questions of law and fact will be dismissed and the appeal retained on questions of law.

The error assigned is the directing of the verdict, and the entry of judgment thereon.

In the summer of 1949, plaintiff was the owner of a 1949 Mercury station wagon and a 1938 Nash sedan. H. D. Angevine, Inc., was a dealer in used automobiles in Toledo. It had made some effort to sell both of Pierce’s automobiles for him, and in July Angevine and Pierce made a deal by which the former was to get a new Dodge automobile for Pierce. Pierce testified that H. D. Angevine, Inc., was to get a new. Dodge for him in exchange for the Mercury and the Nash. Angevine testified that he was to get the new Dodge for Pierce and deliver it and its title to him when the Mercury and Nash were sold.

On July 29,1949, Angevine, acting for Pierce, caused him to sign an order for a Dodge to Dick Motor Sales of Maumee, a licensed Dodge dealer. The price, including $3.50 for title, was $2,318.06, which, less $50 discount given by the dealer to Angevine, was paid that day by H. D. Angevine, Inc. Dick Motor Sales, which had a manufacturer’s certificate of title to the Dodge, dated July 25,1949, assigned it on July 29,1949, to George A. Pierce and delivered it and the automobile to Angevine, who, that day or the next, delivered the Dodge to Pierce, but did not deliver the evidence of title.

On July 30, 1949, H. D. Angevine, Inc., gave the defendant a floor plan chattel mortgage on four automobiles to secure a loan of $4,010. One of the four was the new Dodge. As shown by the mortgage, it represented $1,850 of the loan. Owner’s certificates of title to the three used 'automobiles and the manufacturer’s certificate of title to the Dodge with its assignment on the back to George A. Pierce were delivered to the defendant atá security for the loan. As is the custom in Ohio, the owner’s certificates of title were yellow, and the manufacturer’s certificate was green. Nowhere upon the certificate did the name of H. D. Angevine, Inc., or H. D. Angevine appear.

Although Pierce has possession of the new Dodge, he has not been able to drive it because he has never had a certificate of title to it, and hence could not get a license. He asked Angevine for the certificate of title, but did not get it. Angevine testified that he refused to deliver the certificate until the Mercury and Nash were sold.

Some time in August 1949 the Mercury was sold and Pierce delivered the certificate of title either to Angevine or his purchaser. The record does not tell us how much was realized for it. The Nash not having been sold, Angevine demanded $371 cash for it and he ■testified that Pierce asked him to try to sell it. Later in the fall some arrangement was made by which Pierce paid $300 cash which he gave to Angevine’s attorney and it was accepted and the Nash was returned to Pierce by Angevine, but the certificate of title to the Dodge was not delivered. Thereupon this action was commenced.

Angevine insisted that the deal with Pierce was not a trade, and the evidence can well be so construed. But, if it was not a trade, clearly Angevine was the agent for Pierce in the purchase of the Dodge and in the sale of the used automobiles. Three exhibits in the record bear mute evidence of this relationship, namely, the order Angevine had Pierce sign to Dick Motor Sales for the Dodge, the invoice that firm issued to Pierce covering the details of the sale, and the manufacturer’s certificate of title assigned to George A. Pierce. Being the agent for Pierce in all these transactions, even though his company by him did pay the purchase price of the Dodge, of which he got $50 on the side as a kickback, he had no authority or right to hypothecate that certificate of title to secure the loan to himself.

Under this state of facts, what right, if any, did the defendant get in that automobile and the certificate which evidenced the title to it? On two bases it could get none. By virtue of simple common-law principles and common sense, that certificate of title with the assignment upon it to Pierce was notice to defendant that Pierce was the owner of the Dodge and that Angevine had no legal right to it. Defendant can not be heard to say that its agent who made the loan did not turn the certificate over and hence did not know about the assignment, as they testified. On the face of the certificate, the title was in Dick Motor Sales. The defendant was not so naive in the business that it did not know that such assignments were written on the back on forms printed for that purpose.

