text:
    The O. F. B. Investment Corp., Appellee, v. The “Ol-Fashun” Brewing Corp., Appellee; Chester A. Myers, County Treas., Appellant.
    (No. 2076
    Decided November 24, 1950.)

      Mr. Henry L. Beigel and Mr. John J. Benjamin, for appellees.

      Mr.- Matthias H. Hech, prosecuting attorney, and Mr. Eugene B. Bacher, for appellant.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery County.

The sole question before the court is whether delinquent personal property taxes owing to the treasurer of Montgomery county prior to the appointment of a receiver are without preference and are in the same class as claims of general creditors.

The trial court, in an order of distribution, ruled that delinquent personal property tax claims should be prorated with the claims of general creditors. -The, appellant, treasurer of Montgomery county, contends* that the judgmenqt of the trial court is contrary to law in that under several sections of the Code and the? case law in Ohio the claim for delinquent taxes accruing prior to the appointment of a receiver has £ preference over the claims of general creditors.

Section 8339, General Code, in part provides :

“In all cases when property of an employer is placed in the hands of an assignee, receiver or trustee,, claims due for labor performed within the period of three months prior to the time such assignee, receiver or trustee is appointed, shall first be paid out of the trust fund, in preference to all other claims against such employer, except claims for taxes and the cost of administering the trust.” (Emphasis ours.)

Section 11138, General Code, provides:

“Taxes of every description assessed against the assignor upon personal property held by him before his assignment must be paid by the assignee or, trustee out of the proceeds of the property assigned in preference to any other claims against the assignor. Every person who has performed labor as an operative in the service of. the assignor, within twelve months preceding the assignment, shall be entitled to receive out of the trust funds, before the paying of other creditors, the full amount of wages due for such labor, not exceeding three hundred dollars.” (Emphasis added.)

It will be observed that under the first sentence of ;the latter section taxes are paid out of the proceeds <of the property assigned in preference to any other -claims against the assignor, and under the second sentence certain labor claims are preferred in payment out of trust funds. It appears that it was the intention of the Legislature that a personal property tax claim which had been assessed against the property before the assignment is preferred over any other claims filed against the assignor, and that labor claims are preferred over claims of other creditors in the distribution of trust funds.

It will be observed that Section 8339, General Code, applies to an “assignee, receiver or trustee,” whereas Section 11138, General Code, mentions property administered only by an “assignee or trustee.” In St. Mary’s Machine Co. v. National Supply Co., 68 Ohio St., 535, 67 N. E., 1055, 96 Am. St. Rep., 677, 64 L. R. A., 845, in construing Sections 3206-a and 6355, Revised Statutes (now Sections 8339 and 11138, respectively, General Code), the court said:

“Said Section 6355 applies only to assignees and trustees, while the other section, applies to assignees, trustees and receivers; but when the section is properly construed as to assignees and trustees, the same construction must be applied to receivers, because in said Section 3206-a all three stand upon exactly the same footing.”

Thus the Supreme Court in the above case concluded that the two sections were in pari materia and must be construed together.

The appellant cites also Section 1465-88, General Code, a part of the Workmen’s Compensation Act,, which in part provides as follows: ■ ,

“In all cases where property of an employer is; placed in the hands of an assignee, receiver or trustee,. claims arising under any award or finding of the Industrial Commission, pursuant to the provisions of this act, including claims for premiums, and any judgment recovered thereon shall first be paid out of the-trust fund in preference to all other claims, except claims for taxes and the cost of administration, and with the same preference now given to claims for taxes.” (Emphasis ours.)

In the administration of the estates of deceased persons, under the provisions of Section 10509-121, General Code, the assets of the deceased are distributed'i in a certain order of priority as fixed by that section,, and it provides that personal property taxes are paid under class six; that debts for manual labor performed for the deceased within 12 months preceding decedent’s death not exceeding $150 are paid in class 7; and that all other claims are paid in class 8 or 9, depending upon the time of presentment.

From these statutory provisions the court could easily find an intention of the Legislature to declare a policy that the personal property taxes should be paid in preference to the claims of general creditors, in all cases where funds are being administered by a; fiduciary. The case law of Ohio is divergent on this-question. A detailed discussion and extended quotations from the opinions will not serve any useful purpose. However, we will make brief comment on a number of cases bearing upon this question, taking up the cases in chronological order.

In Creech v. P. A. & W. Rd. Co., 2 N. P., 164, 3 O. D. (N. P.), 265, Judge Voris of the Common Pleas Court of Summit County, in 1895, held that delinquent personal property taxes accruing before the appointment of a receiver should be paid in preference to the claim of a chattel mortgagee. The court took the position that “the power of taxation is indispensable to the exercise of any government”; that “the power to levy and collect the tax overshadows all such property within the state — no matter by whom or how owned”; and that “it matters not whether the property bo in the hands of its real owner, or in that of his agent, trustee, or in the hands of a tort feasor; or whether the owner be under legal disability or not — infancy, coverture or mental incapacity, even death itself, can interpose no bar to the exercise of this prerogative of the state; and failure to pay the taxes in any such ease, leaves the property taxed liable. ’ ’

In Commercial Mortgage Co. v. Syfert, 24 N. P. (N. S.), 157, Judge Scarlett of the Common Pleas Court of Franklin County, in 1922, held that “taxes and penalties on personal property in the hands of a receiver or assignee have priority over the claims of all classes of creditors.”

That court quoted with approval the case of Marshall v. New York, 254 U. S., 380, 41 S. Ct., 143, 65 L. Ed., 315, with opinion by Mr. Justice Brandéis, in which it was held that under the laws of New York priority of payment was given to a tax claim by virtue of the prerogative right of the state under the common law. The court found that the common law had been adopted and generally recognized in the state of New York.

Judge Scarlett held that there is no expressed constitutional or statutory provision in Ohio adopting the common law as there is in the state of New York, but that so far- as it is adapted to our institutions and circumstances the common law is applicable to the affairs of this state, citing State v. Wing, 66 Ohio St., 407, 64 N. E., 514. The- court then pointed out that this prerogative has been asserted with respect to personal taxes in Section 5371, General Code, which provides that personal property subject to taxation shall be liable to be seized and sold for taxes, and under Section 2658, General Code, the county treasurer may dis-train sufficient funds and chattels for the payment of personal property taxes. Judge Scarlett then, in construing Section 8339, General Code, stated:

“If labor claims are privileged over all claims except claims for taxes and the cost "of administration, then claims for taxes are, of necessity, also preferred claims. The clear inference therefrom is either that the Legislature had in mind and thereby recognized the common-law prerogative or its equivalent, as expressed in the statutes referred to, or thereby declared a priority to be followed in the administration of estates by receivers and assignees. Whichever the reason, this court, as a state court, is controlled thereby.”

The court then cited the case of Hamilton v. David C. Beggs Co., 171 F., 157, with approval.

In Touzalin Agency Co. v. Dick Manufacturing Co., 30 N. P. (N. S.), 139, Judge Harter of the Common Pleas Court of Stark County, in 1930, took the contrary view and held that “personal taxes accruing prior to the receivership against the property of the estate being administered do not have any priority over other general claims against the estate but share pro-ratably with the general claims”; and that “it is the settled doctrine in Ohio that a tax law must be construed strictly against the state!”

The court declined to adhere to the doctrine of the prerogative right of the state under the common law.

In Clegg v. Dayton & Troy Electric Ry. Co., 31 N. P. (N. S.), 37, Judge Snediker of the Common Pleas Court of Montgomery County, in 1933, held:

“Property is not withdrawn from taxation by being taken into the hands of the court upon the appointment of a receiver, but remains subject to assessment and to the payment of all legal taxes thereon while m custodia legis to the same extent as it was while in the possession of the owner, regardless of the inability of the ordinary revenue officers to enforce the state’s paramount right by the summary process of distress; hence, unpaid ■ taxes, penalties and assessments constitute a preferred claim upon funds in the hands of the receiver who must see that such assessments are paid before the funds are distributed to other creditors.”

In that case, Judge Snediker said:

“It is insisted that there is no statute which makes personal property tax a lien upon such property, and that in the absence of such a provision personal property taxes are but a general claim, and that the state or county, which is a subdivision of the state, is only entitled to participate in the distribution as does any general creditor.” (The same contention is made in the case at bar.)

Judge Snediker then proceeded to review the case law in Ohio and concluded that “certain special sections of the Code have from time to time been passed by the Legislature of Ohio which directly recognizes the priority of taxes with respect to other preferred claims on property and funds in the hands of a fiduciary officer or a receiver. ’ ’

The court seems to have adopted the reasoning in Greeley v. Provident Savings Bank, 98 Mo., 458, 11 S. W., 980, which is quoted at length and which we deem to be worthy of notice. The quotation is as follows:

“ ‘The amount of taxes was undisputed and the receiver had in his hands funds sufficient to pay them, and we think the order should have been made. It may be conceded that the state did not have an express lien upon the assets that went into the hands' of the receiver, but it had a right paramount to other creditors to be paid out of those assets, a right which it could have enforced through its revenue officers by the summary process of distress, but for the fact that the property and assets of its debtor had passed into the custody of its courts, whose duty it was in the administration and distribution of those assets to respect that paramount right, upon the untrammeled exercise of which depends the power to protect the very fund being distributed, and to maintain the existence of the tribunal engaged in distributing it; and to make no order for the distribution of assets in custodia legis except in subordination to that right. The ordinary revenue officers of the state being deprived of the ordinary means of securing the state’s revenue from the fund in the custody of the court, the duty devolved upon the court to be satisfied and upon the receiver to see that the taxes due the state were paid before the estate was distributed to other creditors and we can conceive of no scheme of administration that the court could properly adopt by which the state’s demand could be reduced to the level of an ordinary debt, and be cut off unless presented to the court for allowance within a given time. ’ ’ ’

In Ohio Casualty Ins. Co. v. Freshwater Construction Co., 32 N. P. (N. S.), 464, Judge Ewing of the Common Pleas Court of Cuyahoga County, in 1933, held that “delinquent personal property taxes * * '* [are] not entitled to payment by receiver out of proceeds of mortgaged chattels in preference to claim of mortgagee after condition broken, on theory of common-law prerogative of sovereign. ’ ’

In Steele v. Elthor Drug Co., 15 Ohio Law Abs., 21, the Court of Appeals for Mahoning county, in 1933, held that Sections 8339 and 11138, General Code, are in pari materia and are to be considered and construed together. The court there held that “while it is not expressly declared in Ohio that personal property taxes are a lien upon the personal property of the owner, yet it has been very generally held that such claim takes preference over claims of general creditors in the settlement of a trust estate. ’ ’

The court then cited and discussed a number of the cases cited in this opinion, recognizing the prerogative right of the state to require the payment of personal property taxes before payment of general creditors.

