author: Phillips, J.

text:
    Bouslough et al., Appellees, v. Shingledecker, Appellant.
    (No. 3606
    Decided October 9, 1953.)

      Mr. Theodore R. Cubbison, for appellees.

      Messrs. Carlyle & Carlyle, for appellant.
   Phillips, J.

On October 1,1949, defendant, Shingledecker, and bis son-in-law, Nagel, a college student, part-time embalmer and real estate agent, entered into a contract in writing, which provided:

“This agreement made and entered into this first day of October, 1949, by and between H. L. Shingiedecker, 7219 Market St., Youngstown, Ohio and William E. Nagel, 407 West Liberty St., Hubbard, Ohio. Witnesseth
“Said H. L. Shingiedecker having conducted a construction business under the trade name of ‘Better Built Homes’ is to be considered the sole owner of the above trade name, and by this agreement hereby transfers and assigns to the said William E. Nagel the right to use said trade name in connection with .any residence or commercial construction done by him, and upon the termination of this agreement the said William E. Nagel agrees to reassign and retransfer all his right, title and interest to use said trade name of ‘Better Built Homes’ to the said H. L. Shingiedecker.
“The said William E. Nagel agrees to use the said trade name of ‘ Better Built Homes ’ exclusively in connection with any and all construction, either residence or commercial, advertising, banking and financing purposes during the life of this contract.
“Further, the said William E. Nagel agrees to and hereby engages and employs the said H. L. Shingiedecker as his exclusive sales representative for the duration of this agreement. Said employment is to be on the basis of a straight commission, based on one half the difference between the net construction cost, including office and advertising expense, and the sales price.
“The said William E. Nagel shall have the sole right to determine and set the sales price of each construction contract made and shall have full and complete charge of and shall assume sole responsibility of construction contracts entered into as well as of subcontractors and materialmen.
“The said H. L. Shingledecker shall turn over to the said William E. Nagel all moneys collected by him in connection with any and all sales for construction made by him. If so requested, the said William E. Nagel shall furnish to the said H. L. Shingledecker a full and complete itemized account of the net construction cost of each contract job, and who shall have the right to examine all records and books pertaining to any and all construction jobs, at all reasonable hours, with the understanding that any information obtained therefrom shall be treated in a confidential manner.
“The said H. L. Shingledecker shall be furnished with a key to any and all jobs under construction, for the purpose and right to show same to any prospects, in furtherance of his responsibility for making sales.
“It is the sole intention and purpose of this agreement to create a relationship of principal and agent. Neither principal or agent has any responsibility except as herein stated and provided.
“In witness whereof we have hereunto set our hands and seals this first day of October, 1949.
‘ ‘ Signed in the presence of:
Patricia Nagel William E. Nagel
Sara Ellen Shingledecker W. L. Shingledecker.” As the result of a meeting of plaintiffs and Nagel at the home of mutual friends on October 25, 1950, plaintiffs executed the following written agreement for the construction of a dwelling house:
“This agreement, made and entered into this 25 day of April 1950 by and between Emerson M. and Geraldine L. Bousiough, 3729 Erie St., the owner, and Better Built Homes, 1705 Market St., contractor.
“Witnesseth, that said contractor agrees to erect and complete said building; the work to be done in a good workmanlike manner; materials furnished according to plans and specifications, for the snm of ten thousand two hundred dollars ($10,200).
“Said owner hereby agrees to pay to the said contractor the above amount, payable as follows:
“$300 W. E. N. When the contract is signed.
$............When roof is on and completed.
$............ When plastering is completed.
$............ When all terms of contract are completed, and before owner takes possession.
“The owner hereby certifies that they is [sic] the owner of said land, free from all incumbrances, except none. If there is any increase, either in labor or material costs between the date of this contract and within ten days after the loan is approved, such increase shall be added to the above contract price.
“Under this contract the contractor agrees to install a maximum of fifty (50) feet of sewer, water and gas lines to a maximum depth of nine (9) feet. However, said sewer, water and gas lines must all be installed from either the front or rear of lot.
“If any rock is encountered in the excavation for the basement, sewer, water or gas lines, an extra charge will be made.
“An extra charge will be made for any trees to be removed.
“Any dirt necessary to be removed will be so done at the expense of the owner.
“The owner shall, during the progress of the work and until final settlement, maintain insurance on the same against loss or damage by tornado and fire; the policy to cover all work and material as furnished, and made payable to the owner, contractors and material-men as their interests may appear. The provisions of this contract shall be subject to the benefit of all materialmen and subcontractors whose claims are not paid when due, and if desired, the owner may require the contractor to furnish a complete release of all liens before final settlement.
“It is further agreed that said owner shall not be entitled to possession of said property until the entire contract price shall have been paid to said contractor, including all extras. Taking possession of building by owner shall constitute an acceptance of all the contractor’s obligations.
“The said parties for themselves, their heirs, successors, executors, administrators or assigns, do hereby agree to the full performance of the covenants herein contained.
“In witness whereof, the parties to these presents have hereunto set their hands and seals the day and year first above written.
“In the presence of: Emerson M. Bouslough
Owner Geraldine L. Bouslough Contractor Better Built Homes William E. Nagel.”

Plaintiffs paid $829.38 in excess of the stated contract price to complete the construction and obtain possession of such dwelling, for the recovery of which amount they sued Shingledecker and Nagel in the Court of Common Pleas.

Having been adjudicated a bankrupt, Nagel was dismissed as a party defendant in the trial court at the close of all the evidence.

The jury returned a verdict for plaintiffs for the amount prayed. The trial judge overruled the motion of Shingledecker for a new trial, and entered judgment for plaintiffs on the verdict of the jury, from which judgment Shingledecker appealed to this court on questions of law.

It is plaintiffs’ principal contention that Shingledecker and Nagel were partners doing business as Better Built Homes; that the contract to which reference is made was made with them as such; and that, accordingly, Shingledecker is liable as a partner for payment of the amount sought.

It is the contention of Shingledecker, in general, that he was Nagel’s employee as is shown by the evidence and stated terms of the contract executed by them, and that, accordingly, he is not liable for payment of the amount sought by plaintiffs.

In addition to the agreement executed by Shingledecker and Nagel, there is evidence that plaintiffs’ contract and all others were subject to approval by Nagel alone, in whose name, as well as that of Better Built Homes, all bank accounts were carried, and who alone signed all checks, procured all loans and did all financing in connection with construction by Better Built Homes, and who alone could bind Better Built Homes, in whose profits or losses Shingledecker, who never claimed a partnership, did not share, and whom there is no evidence Nagel represented to be a partner in Better Built Homes, notwithstanding any agreement between the parties intended to create such a relationship.

Likewise there is evidence that Shingledecker represented himself as a partner of Nagel and Nagel considered himself Shingledecker’s partner in Better Built Homes, for Nagel testified “it was my knowledge that we were sharing equally in business, that we were a partnership”; and that Shingledecker and Nagel each invested $500 in the project. Shingledecker contended that he gave Nagel the $500 he contributed as a gift, and that any profits would be divided equally. The jury had the right to consider the fact that Nagel and Shingledecker each contributed $500 to the enterprise known as Better Built Homes.

Competent evidence from which the jury might determine that a partnership existed between Nagei and Shingledecker appears in the record. Por a time the office of Better Bnilt Homes was in the home of Shingledecker, for which he neither received nor demanded any rent from Nagei. Subsequently, Better Built Homes acquired offices at 1705 Market Street, Youngstown, Ohio, where there were two desks, at least one of which, together with a typewriter, was owned by Shingledecker, and where contract forms supplied by him were found. There is evidence that Shingledecker figured the price estimates for the various building contracts, sold some of the houses, saw to the delivery or nondelivery of materials on the job, secured construction and permanent financing loans, and inquired as to the nondelivery of materials by Boardman Supply Company, claiming that company had promised him delivery thereof. There is evidence that he ordered employees of Better Built Homes to do or not to do material acts concerning their work, in one instance requiring a workman to remove studding and to enlarge the kitchen in one of the dwellings being constructed by Better Built Homes; and that when complaint was made to him about the fireplace in that home he told the mason about what could be done with the fireplace, and that it would have to be changed, and pursuant thereto the fireplace was rebuilt. Also there is evidence that he assumed authority to and did renegotiate contracts entered into by Better Built Homes, and in one instance agreed to pay a Mr. Buser the sum of $319.50 over and above the original contract price, Shingledecker initialing the change in the contract price; and that long prior to the time plaintiffs executed the contract to which reference has been made Shingledecker had discussed with plaintiffs the erection of a dwelling house.