The other answer to the question is Section 6290-4, General Code, which is as follows:

“No person acquiring a motor vehicle from the owner thereof, whether such owner be a manufacturer, importer, dealer or otherwise, hereafter shall acquire any right, title, claim, or interest in or to said motor vehicle until he shall have had issued to him a certificate of title.to said motor vehicle, or delivered to him a manufacturer’s or importer’s certificate for the same; nor shall any waiver or estoppel operate in favor of such person against a person having possession of such certificate of title or manufacturer’s or importer's certificate for said motor vehicle for a valuable consideration. No court in any case at law or in equity shall recognize the right, title, claim, or interest of any person in or to any motor vehicle, hereafter sold or disposed of, or mortgaged or encumbered, unless evidenced by a certificate of title or manufacturer’s or importer’s certificate duly issued, in accordance with the provisions of this chapter.”

This applied to H. D. Angevine, Inc., H. D. Angevine and the defendant. Under that section none of them could “acquire any right, title, claim or interest in or to said motor vehicle,” which any court could recognize. Mielke v. Leeberson, 150 Ohio St., 528, 83 N. E. (2d), 209. This court had occasion to apply this statute in the Mielke case when it was before it and in the following reported decisions: Crawford Finance Co. v. Derby, 63 Ohio App., 50, 25 N. E. (2d), 306; Fredericks v. Birkett L. Williams Co., 68 Ohio App., 217, 40 N. E. (2d), 162; Erie County United Bank v. Bogart, 75 Ohio App., 250, 61 N. E. (2d), 811; Asso ciates Investment Co. v. LeBoutillier, 69 Ohio App., 62, 42 N. E. (2d), 1011.

A similar case was Erie County United Bank v. Fowl, 71 Ohio App., 220, 49 N. E. (2d), 61. In each of these cases except the Mielke and Fredericks cases, a dishonest automobile dealer was in the middle and caused loss to one of the parties.

In directing the verdict for the defendant on plaintiff’s petition, the court erred and the judgment it entered on that .verdict is reversed, and on the undisputed facts the judgment which the court should have entered for the plaintiff for replevin as prayed for will be entered. As to the prayer for damages, the cause will be remanded for further proceedings.

Judgment reversed.

Conn and Fess, JJ., concur.


author: Doyle, J.

text:
    Hollosy et al., Appellants, v. Gershkowitz, Appellee.

      (No. 4094
    Decided May 3, 1950.)

      Mr. Ernest W. Teodosio, for appellants.

      Messrs. Karris, Sacks é Subrin, for appellee.
   Doyle, J.

In this appeal on questions of law from the Court of Common Pleas of Summit County, it is claimed by the appellants that there is a rule of law in this state “that the owner of the servient estate may change the location of an easement” on said estate “if the change will not unreasonably interfere with the-use of the right owned by the owner of the dominant estate”; and that, this being so, the trial court erred in sustaining a demurrer to their amended petition, which prays for a declaratory judgment to permit them to change the location of the easement.

The pleaded facts 'are: The plaintiffs reside at 542 Wooster avenue, Akron, Ohio; the defendant resides at 540 Wooster avenue, Akron, Ohio, which is located in the rear of and contiguous to plaintiffs’ property; each of the properties was purchased from a common owner; the defendant purchased’ her property on July 1, 1944, and, in her deed of conveyance, she was granted an easement for “walkway purposes only” over the lot of the plaintiffs, which was subsequently purchased ; the language of the granted easement is:

“Granting unto the grantee herein, her heirs and assigns, the right to use for walkway purposes only,, an existing brick walk 3 feet 3 inches in width and lying west of and adjacent to a line 13 feet 3 inches west of and parallel to the easterly line of the property lying north of ánd adjacent to the above-described premises, and to be used as a walkway from Wooster Ave. to and from the above-described premises * *

And the language in the deed to the servient estate is:

“Reserving for walkway purposes, only, an existing brick walk 3 feet 3 inches in width and lying west of and adjacent to a line 13 feet 3 inches west of and parallel to the easterly line of the above-described premises, and to be used as a walkway from Wooster Avenue to and from the property lying south of and adjacent to the above-described premises.”

The amended petition sought, by way of declaratory judgment, to have the walkway relocated, and pleaded, in justification for the requested order, that the relocation would not “materially inconvenience the defendant nor take away any rights which she now enjoys, and would serve the same purpose of ingress and egress to the defendant which was originally intended by the above-mentioned reservation * * .”

It was further pleaded that “unless the court affords to these plaintiffs the right to move said walkway * * *, they will suffer an irreparable loss. * * * That removing said walkway * * * would in no way affect the rights of the defendant * * *.” It was also pleaded that “said defendant has refused to permit the plaintiffs to make such change.”