In Hamilton v. David C. Beggs Co., 171 F., 157, the court held:

“While there is no statute in Ohio directly making taxes a lien on personal property, Rev. St. Ohio Section 3206a, providing that ‘where property of an employer is placed in the hands of a * * * receiver, claims due for labor * * * shall be first paid out of the trust fund in preference to all other claims against such employer, except claims for taxes and the costs of administering the trust,’ in effect makes the claims specified, including taxes, a lien on the fund in such cases, and they are entitled to priority of payment as against the claims of general creditors.”

The court in that case said:

“Whether it was the opinion or not of the Legislature that taxes on chattels were a prior lien on personal property, the statute ought to be construed as giving what is tantamount, to a lien on property failing within the terms of its provisions, if it did not already exist, in order that the effect of the language relating to taxes may not be destroyed. *’* * The priority is plainly implied in the language of the statute, and has the same force and effect as if it had been expressed in unequivocal language. * * *

“The taxes and penalty in question as against the common creditors are entitled to priority of payment, and an order may be drawn accordingly.”

In 7 Ohio Jurisprudence, 917, Section 78, the text is as follows:

“The common-law doctrine of the priority of tax liens has been ratified. The crown of Great Britain, by virtue of a prerogative right, has a priority over all subjects for the payment of one of a debtor’s property of all debts due it, effective alike whether the property is in the hands of a debtor, of a third person, or in custodia legis. The priority can be defeated only through the passing of title to the-debtor’s property or by way of lien, before the sovereign sought to enforce his right. The common-law prerogative of the sovereign should be of value at least, in interpreting the statutes on the subject of personal taxes and supply light if the statutory provisions are incomplete or lacking in clearness. In the matter of taxes on real property the prerogative right is extended to give such taxes priority over prior incumbrances, but as to personal taxes it is merely provided that ‘all personal property subject to taxation shall be liable to be seized and sold for taxes,’ and by another section, ‘when personal taxes are past due and unpaid, the county treasurer may distrain sufficient funds and chattels belonging to the person charged with such taxes,’ etc. These provisions are in effect the common-law prerogative, without priority over conveyances, incumbrances or liens effected before the sovereign’s seizure. By another section of the law, it-is provided, ‘In all cases when property of an employer is placed in hands of an assignee, receiver or trustee, claims due for labor performed within the period of three months’ prior to the time of the appointment of such assignee, etc., shall first be paid in preference to all claims, ‘except claims for taxes and costs of administering the trust.’ The Legislature, therefore, recognized the common-law prerogative or its equivalent in the statutes referred to, in thereby declaring a priority to be followed. As a matter of fact the federal court- has given controlling effect to this statute. A receiver was therefore ordered to pay the personal taxes and penalties of the debtor in preference to all claims of general creditors.”

After a consideration of the case law in Ohio thus far cited this court would have little difficulty in concluding that the delinquent personal property taxes accruing prior to the appointment of a receiver should be paid in preference to claims of general creditors. But an appellee contends that the Supreme Court in George D. Harter Bank v. McKinley Lumber Co., 136 Ohio St., 465, 26 N. E. (2d), 587, has decided otherwise. Such appellee calls our attention to the statement of the court on page 468. The court cited the case of St. Mary’s Machine Co. v. National Supply Co., supra, which held that Sections 8339 and 11138, General Code, are in pari materia and must be read and construed together. Then follows this statement:

“This being so, they are confined to assignments, trusts and receiverships in connection with the assets of employers of labor and where labor claims are involved.

“But giving the first part of Section 11138, General Code, referring to taxes, the broadest possible scope, it is limited by its terms to taxes ‘assessed against the assignor upon personal property held by him before his assignment.’ Sections 8339 and 11138, General Code, cannot reasonably be extended to give priority to the payment of personal property taxes in a case where there are no ‘labor claims’ and no ‘assignor,’ as hero.” (Italics ours.)

In the case at bar no labor claims are involved and, hence, it is. claimed the statement of the Supreme Court is applicable and controlling in this case. But in that case the issue was whether personal property ■taxes should be paid prior to the claim of a judgment lien holder. The trial court in that case found that because of its levy of execution the judgment creditor had the first and best lien on the funds in the hands of the receiver and was entitled to be paid ahead of the personal property taxes which were due at the time the levy was made. The judgment of the trial court was reversed by the Court of Appeals. The Supreme Court allowed a motion to certify. The Supreme Court stated the question for determination as follows:

“Under the facts outlined above, is the bank by reason of its execution lien or the county treasurer because of his claim in connection with the personal property taxes entitled to priority of payment out of the moneys held by the receiver?”

The court stated that in Ohio there is no lien upon personal property for taxes thereon and commented on the common-laiv prerogative of the state. The court then, on page 467, made this statement:

“Therefore, when the state and private persons bear the relationship of general creditors to a debtor, or have claims of equal standing against him, the state is accorded priority in payment.” (Emphasis ours.)

The court, on page 467, held:

“However, 'when a diligent creditor acquires a specific lien upon assets of the debtor before the sovereign authority undertakes to enforce its right, the creditor prevails. * * *

‘ ‘ Consequently, in the pending case it is unnecessary to decide whether the general principle of sovereign prerogative obtains in Ohio with all its common-law force * * *. The Harter Bank as a judgment creditor, having secured an execution lien on the personal property of the lumber company before any steps were taken to subject such property to the payment of the taxes, must be given a preferred position, unless some statutory enactment requires a contrary bolding.” .

We agree with that conclusion. The syllabus of that case is as follows:

“Where a judgment creditor secures a valid execution lien against the tangible personal property of the debtor before the state has moved to subject such property to the payment of delinquent personal property taxes thereon, such creditor is entitled to priority in the payment of its claim, in the absence of any applicable statute giving the personal property taxes precedence by way of lien or otherwise.”

The syllabus is the law of the case and conforms to the facts. The statement of the court, on page 467, to the effect that when the state and private persons bear the relationship of general creditors to the debtor, the state is accorded priority, when applied to the facts in this' case would require the payment of the personal property taxes ahead of the claims of general creditors. The statement of the court, on page 468, that Sections 8339 and 11138, General Code, apply only where labor claims are involved has no bearing on the issues presented and clearly is obiter dictum. If either statement is given application here it would be the former rather than the latter. However, that case is easily distinguished from the instant case on the facts. The issue presented here has never been presented to the Supreme Court.

We hold that personal property taxes accruing before the appointment of the receiver should be paid in preference to the claims of general creditors.

The judgment is reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

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


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Schultz, Appellant, v. City of Upper Arlington et al., Appellees.
    (No. 4370
    Decided May 5, 1950.)

      Messrs. Dargusch, Garen, Greek & King, Mr. John W. King and Mr. John W. Christensen, for appellant.

      Mr. Paul A. Griffith, city attorney, and Mr. Lawrence D. Stanley, for appellee City of Upper Arlington.
   Per Curiam.

This is an appeal on questions of law from the Common Pleas Court of Franklin County which overruled plaintiff’s demurrer to the answer of the defendants. The plaintiff not desiring to plead further, the cause was dismissed.

There is no dispute between the parties as, to the facts. The sole question for determination relates to the legal effect of the undisputed facts alleged in the pleadings.

The well-considered and comprehensive written opinion of the trial judge, Honorable Myron B. Gessaman, is found among the papers in the case. The trial court held that Section 3, Article XVIII of the Ohio Constitution, confers on municipalities the “authority to exercise all powers of local self-government,” but that section XV of the charter of the city of Upper Arlington, which provides for submitting an annexation ordinance to a vote of the electors, did not fall in that category; that the constitutional provision conferring on municipalities the “powers of local self-government” contemplates and includes only such powers as are local in the sense that they relate to the municipal affairs of the particular municipality; that matters involving annexation of territory to a municipal corporation are not purely local matters and, therefore, are not proper functions of local self-government; and that such matters are of a general nature and state-wide in their scope. The trial court concluded that section XV of the charter of the city of Upper Arlington deals with a subject that is not a function of local self-government; that this section is in conflict with the general laws passed by the General Assembly under its constitutional powers and is, therefore, void and of no effect. As a consequence the commission of the city of Upper Arlington was not required to submit ordinance No. 1057 to a vote of the electors of the city. Support for this conclusion is found in the following cases which were cited: Fitzgerald v. City of Cleveland, 88 Ohio St., 338, 103 N. E., 512; City of Mansfield v. Endly, 38 Ohio App., 528, 535, 176 N. E., 462; Village of Brook Park v. City of Cleveland, 26 Ohio Opinions, 536, 538, 12 Ohio Supp., 77.

After carefully considering all the legal questions raised by counsel in their briefs, we have arrived at the same conclusion as the trial court. We find no necessity to restate here the applicable provisions of the law so effectively stated in the excellent written opinion by the trial judge.

