author: Doyle, J.

text:
    In re Estate of Friedman: The Cleveland Trust Co., Exr., et al., Appellants, v. The State of Ohio, Dept. of Taxation, Appellee.
    (No. 21268
    — Decided July 18, 1949.)

      Messrs. Mooney, Hahn, Loeser, Keough S Freedheim, for appellants. •

      Mr. Herbert 8. Huffy, attorney general, and Mr. William H. Annat, for appellee.
   Doyle, J.

The Cleveland Trust Company, as executor of the estate of Joseph Friedman, deceased, and Lester I. Friedman and Dena Friedman Stone, son and' daughter of the decedent, filed exceptions to the ruling of the Probate Court of Cuyahoga County, that (1) Howard K. Friedman, adopted son of the decedent’s son (Lester I. Friedman), must be treated, for the purpose of fixing the inheritance tax payable because of his succession under the provisions of a will and trust agreement, as inheriting “a succession of the fourth class ’ ’ under the provisions of Sections 5334 and 5335, General Code of Ohio; and that (2) the provision in the trust instrument made for the decedent’s son, Lester 1. Friedman, is taxable in its entirety as a succession of his adopted son, Howard K. Friedman.

The exceptions having been overruled, this appeal followed, which seeks a reversal of the court’s judgment.

It is here claimed that:

“1. Howard K. Friedman, being a son by adoption of the decedent’s son, Lester I. Friedman, is ‘a successor of the second class’ under Sections 5334 and 5335 (G. C.) as a ‘lineal descendant’ of the decedent, and that his succession is to be taxed accordingly, and
“2. That the provisions made for Lester I. Friedman is taxable as a life estate of the said Lester I. Friedman, son of the decedent, and a ‘successor of the second class ’ with remainder over to Howard K. Friedman, likewise a ‘successor of the second class.’ ”

It appears that Joseph Friedman died testate on November 21, 1945. He was survived by his daughter, Hena Friedman Stone, by his son, Lester I. Friedman, and by Howard K. Friedman, the adopted son of Lester I. Friedman. Under his will, he left the residue of his estate to The Cleveland Trust Company as trustee of a trust inter vivos which he had created. By the terms of this trust instrument, he treated the corpus as if it were composed of two equal shares, one to be held for the benefit of his son and one for the benefit of his daughter, during their respective lifetimes. However, in so far as the son’s share is concerned, the trustee was given discretionary powers to award the income (and invade the principal, if necessary) to the son or to certain others as it saw fit, subject, however, to the following recommendations for preference set forth in the instrument:

“I hereby direct and provide that the trustee shall, at its discretion and preferably upon consultation with my daughter * * * during her lifetime, so use, allocate and control all such funds * * * to accomplish the following objects in the order of preference herein stated:
“(1) To provide for the education and support of Howard K. Friedman, the adopted son of my son;
“(2) To the support of the wife of my said son so long as she shall remain the wife or widow of my said son, and/or be extending to my said adopted grandson, Howard K. Friedman, the proper parental care and direction;
“(3) To the support of my son, Lester I. Friedman * *

The Probate Court in assessing the tax at the highest possible rate (Section 5343, General Code) assumed that the income derived from one of the shares will be paid to decedent’s daughter during her lifetime and that the income derived from the other share will be allocated entirely in the trustee’s discretion to the education and support of the adopted child (born September 4, 1933).

The trust agreement further provided that:

“* * * after the decease of my said son or my said . daughter, the share heretofore held for such one shall be distributed to the then surviving lineal descendant of such one, per stirpes, including as a lineal descendant any person legally adopted by such one. In the event of the decease of either my son or my said daughter without leaving any descendant surviving him or her, the share held for such one shall be added to the share held for my other child and treated in every manner as herein provided for such other child’s share. ’ ’

In connection with the above, the Probate Court further found that both of the decedent’s children, Dena and Lester, will die without leaving lineal descendants; that both of decedent’s children will be survived by the adopted child, Howard K. Friedman, who will succeed to all of the remainder of the trust estate.

In view of the foregoing and the statutes of this state which we are here called upon to apply, was the Probate Court in' error in holding that the adopted child is a successor of the fourth class, and that the share of Lester I. Friedman is taxable in its entirety as a succession of the adopted child of the said Lester!

One of the keys to the solution of our problem is to be found in Section 5343, General Code, a part of which is:

“When, upon any succession, the rights, interests, or estates of the successors are dependent upon contingencies or conditions whereby they may be wholly or in part created, defeated, extended or abridged, a tax shall be imposed upon such successions at the highest rate which, on the happening of any such contingencies or conditions, would be possible under the provisions of this subdivision of this chapter, and such taxes shall be due and payable forthwith out of the property passing, and the Probate Court shall enter a temporary order determining the amount of such taxes in accordance with this section * *

The remainder of this section provides for a “refunder” under certain circumstances which, however, is not of importance to our immediate questions.

In view of this statute, and its application to the factual situation presented, we find no error in the ruling of the Probate Court in refusing to treat for tax purposes a life estate in the natural son, Lester, and after calculating his expectancy under the mortality tables, tax such estate with a $3,500 exemption, on the basis of the percentages applicable to a second class succession under Section 5334, General Code, and then to tax the remainder as a succession of his adopted son, Howard.

On the contrary, we find that the Probate Court, in the exercise of its judicial powers, properly held that the share of the estate allocated for the benefit of the natural son, Lester, should be taxed in its entirety as a succession of the adopted child, Howard, who may receive the entire income during the lifetime of his adoptive father, and at whose death, the entire remainder will pass' to the said Howard.

This ruling we find to be consonant with Section 5343, General Code, supra.