1. It is established law that, by a single instrument of conveyance, there may be created an estate in land in one person and an easement in another. This result is not prevented by the fact that the conveyance of the easement is, in terms, a reservation to the person to whom it is conveyed. Thus, an easement may be created in “C” by a deed by “A” which purports to convey “Blackacre” to “B” in fee, reserving an easement to “C.” If, in other respects, the necessary-formalities for the creation of an easement are complied with, snch a reservation operates as an effective conveyance to the person in whose favor the reservation is, in terms, made. 5 Restatement of the Law of Property, Section 472 (Servitudes).

The facts pleaded in the petition indicate not only the creation of an easement in favor of the defendant by a reservation to her in the deed to the plaintiffs, but also a specific grant of an easement in the property now owned by the plaintiffs in the deed delivered to the defendant. Thus, we find the creation of the easement by two separate instruments, delivered by a common grantor.

The conclusion that an easement was granted, rather than a fee (the latter being suggested in the brief of the appellee), is reached because an easement does not entitle the owner, either presently or prospectively, to the exclusive occupation of a portion of the property, while an estate entitles the owner to the exclusive occupation, presently or prospectively, of described property; and by the unequivocal language employed in the conveyances, it is apparent that an exclusive occupation of the walkway was not granted.

2. It is also established in the law that the process which creates an easement also fixes its extent. The extent of an easement created by prescription, for instance, is fixed by the use which created it. Likewise, the extent of an easement created by. conveyance, as shown in the instant case, is fixed by the conveyance itself.

3. It has long been a rule of general application that an easement created over definitely described land, cannot be changed by either the owner of the servient estate or the owner of the easement, without the other’s consent. And, although this court is not called upon to decide, and, therefore, does not so decide, it may be-questioned whether, under circumstances where an easement is created by formal conveyance, as distinguished from an easement created by necessity or by implication, the location of such easement may be changed, even though done so by common consent,, without an instrument in writing to satisfy the statute of frauds. At any rate, it is established that a definite-location of a valid easement over land, determines and. limits the right of the grantee, as well as the rights of the owner of the servient estate, and that those rights of the grantee cannot be changed except by common consent. Among the reasons given for the rule is that, treating the location as variable would incite litigation, depreciate the value of the land, and discourage its improvement.

4. It is the conclusion of this court that the demurrer was properly sustained by the trial court, and that the judgment should be affirmed.

Judgment affirmed.

Stevens, P. J., and Hunsicker, J., concur.


author: Per Curiam.

text:
    In re Quilliam. In re Woodall.

      (Nos. 21321 and 21322
    Decided June 13, 1949.)

      Mr. Frank C. Lyons, for petitioners.

      Mr. Frank T. Cullitan, prosecuting attorney, for respondents.
   Per Curiam.

It is the view of this court that the question here presented is one which seeks to invoke the jurisdiction of this court to pass upon a question which it is beyond the power of this court to consider, that is, whether a sister state'is violating the constitutional rights of one charged and convicted of crime by its courts.

If the constitutional rights of a prisoner are being violated in the sister state, such question should be presented by proper proceedings to the courts of that state for remedy. The only remedy that would be 'available by allowing the relief here requested would be to release the prisoners in the state of Ohio, thus in effect commuting their sentences for serious crimes of which they had been found guilty.

Section 2, Article 4 of the Constitution of the United States, provides:

“A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.”

( The purpose of this provision of the Constitution is to prevent a state from becoming an asylum for persons charged with crime or for convicts from another state.

In Drew, Sheriff, v. Thaw, 235 U. S., 432, at page 439, 59 L. Ed., 302, 35 S. Ct., 137, a case involving an escapee from an institution, Justice Holmes stated:

“* * * In extradition proceedings, oven when, as here, a humane opportunity is afforded to test them upon habeas corpus, the purpose of the writ is not to substitute the judgment of another tribunal upon the facts or the law of the matter to be tried. The Constitution says nothing about habeas corpus in this connection, but peremptorily requires that upon proper demand the person charged shall be delivered up to be removed to the state having jurisdiction of the crime. Art. 4, Sec. 2, Pettibone v. Nichols, 203 U. S., 192, 205, 51 L. Ed., 148, 153, 27 Sup. Ct. Rep., 111, 7 Ann. Cas., 1047. There is no discretion allowed, no inquiry into motives. Kentucky v. Denison, 24 How., 66, 16 L. Ed., 717; Pettibone v. Nichols, 203 U. S., 192, 203, 51 L. Ed., 148, 153, 27 Sup. Ct. Rep., 111, 7 Ann. Cas., 1047.”