As we find no error in the record prejudicial to the appellant, the judgment is affirmed.

Judgment affirmed.

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


author: Wiseman, J.

text:
    The State of Ohio, Appellee, v. Johnson, Appellant.
    (No. 2093
    Decided August 14, 1950.)

      Mr. Mathias II. Heck, prosecuting attorney, and Mr. Lloyd II. O’Hara, for appellee.

      Mr. Herbert M. Eikenbary, for appellant.
   Wiseman, J.

This case is now before this court on motion of defendant for an order suspending the execution of sentence and admitting the defendant to bail “during the pendency of his appeal unto the Supreme Court of Ohio, he having duly filed notice of said appeal together with the requisite motions to perfect said appeal in said 'tribunal. ’ ’

It has been held that the Court of Appeals has discretionary authority to suspend sentence pending appeal in that court, but no original authority to fix bail on appeal after conviction. State v. Cook, 7 Ohio App., 1, 44 N. E. (2d), 474; State v. McGee, 27 Ohio Law Abs., 578, 31 N. E. (2d), 171. Those cases were decided before the enactment of Section 13459-8(a), General Code, which provides as follows:

“The Court of Common Pleas, Court of Appeals, or Supreme Court of Ohio, or any judge thereof, to which court an appeal is taken from an inferior tribunal, shall have the same power and authority to suspend the execution of sentence during the pendency of such appeal and admit the defendant to bail as is provided for by law in respect to said inferior tribunal.”

Under this section the Court of Appeals, or a judge thereof, is given power and authority to suspend the execution of the sentence and admit the defendant to bail “during the pendency of such appeal.” The words, “during the pendency of such appeal,” refer to the pendency in the same court in which the suspension of sentence and admission to bail are sought. The appeal must be pending, otherwise the court lacks power and authority to suspend the sentence or admit to bail.

Is the appeal pending in this court? The defendant was duly tried, convicted and sentenced in the Common Pleas Court for the crime of assault with intent to commit rape. An appeal was taken to this court which, on June 21, 1950, affirmed the judgment. A mandate was issued to the Common Pleas Court for execution of judgment. Notice of appeal to the Supreme Court has been duly filed.

After a case is remanded to the trial court, the reviewing court is without jurisdiction to entertain a motion to suspend the sentence and admit the defendant to bail. The appeal is no longer pending in the reviewing court. New York Central Rd. Co. v. Francis, 109 Ohio St., 481, 143 N. E., 187; C. E. McCune Co. v. Warndorf, 55 Ohio App., 279, 283, 9 N. E. (2d), 709; McDowell v. State, 33 Ohio App., 319, 322, 169 N. E., 463. See, also, 2 Ohio Jurisprudence, 1772, Section 950. The rights of the defendant under such circumstances are controlled by Sections 13453-2 and 13459-8, General Code. The motion is overruled.

Motion overruled.

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


author: Fess, J.

text:
    The Cleveland Trust Co., Appellant, v. Beidler et al., Appellees.
    (No. 21880
    Decided August 14, 1950.)

      Mr. William E. Tocld, Sr., for appellant.

      Messrs. Ewing & Becker and Mr. Charles P. Mayo, for appellees.
   Fess, J.

This is an appeal on questions of law by plaintiff from a judgment entered by the Common Pleas Court on behalf of defendants.

On May 26, 1931, The Beidler-Curry Coal Company, a corporation, acting through its president and treasurer, made, executed and delivered to the plaintiff, its promissory note in the amount of $2,800, payable 90 days after date. The note bore the endorsement of E. W. Beidler, B. C. Tucker, H. T. Beidler and T. F. Beidler, each of whom were either officers or directors of The Beidler-Curry Coal Company, and each of whom, concurrent with such endorsement, guaranteed .payment of the note, waived demand and notice of nonpayment, and authorized any attorney at law to appear in any court of record in any state after such note became due and waive the issuance and service of summons and confess judgment against them in favor of the holder of the note for such amount as might then appear due.

In March of 1931, the assets of The Beidler-Curry Coal Company were sold as an entirety. After applying the proceeds of sale to outstanding obligations, the company was still indebted to various creditors in the amount of approximately $16,000, which amount included the note held by plaintiff.

The four endorsers upon the note, being desirous of accomplishing the liquidation of such indebtedness and conscious that each of the several individuals, because of particular circumstances and past contact with the various creditors, could more successfully initiate and successfully conduct negotiations with particular creditors leading to the accomplishment of the desired result, in August 1931, entered into a detailed agreement among themselves, as to the individual responsibility of the four endorsers in bringing about the payment of such indebtedness.

In this agreement, H. T. Beidler, E. W. Beidler and B. C. Tucker each agreed to pay $5,334 to the creditors of the coal company, and Theodore F. Beidler agreed to pay to each of the other three parties $1,333.51. With respect to The Cleveland Trust Company note, H. T. Beidler agreed to pay $921, E. W. Beidler $1,351.87, and B. C. Tucker $527.15. The agreement recites that the payments by each constitute one-fourth of the total obligations of the parties thereto, and are to be made in installments from time to time as each party is able to do so, and to protect the other three parties to the agreement.

The agreement provided further that a record of payments made by each party should be kept and the totals paid in should be equalized on a prorata basis from time to time, “it being the intention of this agreement that each party shall relieve the other parties to this agreement from the responsibility of payments, the obligations set against each party’s name and that no party shall be obliged to pay more than his prorata share. ’ ’ It was provided further that in the event one party should pay more than his share at or before final settlement, the other parties in default would pay such party any money paid in excess of such party’s proportionate share.

On September 28, 1931, a note in the amount of $13*800, representing an indebtedness owed by H. T. Beidler for some time prior to that date to the collateral loan • department of plaintiff, matured. On October 20, 1931, this latter note was renewed, the principal of same, however, being increased to $16,233.40. This latter note was secured by 193 shares of National Screw & Manufacturing Company stock, several insurance policies upon the life of H. T. Beidler, and possibly other collateral. On October 20,1931, the day the renewed note in an increased amount was delivered by H. T. Beidler to the collateral department of plaintiff, such department transferred to its commercial department $2,826 and on the same day the record of the loan of plaintiff to The Beidler-Curry Coal Company was credited with $2,800, and such record was closed. On the same day, the plaintiff endorsed without recourse the $2,800 note to H. T. Beidler, who thereupon endorsed it to plaintiff, and it was deposited with the collateral loan department of plaintiff and pledged as additional collateral security for the indebtedness of H. T. Beidler, in the sum of $16,233.40.

H. T. Beidler’s collateral note in the sum of $2,805.07, dated July 31, 1935, and also his collateral note in the sum of $16,700, dated August 31,1935, show as collateral the 193 shares of National Screw & Manufacturing Company stock, two insurance policies, and the $2,800 note of the coal company. These two collateral notes of 33. T. Beidler were reduced to judgment and show a balance of $1,555.50, due on the note of $2,805.07, as of December 22, 1937, and on the $16,700 note, as of June 7, 1939, there was due the sum of $6,486.06.

On April 24, 1946, plaintiff recovered a cognovit judgment based upon the $2,800 note against the defendants, T. F. Beidler, B. C. Tucker and E. W. Beidler, such judgment being in the amount of $5,264. Judgment was not taken against the coal company or H. T. Beidler.

After term, the defendants, B. C. Tucker and E. W. Beidler, filed their separate petitions to vacate such judgment, and on June 28, 1947, by separate entries, the judgment against the defendant, B. C. Tucker, and defendant, E. W. Beidler, was vacated; the vacations being conditioned, however, that the judgments vacating such judgment be suspended pending trial upon the issues'joined. And thereafter, by leave of court, such two defendants filed their separate answers and, later, amended answers. The defendant, T. F. Bcidler, deceased since the submission of this cause, did not during his lifetime question the judgment.

The amended answers of the defendants, B. O. Tucker and E. W. Beidler, present six separate defenses :

1. General denial.

2. That plaintiff holds the note as pledgee only and is not the real party in interest.

3. That the note was wholly without consideration and for accommodation purposes only; that plaintiff became possessed of the instrument as pledgee after the maturity thereof; that plaintiff is not an innocent holder for value or a holder in due course; and that defendant is not indebted to plaintiff in the sum of $2,800 by virtue of such accommodation endorsements or otherwise.

4. That the note has been paid.

5. Sets forth the agreement between E. W. Beidler, H. T. Beidler, B. C. Tucker and T. F. Beidler, with reference to payment of the obligations of the coal company, including the note in suit, and that H. T. Beidler after maturity of the note paid and became possessed of it and thereafter, on October 20, 1931, redelivered the note to plaintiff as additional security for his personal obligation.

In its reply the plaintiff alleges that the allegations in the second, third and fifth defenses are insufficient in law, and further alleges:

1. That plaintiff is the legal owner and holder of the note and entitled to maintain the action.

2. That plaintiff acquired the note in due course before maturity and is an innocent holder thereof, and has paid full value therefor, and is entitled to recover upon the written guaranty of the defendants thereon.

Such reply then:

1. Denies that the note has been paid.

2. Denies the agreement of August 1931 or that plaintiff ever had any knowledge of said agreement; that' plaintiff released any of the endorsers on the note; and that H. T. Beidler paid or has become possessed of such instrument.

Upon the pleadings and the evidence, the Common Pleas Court found that the note in suit had been paid and rendered judgment for the defendants.

A review of the evidence discloses that on October 20, 1931, H. T. Beidler obtained an additional loan from the bank in the sum of $3,433.40, and that $2,826 of the additional loan was applied by the bank in payment of the coal company note of $2,800. Instead of stamping the note “paid” it was endorsed without recourse by the bank to II. T. Beidler, who in turn endorsed it in blank and redelivered it to the bank as additional collateral upon his personal note of $16,-233.40. Upon its redelivery to the bank, the $2,800 note was held by the bank as pledgee. Since the note was overdue, neither H. T. Beidler nor the bank became holders in due course.