Proceeding now to the next question, i. e., whether the succession of the adopted child, Howard, should be taxed at the higher rates under the fourth class in the statutes, we look to the adoption statute and its effect, if any, on the taxing statutes.

Under Section 5334, General Code (tax statute), we find the following provisions:

“1. When the property passes to or for the use of the wife or a child of the decedent who is a minor at the death of the decedent, the exemption shall be five thousand dollars.
“2. When the property passes to or for the use of the father, mother, husband, adult child or other lineal descendant of the decedent, or an adopted child, or person recognized by the decedent as an adopted child and designated by such decedent as a legal heir under the provisions of a statute of this or any other state or country, or the lineal descendants, thereof, or a lineal descendant of an adopted child, the exemption shall be three thousand five hundred dollars.
“3. When the property passes to or for the use of a brother, or sister, niece, nephew, the wife or widow of a son, the husband of a daughter of the.decedent, or to any child to whom the decedent, for not less than ten years prior to the succession stood in the mutually acknowledged relation of a parent, .the exemption shall be five hundred dollars.”

Under Section 5335, General Code, is found the rates of taxation. It provides for certain percentages of tax “on successions passing to any person in the first and second classifications” set forth in the preceding paragraph. It then provides for a higher rate “on successions passing to any person” falling within the third classification, supra. The statute then provides for an even higher rate “on all successions to persons other than those hereinbefore mentioned,” i. e., under 1, 2 and 3.

This last class, designated by the court as the fourth class, is the one into which the adopted child was placed, and his succession, with no exemption, was accordingly taxed at the highest rate.

The statute specifically places an adopted child of a decedent in the' second class. Our question is whether an adopted child of a son of a decedent comes within the same second class as a lineal descendant.

So much of Section 10512-23, General Code, as affects our problem is in the following language:

“# * *and the child [adopted child] shall be invested with every legal right, privilege, obligation and relation in respect to education, maintenance and the rights of inheritance to real estate, or to the distribution of personal estate on the death of such adopting parent or parents as if horn to them in lawful wedlock; provided, such child shall not be capable of inheriting property expressly limited to heirs of the body of the adopting parent or parents; but shall be capable of inheriting property expressly limited by will or by operation of law to the child or children, heir or heirs at law, or next of kin, of the adopting parent or parents, or to a class including any of the foregoing * m (Italics ours.)

This language of the Code gives a legally adopted child the right to inherit property not only from, but through, the adopting parent. It gives such child a status not held prior to the enactment of the amendment in 1932. And it seems apparent that the legislative intent was to give the adopted child every right and privilege of inheritance accorded a natural child, excepting only the inheritance of property “expressly limited to heirs of the body of the adopting parent or parents.” It further puts such child nr a direct line of ancestry the same as if it had been born in lawful wedlock. It makes such child a lineal descendant. And, while the questions at issue in the cases cited below are not the questions before us here, we believe that they do develop the thought here expressed. The statute must be interpreted with the degree of liberality essential to the attainment of the intent of the Legislature. Flynn, Admr., v. Bredbeck, 147 Ohio St., 49, 68 N. E. (2d), 75; White, Admr., v. Meyer, 66 Ohio App., 549, 37 N. E. (2d), 546. See, also, Blackwell, Gdn., v. Bowman, Exr., 150 Ohio St., 34, 80 N. E. (2d), 493.

Reverting now to the tax statutes, we find that they impose a tax on successions of persons who come within certain classifications.

The second classification includes lineal descendants. We have no thought to impair the authority of the Legislature to create legal relationships providing for the devolution of property. Nor is it our purpose judicially to legislate out of a class, one who is so definitely placed therein.

It is the contention of the appellee that “the 1932 amendment of the adoption statute increased the rights of an adopted child under the antilapse statute and did nothing more. ’ ’

We believe that this claim is untenable. The broad, sweeping language of the statute disproves it. Had the Legislature intended such a restriction, a few simple words could have expressed it.

In concluding this phase of the case, it is our conclusion that the tax statutes and the adoption statutes are in pari materia; the adopted child is by virtue of the statutes placed in the second class and there his succession must be taxed.

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

Judgment reversed and cause remanded.

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

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


source: Caselaw Access Project

author: Hornbeck, J.

license: Public Domain

text:
    Dean, Gdn., Appellant, v. Industrial Commission of Ohio, Appellee.
    (No. 4166
    — Decided September 27, 1948.)

      Mr. David A. Peiros and Mr. David E. Evans, for appellant.

      Mr. Eugk S. Jenkins, attorney general, Mr. II. Brooke Alloway and Mr. Joe F. Asker, for appellee.
   Hornbeck, J.

The facts essentia] to an appreciation of the questions presented are that Oliver Dean, on February 15,1943, was-an employee of Curtiss-Wright Corporation, a contributing member to the workmen’s compensation fund. Such employee claimed that he suffered an injury on that date and it was made the subject of a claim to the defendant commission in the form of the regular report required by the commission. The original application signed by the employee, representative of the employer and the attending phvsi cian requested payment for certain medical attention given to the employee. This claim was allowed.

Thereafter, on February 24, 1943, the employee was adjudged insane and committed to a state hospital. Succeeding this commitment, application was made by the plaintiff guardian for additional compensation, the exact nature of which is not before us because this application is not in the files. However, it is stipulated that such application was made and it evidently proceeded upon the theory that the employee’s subsequent mental condition was the result of the original injury which he suffered in the course of his employment. Upon this latter application the commission made this finding and order:

"After round-table conference and careful consideration of all the proof of record, the commission orders that the application for additional compensation filed by the claimant’s guardian on June 23, 1943, be denied, for the reason proof fails to establish that the claimant’s disability by reason of a mental condition is related to the minor injury of February 15, 1943, for which injury the commission has already paid medical bill for first aid treatment.”