In view of Nagel being adjudicated a bankrupt, we think the jury could properly find that the written agreement between him and his father-in-law, Shingledecker, was merely one whereby Shingledecker sought to leave the impression that he was not a partner when in fact he continued to remain such throughout the operations conducted by him and Nagel under the trade name of Better Built Homes.

In our opinion the evidence, which it is not necessary to detail at greater length, is such as to present a question for the determination of the jury as to the existence of a partnership between Shingledecker and Nagel; and we can not disturb the verdict of the jury and the judgment of the Court of Common Pleas on the ground they are against the manifest weight of the evidence or contrary to law in this respect.

The trial judge charged the jury in part as follows:

“A partnership is a contract of two or more competent persons to place their money, effects, labor and skill, or some or all of them, in lawful commerce or business, and to divide the profit and bear the loss in certain proportion. Each member of a partnership acting within the scope of the business of the partnership acts for all and is bound by the acts of all. Partners are joint principals in every partnership transaction, and each partner as a joint obligor is individually liable for the entire partnership obligation. Now that is a partnership and its obligations. The question you have, and you must bear this in mind: Do the facts here developed, as you find them from this evidence, show there was such a partnership at the time in question which included the defendant H. L. Shingledecker as one of its partners?
“To constitute a partnership in the name Better Built Homes as between H. L. Shingledecker and William E. Nagel as of April 25, 1950, the evidence must show by its greater weight that these persons were jointly interested in the business in which the contract of the plaintiffs was included, sharing the profits and the losses between them, and in which each had express or implied authority to bind the other. If that does appear by the greater weight of the evidence, that would render them each liable for any liabilities incurred on account of such business in connection with the contract with the plaintiff. If it does not appear, by the greater weight of the evidence, then your verdict would simply be for the defendant.
“The best considered and less objectionable test of partnership is that of a community of interest in the profits of a business or transaction as principal.
“But this test is valuable as a rule chiefly because it evinces a relationship between the parties, where each may reasonably be presumed to act for himself and as agent for the others, and to that extent establishes the fact that the liability was incurred on the authority of all so participating in the profits. Participation in the profits is not regarded as a rule so uniform and unrelenting as to be unjustly applied. The true test of a partnership is left to be that of the relation of the parties as principal and agent, and if you find from the evidence that the relation of principal and agent existed between the two defendants, that the one acted in the business for and on behalf of the other, by such acts they would have incurred a joint liability, and you may then find that a partnership existed between them.
“There can be no partnership between parties unless there is an agreement between them constituting the relation between them into a partnership entity. The contract may be an express one in writing containing all the terms and conditions thereof, or it may be partly in writing and partly by oral agreement entered into at the same time as the writing or after-wards. Or, like other contracts which the law does not require to be in writing, a contract of partnership may be proven by circumstantial evidence, that is, by showing acts and conduct of the parties from which the fact may be inferred that the parties have agreed to become partners. It must be made to appear from such acts and conduct of the parties that there was an agreement to share the profits as well as the losses of the business enterprise, both these elements being essential to constitute a partnership.
“Hence if parties engage in a joint business enterprise, each putting in labor or capital or both, with an agreement to share the profits and losses as such, and with implied or express authority of each to bind the other, such relation constitutes in law a partnership, whatever the parties may call themselves.”

With reference to this assigned ground of error, Shingledecker contends:

“The court’s charge completely ignored the provisions of the ‘Act’ in that under G. C., Sec. 8105-6 provides that the partners must be co-owners and under G. C., Sec. 8105-7, 4(b), the receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business, but no such inference shall be drawn if such profits were received in payment: (b) as wages of an employee * * *.
“Correct as may have been the trial court’s charge covering the law of partnership as it existed before the enactment of the Uniform Partnership Act, it was prejudicially erroneous in that it did not instruct the jury on those two important phases of the law as contained in the ‘Act,’ but left the matter entirely to speculation and conjecture.”

It is observed that in response to the question of the trial judge, “have I omitted anything or been in error, gentlemen?,” eonnsel for defendant responded, “nothing yonr honor.”

Viewing the charge of the trial judge in its entirety in the light of the facts presented, we reach the conclusion that the trial judge did not err to the prejudice of Shingledecker in the general charge in the respects urged.

The judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

Griffith, P. J., and Nichols, J., concur.


source: Caselaw Access Project

author: Skeel, J.

license: Public Domain

text:
    The State of Ohio, Appellee, v. Neal, Appellant.
    (No. 23020
    Decided February 10, 1954.)

      Mr. Frank T. Gullitan, prosecuting attorney, for appellee.

      Mr. W. J. Kraus, for appellant.
   Skeel, J.

This appeal comes to this court on questions of law from a judgment entered on a verdict of guilty of bribery to the first count of an indictment returned by the Grand Jury of Cuyahoga County. This defendant, with one Herbert D. Burmeister, was indicted for bribery on two counts. The first count of the indictment charged that the defendants solicited and received turkeys and money in the total sum of over $4,000 from one George B. Walker, corruptly, to influence them with respect to their official duties as police officers of the city of Cleveland in the enforcement of the laws and ordinances of the state of Ohio and the city of Cleveland dealing with the illegal possession and sale of narcotics.

After a careful consideration of the record this court heretofore affirmed the judgment of the trial court. This opinion has been written on defendant’s request for a rehearing which request was orally presented.

The record shows that Walker was engaged in the unlawful sale of narcotic drugs. Upon trial, the defendant, appellant herein, was found guilty under the first count of the indictment and not guilty under the second count, which last count charged bribery in soliciting and receiving money under similar circumstances from another narcotic peddler. Burmeister was found not guilty as to both counts.

The defendant sets forth 11 claims of error as the basis of this appeal.

The first claim is that the judgment is against the manifest weight of the evidence. The principal witness against the defendant was George B. Walker. The evidence shows that he is the one claimed to have paid the defendant money for police protection in carrying on his unlawful enterprise. The evidence shows that Walker was convicted three times on charges involving the illegal possession and sale of narcotics; that he is now under sentence to the Ohio Penitentiary, and is serving a five-year sentence in a federal penitentiary (Leavenworth) for unlawful trafficking in narcotics; and that his wife, daughter and son-in-law are now in Ohio penal institutions on like charges. There is also considerable testimony in the record of the good character of the defendant as a citizen and police officer. All this evidence was presented to the jury. Walker testified that he paid money to the defendant on many occasions to protect him in his unlawful endeavors. The defendant testified that these charges were absolutely false and untrue and related circumstances that tended to totally discredit the testimony of Walker. The jury heard all the evidence and observed the witnesses as they gave their testimony in open court. It is the law of this state that a defendant may be found guilty on the uncorroborated evidence of an accomplice. State v. Lehr, 97 Ohio St., 280, 119 N. E., 730.

Also, in the case of Allen v. State, 10 Ohio St., 287, the Supreme Court, in the fifth paragraph of the syllabus, said:

“While it is the duty of the court, in their discretion, to advise the jury not to convict of felony upon the testimony of an accomplice alone, without corroboration, there is no rule of law preventing a jury from convicting upon the uncorroborated testimony of an accomplice.”