The first question to be determined is whether the bank, as pledgee of the note, may bring an action thereon without converting it to its own, pursuant to the terms of the collateral note. No authority to bring an action on the pledged note is provided by the collateral note. After' default a pledgee may sell the property in accordance with the terms of the pledge, or bring an action to foreclose his lien. However, if the pledge consists' of a chose in action, apparently the pledgee may bring an action in his own-name for collection thereof, and is bound to account to the pledgor for the proceeds of the collection, and properly credit the same on the pledgor’s obligation so secured. Handy v. Sibley, 46 Ohio St., 9, 17 N. E., 329. The pledgee of a promissory note may collect it by suit when it becomes due, whether the pledgor’s obligation is then matured or not. 41 American Jurisprudence, 632, Section 71, citing, Central National Bank of Cleveland, Trustee, v. Mills, 62 Ohio App., 413, 24 N. E. (2d), 607; Hammond Pure Ice & Coal Co. v. Heitman, 221 Ind., 352, 47 N. E. (2d), 309, 145 A. L. R., 997, 1004.

The second question is whether the bank, as a holder other than a holder in due course, may bring the action.

Prior to the enactment of the Uniform Negotiable Instruments Act in 1902, Section 3173, Revised Statutes, provided that if an instrument be indorsed after due date, and the indorsee institute an action thereon against the maker, drawer or acceptor, the defendant shall be allowed to set up any defense he might have made, had the action been instituted in the name and for the use of the person to whom the instrument was originally made payable. This section seems to recognize that a party taking a note after maturity could bring an action thereon, but subject to defenses. However, in Osborn v. McClelland (1885), 43 Ohio St., 284, 1 N. E., 644, the Supreme Court held that a holder in due course of a promissory note could maintain an action thereon in his own name, but that a person who became a holder after maturity and sued to recover thereon was subject to the defense by the maker of the note that the holder was not the real party in interest. See, also, Kernoham v. Durham (1891), 48 Ohio St., 1, 26 N. E., 982, 12 L. R. A., 41.

Section 8156, General Code, provides: “The holder of a negotiable instrument may sue thereon in his own name; and payment to Mm in due course discharges the instrument.”

Section 8295, General Code, defines the term, “holder,” as the payee or indorsee of a bill or note, who is in possession of it, or the bearer thereof.

The Negotiable Instruments Law makes a distinction between a “holder” and a “holder in due course.” The latter holds the instrument free from defenses available to prior parties, but in the hands of any holder other than a holder in due course, a negotiable instrument is subject to the same defenses as if it were nonnegotiable. Sections 8162 and 8163, General Code.

Under Section 8156, General Code, the plaintiff can properly bring the action as holder,of the note. Wick v. Cleveland Securities Co., 71 Ohio App., 393, 50 N. E. (2d), 351. But since plaintiff, as pledgee, took the note after it was past due, the note is subject to the same defenses as if it were nonnegotiable. The Supreme Court of Ohio has recently held that the holder of a promissory note who takes it after maturity takes it subject to every objection, including equitable set-off, to which it was subject in the hands of Ms assignor. Union Properties, Inc., v. Baldwin Bros. Co., 141 Ohio St., 303, 47 N. E. (2d), 983, 149 A. L. R., 725.

Courts in other jurisdictions have held that the term “defenses” means, technical defenses, and does not embrace setoffs arising out of an independent transaction. Stegal v. Union Bank & Trust Co. (1934), 163 Va., 417, 176 S. E., 438, 95 A. L. R., 582.

It is interesting to note that the Union Properties case, supra, approved and followed Baker v. Kinsey, 41 Ohio St., 403, which was decided prior to the enactment of the Negotiable Instruments Law.

Since the plaintiff brought its action as pledgee (or assignee) and also as endorsee after maturity, it is subject to the defense that it is not the real party in interest. See Osborn v. McClelland, supra, and Kernohan v. Durham, supra.

At the time H. T. Beidler transferred or assigned the note to the bank, he had paid the maker’s obligation on the note, and, having paid the principal obligation, was entitled to contribution from his coguarantors. But prior to his payment, H. T. Beidler had agreed with his coguarantors with respect to their mutual obligations on the indebtedness of the coal company, and could then recover from them only their proportionate share of the obligation to the bank. H. T. Beidler had paid the note. Since the maker of the note was nonexistent, all Beidler assigned to the bank as collateral was his right of contribution from his coguarantors.

The past-due note was held by the bank as pledgee from October 20,1931, until judgment was-taken thereon on April 24,1946, against E. W. Beidler and Tucker. In the meantime E. W. Beidler and Tucker had paid an amount equal if not in excess of their two-thirds share of the coal company’s indebtedness, so that H. T. Beidler could then claim no contribution from them on account of their payment of the $2,800 note in 193Í.

In Marling v. Fitzgerald (1909), 138 Wis., 93, 120 N. W., 388, 23 L. R. A. (N. S.), 177, the Supreme Court of Wisconsin held that although the assignment of a note for value and without notice is without due course, the note is subject to only those defenses that exist at the time of the transfer and not those which may possibly exist at some future time.

• In Rosecky v. Tomaszewshi (1937), 225 Wis., 438, 274 N. W., 259, the court limited the above rule to equitable defenses only, and not to subsequent payments on the note which were legal defenses.

Where an assignee becomes the outright holder of a chose in action he takes it subject to any infirmities existing at the time of the assignment, but he should be free from any transactions between his assignor and the obligor subsequent to the assignment. But in the instant case the bank as pledgee-assignee did not become the owner of the chose in action, and until such time as the bank should convert the note to its own, the note was held subject to any transactions which might subsequently arise between H. T. Beidler, as pledgor, and the other guarantors of the note. At the time it took judgment on the note it stood in the shoes of H. T. Beidler and' could have no greater right against the defendants than its pledgor-assignor. Since E. W. Beidler and Tucker were no longer obligated to H. T. Beidler, they were also not obligated to the plaintiff.

In passing it may be noted that when H. T. Beidler reindorsed the note to the bank after maturity, he thereby made the note payable on demand, giving it a second maturity, so far .as he was concerned (31 Harvard Law Review, 1139), but his reindorsement could not revive the maturity of the note, so far as his co-guarantors were, concerned.

The judgment of the Common Pleas Court is affirmed.

Judgment affirmed.

Hunsicker and Doyle, JJ., concur.

Fess, J., of the Sixth Appellate District, and Doyle and Hunsicker, JJ., of the Ninth Appellate District, sitting by designation in the Eighth Appellate District;


author: Miller, P. J.

text:
    Shaper, Appellant, v. The National Life & Accident Ins. Co., Appellee.
    (No. 2063
    Decided April 14, 1950.)

      Mr. Otterbein Creager, for appellant. •

      Messrs. Belgel é Mahrt and Mr. James E. Stubbs, for appellee.
   Miller, P. J.

The question presented by this appeal is whether the trial court erred in directing a verdict for the defendant at the close of all the evidence. The action was one to recover death benefits under the terms of a life insurance policy. One of the defenses set up in the answer was that the insured was not in good health at the time of the issuance of the policy. The policy provided that it was not to take effect as an obligation of tbe defendant unless the insured was in good health at the time of its delivery.

In order to maintain its defense the defendant offered as its own witness Dr. Lawrence Gough who testified that he had been the insured’s physician for a number of years; that he had treated her for high blood pressure. and migraine headaches at his office for a number of years beginning in 1939; that he gave her sedatives and xerescribed that she cut down on her eating and slow down -her' activities; that he once ordered her to a hospital for rest and observation, and “nothing organic could be found”; that he never called on her at her home but she always came to his office; that approximately 35 per cent of his medical patients had high blood pressure; that insured died in his office on the evening of February 2, 1948; and that he filled in her death certificate, naming the cause of death as coronary thrombosis and occlusion, and giving malignant lxypertension, duration 1939, as other conditions. He also related facts from which the inference of lack of good health on March 17, 1947, the delivery date of the policy, might have been made.

The defendant also called as a witness Dr. W. L. McCowan, the defendant’s medical examiner, who testified concerning his examination of the insured, and that there being nothing to suggest she was suffering from high blood pressure he did not take the same, as it was not required for the size of the policy being issued. There is, however, a conflict in the testimony as to whether Dr. McCowan took the blood pressure of the insured. The plaintiff testified that he was present when the examination was made and that her blood pressure was taken; that he knew the method of taking one’s blood pressure, as his had been taken by Dr. Gough sometime xn’ior thereto. The defendant’s agent testified that he regarded her as being in good health when he delivered the policy. The plaintiff and numerous other witnesses who had observed the insured in her place of business all testified as to her apparent good health at the time of the delivery of the policy.

The questions presented are: (1) Was the testimony of these lay witnesses of any probative value, since the medical testimony was to the effect that the insured’s illness was not apparent but could be detected only upon physical examination?; and (2) was there any evidence tending to establish that the insured was in good health at the time of the issuing of the policy?

The defendant cites the case of Magyar, Admx., v. Prudential Ins. Co. of America, 133 Ohio St., 563, 15 N. E. (2d), 144, wherein the court, in considering the first question, held “that the only evidence of any probative effect respecting the actual physical condition of the insured at the time of the issuance of his policy was that of the physicians referred to, and therefore that there is no conflict whatever in the evidence adduced which may be considered to be of probative value upon the sole issue in that case.”'

In the Magyar case the only evidence, other than medical, touching the condition of the insured’s health at the time of the issuance of the policy was the testimony of the insured’s son and a former agent of the defendant, that the- insured then looked or appeared in good health, and also the testimony of the widow that the insured was in good health before his last sickness. The facts in that case are not identical with those in the case at bar. The plaintiff cites the case of Vida v. Metropolitan Life Ins. Co., which ivas decided in the same opinion as the Magyar case, as supporting his contention. In that ease the court held that, since there was evidence in the record that the medical witness had not made the examination concerning which he testified, and other witnesses had testified as to the good health of the insured, there was a direct and vital conflict of evidence upon the only issue in the case and it should be determined by the jury.