Thereafter, formal denial of the claim was made, rehearing was had, testimony was offered and the claim was again disallowed for the reason that "proof fails to show that claimant’s disability is the result of an injury sustained in the course of and arising out of employment.”

Upon the rehearing before the commission, counsel for the claimant offered to introduce part one of claimant’s exhibit A, the original application for allowance for medical services signed by the assistant personnel manager of the employer. In that certificate, it was stated that the accident occurred in the factory of the employer at a "bench assembly,” while the employee was working in "arbor press”; and that he was bending over and as he raised up he hit his head on the arbor press. The detail of the injury was that it was a “laceration, frontal region of the scalp.” The report of the employer concluded with this certificate:

“By signing below, 1 do hereby certify that 1 have authority to execute this employer’s report and that, the answers to the questions given in said report are correct to the best of my information and belief. I have examined the report and fee bill submitted by the attending physician and believe same to be correct."

The report was also signed by the employee and by his attending physician. The assistant personnel manager of the employer was not called as a witness and his statement on the original report is unmodified. The referee refused to admit the employer’s report and upon trial the judge, a jury being waived, likewise refused to admit the evidence and this is assigned as one ground of error.

Upon the rehearing, claimant’s counsel proffered the testimony of Dr. Tarbell, as follows:

“Q. Doctor, would a blow on the head precipitate paresis or aggravate paresis? A. I think the trauma or shock can precipitate paresis.
“Q. Doctor, I will ask if the blow on the head received by Oliver P. Dean, which resulted in the laceration of the frontal region of the scalp, would have caused the paresis? A. In my judgment it would be a causative factor.”

The trial judge likewise refused to admit that testi' mony and such refusal is assigned as error.

The commission claims that that part of the application signed by the employer, if otherwise competent, may not be admitted because it was not formally proffered. This claim, in ofir judgment, is not well made because the parties at the inception of the trial stipulated that the trial judge could make marginal rulings; that the transcript will be submitted to the court; that “the court will make its rulings on the objections and motions on the margins of the record”; and that ‘‘the rehearing record with the court’s marginal notations as to hearings shall constitute the record in this case. ”

The offer of the certificate of the employer on rehearing was regular and the marginal notation of the trial judge pursuant to the stipulation discloses that his rulings were the same as those of the commission.

Although eight errors are assigned, the determinative questions are, was the certificate of the employer on the application for award for compensation admissible, and, if so, did it tend to establish that the employee suffered an injury growing out of and in the course of his employment and, if so, did the further proof proffered make an issue of fact whether the subsequent mental condition from which the employee suffered was the result of the original injury?

This court in three cases has held that a certificate of the employer is admissible under the authority of Coutellier v. Industrial Commission, 126 Ohio St., 546, 186 N. E., 400. These cases are: Industrial Commission v. Simpson, 17 Ohio Law Abs., 581; Industrial Commission v. Grecht, 17 Ohio Law Abs., 645; McIntire v. Industrial Commission, 44 Ohio Law Abs., 274, 63 N. E. (2d), 167. In this last case the certificate was substantially the same as in the instant cause.

■ The commission asserts that the Coutellier case is not controlling authority because the court there had under consideration a death claim and here the claim is for injury. We do not consider that the distinction is valid. If the Coutellier judgment is predicated upon the theory that the injured employee being dead his lips are sealed, and there is nothing in the opinion to indicate that it is so based, the same effect would attend here. Plaintiff’s ward not only has been adjudged insane but according to the testimony of Dr. Tarbell, is in the third and final stage of the type of insanity from which he suffers and manifestly would! not be competent as a witness.

There is some difference between the certificate in the Coutellier case and the certificate here, but here there is no testimony upon which it may be determined that the employer’s statements were predicated upon information which he received from the injured employee. In other words, the statement of the employer is not hearsay but of a higher degree of evidence.

The certificate of the employer should have been admitted.

We are of opinion that the testimony of Dr. Tarbell also should have been admitted and that his answer, to the effect that the blow on the head received by the employee resulting in laceration of the frontal region of the scalp, was a causative factor in the paresis from which he suffered, made an issue of fact whether it was the result of the original injury. Drakulich v. Indus. Comm., 137 Ohio St., 82, 27 N. E. (2d), 932; Aiken v. Indus. Comm., 143 Ohio St., 113, 53 N. E. (2d), 1018; Bell v. Buckeye Steel Casting Company, 32 Ohio Law Abs., 141; Johnson v. Indus. Comm., 28 Ohio Law Abs., 241.

The judgment is reversed and the cause remanded.

Judgment reversed.

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


author: Wiseman, P. J.

text:
    Rucker et al., Appellants, v. Personal Finance Company of Columbus, Inc., et al.; Beneficial Industrial Loan Corp. et al., Appellees.
    (No. 4149
    — Decided October 30, 1948.)

      Mr. Matthew L. Bigger, for appellants.

      Mr. Henry A. Reinhard, Messrs. Vorys, Sater, Seymour $ Pease and Mr. Carl H. Tangeman, for appellees.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin county, sustaining motions to quash service of summons upon two of the defendants, appellees herein, both of which were .Delaware corporations not licensed to do business in Ohio. The summons on each appellee was served upon the designated agent of a third Delaware corporation, to wit, the Beneficial Management Corporation of Delaware, which is licensed to do business in Ohio.