The foregoing authority dealt with the case of one charged with crime who had not yet been convicted. In the instant cases we are dealing with petitioners who have been found guilty of serious crimes and who have escaped from the penal institution, in which they had been confined. The law of that case must, therefore, have greater force under the facts of these cases.

For the foregoing reasons the judgments of the trial court are affirmed.

Judgments affirmed.

Skeel, P. J., Hurd and Doyle, JJ., concur.

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


author: Griffith, J.

text:
    Associates Discount Corp., Appellee, v. Colonial Finance Co., Appellant, et al.
    (No. 3348
    Decided March 28, 1950.)

      Messrs. Schermer, Goldstein é Millstone, for appellee.

      Mr. Morris Mendelssohn, for appellant.
   Griffith, J.

This is an appeal by defendant Colonial Finance Company, hereinafter called defendant, on questions of law from a judgment of the Municipal Court of Youngstown.

The action is one in foreclosure of a conditional sales contract on an automobile.

An answer and cross-petition was filed by the defendant, Colonial Finance Company, by virtue of a chattel mortgage which it holds on the same automobile.

On October 12, 1948, George Sanders purchased an automobile from the Midtown Dealers Corporation of New York, for which he agreed to- pay $1,315. He made the required down payment and for the balance he executed a note and conditional sales contract for $930. The first installment was due on November 13, 1948, and the Midtown Dealers Corporation negotiated the note and conditional sales contract to the plaintiff, Associates Discount Corporation, which is the owner and holder in due course of the note and conditional sales contract. This conditional sales contract was duly filed with the city registrar on October 26, 1948, pursuant to the laws of the’state of New York, the state where the purchaser resided at the time of this transaction. George Sanders obtained a New York state registration certificate which did not show the lien of plaintiff, nor did the New York law require it to be so shown. George Sanders then moved to Youngstown, Ohio, without permission of the plaintiff, and assigned the New York registration certificate to George Sevoko, Midway avenue, Youngstown, Ohio. It appears now that George Sanders and George Sevoko are one and the same person and he assigned this certificate to himself. George Sevoko made application for a certificate of title with the clerk of courts of Mahoning county, and obtained a title which did not show the lien of the Associates Discount Corporation.

George Sevoko sold the car to the Pool Motor Sales, and assigned the certificate accordingly.

The Pool Motor Sales obtained a certificate of title from the clerk’s office, and sold the car to Honest George Motors.

Honest George Motors made application and obtained a certificate of title to the car in question and then sold it to Adolph Moses, who obtained a certificate of title to the car.

Adolph Moses, for the balance of the purchase price, executed a note and chattel mortgage to Honest George Motors for $1,000. This note and mortgage were sold and assigned to the defendant Colonial Finance Company, which is the owner and holder in due course of such note and mortgage. The lien was noted on the certificate of title of Adolph Moses.

Upon this state of facts the trial court found and)' held that the Associates Discount Corporation had thafirst and best lien on the car.

Defendant maintains that that judgment is contrary to law and ought to be reversed.

The Ohio Certificate of Title Act became effective January 1, 1938. (Sections 6290-2 to 6295-2, inclusive,, General Code.)

Prior to that time the settled law of Ohio was clearly expressed in the case of Kanaga v. Taylor (1857), 7 Ohio St., 134, as follows:

“Where K., residing in the state of New York, took a chattel mortgage from G., who resided in the same place, conditioned to secure part of the purchase money from the chattel which was the subject of the mortgage * * * and the mortgage was registered in the proper office of the same state * * * and G. afterward * * * removed into Ohio, taking with him the chattel, without the knowledge or consent of K., and there made sale of it to a third party, an action by the mortgagee will lie, in this state, to recover the value of the property from the purchaser, although he may have bought it without notice of the mortgage lien. ’ ’

The defendant recognizes^ this ancient and well established rule, but counters with the claim that the Certificate of Title Act does away with all this; that it is a radical change in the law as to the sale and transfer of motor vehicles and the registering of liens against them.