In the case at bar there was no denial that the medical witness had seen, examined and treated the insured as he had testified, but there is a conflict in the testimony as to the taking of the insured’s blood pressure. Whether it was taken was a question of fact, for the determination of the jury. Should it have resolved this question in the affirmative a reasonable inference would have been that she was not suffering from high blood pressure as claimed, or the same would have been reported by the examining physician.

An inference is a permissible deduction which the-jury may make without express direction of the law to that effect. If different inferences may be drawn from the evidence it is the function of the jury and not of the court to draw those inferences from the evidence and to find ultimate conclusions of fact. Should the jury conclude that the examining physician found no indication of high blood pressure this would be some evidence tending to indicate that the insured was in good health. That determination would not be based upon the testimony of lay witnesses as against that of medical men, but would be based upon an inference as to a condition found to exist by the examining physician, to wit, no high blood pressure.-

It is our conclusion that the testimony of the lay-witnesses was of itself of insufficient probative value-in this case to carry it to the jury (Magyar v. Prudential Ins. Co., supra), but based upon the medical testimony and that of the lay witnesses there was some evidence from which the jury could find that the insured was in good health at the time of the issuing of the policy. The defendant does not urge, and, we do not find, that the instructed verdict could be sustained under the second defense.

The judgment is, therefore, reversed and the cause remanded for a new trial.

Judgment reversed.

Hornbeck and Wiseman, JJ., concur.


text:
    Ohio Motors, Inc., Appellee, v. Charlesworth, Exrx., et al., Appellants.

      (No. 21788
    Decided August 14, 1950.)

      Mr. Frank X. Schaut and Messrs. Bravo <& Bernstein, for appellee.

      Mr. ■William 11. Luther, Mr. Lester Yoder and Mr. Albert D. Nesbitt, for appellants.
   Fess, J.

This is an appeal from-an order of the Common Pleas Court dismissing defendants’ appeal on questions of law and fact from a judgment entered by the Probate Court on the ground that the Common Pleas Court did not have jurisdiction of the appeal because a record was taken of the proceedings in the Probate Court.

The motion to dismiss the appeal was heard upon evidence and the order dismissing it was journalized oh November 29, 1949. On December 6, 1949, defendants filed a motion for new trial which was overruled. January 6, 1950. Notice of appeal to this court was filed January 16, 1950.

Plaintiff, appellee, moved to dismiss the appeal herein on the ground that the notice of appeal was filed more than twenty days after the entry dismissing the appeal below and that defendants’ motion for new trial was ineffective to extend the time for appeal.

The motion for a new trial was filed within ten days after the entry of a final order. Section 12223-7, General Code.

Section 11575, General Code, as amended October 11,1945, defines a new trial as a re-examination in the same court of the issues after a final order, judgment or decree by the court. Prior to its amendment, a new trial was confined to a re-examination of an issue of fact but the section as amended contemplated a reexamination of issues of law as well as of fact. In support of the motion to dismiss, plaintiff cites Kromer v. Rear, 86 Ohio App., 309, 55 Ohio Law Abs., 385, 90 N. E. (2d), 422, and McKee v. Clark, 55 Ohio Law Abs., 496, 90 N. E. (2d), 584, which hold that there is no provision in the Code for the filing of a motion for new-trial in an appellate court after a determination of an appeal on questions of law only.

In the instant case, the motion to dismiss below was determined upon issues of fact and law and the motion for a new trial was duly filed and thereafter overruled by the court. Having been filed, the time for appeal from the final order did not begin to run until the entry of the order overruling the motion for new trial. The motion to dismiss the appeal herein is therefore overruled.

Upon the merits of the appeal, the Common Pleas Court upon the evidence found that a record of the hearing in the Probate Court was taken by direction, of the court and that a transcript thereof was available upon request. This finding was amply supported' by the evidence.

Section 10501-56, General Code, provides for an appeal from the Probate Court to the Court of Appeals, but provides further that “if, for any reason, a record has not been taken at the hearing of any matter before the Probate Court so that a bill of exceptions or a complete record may be prepared as provided by law in Courts of Common Pleas, then gn appeal on questions •of law and fact may be taken to the Court of Common Pleas * *

The evidence tending to show that a stenographic report was not taken of the argument of counsel and rulings on motions could not make the record incomplete. If counsel desire to have matters other than testimony taken down, it is their duty to demand it.

Upon the evidence adduced upon the hearing of the motion to dismiss, the Common Pleas Court did not have jurisdiction of the appeal, and its order dismissing same is affirmed.

Judgment affirmed.

Htjnsickek, P. J., and Doyle, J., concur.

Fess, J., of the Sixth Appellate District, and Hcrxsickeb and Doyle, JJ., of the Ninth Appellate District, sitting by designation in the Eighth Appellate District.


text:
    Gordon et al., Appellees, v. Koby, Appellant.
    (No. 320
    Decided November 12, 1949.)

      Mr. Francis M. Marley, for appellees.

      Messrs. Frick & Turner, for appellant.
   Per Curiam.

This is an appeal on questions of law from a judgment of the Municipal Court of Fostoria.

The action is one in forcible entry and detainer, m which the appellees, LaManda Gordon, Charles Reisz and Laura Dreitzler, were plaintiffs and the appellant, Phillip Koby, was defendant.

Upon the trial of the cause in the Municipal Court, the court rendered judgment that a writ of restitution issue to the bailiff, commanding him to restore possession of the premises described in the petition to plaintiffs, and for costs.

That is the judgment from which this appeal is taken.

The case is submitted to the court upon the trap-script of the docket and journal entries of the Municipal Court and the original papers filed in the Municipal Court.

No bill of exceptions of the proceedings had in the Municipal Court has been filed herein.

The defendant assigns error in the following particulars :

1. Overruling the defendant’s demurrer to the petition without hearing or notice.

2. Refusing to permit the defendant to try the cause to a jury although demand was made on the day of the hearing.

3. Overruling the defendant’s motion for a new trial.

These claimed errors will be considered in the order mentioned.

1. The demurrer referred to in this assignment of error, omitting caption and signature, is in the following words, to wit:

“Comes now the defendant and demurs to the petition of the plaintiffs filed herein, for the reason that the issues have already been determined and are res judicata.”

Res judicata is a defense to an action, and being a defense must be pleaded as such and cannot be raised by demurrer unless facts establishing it are pleaded in the petition. Furthermore, under the express provisions of Section 10450, General Code, a judgment in an action in forcible entry and detainer is not res judicata of a later action brought by either party to the judgment.

The order of the Municipal Court overruling the demurrer. was the only order that could properly be made in the premises, and the fact that such order was made without hearing or notice could not in any way be prejudicial to the defendant.

This assignment of error is therefore without merit.

2. The Municipal Court of Fostoria was created and its jurisdiction and procedure prescribed by an act of the Legislature of Ohio, the sections of which .are now designated Sections 1579-1397 to 1579-1447, inclusive, General Code. '

Section 1579-1397, General Code, prescribes that the court is created as a court’of record in and for the city of Fostoria in Seneca and Hancock counties, the townships of Louden and Jackson in Seneca county, the township of Washington in Hancock county and the township of Perry in Wood county.

Section 1579-1403, General Code, among other things, provides:

“The Municipal Court herein established shall have original civil jurisdiction within the limits, of said city of Fostoria, and the townships of Jackson and Louden in Seneca county, Washington in Hancock county and Perry in Wood county, in the following cases:

“1. All actions and proceedings in which justices of the peace or such courts as may succeed justice of peace courts now have or may hereafter be given jurisdiction.”

Section 1579-1404, General Code, among other things, provides:

“The Municipal Court shall have civil jurisdiction within the limits of Seneca county, Hancock county and Wood county, Ohio, respectively:

< Í * * *

“6. In all actions of whatever nature or remedy wherein justice of the peace courts now or may hereafter have jurisdiction.”

Section 1579-1415, General Code, among, other things, provides:

“All causes in the, Municipal Court, both civil and criminal, shall be tried to the court, unless a jury be demanded in writing by a party entitled to the same. The demand for a jury trial in civil cases must be made in writing not later than two weeks from the return date stated in the summons and not less than three days before the trial of the case.”,

Sections 10447 to 10461, inclusive, General Code, enacted long'prior to the sections above mentioned, conferred jurisdiction on justices of the peace of actions for forcible entry and detainer and prescribed their procedure in such cases. Section 10457, General Code, provides that a jury may be demanded by either party, but does not prescribe any particular time for the making of such demand.

The provisions of Sections 10447 to 10461, inclusive, General Code, having been enacted prior to the enactment of Sections 1579-1397 to 1579-1447, inclusive, General Code, relating to the creation and procedure of the Municipal Court of Fostoria, are limited and to some extent superseded by the provisions of the latter sections. Morse, Marshal, v. State, ex rel. Empire Petroleum Co., 41 Ohio App., 265, 268, 269, 180 N. E., 906.

The provisions of Section 1579-1415, General Code, relating to jury trials in the Municipal Court, specifically apply to all actions of which the Municipal Court has jurisdiction, and, although actions in forcible entry and detainer are not specifically mentioned in the sections of the General Code creating such court and defining its jurisdiction and procedure, the jurisdiction conferred on the court by the provisions of Sections 1579-1397 to 1579-1447, inclusive, General Code, comprehends jurisdiction of such cases; and the provisions of Section 1579-1415, General Code, relating to jury trials in the Municipal Court apply, to the exclusion of the provisions of Section 10457, General Code.