The sheriff’s return shows that he served the summonses on the Beneficial Industrial Loan Corporation of Delaware and the Beneficial Corporation of Delaware by serving the same on the Beneficial Management Corporation of Delaware and by delivering the summons for each corporation to R. G. Corace as statutory agent of the Beneficial Management Corporation.

Plaintiffs, appellants herein, claim that the Beneficial Management Corporation is the managing agent in Ohio for the Beneficial Industrial Loan Corporation of Delaware and the Beneficial Corporation of Delaware. The appellees, appearing specially and for that purpose only, moved to quash the service of summons on the ground that the service was not made in accordance with the provisions of Section 11290, General Code, which provides:

“When the defendant is a foreign corporation, having a managing agent in this state, the service may be upon such agent.”

The motions were supported by affidavits to the effect that neither the Beneficial Industrial Loan Corporation of Delaware nor the Beneficial Corporation of Delaware engaged directly or indirectly in business in Ohio; that they did not control or direct the management, operation or operating policies of the Beneficial Management Corporation; and that they did not have places of business or agents in the state of Ohio. The affidavits stated further that neither R. G. Corace nor the Beneficial Management Corporation of Delaware was an officer, agent, managing agent or employee of •either corporation, nor were they authorized to accept such service of process upon them.

The motions to quash raised the question relative to the correctness of the return of service. The return of service showed the Beneficial Management Corporation of Delaware to he the managing agent of the two foreign corporations, and that service was made in accordance with the provision of Section 11290. The affidavits submitted in support of the motions showed this to be incorrect. No eounteraffidavits were filed.

The motions to quash the service of summons were sustained, but the record does not show that the petition was dismissed or judgment entered. An order quashing the service of summons on a foreign corporation, without dismissing the petition and entering judgment, effectually determines the jurisdictional question and the action and is a final order within the meaning of Section 12223-2, General Code. See Gorey v. Black, 100 Ohio St., 73, 82, 125 N. E., 126; Allen v. Smith, 84 Ohio St., 283, 288, 95 N. E., 829, Ann. Cas. 1912C, 611; Hurd v. John B. Ransom & Co., 13 Ohio App., 135; Rinehart, Admr., v. Wellston Iron Furnace Co., 32 C. C. (N. S.), 476, 35 C. D., 817; 2 Ohio Jurisprudence (Pt. 1), 181, Section 96.

The question of the correctness of the return of service may be raised by motion to quash. See State, ex rel. Wachenheimer, Pros. Atty., v. Standard Oil Co. of Ohio, 15 C. C. (N. S.), 212, 31 C. D., 52; Hurd v. John B. Ransom & Co., supra; Thrasher v. Kelly et al., Admrs., 73 Ohio App., 304, 55 N. E. (2d), 873; Grady v. Gosline & Barbour, 48 Ohio St., 665, 667, 29 N. E., 768. See, also, 32 Ohio Jurisprudence, 504, Section 107.

It is conceded that the Beneficial Management Corporation of Delaware is a subsidiary of the Beneficial Industrial Loan Corporation of Delaware and the Beneficial Corporation of Delaware. May a foreign corporation be served with process in Ohio by serving a subsidiary of such corporation as the managing agent thereof? As a requisite to the validity of such service it must be shown that such foreign corporation is doing business in Ohio. 32 Ohio Jurisprudence, 540, Section 140. The record does not show that the foreign corporations in question were doing business within this state. The subsidiary was conducting its own business. It cannot be successfully maintained that the foreign corporations were doing business within this state because their subsidiary was so doing business. That they are distinct corporate entities is clear. The fact that the stock of the subsidiary was held by the foreign corporation and that the foreign corporation exercised control over the subsidiary through the ownership of the stock, the corporate identity being formally preserved, is not sufficient to subject such foreign corporation to the jurisdiction of the state court. Such facts do not constitute “ doing business in this state.” In the case at bar, separate corporate identity was definitely preserved, which fact cannot be disregarded. This conclusion is supported by Cannon Mfg. Co. v. Cudahy Packing Co., 267 U. S., 333, 69 L. Ed., 634, 45 S. Ct., 250, wherein a motion to quash the service of summons was sustained. See, also, North v. Higbee Co., 131 Ohio St., 507, 3 N. E. (2d), 391, where the court held that separate corporate entities will not be disregarded.

On the record presented, the motions to quash the service of summons were properly sustained. As we find no error in the record, the judgment is affirmed.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


text:
    Rea, Appellant, v. Helsley, Appellee.
    (No. 4225
    — Decided January 29, 1949.)

      Mr. David H. Thomas, for appellant.

      Mr. John H. Summers, for appellee.
   Hornbeck, J.

The appeal is on questions of law from a judgment of the Municipal Court of Columbus in favor of the defendant on plaintiff’s action in forcible entry and detainer.

Three errors are assigned:

(1) In finding certain facts not sustained by sufficient evidence.

(2) The decision is contrary to the weight of the evidence.

(3) Error in granting equitable relief.

Defendant was a tenant of plaintiff under a written lease by tbe terms of wbicb the rental payment was due on or before the first of each month. Defendant had made two payments of rental prior to the one in question in this action, at the time of which former payments the plaintiff lived at 1319 North Fourth street, Columbus. On August 1st, the rental date upon which the default of the defendant is claimed, both the defendant and plaintiff’s agent, her mother, were out of the city of Columbus. Defendant was in Gallipolis, Ohio, from which no trains carrying mail run on Sunday.