The Lehr case, supra, which followed the Allen case was a prosecution for abortion, where the guilt of the accused was said to have been established by the uncorroborated evidence of the prosecutrix. The Court of Appeals reversed the conviction on that ground alone. The Supreme Court reversed the judgment of the Court of Appeals and affirmed the judgment of guilty entered by the Common Pleas Court, holding that the evidence was sufficient to justify the jury’s conclusion of guilty.

Prom a reading of the record, we cannot say that there was not sufficient evidence to justify the verdict. This ground of error must, therefore, be overruled.

The next claim of error relates to the sufficiency of the indictment. It is claimed that the failure to specifically charge intent on the part of Walker to unlawfully influence and corrupt the defendant in the discharge of his duties as a police officer and like intent on the part of the defendant in receiving money from Walker to corruptly influence him (the defendant) in his official duties makes the indictment insufficient to charge a crime. This question was first presented by a motion to quash and is again presented as a claim of error in this appeal. An examination of the indictment shows that it is drawn in the exact words of the statute defining bribery. No principle of law is more clearly established than that an indictment need be no more specific than the terms in which the crime is defined by the Legislature. We hold that the indictment is sufficient.

The third claim of error is that where two defendants are indicted for the same offense and one is found not guilty and the other guilty on the same evidence, the judgment of guilty as to one defendant is inconsistent. Such a claim need not be considered for the reason that the evidence as to each of the defendants in this case was not the same. Many times during the course of the trial the court was asked to and did instruct the jury that certain evidence then being received was to be considered only as to the defendant Neal and not as to the defendant Burmeister. Only twice, once as to certain turkeys, and once as to money to buy clothing of some kind, was the reverse true. There is a great deal of evidence which would in no way involve Burmeister unless a conspiracy was established. The cases which the defendant cites on this subject are good law but are not in point upon the record in this case. This claim of error must, therefore,, be overruled.

Claims five and six have to do with the fact that the first count of the indictment charges many acts of bribery, so that a general verdict of guilty is not sufficient because all the jurors may not have agreed as to defendant’s guilt on one or more of the several charges. That is, they may have joined in a verdict but each doing so based on different ones of the several and separate acts- complained of in the indictment. This question was decided in the case of State v. Nebe, 26 Ohio Law Abs., 581, by this court. The case of Stockwell v. State, 27 Ohio St., 563, relied on by defendant is not in point. There, the indictment charged but a single act of selling liquor on December 20, 1871, to one in the habit of getting intoxicated. The evidence showed many such occasions where the defendant could have been charged with like conduct in violation of the statute. The holding of the court was that only one act being charged in the indictment, the-prosecutor, upon motion at the end of the state’s case, must elect as to which of the many of the unlawful acts developed in the evidence he would rely upon for conviction. No such question is presented here. These claims of error are, therefore, overruled.

The next four claims of error are concerned with the court’s charge. We will first examine the charge with regard to the weight to be given the testimony of an accomplice presented in claim of error No. 6. It seems to be the position of the defendant that the court should have instructed the jury that unless there is some corroborating evidence or circumstance supporting the testimony of an accomplice the jury could not return a verdict of guilty. This is not the law.

On this question the court charged the jury as follows :

“In weighing the evidence of an accomplice, the jury may require the corroboration of the testimony of other witnesses or facts and circumstances in the case. Evidence of an accomplice should be very cautiously received and closely scrutinized by you, together with, and in the light of other evidence in the case, but when the evidence of an accomplice is found to be worthy of belief on your part, you may then believe it and give it such weight as you find it to be entitled to in your sound judgment.”

The court, as a part of its charge, also charged fully on the presumption of innocence, the burden and degree of proof, and the obligation or duty of the jury to determine the weight and credit to be given to the testimony of all the witnesses, when considered in the light of the surrounding circumstances, whether the witness had been contradicted or had previously committed perjury or made contradictory statements and also after taking into consideration the witness’s criminal record, if any. The court wab careful to draw the attention of the jury to the need for great care in coming to its conclusions of fact, particularly where considering and weighing the evidence of an accomplice.

The Supreme Court of Ohio has dealt with this subject on a number of occasions. In the case of Allen v. State, supra, at page 304, the court said:

“The degree of credit which ought to be given to the testimony of an accomplice, is a matter exclusively for the consideration of the jury. In most cases it is highly important that the jury should require his testimony to be corroborated by other evidence or circumstances, rather than to convict upon his unsupported testimony. Indeed, it can very rarely be expected that the testimony of an accomplice, admitting his own depravity and turpitude in the matter, would be sufficient to overcome all reasonable doubts and presumptions in favor of the accused. But it is said there is no rule of law requiring of the jury a refusal to convict upon the uncorroborated testimony of an accomplice. This doctrine is distinctly laid down by Greenleaf, in his Treatise on Evidence, Vol. 1, Sec. 380; but he adds that ‘judges, in their discretion, will advise a jury not to convict of felony, upon the testimony of an accomplice alone, and without corroboration. And it is now so generally the practice to give them such advice, that its omission would be regarded as an omission of duty on the part of the judge.’ The court gave this usual caution to the jury; and the evidence set forth in the record, does not show that that advice of the court was disregarded.”

In the case of State v. Reichert, 111 Ohio St., 698, 146 N. E., 386, the court, after referring with approval to the cases of State v. Robinson, 83 Ohio St., 136, 93 N. E., 623, and State v. Lehr, supra, said on page 705:

“The rule of the Allen case, as appears in the fifth paragraph of its syllabus, is quoted with approval, and is commented upon as sound and salutary law, and the court in the Lehr case, on page 282 (119 N. E., 731) of the per curiam, adds:
“ ‘Under this doctrine it is immaterial as to whether there was or was not corroborating evidence. ’
“Other citations of lower courts in Ohio might be given, but the rule of the Allen case is recognized by text-writers, as well as courts of last resort in other states. In Jones on Evidence, Civil Cases (3 Ed.) Section 769, it is said:
“ ‘Since the testimony of accomplices is competent, and since the jury are to judge of the credibility of witnesses, it logically follows that a defendant may be convicted upon the unsupported evidence of an accomplice. Although the jury ought not to convict upon such testimony without corroboration their verdict will not be set aside.
“ ‘Owing to the fact that witnesses of this character are often subjected to strong temptation to shift, the burden of guilt upon the defendant it has long been a rule of practice in criminal trials for the court to charge the jury that they should not convict the prisoner upon the uncorroborated testimony of an accomplice. But, although it might ordinarily be regarded as an omission of duty for the judge to neglect to so instruct the jury, yet the decisions are to the effect that his refusal so to do is not reversible error, as the matter lies in the discretion of the judge. The instruction relates to the value or weight of the testimony and does not withdraw the case from the jury. The questions of fact are l'or their determination. ’ ’ ’

See, also, 22 Corpus Juris Secundum, 1388, Section 810.

It should be noted that the Legislature of Ohio has provided that corroborating evidence is necessary in the trial of persons charged with treason (Section 2945.60,- Revised Code); perjury (Section 2945.62, Revised Code); and seduction of a pupil (Section 2945. 63, Revised Code). No such provision is to be found in the Revised Code dealing with the crime of bribery.

In the case of State v. Betsall, 11 W. Va., 703, the court after an exhaustive study of the English and American cases on the legality of convicting a defendant on the uncorroborated testimony of an accomplice, held in the eighth, ninth and tenth paragraphs of the syllabus:

“8. The testimony of an accomplice is competent.
“9. A conviction may be had upon the uncorroborated testimony of an accomplice; and in such case, if the judge who presided at the trial is satisfied with the verdict, and refuses to set it aside, the appellate court will not reverse the judgment and set aside the verdict, on the ground that it rested solely on the uncorroborated testimony of an accomplice.
“10. While such testimony is suspicious, and emanates from a bad source, yet the jury may believe it, although it is wholly uncorroborated; and in this state it is not proper for the court to give any instructions to the jury as to the weight of such, or any other evidence. ’ ’

It certainly must be an unusual circumstance that would require a court to charge a jury that it cannot convict one charged with felony on the uncorroborated testimony of an accomplice and then to hold that the jury may disregard the instruction and return a verdict of guilty on such uncorroborated evidence, as is held in the case of Allen v. State, supra, in the ninth paragraph of the syllabus.