The case of Harbine, Jr., v. Davis, 41 Ohio Law Abs., 65, 57 N. E. (2d), 421, relied on by the defendant as determining that the provisions of Section 10457, General Code, relating to jurisdiction in actions of forcible en-' try and detainer before justices of the peace, apply to juries in cases of forcible entry and detainer in the Municipal Court of Fostoria, has no application to the facts of the instant ease.

The case relied upon involved the act creating the Municipal Court of Dayton. In the act there was no express provision, as there is in the act creating the Municipal Court of Fostoria, as to jury trials, and the court held merely that, in the absence of such express provision, the provisions of Section 10457, General Code, applied to jury trials in such actions in the Municipal Court of Dayton.

Neither does the case of Williams v. Gordon, 53 Ohio Law Abs., 464, 86 N. E. (2d), 34, apply to the case at bar, as it involved only the question as to whether the Municipal Court had jurisdiction to determine questions of title in a forcible entry and detainer case and does not involve the question of the right to trial by jury in such a court.

As the record before this court discloses that no demand was made for a jury trial in conformity with the provisions of Section 1579-1415, General Code, the Municipal Court properly refused defendant’s request for a jury'trial.

This assignment of error is therefore without merit.

3. Under the third assignment the defendant charges that the court erred in overruling the motion for a new trial.

In addition to the two charges of error assigned by the defendant, which we have hereinbefore discussed and found to be without merit, the defendant in his motion for new trial charges- error in the following particulars :

(a) The failure and refusal of the court to give the defendant the time provided by statute for pleading to the petition.

(b) The charge (finding and judgment) is not sustained by sufficient evidence and is contrary to law.

(e) Several errors at law occurring at the trial of the cause, and other errors manifest of record.

Nothing appears in the record before us sustaining defendant’s claim of error in any of the respects mentioned, and, so far as the record shows, the court properly overruled the motion for a new trial.

This assignment is also without merit.

Our conclusion that the assignments of error are without merit requires the affirmance of the judgment of the Municipal Court.

However, as the attorneys in the case have requested the court to consider a contention of error made by the defendant in his brief but not specified in his assignments of error, we will consider such contention.

This contention is that as the defendant was not served with summons within the city of Fostoria, or within the township of Louden or Jackson in Seneca county, or within the township of Washington in Hancock county, or within the township of Perry in Wood county, the Municipal Court of Fostoria was without jurisdiction to try the action in forcible éntry and detainer.

The return of the service of summons on the defendant discloses that he was not served with summons within the city or townships mentioned.

As supporting his contention, the defendant relies on the case of Morse v. State, ex rel. Empire Petroleum Co., supra.

In the case mentioned it was held that the Toledo Municipal Court was without jurisdiction of a forcible entry and detainer proceeding respecting realty located in and owned by a resident of an outlying district, unless service was made within the city.'

The Municipal Court of Toledo was created, and its jurisdiction and procedure prescribed by an act of the Legislature, now designated Sections 1579-276 to 1579-329, inclusive, General Code. Differing from Section 1579-1403, General Code, conferring jurisdiction on the Municipal Court of Fostoria within the territorial limits of the court, of all actions and proceedings in which justice of the peace or such courts as may succeed justice of the peace courts may have or may be hereafter given jurisdiction, and not specifically referring to actions in forcible entry and detainer, Section 1579-286, General Code, creating the Municipal Court of Toledo, confers jurisdiction on it in actions in forcible entry and detainer, in the following words:

“The Municipal Court shall have and exercise original jurisdiction within the limits of the city of Toledo as follows:

U * * #

“8. In all actions in forcible entry and detainer of real property.” (Italics ours.)

Section 1579-289, General Code, a part of 'the act creating the Municipal Court of Toledo, differing from Section 1579-1404, General Code, conferring jurisdiction on the Municipal Court of Fostoria. within the limits of Seneca county, Hancock county and Wood county, respectively, in all actions of whatever nature or remedy wherein justice of the peace courts now or may hereafter have jurisdiction, confers jurisdiction on the Municipal Court of Toledo within the limits of the county of Lucas:

“4. In actions and proceedings where one or more defendants reside or are served with summons in the city of Toledo.

a * * #

“6. In all actions,, criminal, quasi-criminal, civil and preliminary hearings, in which justices of the peace have or may be given jurisdiction coextensive with the county in which they are elected and preside. ’ ’

By the provisions of Sections 10224 and 10447, General Code, jurisdiction is conferred on justices of the peace, except in Cuyahoga, Mahoning and Franklin counties, coextensive with their respective counties to try actions of forcible entry and detainer.

Section 1579-293, one of the General Code sections creating the Municipal Court of Toledo, provides :

“No justice of the peace in any township in Lucas county, or mayor in any village in Lucas county, in any proceedings whether civil or criminal, in which any warrant, order of arrest, summons, order' of attachment or garnishment or other process, except subpoena for witnesses, shall have been served upon a citizen or resident of Toledo or a corporation having its principal office in Toledo, shall have jurisdiction, unless such service be actually made by personal service within the township or village in which said proceedings may have been instituted *."

Section 1579-1444, General Code, a corresponding section of the act creating the Municipal Court of Fostoria, contains a similar provision in the words following:

“No justice of the peace in any township in Seneca, Hancock or Wood counties, or mayor of any village or city in any of said counties shall have jurisdiction in any civil action of proceeding to issue any summons, order of attachment or garnishment, or other process directed against any person a resident of the city of Fostoria, or of the townships of Jackson and Louden in Seneca county, or the township of Washington in Hancock county, or the township of Perry in. Wood county, except subpoenas for witnesses and in proceedings to collect the judgments of said justices of the peace and mayors.”

It will be noted, however, that the provisions of Section 1579-1444, General Code, specifically prohibit the exercise of jurisdiction of justices of the peace and mayors courts situated in the counties mentioned within the territorial limits of the Municipal Court of Fostoria, except in the service of subpoenas and in proceedings to collect judgments, whereas under the provisions of Section 1579-293, General Code, the jurisdiction of justice of the peace courts and mayors courts in Lucas county, outside the territorial limits of the Toledo Municipal Court, is specifically recognized when service is made upon a citizen or resident of Toledo, or a corporation having its principal office in Toledo, within the township or village in which such proceedings may have been instituted.

The decision of the court in the Morse case, supra, was based on:

1. The above-quoted explicit provisions of the act creating the Municipal Court of .Toledo with reference to the jurisdiction of the court in actions of forcible entry and detainer of real property within the limits of the city of Toledo.

2. The above-quoted explicit provisions with reference to the jurisdiction of the court within the limits of Lucas county in actions and proceedings where one or more of the defendants reside or are served with summons in the city of Toledo, followed by’ the above-quoted general provision conferring jurisdiction on the court in all actions in which justices of the peace have or may be given jurisdiction coextensive with the county.

3. The above-quoted explicit provisions of Section 1579-293, General Code, a part of the act limiting the jurisdiction within the city of Toledo of justices of the peace and mayors in Lucas county outside the city of Toledo, but recognizing their jurisdiction in actions in which summons have been personally served upon a citizen or resident of Toledo, or a corporation having its principal place of business in Toledo, in the township or village in which the proceedings are instituted.

The above provisions the court construed as limiting the jurisdiction of the Municipal .Court in forcible entry and detainer cases affecting real estate in Lucas county outside the city of Toledo to cases in which summonses are served on the defendants within the limits of the city.

As hereinbefore noted, the act creating the Municipal Court of Fostoria does not contain any of the explicit provisions above mentioned, and consequently the decision above mentioned is inapplicable to the interpretation and construction of the act.

By the provisions of Section 1579-1404, General Code, abové quoted, jurisdiction coextensive with the counties of Seneca, Hancock and Wood is conferred on the Municipal Court of Fostoria in actions in forcible entry and detainer. The jurisdiction thus conferred is not expressly or impliedly limited or restricted by any other provision of the act creating such court.

The court therefore had jurisdiction of the instant case notwithstanding the real estate affected thereby is not situated within the city or townships mentioned, but within one of the counties mentioned, and summons was not served on the defendant within the city or townships for which the court was created.

Furthermore, the defendant in the case at bar entered his appearance in the cause by demurring to the petition, demanding a jury, participating in the trial of the cause, and filing a motion for a new trial of the cause, and thereby submitted to and became subject to its jurisdiction in the same manner as if summons had been served upon him within the limits of the city or townships for which the court was created.

This contention of error is therefore without merit.

For the reasons mentioned, the judgment of the Municipal Court is affirmed at costs of defendant and the cause remanded to the Municipal Court for execution.

Judgment' affirmed.

Guernsey, P. J., Middleton and Jackson, JJ., concur.


author: Phillips, P. J.

text:
    Colello, Appellant, v. Bates et al., Appellees.

      (No. 1027
    Decided June 24, 1950.)

      Mr. Robert E. Hall, Mr. C. L. Hawthorne and Mr. R. N. Larrimer, for appellant.

      Mr. Hugo Alexander and Mr. Carl F. Allebaugh, for appellees.
   Phillips, P. J.

In this opinion Marie Colello, the plaintiff in the Court of Common Pleas, will be called plaintiff, and defendants there, Robert-D. Bates, a former sheriff of Jefferson county, and The-Home Indemnity Company, a New York corporation, will be called defendant sheriff and defendant corporation, respectively.

Defendant corporation issued a bond on defendant sheriff indemnifying any person, or persons, firms or corporations, against loss or damage occurring to them, or any of them, by reason of misfeasance or malfeasance on his part while acting as sheriff of Jefferson county.-

Plaintiff, the widow of Dominic Colello, an employee of the Wheeling Steel Corporation, appealed to the Court of Common Pleas of Jefferson County from a ruling of the Industrial Commission of Ohio denying her compensation claimed to be due to her as the result of the injury and death of her husband while employed by such corporation in Jefferson county, Ohio.