The trial court found, among other findings of fact, that:

“On Monday, August 2nd, 1948, defendant sent a check to plaintiff’s agent in payment of August rent, by mailing it ‘special delivery — air mail’ to 1713 or 1913 North Fourth street, Columbus, Ohio; that the envelope in which the August check for rent was so mailed bore the following instruction, in addition to the regular address: ‘Apartment house; If not 1713, try 1319’; that the Columbus, Ohio, Post Office attempted to deliver the letter from defendant to plaintiff’s agent, which contained the check for August rent, on August 2, 1948, but failed to make delivery; that plaintiff’s agent’s correct address was 1319 North Fourth St., Columbus, Ohio.”

It further appears, and is so found, that the special delivery, not being delivered, was returned to the defendant at Gallipolis; that when attempt was made by the defendant to reach the plaintiff by telephone in Columbus, it was found that she was in Gatlinburg, Tennessee, and thereupon the check was sent to Case and West’s office, 52 E. Gay street, Columbus, Ohio, where plaintiff’s agent conducted some of her business affairs; the check was then mailed to defendant at Gatlinburg, Tennessee, but did not arrive until she had left this place and was finally delivered to her at Columbus on August 11th.

On August 10th, plaintiff served defendant with the notice in writing to quit the premises which she occupied. Upon the findings of fact, the trial court concluded, as a matter of law, that the defendant-tenant is entitled to equitable relief against a forfeiture of her lease.

At the outset, it is our opinion that it was not necessary to resort to equitable relief to deny the plaintiff an order of eviction against the defendant. The trial court found, and there is sufficient basis for such determination, that the defendant made a reasonable effort to get the check for the rent to the plaintiff on Monday, following Sunday, the first, upon which technically the rent was due. It is testified that the attempt to deliver the special delivery letter was made on Monday, the 2nd. This, in our judgment, was sufficient compliance with the requirements of the lease as to the date of the payment of rent under Section 10216, General Code. If, however, the payment on the 2nd was not sufficient observance of the technical legal requirement to pay the rent on the first, then we would be moved under Section 11364, General Code, to certify that substantial justice had been done by the judgment of the trial court.

Finally, coming to the ultimate question raised by reason of the fact that the conclusions of law disclose that the trial court found that the defendant is entitled to equitable relief against a forfeiture of her lease, we consider Section 1558-53a, General Code, a part of the Municipal Code of the city of Columbus.

“Whenever an action or proceeding is properly brought in the Municipal Court, the court shall have jurisdiction to determine, preserve and enforce all rights involved therein, and to hear and determine all legal and equitable'remedies necessary or proper for a complete determination of the rights of the parties.”

The judgment entry reads, “Judgment is rendered for defendant for possession of premises and for costs.” We interpret this order to be nothing more than a finding and judgment for the defendant as of the date when rendered. The judgment entry does not go as far as the separate finding of law, which is to the effect that “the defendant-tenant is entitled to equitable relief against a forfeiture of her lease”; nor is it as extensive as prayed for in the cross-petition of the defendant. The section of the Code may properly be given application to the extent invoked in the judgment entry because clearly the action or proceeding was properly brought in the Municipal Court. Section 10449, General Code.

No assignment of error asserted is well made.

The judgment will be affirmed.

Judgment affirmed.

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


author: By the Court.

text:
    City of Wilmington, Appellant, v. Buckley, Appellee, et al.
    (No. 160
    — Decided January 26, 1949.)

      Mr. C. Luther Swaim, for appellant.

      Messrs. Smith & Kirk, for appellee.

      Messrs. Meyer, Johnson é Kincaid, for The Pennsylvania, Ohio & Detroit Railroad Company and The Pennsylvania Railroad Company.
   By the Court.

This action was instituted by the plaintiff', acting through its duly qualified solicitor. His authority to do so is questioned.

By Section 4311, General Code, it is made the duty of the solicitor to apply in the name of the municipal corporation to a court of competent jurisdiction for an injunction to prevent any abuse of corporate power. All the cases construing this section hold that it is remedial in its nature, and should be given a liberal construction. The cause or causes of action allege an appropriation to private use of a portion of a public street by and with the consent and approval of the municipal officials. Such use of public property would be unauthorized and no municipal officer or officers would have power to sanction it.

We are of the opinion that the action was duly instituted by the plaintiff acting through its solicitor.

This is an appeal on questions of law and fact and has been heard and will be decided de novo by this court. The evidence which was introduced in the Common Pleas Court was, by agreement, considered as evidence in this court and this was supplemented by other evidence.

Stripped of all nonessentials, the plaintiff’s claim is that the defendant was, until restrained, building a structure within the limits of East Main street, at its intersection with the north terminus of Grant street. While admitting that he was erecting a building at the designated place, the defendant Buckley denies that the place is a part of the street. In addition to that denial, such defendant pleads adverse possession of the premises for more than 21 years, during which time he has built permanent, substantial, and expensive structures upon a part of the premises. The reply contained a denial of the allegations relating to adverse possession.

There is no dispute that for more than 40 years the defendant Buckley has maintained a large building, used as an elevator, to which he was making an addition on the east side. So far as appears in the evidence there never was any building upon the site of this addition. The whole dispute between the parties is as to the exact location of the south line of East Main street at that point. The defendant claims that the north wall of the elevator building coincides with the south line of the street, and that as the proposed addition is four feet south of that line it is well without the street lines.

An unusual amount of research has been made to ascertain the inception and course of the state highway extending from the city of Columbus to the city of Cincinnati through the city of Wilmington. The purpose, of course, was to show that the defendant’s structure encroached upon it. We have analyzed this evidence to the best of our ability and have found it impossible to do more than guess as to the course of the state highway through the city of Wilmington. There is as much, and perhaps more, reason to believe from the evidence that the state highway joined Locust street as that it joined Main street. But assuming that it did join Main street, and that it was 66 feet wide, its course to the east of the original corporate line of Wilmington is left in complete uncertainty.