In 1935 the Court of Appeals for Hamilton county, in Reising v. Universal Credit Co., 50 Ohio App., 289, 198 N. E., 52, following the rule in the Kanaga case, .supra, held:

“A conditional sales contract executed between residents of another state in conformity with the laws thereof, but which does not in all its terms comply with the laws of Ohio, concerning property located in such other state and afterwards removed to Ohio without the consent or knowledge of the seller or his assignee, will be enforced in Ohio.”

Has the Certificate of Title Act altered the settled law of this state?

If the Ohio Certificate of Title Act were not involved, the problem would be promptly solved by applying the rule expressed in these two well reasoned cases.

The defendant relies upon that part of Section 6290-4, General Code, which provides:

“No court in any case’at law or in equity shall recognize the right, title, claim, or interest of any person in or to any motor vehicle, hereafter sold or disposed of, or mortgaged or encumbered, unless evidenced by a certificate of title or manufacturer’s or 'importer’s certificate duly issued, in accordance with the provisions of this chapter.”

Defendant maintains that this legislative enactment conclusively determines which of two innocent parties is to be protected, and which must suffer.

To begin with, George Sanders purchased the automobile by executing a conditional sales contract, the title to the ear to remain in the seller until the $930 balance of purchase price was paid. This was never paid, the title to the car remaining in the seller or its assignee. Sanders removed the car from New York to Youngstown without the consent of the seller, and in violation of the conditional sales agreement. The clear title to the car was never in Sanders. He then assigned the Neiv York title from himself George Sanders to himself George Sevoko. He then, as George Sevoko, applied for an Ohio certificate of title to the clerk of courts of Mahoning county. In so doing he falsely represented that there were no encumbrances on the New York title.

The chain of title was from George Sevoko to Pool ■ Motors Sales, thence to Honest George Motors, thence to Adolph Moses who executed the mortgage to defendant’s assignor, all of whom, following George Sevoko, are innocent purchasers for value without notice of Sanders fraudulent conduct.

Since January 1, 1938, three reported cases in Ohio have direct bearing on the problem before us in this case: Union Commercial Corp. v. R. J. Schmunk Co. (1939), 30 Ohio Law Abs., 116; Mock v. Kaffits (1944), 75 Ohio App., 305, 62 N. E. (2d), 172; Automobile Finance Co. v. Munday (1940), 137 Ohio St., 504, 30 N. E. (2d), 1002.

In the case before us it is clear that the source of the defendant’s title is the fraudulent and criminal conduct of George Sanders (a) in wrongfully removing the automobile to Ohio, (b) in fraudulently transferring the New York title from himself to himself under another name, (c) in falsely swearing that there were no encumbrances on the New York title, and (d) by fraudulent means procuring an Ohio certificate of title.

It is clear that the purpose of the Certificate of Title Act is to protect owners of automobiles against fraud. (Automobile Finance Co. v. Munday, supra.)

If the defendant were to prevail in this case, the purpose of the act would not be to protect the owner of the automobile against fraud; but the very purpose of the act would be overridden, and it would protect a title acquired through misrepresentation and fraud and leave the rightful owner empty handed.

If the certificate of title which the clerk of courts of this county issued was issued upon the false representations of George Sevoko, it is void ab initio as was said in the Munday case, supra, at page 521.

There can be no question that this certificate was improperly issued, and this is the source of defendant’s evidence of title.

The defendant, if it is to prevail, must do so on the strength 'of its own title.

If evidence of title has been procured through fraud and deception, the title of a subsequent innocent holder for value, which arose therefrom can have no greater solemnity than the source from which it sprang. (Mock v. Kaffits, supra, at page 309.)

It is the judgment of this court that the trial court’s judgment must be, and it is, affirmed.

Judgment affirmed.

Phillips and Nichols, JJ., concur.


text:
    Mounts, Appellant, v. Eclipse Motor Lines, Inc., et al., Appellees.
    (No. 4273
    Decided October 13, 1949.)

      Mr. John P. Moloney .and Mr. Russ Bothwell, for appellant.

      Messrs. Hamilton & Kramer, for appellees.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County, sustaining a motion to quash service of summons and dismissing the action against the Eclipse Motor Lines, Inc.