In that action, numbered 34531 on the docket of the Court of Common Pleas, plaintiff duly filed a praecipe with her petition. The clerk of. that court issued a summons directed to defendant sheriff, which was returned showing service made on the managing agent of Wheeling Steel Corporation, defendant in that case, on July 13, 1942, by Thomas Montgomery, then deputy sheriff of that county. Thomas Montgomery testified in the case here under review that no service was made in Common Pleas Court case number 34531 upon such managing agent, but that service was made upon the chief clerk of that corporation.

In appeal numbered 1001 on the docket of this court the judgment entered in case number 34531 in the Court of Common Pleas sustaining a demurrer to plaintiff’s reply was affirmed on July 15, 1947.

On April 22, 1947, plaintiff sued defendants in the Court of Common Pleas of Jefferson county in case numbered 38102 on the docket of that court (which is the case here under review) to recover a money judgment against defendants, which action was based upon the misfeasance and malfeasance of defendant sheriff in making a false and fraudulent return of summons in Common Pleas Court case number 34531, by which act plaintiff allegedly lost her right to participate in the workmen’s insurance fund of Ohio.

On May 11, 1949, the trial judge sustained defendants’ motion for judgment in their favor notwithstanding the verdict of the jury returned ' against them in that case on February 17, 1949, and-on that date dismissed plaintiff’s action against defendants.

Plaintiff appealed from the judgment of the Court of Common Pleas entered in case number 38102 to this court on questions of law.

By assignments of error plaintiff contends that the trial judge erred “in sustaining defendant-appellee’s motion non obstante veredicto to judgment of Court of Common Pleas”; that “the same was contrary to law and contrary to the manifest weight of the evidence”; and that there are “other errors apparent on the face of the record.”

In disposing of defendants’ motion to enter judgment in their favor notwithstanding the verdict of the jury rendered against them, the trial judge said:

“When this motion for judgment notwithstanding the verdict was argued two questions were presented to the court principally: First, that the plaintiff was guilty of contributory negligence which precluded her recovery; second, that there was no evidence showing that the plaintiff’s decedent’s death was the result of an injury which he sustained in the course of and arising out of his employment. ’ ’

Without further reference to the evidence it is clear to us that defendant sheriff negligently failed to perform in Common Pleas Court case number 34531 the statutory duty imposed upon him, for which negligence both defendants or either of them were answerable in damages to plaintiff in an action commenced timely and pleaded properly.

We find no evidence of probative value that decedent’s death was the result of an injury which ho sustained in the course of and arising out of his employment with his employer; nor is there evidence warranting the trial court submitting that question to the jury.

That conclusion forthwith brings us to a consideration of the question whether the case we review was filed against defendants timely and pleaded properly. We will not discuss this question in the exhaustive manner in which the trial judge discussed it in his excellent review of the case found in the bill of exceptions, to which the respective parties are referred. '

While defendants urged that plaintiff was guilty of “contributory negligence” in failing to prosecute an appeal to the Supreme Court from the decision of this court rendered July 5, 1947, in Common Pleas Court case number 34531, precluding her from recovering against defendants in the case here under review (38102), yet in open court their counsel stated they were not urging that proposition. Accordingly we will not pass upon that question.

It has been held that Sections 1465-90, 11230 and 11231, General Code (which latter two sections do not apply in the case here under review), must be read together. See Houck v. Chrysler Corp., 14 Ohio Law Abs., 711; Beach v. Union Gas & Electric Co., 130 Ohio St., 280, 199 N. E., 181. Like the trial judge, we believe that those sections of the General Code and Section 11233 thereof must bo read together.

On the state of the record submitted to us for review we hold that plaintiff had one year from July 5, 1947, to commence the action under review. See Section 11233, General Code. Also, see Albers, Admr., v. Great Central Transport Corp., 145 Ohio St., 129, 60 N. E. (2d), 66.

_ “Where an action first brought is terminated through no fault or- voluntary act of a party who had done all that is required to secure valid service of summons, but the service of summons is set aside by reason of a false return by the process server, of which falsity the party had no knowledge in time to rectify the error within the sixty days allowed by Section 11231, General Code, a new action may be commenced, by virtue of Section 11233, General Code, within one year after the date such party fails otherwise than upon the merits.” Mulcahy v. Mutach, 51 Ohio App., 407, 1 N. E. (2d), 651.

Plaintiff had no knowledge of such imperfect service within sixty days of the date it was made; but she had knowledge of such imperfect service within one year from the date thereof, and could have filed her new action within that time.

“Under the provisions of Section 11233, General Code, relating to the commencement of actions, in an action commenced, or attempted to be commenced, if the plaintiff fails otherwise than upon the merits and the time limited for the commencement of such action at the date of failure, has expired, the plaintiff may commence a new action within one year after such date.” Greulich v. Monnin, 142 Ohio St., 113, 50 N. E. (2d), 310, 149 A. L. R., 477.

Plaintiff filed no action in the Court of Common Pleas within a year after her case was dismissed other than upon its merits. Her action filed April 22, 1947, was never refiled. Obviously plaintiff’s failure to recover was not the proximate result of the sheriff's misfeasance; rather it resulted from her failure to file timely and plead properly in her action which we now review. Therefore, in our opinion,- the trial judge did not err to plaintiff’s prejudice in sustaining defendants’ motion for judgment in their favor notwithstanding the verdict of the jury returned against them.

Appellant’s counsel has failed to call our attention to “other errors apparent on the face of the record,” as alleged as a ground of error; and counsel has failed also to comply in respect thereto with the provisions of rule VII of this court that his briefs ‘ ‘ shall contain a statement of the questions presented and a succinct statement of so much of the cause,, referring to the pages of the record, as is necessary to show how the questions arose, together with a statement of the authorities relied upon.” Accordingly we will not pass upon this assigned ground of error.

Finding no error prejudicial to plaintiff in any of the respects urged by her.upon which we pass, the judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

Nichols and Griffith, JJ., concur.


text:
    The Shepard Paint Co. et al., Appellants, v. Board of Trustees of the Franklin County Veterans Memorial et al., Appellees.
    (No. 4419
    Decided April 21, 1950.)

      Mr. John E. Summers and Messrs. Wright, Earlor, Pur pus, Morris & Arnold, for appellants.

      Mr. Ralph J. Bartlett, prosecuting attorney, Mr. Robert P. Barnhart and Mr. Joseph J. Poorman, for appellees.
   Miller, P. J.

This is an action to enjoin the Board of Trustees of the Franklin County Veterans Memorial from proceeding with its action in the Probate Court to appropriate certain real property for public use and for an assessment for the compensation for the same.

On October 6, 1945, the county commissioners of Franklin county, Ohio, pursuant to the provisions of the Veterans Memorial Act (Sections 3059 to 3069-1, General Code), by resolution declared a necessity for proceeding with the establishment of such a memorial and for the issuance of a $4,500,000 bond issue. In view of their desire to place the levy for this bond issue outside the 10-mill limit, the question was submitted to a vote of the electorate at the November 1945 election. A favorable vote was received. Upon certification of the results of the election the county commissioners appointed a board of trustees as provided by Section 3061, General Code, for the purpose of establishing the memorial. The trustees submitted to the county' commissioners plans for the site to be acquired and the plans were approved by the commissioners on April 2,1946. Later the design of the building was completed and submitted to the county commissioners and approved by them on June 20, 1947. Bonds to the extent of $3,500,000 were issued and sold and the proceeds deposited in the memorial fund established by the provisions of Section 3064, General Code. A portion of this fund has already been expended for the acquisition of certain portions of the proposed site and for incidentals. The plaintiff Sigmund Ornstein is the owner of four parcels of property included in the proposed site.

On November 2, 1949, the defendants herein filed their petition in the Probate Court for the purpose of condemning Ornstein’s four parcels of real estate and to have a jury assess the amount of compensation to be paid to the owner. The plaintiffs thereupon filed' a petition in the Common Pleas Court requesting an injunction against the further proceedings in the condemnation case in the Probate Court, on the grounds that the proceedings and the assessment compensation would be a confiscation of the property without due process of law and in violation of - the Constitution and statutes of the state of Ohio.

The plaintiffs set forth the following four grounds of objection:

“1. There is no money in said memorial fund except the money resulting from said bond sales by said board of commissioners, which sales and levies of taxes in connection therewith were for the sole purpose of purchasing a site * * *, and none of such money may be used to compensate plaintiffs for any of their property sought to be acquired by condemnation.

“2. The amount of money allotted by said board of commissioners in their resolution of October 6,1945, for the purchase of the site of said veterans memorial has been entirely expended by said board of trustees in the purchase of other lands and no money is available to compensate the plaintiffs for any of their property sought to be acquired by condemnation.

“3. Said board of commissioners has not approved the design of the proposed veterans memorial which said board of trustees intends to erect.

“4. In the declaration o.f necessity and determination to take parcel No. 1 said board of trustees have abused their discretion and are acting oppressively and in bad faith. ’ ’ '

It is plaintiffs ’ claim that the only remedy available is by injunction to stop further condemnation proceedings ; and that the Probate Court has no power to determine the legality of the proceedings, but is only authorized to fix the value of the property sought to be condemned.

The first claim made is that the proceeds from the bond issues cannot be used in payment for any land acquired through condemnation proceedings, since the enabling statutes, Sections 3059 and 3059-1, General Code, refer to the levying of taxes “for purchasing a site” and for the issuing of bonds “for the purpose of purchasing a site.”