The claim of the defendant that he was found guilty on the uncorroborated evidence of an accomplice, Walker, must be considered under this assignment of error. Such claim is not supported by the record. There is a great deal of evidence which the jury might have concluded gave support to Walker’s testimony. There was evidence tending to establish a similar offense, admissible under Section 2945.59, Revised Code. Also, the fact that Walker was able to continue in his unlawful enterprise from August, when he completed his sentence in county jail, until December, when he was arrested by other officers, during all which time the defendant was on the narcotic squad and making visits to Walker’s place of business, and the question asked by inspector McArthur as to whether Walker was paying off this defendant, might have been considered. The appearance and conduct of the accused on the witness stand may have also, in the judgment of the jury, given support to the state’s case, as might have been true of the fact that every case in which Walker acted as an informer on other narcotic peddlers, upon the arrest of such peddler, such peddler was found guilty.

In considering this question, the court in State v. Lehr, supra, said on page 282:

“The jury in the instant case were so instructed. They did convict. Under this doctrine it is immaterial as to whether there was or was not corroborating evidence. But the record does disclose corroborating evidence, particularly that of Frank W. Wood, and for aught that we may know there may have been further corroborating evidence in the appearance, manner and conduct of the accused himself upon the witness stand.”

We must conclude, therefore, that assignment of error No. 6 must be overruled, to which we should add that the court having treated the subject of the weight to be given the evidence of an accomplice, if the defendant desired any further instructions on this question, he should have made such request. This he did not do.

Assignment of error No. 7 has to do with the court’s charge on conspiracy. It is here claimed in part that the theory of the state is that the defendant was guilty of the acts of accepting bribes through the acts of his codefendant as a coconspirator, and that, therefore, the jury should have been told that this could be so only if a conspiracy is established. The direct answer to this claim is to be found in the fact that the other defendant wás found not guilty,, so that the jury must have found that no conspiracy was established. If there was a failure to charge as claimed by the defendant, it could not, under the circumstances, be prejudicial to this defendant’s rights. We have examined the charge on conspiracy and find it complete on all questions presented by the record. This claim of error must be overruled.

It is claimed next by the defendant that the court was in error in charging that the jury could find the the defendant guilty by himself without charging that such result was possible only as the result of his own unlawful conduct and not as to the acts shown to have been committed by a codefendant where the evidence fails to establish a . conspiracy. The court’s charge was complete on the subject of conspiracy and, also, on the individual liability of each defendant for his separate acts in which the other did not join. The court told the jury that each defendant was entitled to have his guilt or innocence determined separately if a conspiracy was not shown. This subject was fully covered by the court’s charge and we find no error prejudicial to this defendant under this claim.

Assignment of error No. 9 involves many isolated parts of the charge having to do with repeating certain subjects, the failure to charge intent as one of the elements of the crime, and with regard to the consideration to be given to character evidence.

On the subject of intent, the court said in part:

“I say to you, as a matter of law, applicable to this case, that whatever was solicited or accepted with the intent to influence either one or both of these defendants in the discharge of his official duties as a police officer, involved the question of intent. Intent is an essential element of the crime charged and must be proved by evidence beyond a reasonable doubt. In criminal law, purpose and intent is a state of mind. It involves the operation of the human mind. It is, therefore, shielded from the sight of one’s fellow beings and cannot be seen. The existence or absence of intent can, therefore, be determined only by the spoken word or the acts' or actions of the person charged with having such intent. In determining the question of intent, you must therefore take into consideration all of the facts and circumstances connected with these various transactions and surrounding them and appearing thereunder at the time of the particular transaction and from every fact and circumstance which appears in the evidence you will decide the question of intent. You will bear in mind that everyone is presumed to intend the natural and probable consequences of his voluntary acts unless a contrary intent is made to appear from the evidence. ’ ’

The claim that the subject of intent was not covered must, therefore, be overruled.

The only remaining complaint of the defendant under this assignment of error has to do with the following part of the charge:

“It is also the privilege of the accused to put his character and reputation in evidence or not, as he chooses. Both of these defendants have done so, and have offered evidence tending to show a reputation for honesty and probity, and this each has done in order to raise the presumption of innocence as evidenced by his good character and reputation since it is not probable that a person of known probity and honesty would commit a crime of this character. I can only add the general rule that as against guilt clearly proven, good character will not avail to acquit. Evidence of this kind is to go to the jury, however, and its weight and effect is to be determined by you in connection with all of the other facts and circumstances which were given to you in the case and to aid and assist you in arriving at the question of the guilt or innocence as to either one or both of these defendants.”

It is the claim of the defendant that this part of the charge took completely from the jury a proper consideration of his character evidence. Such a conclusion cannot be supported. The text of this part of the charge leaves entirely to the consideration of the jury all the evidence including that known as character evidence, instructing it, to come to whatever conclusion is justified under the circumstances and the law with a solemn reminder that as to guilt clearly established, good character will not avail to acquit. This is the same as saying, “if you have no doubt whatever of the defendant’s guilt, after considering all the evidence, character evidence should not set him free from such criminal conduct clearly established. ’ ’ The charge here given was not prejudicial to the rights of defendant.

The court did not, by this charge, take from the jury the right to consider the character evidence with all the other evidence in determining the question of defendant’s guilt or innocence. In fact, the court told the jury to give full consideration to all the evidence, including character evidence, in coming to its verdict. The defendant has cited the case of Harrington v. State, 19 Ohio St., 264. In that case, the court, in effect, instructed the jury that character evidence was entitled to less weight where the charge was one of great and atrocious criminality than upon accusations of a lower grade. Such a charge was of course disapproved. But the court, on page 269, said:

“The true rule was said to be, ‘that the testimony [character evidence] is to go to the jury, and be considered by them in connection with all the other facts and circumstances; and if they believe the accused to be guilty, they must so find, notwithstanding his good character.’ ”

Stewart v. State, 22 Ohio St., 477, is cited also. In that case, the defendant was charged with subornation of perjury. The law of the case on the question of character evidence and its use in criminal cases is set forth in the fourth paragraph of the syllabus as follows:

“In a criminal case it is error to instruct the jury that evidence of the defendant’s good character is not to be considered by the jury, or made available to the the defendant, except in doubtful cases; the true and proper rule being to leave the weight and hearing of such evidence to the jury.”

The charge there being considered is set forth on page 480 and in effect says that character evidence may be considered in doubtful cases where the charge is of such a nature as to involve character. It is, therefore, clear that this case is not in point on the charge now before us on the subject of character evidence.

The tenth assignment of error is in substance the same as assignment of error No. 3 which has already been considered.

The last assignment of error has to do with the refusal of the court to grant a new trial on newly discovered evidence. The sole question is whether the court abused its discretion by refusing a new trial upon the strength of such evidence, since the evidence offered as “newly discovered” was such as would, if believed, tend to impeach the testimony of Walker. The court held that in its judgment, considering all the “newly discovered evidence,” if such evidence had been offered at the trial it would have supported the verdict, rather than require a verdict of not guilty. We cannot say that in so holding the court abused its discretion.

(Decided March 17, 1954.)

No one can help having a feeling of concern where one who as an officer of the law has an unblemished record in the service, a service to which great respect must be given, is found guilty of conduct which strikes at the very heart of law enforcement. But where the facts and surrounding circumstances are fairly presented to a jury in a court of law, presided over by a judge of recognized ability, and where all the safeguards that the Constitution provides for one charged with crime have been made available to defendant, and upon trial the jury returns a verdict of guilty, a reviewing court has no authority to disturb such verdict unless reversible error has intervened during the trial or unless it clearly appears that substantial justice has not been done.

The record in this case shows that a fair legal trial was had, and the motion for rehearing is overruled.

Motion overruled.