The exhibits in the form of affidavits presented to the trial court in support of the motion to quash cannot be considered by this court, as there is no bill of ex-coptions. The affidavits are attached to the transcript of the docket and journal entries and original papers. The affidavits being used in proof of an issue of fact are not a part of the record, even though filed with the clerk. Such affidavits should have been brought upon the record in the form of a bill of exceptions. Langan v. Kessinger, 23 Ohio Law Abs., 392; Simes v. Dayton-Xenia Ry. Co., 24 Ohio Law Abs., 595, 36 N. E. (2d), 517; Willett, Admr., v. New York Central Rd. Co., 73 Ohio App., 59, 54 N. E. (2d), 317; 2 Ohio Jurisprudence, 593, 641, Sections 300, 344.

A factual issue being presented, in the absence of the bill of exceptions, the regularity and the validity of the judgment will be presumed. We regret that the record is not properly prepared to present the more important question raised in the briefs.

The judgment is affirmed.

Judgment affirmed.

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


author: Per ■ Curiam.

text:
    King et al., Appellees, v. James et al., Appellants.
    (No. 515
    Decided September 15, 1950.)

      Messrs. Miller & Finney, for appellees.

      Messrs. Pickrel, Schaeffer & Ebeling and Messrs. Wead & Aultman, for appellants'.
   Per ■ Curiam.

This is an appeal on questions of law and fact from a judgment of the Common Pleas Court of Greene County, ivhich issued a permanent injunction prohibiting the operation of a drive-in theatre.

The case has been submitted to this court on the record taken in the trial court.

The record shows that the appellant Paul James in 1943 purchased a 61-acre farm on the east side of the old Springfield pike and about three-quarters of a mile north of Xenia, Ohio. This farm was situated in an agricultural area. On this farm James built a stock barn, part of it being used for living quarters. James was in the business of raising and training young horses. He laid out a cinder exercise track on the low ground which bordered the pike. In 1944 James filed for record a plat containing eight lots fronting on the pike and on a high wooded area south of the cinder track. This plat contains restrictions as to use of the property, the object being to permit such lots to be used only for residential purposes. Several of the plaintiffs are either purchasers of the lots or derive title from the original purchasers of the lots. In 1945 James laid out four more lots immediately to the rear of lots 1, 2, 3 and 4. The last four lots were sold without restrictions upon the request of the purchasers. One of the purchasers expressed the desire to use the rear lot for purposes other than residential. Later in 1945 James sold to one of the plaintiffs, without restrictions, a tract of land which lies between the platted lots and the low ground upon which the cinder track was situated, and, at about the same time, sold without restrictions to one of the plaintiffs a five-acre tract which lies immediately east of the 12-acre tract in question, with an easement over the 12-acre tract for ingress and egress and for utility purposes. In February 1950, James sold a small tract immediately to the rear of lots 6 and 7 of the original plat, the conveyance containing a restrictive covenant limiting the use of the property to residential purposes. On March 9, 1950, James leased the 12-acre tract on which was situated the cinder track to the Sundown Cruise-In Theatre. James reserved the right to exercise horses ■on the cinder track. The lease makes no mention of •other land sold from the original 61-acre tract or any restrictions applicable to' the lots on tracts already •sold. The record shows that James did not inform the lessee concerning the previous salé of lots and tracts and restrictions applicable thereto; neither did the lessee inquire nor was it otherwise informed as to the previous sales of lots and tracts and applicable restrictions. Consequently, the appellant corporation did not have constructive notice through the chain of title, neither did it have actual notice of any restrictions on the lots and tracts.

Several days after the lease was executed Williams and Pratt, officials of the Sundown Cruise-In, Inc.,, staked out the ramps and began pouring concrete for the footings for the structures. At this stage of operations the action for injunctive relief was instituted. Trial began on April 20, 1950, and the trial court rendered separate findings of fact and conclusions of law on July 3, 1950. On the same day the final decree was-entered. At the time of trial and on the day the final decree was entered, the theatre had not been operated. During the progress of the case in the trial court the-appellant corporation was permitted to continue with the construction of the theatre, since no temporary injunction was sought or issued.

Notice of appeal was filed on July 25, 1950, at which time the theatre was ready for operation, and under an order of this court the appellant corporation was permitted to operate the theatre pending the disposition of the appeal in this court.

The trial court held that the operation of the theatrewould constitute a nuisance and that there was an implied covenant binding upon James not to use the 12-acre tract for purposes other than residential.