The evidence develops no datum admitted or established from which a surveyor could start in running the lines of the state highway as originally established or as later modified. Plaintiff’s counsel has attempted to run the center line by assuming that the state highway entered Wilmington on Main street and that the lines were a perfect juncture at that point. It is seen, however, from the testimony of the plaintiff’s engineer that when it is attempted to run the course of the highway at the vital point in this case, it can only be done on data not established by the evidence and in most instances on assumptions directly contrary to the evidence.

We find that immediately on leaving the east end of the original Main street, we are confronted with alternatives that would materially affect the subsequent course of the surveyor. The evidence produces confusion as to the point where the first departure from a straight course is located. At one place it is said to be 12 rods and at another it is said to be C rods. A very different course would be produced by starting at 6 rods than from 12 rods from the end of Main street. In other places in the evidence, still another place is indicated as the point of deviation from the straight course.

By maps, surveys, and deeds the plaintiff brought before the court the geography — past and present— of the eastern portion of the city of Wilmington and some territory lying to the east thereof in an effort to establish data from which a surveyor could establish the course and limits of the original highway. And picking some data from this mass of testimony and disregarding other data, a surveyor has traced its course. On cross-examination, this witness was asked whether it was possible to relocate the original highway and he answeréd “I do not think that would be possible.” This witness testified that not a single monument referred to in any of the deeds, surveys or plats was discovered and used in charting the courses and distances that he gave in preparing a description for the re-establishment of the original highway as altered.

We find so many contradictions in the various documents as to courses and distances that the only effect produced is one of bafflement. The mind is not inclined to any certain course. The only conclusion that we can reach is that Main street as now used is the one sure anchor, and that it should determine the public and private rights.

The evidence introduced in the Common Pleas Court failed to convince Judge Clevenger that the defendant Buckley’s structure was within the limits of Main street. The expanded evidence that was introduced in this court has no greater probative value.

The burden of proof is upon the plaintiff. We find that it has failed to sustain it.

For these reasons, the court finds in favor of the defendant Buckley.

Judgment for appellee.

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


text:
    Wilberforce University, Appellant, v. College of Education and Industrial Arts at Wilberforce University, Appellee.

      (No. 508
    — Decided December 11, 1948.)

      Mr. Julius R. Samuels, Messrs. Smith, McCallister & Gibney and Mr. Norman L. McGhee, for appellant.

      Mr. Hugh S. Jenkins, attorney general, Mr. Joseph S. Gill and Mr. Ray E. Hughes, for. appellee.
   By the Court.

This is an appeal on questions of law from the Common Rleas Court of Greene county, which rendered judgment for the defendant in an action in ejectment. The action was tried to the court without a jury. The court found that the defendant had acquired title to the property in question by adverse possession.

The seven separate grounds of error assigned are considered as one, namely, that the judgment is uot sustained by the evidence and is contrary to law.

The petition and the answer were in short form as authorized by Sections 11903 and 11904, General Code. The plaintiff contends that acquisition of title by adverse possession by the defendant was an affirmative defense and should have been specially pleaded in the answer. Under the Code, adverse possession may be shown under a general denial. Wintermute v. Montgomery, 11 Ohio St., 442; Kyser v. Cannon, 29 Ohio St., 359; Rhodes v. Gunn, 35 Ohio St., 387; 1 Ohio Jurisprudence, 571, Section 61.

The evidence shows that Wilberforce University, which was chartered by the state of Ohio in 1856, purchased a tract of land in Greene county in 1859, on which educational buildings were afterwards erected. In 1887 the General Assembly established the “Combined Normal and Industrial Department at Wilberforce University, Greene County, Ohio,” which in 1941 through a legislative enactment (119 Ohio Laws, 310) became the “The College of Education and Industrial Arts at Wilberforce University, Greene County, Ohio.” The two institutions have always been and are now separate entities, Wilberforce University being supported, controlled and managed by the African Methodist-Episcopal Church and the college of education by the state of Ohio.

This action involves the building known as “O’Neill Hall” and the land upon which it stands, which is a part of the tract of land purchased by Wilberforce University in 1859. The record title is now and always has been in Wilberforce University.

The construction of O’Neill Hall was completed in 1891. For several years prior thereto Wilberforce University made an effort to raise the necessary funds to erect the building. The record does not show that any funds raised by Wilberforce University were ever expended for that purpose. On the contrary, the evidence shows that the state of Ohio appropriated $10,-000 in 1891 (88 Ohio Laws, 590) and $16,000 in 1892 (89 Ohio Laws, 340) for constructing and equipping the building. Even though it be inferred that Wilberforce University did contribute a portion of the original cost of the building, this fact alone would not prevent the state of Ohio from acquiring title by prescription. From the time of the construction of the building to the present, the cost of the maintenance, repairs and equipment of the building has been paid by the state of Ohio. The management, control and supervision of the building and activities therein have alw'avs been under the state institution.

O’Neill Hall has been used for dormitory purposes, being occupied almost exclusively by students attending the state institution and such students were not charged rent. In case students of Wilberforce University were housed in the hall, permission to use the building for that purpose was first obtained from the business manager or superintendent of the state institution, and rent was charged such students. The rent paid by the university students who used the hail was placed in a separate dormitory fund which was used to defray dormitory maintenance expenses. Over the years it was the general understanding by those connected with both institutions that O’Neill Hall was owned by the state.

In order to acquire title by adverse possession for 21 years or over, the possession must be actual, open and notorious, hostile and under claim of right, continuous and exclusive. 1 Ohio Jurisprudence, 494, Section 6. The evidence presented meets this test. It has been held that the building of a permanent structure upon the property of another is an adverse and hostile possession under which title may be claimed after 21 years, unless it is shown to have been done under a contract or license. McCleery v. Alton, 8 C. C. (N. S.), 481, 19 C. D., 97.