Hurd, P. J., and Kovachy, J., concur.

On Motion to certify.

Per Curiam. The defendant, by his motion filed February 24, 1954, seeks an order of this court certifying this canse to the Supreme Court on the ground of conflict, as is provided by Section 6, Article JTV of the Constitution of Ohio, as amended September 3, 1912, which in part, reads:

“* * * and whenever the judges pf a Court of Appeals find that a judgment upon which they have agreed is in conflict with a judgment pronounced upon the same question by any other Court of Appeals of this state, the judges shall certify the record of the case to the Supreme Court for review and final determination. ’ ’

. It is the claim of the defendant that the decision of this court is in conflict with a decision of the Circuit Court of the First Circuit, decided in 1896, and styled Donaldson v. State, 10 C. C., 613, 5 C. D., 98.

This court is without authority to certify for a claimed conflict with the decision of a Circuit Court. Circuit Courts came into being by reason of an amendment of Sections 1 and 6 of Article IV of the Constitution of Ohio, on October 8, 1883. The jurisdiction in error proceedings of the Circuit Courts is provided for by Section 12247 et seq., General Code. Such jurisdiction is not in all respects the same as is now provided for the Court of Appeals. No provision is made for certifying conflicts under the constitutional provisions creating the Circuit Court, and no such authority was provided by statute.

The Court of Appeals was created as the successor to the Circuit Court by amendment of Sections 1 and 6 of Article IV of the Constitution on September 3, 1912. The above quoted portion of Section 6 as it now appears in Article IV of the Constitution refers only to conflicts between decisions of the Courts of Appeals and does not include conflicts between decisions of Courts of Appeals and Circuit Courts as created by the amendment of 1883.

Even if this were not so, we cannot find the decision of the Donaldson case, supra, is in conflict with the decision of this court in the case now being considered. The claimed conflict has to do with the charge on character evidence. In the Donaldson case, supra, the court said in its charge:

“Evidence of good character is to be taken into account by you like all other evidence introduced into the case. If the evidence leaves it doubtful in your mind as to whether the defendant is'guilty, the fact that he is a man of good character should turn the scale in his favor; but if the evidence, outside of the evidence as to character, satisfies you beyond a reasonable doubt that the defendant is guilty, you should not acquit him simply because he is a man of good character.”

The court held this charge erroneous on the authority of Harrington v. State, 19 Ohio St., 264, and Stewart v. State, 22 Ohio St., 477. It is to be noted that this charge suggests that if the defendant is shown to be guilty by the proper degree of proof without considering the character evidence then good character will not avail to acquit.

The court said on page 616:

“The next paragraph of the charge given in this case, as it seems to us, still seems to go upon the idea that the evidence as to good character is to be considered as separate and apart from the other evidence in the case, for the judge says: ‘if the evidence, outside of the evidence as to character, satisfies you beyond a reasonable doubt that the defendant is guilty, you should not acquit him simply because he is a man of good character.’ But the evidence outside of that as to character should not be considered alone. The whole testimony should be looked at together, and if on a fair consideration of the whole of it, a reasonable doubt of the defendant’s guilt exists, it should go to his acquittal. But if on the whole evidence there is no such reasonable doubt of his guilt, the jury should so find, notwithstanding the proof as to good character. ’ ’

The charge in the case now before us on the subject of character evidence does not take from the jury the right to consider the character evidence in determining the guilt or innocence of the defendant. The jury was told to consider all the evidence, including character evidence, in coming to its verdict, but if after considering all the evidence it concludes that his guilt has been established beyond a reasonable doubt, the fact that there is evidence of good character should not avail to acquit. This part of the charge was as follows:

“It is also the privilege of the accused to put his character and reputation in evidence or not, as he chooses. Both of these defendants have done so, and have offered evidence tending to show a reputation for honesty and probity, and this each has done in order to raise the presumption of innocence as evidenced by his good character and reputation since it is not probable that a person of known probity and honesty would commit a crime of this character. I can only add the general rule that as against guilt clearly proven, good character will not avail to acquit. Evidence of this kind is to go to the jury, however, and its weight and effect is to be determined by you in connection with all of the other facts and circumstances which were given to you in the case and to aid and assist you in arriving at the question of the guilt or innocence as to either one or both of these defendants.”

We find no conflict between these decisions.

The other claim, of conflict is with the case of Bixler v. State, reported in 18 Ohio Law Abs., 117. In that case, Judge Lynch, speaking for the court, said on page 121:

“After a careful study and analysis of the testimony in this case we are unable to find sufficient evidence in the record to prove the guilt of the defendant beyond a reasonable doubt. In other words, we find that the judgment in this case is manifestly against the weight of the evidence. Having reached this conclusion, it is unnecessary to refer to the other grounds set forth in the petition in error.”

It is to be seen, therefore, that this decision is based solely on the weight of the evidence and on no question or principle of law. As a matter of course, therefore, there can be no conflict within the meaning of Section 6, Article IV, supra.

For the foregoing reasons, the motion to certify must be overruled.

Motion overruled.

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


author: Ross, J.

text:
    Wisdon, Appellee, v. Wisdon, Appellant.
    (No. 7923
    Decided July 12, 1954.)

      Mr. David C. Toung, for appellee.

      Mr. Harry Falk, for appellant.
   Ross, J.

The appeal herein upon questions of law, to which a motion to dismiss has been addressed, ts from an order of the Court of Common Pleas, Division of Domestic Relations, granting alimony pendente lite and an order overruling a motion for rehearing.

The basis for the motion to dismiss the appeal is that the orders appealed from are not final orders. It has been held that an order for alimony pendente lite is not a final order. McMahon v. McMahon, 156 Ohio St., 280, 102 N. E. (2d), 252.

It is claimed by defendant that such an order may not be made if the marriage of the parties is disputed. Certainly, this would be a triable issue, and the order may be made pending the trial.

If the motion for rehearing may be stamped with the status of a motion for new trial, which we do not hold, no abuse of discretion appears in the overruling of the motion, which is a necessary precedent to a consideration of the order of the court on appeal.

The motion to dismiss the appeal is granted.

Motion granted.

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


author: Matthews, P. J.

text:
    Bernhard et al., Appellants, v. O’Brien, Treas., et al., Appellees.
    (No. 7809
    Decided December 21, 1953.)

      Messrs. Paxton & Seasongood, for appellants.

      Mr. Henry M. Bruestle, city solicitor, and Miss Isabel Guy, for appellee city of Cincinnati.

      Mr. C. Watson Hover, prosecuting attorney, and Mr. Carl B. Rubin, for appellees auditor and treasurer of Hamilton County.
   Matthews, P. J.

The plaintiffs seek to enjoin the enforcement of a lien against their property to secure a sewer assessment in the amount of $195.06 and a street assessment of $473.60, levied by the city of Cincinnati. The original defendants were the county treasurer and the county auditor. Later, on its application, to which no objection was made, the city of Cincinnati was made a party defendant. All defendants filed answers.

The cause was submitted to the Common Pleas Court on the pleadings and an agreed statement of facts. That court found for the defendants and entered judgment in their favor, dissolving the temporary restraining order theretofore granted and dismissing the action at the plaintiffs’ costs. It is from that judgment that this appeal on questions of law was taken.

The essential facts as shown by the pleadings and agreed statement are:

In 1930 and 1931, the city of Cincinnati levied two special assessments against the real estate known as 3117 Roosevelt Avenue, Cincinnati, Ohio, of which the plaintiffs are the present owners, to pay a part of the cost of constructing a sewer and improving the street upon which it abutted. The assessments not having been paid, they were duly certified to the county auditor pursuant to Section 3905, General Code (Section 727.60, Revised Code). The sewer assessment totaling $673.60, was payable in ten equal annual installments, and, the time in which to pay in cash expiring, they were duly certified to the county auditor.