We are convinced, and apparently it is now conceded,

■ that a drive-in theatre is not a nuisance per se. 30' Ohio Jurisprudence, 356, 382, Sections 86, 107; 52 American Jurisprudence, 288, Section 45. It may become so by the manner of operation. There is no evidenee before the court as to the manner of operation of the theatre by appellant corporation. Evidence was introduced in the trial court to show the manner of operation of other drive-in theatres. In view of the fact that a drive-in theatre is not a nuisance per se, we cannot consider this evidence in determining whether ■the appellant corporation will conduct a nuisance. This case being tried de novo, evidence could have been presented to show the manner of operation of the theatre by the appellant corporation during the pendency of the appeal in this court. No effort was made to do so.

It is clear from the record that James had never adopted a general plan or scheme of uniform restrictions whereby the entire 61-acre tract was restricted to use for residential purposes. The principle of law controlling in that class of cases is not applicable here. James was not bound, either in law or equity, to restrict the use of the 12-acre tract to residential purposes under the principle applied in Carmichael v. Hall, 18 C. C. (N. S.), 259, 33 C. D., 26; Wallace v. Clifton Land Co., 92 Ohio St., 349, 110 N. E., 940; Adams v. Donovan, 97 Ohio St., 83, 119 N. E., 252.

The lessee was under no legal duty to search the record of other properties adjacent to the 12-acre tract on which it took a lease. Kiley v. Hall, 96 Ohio St., 374, 117 N. E., 359. Furthermore, James was under no obligation to inform the lessee with reference to restrictions contained in conveyances of lots and tracts previously sold.

But it is contended by the appellees that the land retained by James, particularly the 12-acre tract leased to the appellant corporation,, was subject to a reciprocal negative easement. This doctrine is to the effect that, where the owner sells a portion of a tract, or lots, the conveyances containing restrictive covenants beneficial to the land retained by the owner, the servitude becomes mutual and during the period of restraint the owner of the lot or tract retained can do nothing forbidden to the owner of the lot or tract sold. In support of this doctrine appellees cite two cases, Sanborn v. McLean, 233 Mich., 227, 206 N. W., 496, and LaFetra v. Beveridge, 124 N. J. Eq., 24, 199 A., 70. The San-born case involved a plat of 91 lots, restrictions being placed on 53 lots. The court found that the common owners of all the lots followed a general plan limiting the use of the lots for residential purposes. The same court later, in Denhardt v. DeRoo, 295 Mich., 223, 294 N. W., 163, found this fact to be essential in order to establish a reciprocal negative easement. The factual situation in the case at bar does not support a finding that James, the common owner, adopted or followed a general scheme or plan of imposing uniform restrictions. In the LaFetra case the court found that there was a neighborhood plan or scheme of development which was followed. The court held that there was an implied covenant binding on the common owners to restrict the use of the land retained. This doctrine has never been applied in Ohio. The rationale of the decisions in Ohio run counter to the application of this doctrine. Kiley v. Hall, supra; Adams v. Donovan, supra; Hunt v. Held, 90 Ohio St., 280, 107 N. E., 765; Smith v. Volk, 85 Ohio App., 347, 86 N. E. (2d), 30; Grant v. Hickok Oil Co., 84 Ohio App., 509, 87 N. E. (2d), 708; Edwards v. Trailer Park, 84 Ohio App., 518, 88 N. E. (2d), 187; Olmsted v. Schrembs, 30 Ohio App., 430, 165 N. E., 51; Blum v. Hodapp, 55 Ohio Law Abs., 203, 86 N. E. (2d), 807.

The doctrine of reciprocal negative easement has been rejected in other states. For reference, see Me Cusker v. Goode, 185 Mass., 607, 71 N. E., 76; Kuhn v. Saum, 316 Mo., 805, 291 S. W., 104; Beetchenow v. After, 45 R. I., 133, 119 A., 758; Bondurant v. Paducah & Illinois Ry. Co., 186 Ky., 794, 218 S. W., 257; Kessler v. School District, 346 Pa., 305, 30 A. (2d), 117; Wing v. Forest Lawn Cemetery Assn., 15 Cal. (2d), 472, 101 P. (2d), 1099; Bristol v. Woodward, 251 N. Y., 275, 167 N. E., 441; Gibney v. Stockdale Corp., 20 Pel. Ch. Rep., 272, 174 A., 117.

The injunctive relief sought by the plaintiff appellees is denied on the ground that there is no showing that the operation of the theatre is a niusance and that the 12-acre tract leased to the appellant corporation is not bound by a reciprocal negative easement which would restrict the use of the property to residential purposes.

Judgment accordingly.

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