The fact that the building for a short period of time, through the co-operation of both institutions, was used by the R. O. T. C. during the late war, the membership of which consisted of students from both institutions, we regard as immaterial.

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

Judgment affirmed.

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


text:
    In re Lester. (Two cases.)
    (Nos. 21251 and 21265
    — Decided September 16, 1948.)

      Mr. M. M. McCurdy and Mr. Walter Booth, for relator.

      Mr. F. T. Cullitan, prosecuting attorney, for respondent.
   By the Court.

The foregoing proceedings have been consolidated by order of this court, the first proceeding being an action in habeas corpus brought by the relator against the respondent, George Matowitz, chief of police et al., and the second action being brought by the relator by reason of the fact that he was removed to the custody of the sheriff of Cuyahoga county, Ohio.

While in the custody of the chief of police of Cleveland the relator signed a waiver of extradition and agreed to be returned voluntarily to the jurisdiction of the Tennessee courts. However, at the time of signing this waiver the relator, a minor 17 years of age, was represented by counsel who were not notified of the proceedings and relator claims to have been ignorant of the purpose and effect of the waiver. Counsel insist upon the right now to withdraw the waiver and the court grants that request.

Relator is one of two sons of Annie May Hogan. The relator’s Christian name is Ernest Lester who was born on April 8, 1931. His brother, whose real name is Clarence Lester, is now confined in the penitentiary in Tennessee under the name of Clarence Brown. He was born on February 27, 1928.

It is the claim of relator that he was not within the jurisdiction of the demanding state at the time it is alleged the crime was committed as set forth in the affidavit requesting relator’s extradition.

The evidence is uncontradicted that relator was in the city of Cleveland working for the Cleveland Metal. Bed Company from June 24 to July 13, inclusive, 1946. The evidence further discloses that the relator remained in Cleveland until some time in August 1946 before returning to Nashville, Tennessee.

The affidavit which accompanied the request for extradition signed by Charles A. Moore who filed the complaint against Clarence Lester for the alleged larceny of barber equipment from affiant’s barber shop on July 18, 1946, stated that the porter was employed in the barber shop during the month of July 1946.

It is clear that the relator could not have been in the employ of the affiant during the whole of that period.

The request for extradition is for Clarence Lester. The relator is Ernest Lester. Therefore, the request is not for this relator who was outside the jurisdiction of the demanding state at the time the crime was committed for which extradition of relator is requested.

From the uncontraverted evidence we are convinced that this is a case of mistaken identity, and that Ernest Lester, a minor of 17 years of age and who was 15 years of age at the time the alleged crime was committed, is not the person described or identified by the affidavit and the warrant from the demanding state.

“The question of identity of a person held under a rendition warrant issued by the governor of the asylum state with the person described as the alleged fugitive in such warrant and requisition papers is always open to judicial review by habeas corpus, since such question is simply whether the warrant has been executed against the party named therein.” 22 American Jurisprudence, 258, Extradition, Section 20, Identity of Accused. See numerous cases therein cited.

For these reasons this court is of the opinion that the writ should be allowed.

Writ allowed.

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

Morgan, J., not participating.


text:
    Wysong, Appellant, v. Bussard, Appellee.
    (No. 2024
    — Decided April 15, 1949.)

      Mr. Drewey B. Wysong, for appellant.

      Mr. G. J. Stoecklem, for appellee.
   By the Court.

This is an appeal on questions of law from the Common Pleas Court of Montgomery County which rendered a judgment on a verdict returned in favor of the defendant.

The plaintiff assigns as error that the judgment is against the manifest weight of the evidence and that the court erred in its charge to the jury.

The plaintiff brought an action to recover $2,512 for board, laundry and nursing furnished the defendant. The evidence shows that the plaintiff and her husband and the defendant lived as one family in the residence owned by the defendant, and that the plaintiff and her husband occupied the greater portion of the residence under a rental agreement. The plaintiff contends that after she moved into the residence the defendant agreed to compensate her for board, laundry and nursing. The defendant denies this charge and contends that such services were agreed to be furnished by the plaintiff as part of the rental.

The principal issue involved was one of fact for the determination of the jury. The jury resolved this issue in favor of the defendant. There was ample evidence to support the verdict and judgment. We find no error in the charge to the jury on the matter of which the plaintiff complains. As we find no error in the record prejudicial to the plaintiff, the judgment is affirmed.

Judgment affirmed.

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


author: Fess, J.

text:
    Bowman, Appellee, v. The Baltimore & Ohio Rd. Co., Appellant.
    (No. 582
    — Decided April 18, 1949.)

      Messrs. Young <& Young, for appellee.

      Mr. G. Ray Craig, for appellant.
   Fess, J.

This is an appeal on questions of law from a judgment entered upon a verdict in favor of plaintiff in the sum of $5,000.

About 11 a. m. on February 16, 1947, plaintiff was driving his automobile south approaching defendant’s double tracks, which crossed the highway at grade in an easterly and westerly direction. The day was clear but the road was slippery on account of a light snow.