On February 15, 1932, the. owners of the property at that time commenced an action in the Court of Common Pleas of Hamilton County, Ohio, praying for an injunction against the collection of these assessments. A temporary restraining order was granted and this was made permanent on final hearing, and the county auditor in compliance therewith removed the assessment installments then due from the current tax duplicate, but continued to carry them on a tax list card upon which data relating to said property was noted, one of the notations being: “Temporarily enjoined in Case A-30807.” No change was made in this notation at any time.

On appeal, the Court of Appeals dissolved the injunction and on February 9, 1934, entered a judgment ordering a total reduction of $200 in the assessments, “said deduction to be ratably made from each of the several unpaid installments, and the collection of which amount deducted is hereby permanently enjoined.” The cause was remanded to the Court of Common Pleas for execution.. For some reason, not disclosed by the record, no notice was taken of this judgment until 1952 when they placed charges against this property on the tax duplicate of 1951, based on these assessments.

In October 1943, an action in partition was instituted by an heir of the owners at the time of the levy of the assessment against the other heirs. The county auditor and county treasurer were made parties to this action and both filed answers and prayed that if the land be sold, their rights be protected and that the amount of the taxes and assessments be paid before any other claims. On April 4, 1944, a decree in partition was entered and on June 2,1944, the property was ordered sold. On August 14, 1944, the sale to John Kaldy for $1,010 was confirmed and the sheriff ordered to convey the premises to the purchaser. The decree of distribution ordered the payment of $295.81 to the county treasurer, “being the taxes and penalties due .on said premises.” The balance was distributed to the clerk of courts as costs and to the owners according to their interest in the property. The amount ordered paid to the treasurer was accepted by him.

John Kaldy, the purchaser at the sheriff’s sale, conveyed the premises to his wife, Frances Kaldy, by deed dated August 22,1944, and Frances Kaldy and her husband conveyed the premises by warranty deed to Vincent Kroeger on January 5, 1950, and he, together with his wife, conveyed the premises to Elmer E. Bernhard and Martha E. Bernhard, the plaintiffs in this action, by warranty deed, dated October 10, 1950.

. From this statement, it can be seen that the last installment of the sewer assessment became dne in 1934, and the last installment of the street assessment became due in 1939. All prior unpaid installments were delinquent at that time.

And it ean also be seen that it presents questions of statutory construction and the legal effect, if any, of the partition proceeding. We shall begin with a consideration of the matter of statutory construction.

It is the contention of the appellees that these assessments, notwithstanding the removal of the past due installments from the current tax duplicate in 1932 and their nonappearance on any subsequent duplicate until 1952, were, nevertheless, on the duplicate as that term is used in the statutes. It is their claim that this results from the fact that during all these years these assessments were noted on a so-called “tax list card” maintained by the auditor in his office. It is not claimed that the auditor delivered a similar “tax list card” to the county treasurer. This “tax list card” is not described in the record in any way. To have the effect claimed for it, it is necessary to assume that it is a part of a document conforming to the statutory requirements of the “general tax list and general duplicate,” as prescribed by Sections 2583 and 2594, General Code. In Section 2583, General Code (Section 319.28, Revised Code) the Legislature first takes notice of the fact that there. are several taxing districts within the county — township, city, village, and school districts — and imposes upon the auditor the duty of compiling separate duplicate lists of the names of the owners of real estate and public utilities subject to tax in each taxing district and then enacts that “on or before the first Monday in September of each year, the county auditor shall correct such lists in accordance with the additions and deductions ordered by the Tax Commission of Ohio, and by the county board of revision, and shall certify and on the first day of October deliver one copy thereof to the county treasurer. The copies prepared by the county auditor shall constitute the auditor’s general tax list and treasurer’s general duplicate of real and public utility property for the current year.”

It requires the application of no technical rules of interpretation to determine the legislative intent in this enactment. The law authorizes two general county-wide tax lists and no more. One is retained by the auditor and one is delivered to the treasurer. The one retained by the auditor is given the name of ‘ ‘ general tax list” and the one delivered to the treasurer the name of “general duplicate” of real and public utility property.

By Section 25-94, General Code (Section 319.41, Revised Code), provision is made for taxes for the current year to be divided into halves and listed in two separate columns with sufficient blank space to the light of each column in which to write the word, “paid,” and it is then provided that “the Auditor of State may prescribe such other forms for tax lists and duplicates as seem proper to him in order to produce uniformity throughout the state, and county auditors shall conform thereto.” We do not glean from this language any intent to authorize the Auditor of State to increase the number of official tax lists and duplicates. The intent seems to be to give the auditor control of the form only of the two lists which the Legislature had authorized the county auditors to prepare. In any event, we are not advised that the Auditor of State has attempted to authorize additional tax lists.

Appellees’ counsel urge that other sections indicate that additional tax lists are contemplated. Sections 5713.01 and 5713.20, Revised Code (Sections 5548 and 5573, General Code), are cited to support this contention. We do not think they do so. It is true that they refer to “the tax list” but as we view it, those references are to the “general tax list” retained by the auditor, which is identical with the “general duplicate ’ ’ delivered by him to the treasurer.

It should also be said that the language in Section 3892, General Code (Section 727.51, Revised Code), does not seem to justify the placing of unmatured assessments on a tax list of any sort. That section requires the clerk of council to certify the assessment to the auditor, ‘ ‘ stating the amounts and the time of payment,” and then the auditor is required to place the assessment upon the tax list “in accordance therewith.” It seems to us that the import of this is that the auditor is supposed to have recourse to the municipal certificate to find out what installment should be placed on the current tax list and duplicate.

Appellees’ counsel also urge against that conclusion that when the municipality certified these assessments to the county auditor for collection only one installment could be placed on the next duplicate for collection, and this indicates that the law contemplates many tax lists, as not only the installments which appear on the duplicate but all unmatured installments are liens. The force of this argument is dissipated when consideration is taken of the fact that as long as one installment appears on the duplicate it is notice that there are or may be other installments which are not yet due. Furthermore, assessments are liens as soon as levied, before certification (Section 3897, General Code [Section 727.55, Revised Code]), requiring an examination of the records of the assessing authority by anyone interested, and this examination would disclose the full extent of the assessment.

So we conclude that these assessments did not appear on the tax duplicate from 1932 to 1952. When they appeared on the duplicate in 1952, they must be considered as taxes or assessments that had been • omitted from the duplicates of the intervening years.

The next question the record presents, and which was argued, is the effect of the lapse of almost 20 years, during which no installment of these assessments appeared on any current duplicate. On the one hand, it is urged that lapse of time — no matter how long — does not have any effect upon the lien, and various sections of the statutes are cited to support that contention. One is Section 3906, General Code (Section 727.61, Revised Code), which provides that unless the assessment is certified to the county auditor within two years from the date it became due, or action is filed to enforce it, it shall cease to be a hen, but if it is certified or action is commenced, then “the lien shall continue in force so long as the assessment remains on the tax list uncollected, or so long as the action is pending, and any judgment obtained, under and by virtue thereof, remains in force and unsatisfied. ’ ’ The other sections relied on relate to sales by the county auditor and county treasurer (Section 5719, General Code [Section 5721.19, Revised Code]; Sections 2667 and 2668, General Code [Section 323.25, Revised Code]), and it is provided that, in actions to enforce the hen, “no statute of limitations shall apply to such actions. ’ ’

When we analyze these sections (3906, 5719, 2667 and 2668) and related sections we find their operation to be dependent upon the tax or assessment having appeared on the tax list. By express language the hen is created to secure the charges that are found on the “tax list,” including any unmatured assessment disclosed by the existence of a matured installment on the duplicate. The tax or assessment must appear on the current duplicate before it can be placed on the forfeiture list and duplicate and these actions by the auditor and treasurer follow these listings, and their authority to proceed is wholly dependent upon such listings having taken place. These sections continue the lien so long as the tax or assessment is on either the current or general tax list and duplicate or the current forfeiture duplicate without any limitation as to time. The sections so provide. They have nothing to do with taxes and assessments that have not been placed on, or have been removed from the tax list and duplicate.