Section 3064-2, General Code, provides in part:

“The board of trustees may acquire by purchase, condemnation, or otherwise, any necessary site or sites for such memorials. ’ ’

• From this it is argued that the General Assembly must have intended, in accordance with the provisions of Sections 3059 and 3059-1, General Code,- that the proceeds of taxes or bond issues were restricted in their use to the acquisition of property by ordinary purchase and could not be used to pay for property acquired by condemnation proceedings, as otherwise it would have provided in Sections 3059 and 3059-1, General Code, that the money raised might be used to acquire property by purchase, condemnation, or otherwise. If this is the proper interpretation to be placed on Sections 3059 and 3059-1, General Code, then there are no funds available to pay for the plaintiffs’ property. The trial court stated, and we think correctly so, that under such an interpretation it would be virtually impossible to carry out the provisions of the act, if the owners of any of the property within the chosen site were unwilling and refused to sell; that since the statute specifically grants power to the trustees to carry out the provisions of the act, to secure property by condemnation, it is a reasonable conclusion that the General Assembly was not granting a meaningless power but must have intended to include the power to pay the assessed valuation of the property. In determining the express intention of the General Assembly, the sections of the Code involved must be construed in pari materia. The authorities seem to be in agreement that the word, “purchase,” has two significations, a popular but restricted one and a legal but enlarged one. A “purchase” in the popular acceptance of the term is the transfer of property from one person to another by his voluntary act and agreement founded upon a valuable consideration. The legal or enlarged definition is found in 3 Washburn Real Property (6 Ed.), 3, Section 1824:

“Purchase including every mode of acquisition known to the law, except that by which an heir, on the death of an ancestor, becomes substituted in his place as owner by the act of the law.”

In Sutherland’s Statutory Construction (2 Ed.), 753, Section 395, it is stated that words in common use, and also having a technical sense, will, in acts intended for general operation and not dealing specially with, the subject to which such words in their technical sense apply, be understood primarily in their popular sense, unless they are defined in the act or a contrary intention is otherwise manifest. It is our conclusion, in giving consideration to the various sections of the Code applicable to the matter, that the word, “purchasing,” in Sections 3059 and 3059-1, General Code, was used in its technical or broader sense. We think that it was the intention of the General Assembly in this case to confer upon the board of trustees the right to condemn property for the purpose of providing a site for the memorial and that the authority to issue bonds for the purchase of the site included the right to pay the assessment. To interpret 'the term, “purchase,” in the narrow sense as advanced by counsel for the plaintiffs, the object of the statute would in many eases be defeated.

In the ease of the United States v. 2.74 Acres of Land, 32 F. Supp., 55, it was held:

“Statutory authority to acquire land for a public use by purchase is authority to acquire by condemnation.”

We are of the further opinion that even if the funds now available in the memorial fund could not be used •for the purpose of paying the purchase price set in the condemnation proceedings, such fact would still not constitute a ground for the issuance of an injunction restraining the proceedings.

Counsel for the plaintiffs cite State, ex rel. MacDiarmid, v. Eastman, Judge, 118 Ohio St., 121, 160 N. E., 626, as authority for the position they have taken. It was there held that a writ of prohibition was not the proper remedy to be invoked, under facts somewhat similar to those here involved, and that if any relief was due the plaintiffs, it must be by way of injunction proceedings. We concede that an injunction proceed-, ing is proper to prevent an unwarranted or unauthorized proceeding in appropriation. P. C. C. & St. L. Ry. Co. v. City of Greenville, 69 Ohio St., 487, 69 N. E., 976; Cleveland & Pittsburgh Rd. Co. v. City of Martins Ferry, 92 Ohio St., 157, 110 N. E., 642. But in the case at bar the board of trustees is expressly authorized by Section 3064-2, General Code, to acquire a site by purchase, condemnation or otherwise. Whether the money is available to purchase the site is not a material allegation in an appropriation proceeding. The right of eminent domain is a statutory right and one which has been said to be “strictly regulated by statute.” P. C. C. & St. L. Rd. Co. v. Greenville, supra, at page 496.

Section 11042, General Code, sets forth the requirements to be set out in the petition in condemnation proceedings:

1. A specific description of the property involved.

2. The work, if any, to be done thereon.

3. The use to which the property is to be applied.

4. The necessity for the appropriation.

5. The name of the owner of the property, if known, or if not known, a statement of that fact.

6. The names of all persons having or claiming an interest in the property.

7. The prayer for its appropriation.

It will be noted that no allegation is required as to the manner or method of payment of the assessments. A failure to pay the assessed value within six months terminates the right to the appropriation of the land. Section 3697, General Code. It would seem that by this section the defendants would have the right to comply with the judgment within a period of six months thereafter. ,

In the case of City of Dayton v. Vance, 26 N. P. (N. S.), 161, in giving consideration to the funds available for the payment of the assessment, the court said:

“We decide that this question has no proper place in this proceeding. This is, as suggested by counsel for defendants, a statutory right and one which has been said to be ‘strictly regulated by statute.’ P. C. C. & St. L. Ry. v. Greenville, 69 Ohio St., 487, at 496. Finding no restrictions placed upon the right of eminent domain when exercised by a municipal corporation — the statutes being silent upon any such requisites as to funds then available — we conclude that the contentions of the city must prevail.

“It is the same as reading into the statutes the words, ‘provided, that the court shall find that the city then has funds available: (1) to pay for the land appropriated; and (2) to fully complete the plan, enterprise or structure for which the land is appropriated.’ ”

In the case of Jones v. Village of Maumee, 20 Ohio App., 455, 152 N. E., 765, the plaintiff sought an injunction restraining the appropriation of his land for street purposes, alleging that the land was unfit, and that it would entail expenditures of $50,000 which was in excess of the amount the village may so expend. The Common Pleas Court dismissed the petition and the judgment was affirmed by the Court of Appeals. The syllabus of that case provides:

“The General Assembly having delegated to municipalities the authority to appropriate private property for street purposes, the necessity of the appropriation, and the location and extent of the property to be taken, rest in the discretion of the municipal authorities, and will not be interfered with by the courts, in the absence of fraud, bad faith, or abuse of discretion.”

At page 459, the court said, quoting from Sargent v. City of Cincinnati, 110 Ohio St., 444, 144 N. E., 132: “ ‘The power of eminent domain is an attribute of sovereignty which may be exercised by the Legislature itself, or that power may be delegated to other governmental agencies, and as a general rule the only limitation upon this legislative authority is that there must not be an abuse of the power granted or bad faith in its existence or exercise.

“ ‘All these legislative functions relate to the necessity and exigency of the taking, but owners of private property may judicially inquire whether the specified use is a public use or whether such use will justify or sustain the compulsory taking of private property, and even though the legislative authority has declared the use to be a public one, the courts may properly inquire into the good faith of such declaration and whether there has been a manifest abuse of power.’

“In the ease at bar the amended petition contains no averment of fraud, bad faith, or abuse of discretion. The purpose for which the village of Maumee seeks to appropriate the property, to-wit, for the construction of a street, is clearly a public use. The necessity of the appropriation, and the location and extent of the property to be taken, were for the decision of the village council, and with that action the courts are powerless to interfere in the absence of fraud, bad faith, or abuse of discretion.

“The amended petition does not state a good cause of action.”

The second ground set forth in the plaintiffs’ petition recites that the money in the fund has been entirely expended and therefore there is no money available. Under the authority of Jones v. Maumee, supra, and City of Dayton v. Vance, supra, this is an immaterial allegation. Moreover, Section 2293-10, General Code, makes provision for a transfer of the funds from one class to another under certain conditions which could prevail in this case, and therefore funds would be available.

The allegation that the county commissioners have not approved the design of the proposed building is not substantiated by the evidence, as, the record discloses that on April 2, 1946, the county commissioners approved the site selected by the trustees and on June 20, 1947, they approved the design for the building.

Lastly, it is claimed that the board of trustees has abused its discretion and is acting oppressively and in bad faith in appropriating the plaintiffs’ property, especially parcel No. 1, which is located at the western end of the site under consideration for condemnation; and that it is not needed for public purposes and therefore the defendants are not proceeding in good faith. Although there has been some change made in the design of the memorial site and buildings thereon, nevertheless it is still the opinion of the county authorities that the entire site is necessary for the purpose for which the condemnation proceedings have been instituted. The record discloses that parcel No. 1 will be used for driveway and parking purposes which are necessary to the proper usage of the memorial buildings and site. The board of county commissioners arid the board of trustees of the memorial fund have made their decision and have determined the necessity and extent of the property to be taken for this project. This constitutes an exercise of legislative authority and the subject is a question for legislative determination. There is no evidence of fraud, bad faith or abuse of discretion in the absence of which this court is powerless to act.

“* * * the necessity for the exercise of the power of eminent domain and the quantity of land necessary being a question for legislative determination, not reviewable by the courts, unless possibly where there has been a gross abuse of legislative discretion or manifest fraud.” Clendaniel v. Conrad, Judge, 3 Boyce, 549, 83 A., 1036.

In Sears, Trustee, v. City of Akron, 246 U. S., 242, 62 L. Ed., 688, 38 S. Ct., 245, Mr. Justice Brandéis, speaking for the court, said that it is well settled that, while the question of whether the purpose of the taking is a public one is judicial, the necessity for and proper extent of the taking is a legislative question. The rule thus announced is fundamental and has been in force and applied by the courts from time immemorial and under a variety of circumstances.

In giving consideration to the nature and purpose of the intended improvement this court cannot say that there has been an abuse of discretion in the selection of the amount of the property which the board of trustees seeks. The plat submitted shows a well proportioned and harmonious plan as to the actual structures and the necessary adjuncts, both from utilitarian and aesthetic viewpoints, which should have a material bearing on the question here involved.

It is our conclusion from the evidence and the facts submitted that the entire site which is contemplated to be used for the improvement is reasonably necessary and required for the purposes intended. On the issues joined this court finds in favor of the defendants and orders that the petition be dismissed at plaintiffs’ costs.

Petition dismissed.

Hornbeck and Wiseman, JJ., concur.