It should be said that at the time of the filing of this action neither the auditor nor treasurer had taken any action to enforce the collection of the charges which the auditor had placed on the duplicate in 1951. The auditor had discovered that these assessments had been omitted, and being under advice that it was his duty to correct the omission, proceeded to do so. This action challenges his right and duty in that regard. The non-enforceability of the assessments follows as a consequence only.

The appellants, on the other hand, take the position which we have indicated already we believe to be the correct one, that the lawful presence of these assessments upon the 1952 duplicate is dependent solely upon the authority of the auditor to place them there, and that as they had not appeared on any duplicate for more than five years, his authority had expired. This results from the provisions of Section 2593, General Code (Section 319.40, Revised Code). That section reads as follows: “When the county auditor is satisfied that lots or lands on the tax list or duplicate have not been charged with either the county, township, village, city, or school district tax, he shall charge against it all such omitted tax for the preceding years, not exceeding five years unless in the meantime such lots or lands have changed ownership, in which case only the taxes chargeable since the last change of ownership shall be so charged.”

The same limitation upon the authority of the auditor is placed by Section 5573, General Code (Section 5713.20, Revised Code), to place omitted buildings and other structures upon the tax list. And the same five-year limitation on his authority to make refunds is imposed by Section 2590, General Code (Section 319. 37, Revised Code).

It seems to us clear that the authority to place these assessments had long since expired when the county auditor assumed to place them upon the duplicate, both because of the lapse of more than five years and because of the transfer of ownership, and that their enforcement should be enjoined.

We would be content to rest our decision on what we have said thus far, but as the record presents the question of the sale of these premises in the partition case, we believe we should give that matter some consideration.

At the time (1932) the partition action was filed, Section 5692, General Code (Section 5719.25, Revised Code), provided for the payment of taxes, penalties and interest thereon out of the proceeds'of any sale in partition, but made no provision for the payment of assessments. This section was amended effective September 2, 1935, by interpolating after “penalties” the words, “assessments then due.” However, as this amendment relates to the remedy, it had no effect upon the partition action that was pending at the time. Section 26, General Code (Section 1.20, Revised Code).

The same situation prevailed at the time the case of Hilling v. City of Cincinnati, 54 Ohio App., 293, 7 N. E. (2d), 1, was filed. The amendment was enacted during the pendency of that action to foreclose a mortgage, in which action the property was sold. The effect of the amendment was not discussed. Whether that resulted from oversight, or from an agreement that it could have no effect upon the action, does not appear.

We still believe the reasoning in Hilling v. City of Cincinnati, supra, is sound and applicable with equal force to the facts of the case at bar. We quote the syllabus of that case as it sets forth the substance of our holding:

“1. A mortgagee in a foreclosure action who acquires title by virtue of a sheriff’s deed succeeds to all the rights and holds the property free and clear of all claims of all parties to the action. Thus, a municipality having been made a party to the action and having failed to answer will be enjoined from asserting a lien for a- street assessment on the property.
“2. A municipality, by certifying a street assessment to the county auditor and county treasurer for collection, constitutes them its agents or representatives so that a judgment rendered against them will bind the municipality although it was not a party by name. ’ ’

In holding that a sale in an action to which the municipality was a party conveyed a title free of assessments imposed by it, we followed the Supreme Court decision of City of Cincinnati v. Sterritt, Assignee, 57 Ohio St., 654, 50 N. E., 1128, in which the court affirmed the judgment “upon the grounds stated by the majority in the Circuit Court in this case, 13 O. C. C. Rep., 334.” The substance of the majority opinion there approved by the Supreme Court is stated in the syllabus, to wit:

“A city, after having been made a party in a foreclosure proceeding, and required to file its answer and cross-petition, and having done so, bnt fails to set np any alley assessment, is barred in a direct action to enjoin the collection of the alley assessment.”

At the time this court decided the Hilling case, we thought we were applying the fundamental rule that a sheriff’s deed conveyed the title it purported to convey of all the parties to the action just as though they had all joined in a quit claim deed to the purchaser.

The only point in the Hilling case not adjudicated in the City of Cincinnati v. Sterritt case was whether the fact that the city had certified the assessments to the county auditor for collection and he and the county treasurer were the parties to the action was a difference requiring a different decision. We concluded that the county auditor and county treasurer represented the City of Cincinnati in the litigation, and that they were all bound by the action taken therein.

It was our conclusion in that case that the county auditor and county treasurer represent the municipality after certification of the assessment for collection that is disputed in this action. It is said that later cases at least cast a doubt as to the correctness of that conclusion. While we adhere to our conclusion on this subject, the cases cited justify a reconsideration.

Section 3905, General Code (Section 727.60, Revised Code), provides that after an assessment is certified to the county auditor it “shall * * * be collected with and in the same manner as state and county taxes.” The Supreme Court construed this provision in Central Ohio Rd. Co. v. City of Bellaire, 67 Ohio St., 297, 65 N. E., 1007, and held that it conferred upon the county treasurer the exclusive right of action for the collection of such assessment.

The conclusion that the legislative intent was to make the county treasurer the representative of the municipality in actions to collect assessments is made doubly clear, it seems to us, by the provisions found in Section 3892, General Code (Section 727.51, Revised Code), that, “the city solicitor or the regular and authorized legal representative of any such municipality is hereby authorized and directed to act as attorney for the county treasurer in actions” brought to enforce payment of assessments.

Appellees’ counsel assert that all the cases subsequent to the “Hilling case hold the lien of taxes and assessments is not set aside by a judicial sale when the decree in the judicial sale does not result in actual payment of the taxes or assessments.” We would amend that statement. None of the later cases so hold. Only, however, a casual reading seems to so hold, but when read more carefully the cases are found not to do so. All the cases relied on to sustain their conclusion hold just the contrary. The case that seems to support their position is Canton Bank & Trust Co. v. M. M. Smith-Martindale Co., 62 Ohio App., 550, 24 N. E. (2d), 836. The court, in that case relied on the case of Grafton v. Mong, Aud., 134 Ohio St., 416, 17 N. E. (2d), 649 (60 Ohio App., 228, 20 N. E. [2d], 722), quoting with approval from the opinions of the Supreme Court and the Court of Appeals. Grafton v. Mong, Aud., was an action against the county auditor and county treasurer to quiet title against a claim for taxes assessed against the plaintiff’s property. The trial court sustained a demurrer to the petition and the plaintiff not desiring to plead further, judgment was entered against him. The appeal was from that judgment. The Court of Appeals, in summarizing the allegations of the petition, said that: “A suit to foreclose a mortgage upon the real estate in question was instituted, and at that time there was also a lien for taxes, but no public oficial having authority in reference to the enforcement and collection of the taxes was made a party to the suit.” (Italics supplied.) The plaintiff bought the property at the sale. The taxes were not paid out of the proceeds, although the order of distribution directed that they should be paid.

The Court of Appeals, in discussing the applicable law, said, at pages 229 and 230:

“It is well settled that a sale under a judicial order confers upon the purchaser a title freed of all of the claims of the parties to the action, but that such sale carries only the interest, estate and rights in the premises that the parties to the proceedings had and could have asserted: no more, no less.”

And, at page 233, the court quoted with approval from First National Investment Corp. v. Frank, Treas., 24 Ohio Law Abs., 474, as follows:

“ ‘The appellees not having been parties to the foreclosure proceedings, were in no wise bound by any order which the court made in reference to the payment of taxes. If they had been parties, they would have been bound to look to the sheriff or his bondsmen for said taxes; but not having been parties, their rights are in no wise affected by said foreclosure.’ ”

The Court of Appeals, finding its judgment in conflict with a judgment of another Court of Appeals, certified the case to the Supreme Court. In affirming the judgment, the Supreme Court, in 134 Ohio St., '416, stated in the syllabus, that:

“An order to a sheriff to pay taxes, which were then a lien on real estate, out of the proceeds of a judicial sale of such real estate, under Section 5692, General Code, does not operate to transfer the tax lien from the real estate to the proceeds of sale, and when the sheriff' fails to pay the taxes as directed, an action in injunction will not lie against the county auditor and treasurer to prevent them from carrying such taxes on the duplicate and from collecting them, where it does not appear they were parties to the proceedings resulting in the sale of the real estate, or did anything else which might be urged against them by way of estoppel.”

It is thus seen that Grafton v. Mong, Aud., lends no support to the thesis that a purchaser at a judicial sale takes his title subject to all unpaid taxes and assessments in an action to which the county auditor and county treasurer are parties, duly served with summons and notified of the steps in the proceedings leading up to the sale. That fact has caused us to analyze the facts to determine the case presented for decision. We find that the action started as one in foreclosure and that the county treasurer was an original party to that action and that in his waiver of “the issuance of summons it was recited that the properties might be sold.” The county treasurer apparently had no further connection with the case. At some stage of the proceeding, a receiver was appointed and he made a sale for less than the amount of the taxes. It does not appear that the county treasurer had any prior notice of the receiver’s intention to make this sale. It does appear that when it was proposed that the decree should operate as full satisfaction of the taxes, the treasurer objected. As it appears, the county treasurer was the only interested person. His statement in his waiver of summons that the property might be sold was no consent to a proposed sale for less than the amount of the taxes conditioned upon his acceptance of the amount in full satisfaction.

The fact that the treasurer was a party to the foreclosure action did not subject him without further notice to all actions by a receiver appointed by the court in the .action. In American Savings Bank Co. v. Union Trust Co., 124 Ohio St., 126, 177 N. E., 199, 79 A. L. R., 160, the court considered what expenditures a receiver in a foreclosure action could make without notice and an opportunity to be heard and refused to allow the receiver credit for certain expenditures because they had been made without prior application for authority and notice given to interested parties so that they could be heard. In the language of the court, at page 132, on such application, “it then becomes the duty of the court to give to the parties in interest notice of such application, thus giving them an opportunity to be heard.” That case is authority for the proposition that the county treasurer was entitled to prior notice before he could be bound by any sale authorized at the hearing, and certainly it would have been an abuse of discretion for the court to authorize a sale for less than the taxes and compel the treasurer to accept a sum less than satisfaction as full satisfaction.

Perhaps the case most strongly relied on by appellees is that of Shaw v. Myers, Treas., 148 Ohio St., 608, 76 N. E. (2d), 603. That case originated in the Court of Common Pleas of Montgomery County and involved an assessment levied by the Miami Conservancy District, the collection of which the plaintiff sought to have enjoined and the cloud upon his title removed. The plaintiff had purchased the property against which the assessment had been levied at a sale in foreclosure of a mortgage. The treasurer of Montgomery County had been a party to the foreclosure action, had been served personally with summons and directed to set up any claims he had for taxes and assessments. He failed to answer and a default judgment was entered against him. The conservancy district was not a party to the foreclosure action. Later, the county treasurer threatened to enforce these conservancy district assessments, and it was this threat that precipitated the action in which the plaintiff contended that the assessments were barred by the decree in the foreclosure action. The Common Pleas Court sustained a demurrer to his petition and the Court of Appeals affirmed the judgment. In its original opinion (48 Ohio Law Abs., 155) the Court of Appeals had distinguished all the cases, including Hilling v. City of Cincinnati, from the case before it, and when the case came before the court later on an application to certify its judgment as in conflict with Hilling v. City of Cincinnati, the court adhered to its original opinion, but concluded to certify the case to the Supreme Court because the cases were “very much alike in particulars.” 53 Ohio Law Abs., 511.

The Supreme Court had overruled a motion to require the Court of Appeals to certify its record in Hilling v. City of Cincinnati, and in its opinion in Shaw v. Myers, Treas., did not either expressly or by implication make any criticism of that case. On the contrary, the Supreme Court treated Shaw v. Myers, Treas., as governed by the special statutes relating to conservancy districts and not by the general law relating to the collection of taxes and assessments. This is directly stated in the court’s opinion at page 610, which we quote: ‘ ‘ Conservancy districts are political .subdivisions of the state; their functions are essentially those of the state, an exercise of part of the sovereign power for the welfare of the people. These districts are created and governed solely under the Conservancy Act of Ohio.” (Italics supplied.) The manifold and specific provisions of the Conservancy Act furnish ample basis for that statement.

Section 6828-8, General Code (Section 6101.10, Revised Code), provides for a board of directors, with very broad powers, including power to appoint officers including engineers, an attcrney, and a secretary who should not be a member of the board and “shall serve also as treasurer of the district,” and, by Section 6828-42 et seq., General Code (Section 6101.44 et seq., Revised Code), he is charged with the duty of preparing and keeping and certifying the assessment books and a “Delinquent Assessment Book of............ District,..........County.” The board of directors is given power to borrow money and to levy and collect taxes and assessments. The method of enforcing payment is prescribed by Section 6828-54, General Code (Section 6101.60, Revised Code), in these words: “The suit shall be brought in the corporate name of the district by its attorney against the land or lands, property or properties, or public corporation, on which such tax or assessment has not been paid.”

We fail to find any provision in the Conservancy Act authorizing a county treasurer to enforce payment of a conservancy assessment by suit. He is not made the representative of the conservancy district for that purpose. His authority is limited to receiving and accounting for payments voluntarily made. This is in marked contrast to the exclusive authority of a county treasurer over the enforcing of payment of municipal assessments. Accordingly, the Supreme Court held, as stated in the second paragraph of the syllabus in Shaw v. Myers, Treas., supra, that:

“A county treasurer is only an instrumentality for the collection of conservancy assessments and is not such an agent of the conservancy district that his .failure to set up the assessment liens of the conservancy district in a mortgage foreclosure action will estop the district from subsequently asserting such liens.”

And, at page 613, the court said:

“The treasurer, although he has a statutory duty to collect these assessments, is not such an agent of the conservancy district that his default would bind the conservancy district or destroy its lien.”

The court quoted from Grafton v. Mong, Aud., supra, in which it had expressly recognized that municipal assessments could be barred by a judicial sale to which the county treasurer was a party. And its prior decision was not qualified or criticized in any way.

Finally, counsel cite the case of State, ex rel., Donsante, a Taxpayer, v. Pethtel, Aud., 158 Ohio St., 35, 106 N. E. (2d), 626, as authority for the indestructibility of taxes except by payment. We think the case has been misconstrued. It was an action in mandamus, filed on December 1,' 1948, by a taxpayer, to require the county auditor and county treasurer to restore certain assessments to the tax list, which they had removed in conformity to an ordinance of the village of Wickliffe, directing such removal. An examination of the printed record discloses that there were 12 of these ordinances, each relating to specific property. The first was passed in 1945 and the last in 1948. Certain lot owners, against whose property the restored assessments would be charged, were allowed to intervene, some of whom alleged that they had purchased their lots relying in the action of the village council in abating the assessments, had reallotted such parcels, had resold some, upon which homes had been built and mortgages executed to pay cost of construction; and others alleged other changes in conditions making it inequitable to restore the assessments.

It will be observed that it appears that five years had not elapsed from the time the assessments were removed from the tax list at the time the action was filed. Therefore, the court, did not comment on the effect of the lapse of five years upon the power of the auditor to restore the omitted assessments to the tax list. The record presented no such question. And the court took unusual precautions to make it clear that its decision had nothing to do with the right of an individual property owner to resist an assessment against his property. This is made clear in the first paragraph of the opinion on page 41, and the court ends its opinion with this statement: “However, the judgment in this case shall not affect the right of any taxpayer or interested party to resist the collection of the tax levied against his individual property and to establish his equitable defenses against such collection, if any, superior to the equities of the payer of general taxes who may be affected by the abatement of any such assessments.”

For these reasons, the judgment is reversed and final judgment directed for the plaintiffs.

Judgment reversed.

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