Parallel to the road and east of it was an embankment of an abandoned interurban line, approximately 20 feet high extending to a point about 60 feet north of the north rail of the track. Within this 60 feet was a large cement pier or abutment, 6 feet wide from north to south. The south side of this pier was 21 feet from the north rail of the track. As a person approached the crossing from the north, there was an unobstructed view toward the east at a point 60 feet from the nearest rail to the north side of the pier 27 feet from the rail, and again from a point 21 feet from the rail. East of the crossing was a natural rise in the ground through which the roadbed was cut, but neither the height of this rise nor its distance east of the •crossing appears in the record. From the photographs introduced in evidence, it appears that the rise started at a substantial distance east of the crossing; it does not appear that this cut was deep enough to hide a train therein. On direct examination defendant said that a person could see several hundred feet ■down the track but not far enough to miss a fast train.

Defendant’s evidence indicates that from a point 50 feet north of the north rail, a man could be seen on the track 800 feet to the east. At 40 feet north of the north rail a man could be seen 1,014 feet to the east. At 12 feet north of the north rail there was an unobstructed view for a mile. These measurements were made by a civil engineer whose testimony was not contradicted.

On cross-examination, plaintiff admitted that at a point 40 feet north of the tracks he could have seen a train approaching from the east. On direct examination, plaintiff testified as follows:

“Q. Now will you tell the jury as you were driving along and approaching that crossing, will you tell the jury just exactly what happened in your own words? A. Well, there is between the abutment and the tracks, looking east thru that gap there is a raise on the other side of the abutment which makes it impossible to see too far.
“Q. How far would you say you could see down there? A. You could see several hundred feet but not far enough to miss a fast train.
“Q. Now go on and tell the jury what took place? A. I was listening for the whistle or a horn and at the same time I reduced my speed considerably, and in passing this gap there was no train in sight; while I was passing the abutment the train perhaps slipped up; there was no horn or whistle until just as it approached at the abutment.
“Q. How far away were you from the tracks when you first saw the train? A. There is only three to four feet between the bumper and the rails when you can lean forward and see down the track and see anything approaching any distance at all.
“Q. When you got to that point could you see the1 train? A. I saw- it just as it whistled.
“Q. Was that the first whistle that was sounded? A. Yes, sir.
“Q. Was any bell ringing? A. No, sir.
“Q. What did you do when you saw the train and heard the horn? A. I applied my brakes.
“Q. Were you able to stop? A. I wasn’t. The distance was too short.
‘ ‘ Q. How fast would you say you were going at that point? A. Approximately 7 to 8 miles an hour.
“Q. Then what happened? A. I set on the rail in front of the Heisel.
“Q. What happened? Did the train strike you? A. It struck the car on the front end of the car, having passed an inch in front of the windshield and tore it off, frame and all.”

From the evidence it appears that a person on the highway would have a view to the east, when within 60 feet of the north rail, unobstructed except for the 6-feet obstruction made by the pier. Defendant’s evidence tends to show that a person on the road immediately west of the pier and 25 feet north of the north rail could see a man 395 feet down the track. As to the speed, the train was going 75 miles per hour and plaintiff, who had been going 25 miles an hour, slowed down to 7 or 8 miles per hour as he approached the tracks. If plaintiff was going 8 miles per hour as he passed the abutment and the train was traveling 75 miles per hour as it passed the abutment, it is obvious that plaintiff’s automobile would have collided with the side of the train.

Motions to direct a verdict for the defendant were made and overruled at the conclusion of plaintiff’s case and at the close of all the case. The motions were overruled possibly upon the principle that the evidence of obstruction to plaintiff’s view by the abutment and the rise in the terrain to the east rebutted the inference of contributory negligence on the part of the plaintiff and presented a question of fact for the jury. However, the inference of contributory negligence arising from failure to look or listen can be rebutted or removed only by proof of facts or circumstances showing that it was not reasonably practicable to look or listen, of such circumstances as would ordinarily induce persons of common prudence to omit such precautions, or of such circumstances as would render looking and listening unavailing. On the contrary, where the danger at a railroad crossing is increased by conditions obstructing the vision, greater care and caution were imposed upon a person about to pass over such crossing. Baltimore & O. Rd. Co. v. McClellan, Admx., 69 Ohio St., 142, 157, 68 N. E., 816; Pennsylvania Co. v. Morel, 40 Ohio St., 338; Woodworth, Admx., v. New York Central Rd. Co., 149 Ohio St., 543, 552, 80 N. E. (2d), 142.

In our opinion, the instant case cannot be distinguished from Detroit, T. & I. Rd. Co. v. Rohrs, 114 Ohio St., 493, 151 N. E., 714, where a shed 68 feet south of the highway and 15 feet west of the railroad obstructed the plaintiff’s view. In the instant case the abutment was 52 feet east of the center of the highway and 21 feet from the track. In Ballmer, Admx., v. Penn. Rd. Co., 59 Ohio App., 221, 17 N. E. (2d), 435, the view was obstructed up to a point within 28 feet of the tracks. In that case this court entered, final judgment for defendant, which decision was inferentially affirmed in Patton, Admx., v. Penn. Rd. Co., 136 Ohio St., 159, 24 N. E. (2d), 597.

The judgment is therefore reversed and final judgment entered for the defendant. Having arrived at this result, we deem it not necessary at this stage of the proceedings to consider other errors assigned.

Judgment reversed.

Conn and Carpenter, JJ., concur.


author: Miller, J.

text:
    Stanley, Appellee, v. Gustin et al., Appellants.

      (No. 2015
    — Decided December 10, 1948.)

      Messrs. Oldham & Oldham and Mr. Carl W. Norman, for appellee.

      Mr-. Jerome T. Miller, for appellants.
   Miller, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Montgomery county. The action was one for damages brought by a tenant against the landlord for forcibly evicting the tenant., A jury trial was had which resulted in a verdict for the plaintiff. The judgment was duly entered and this appeal is from that judgment.

The record discloses that Florence M. Stanley, the plaintiff, appellee herein, rented a one-room furnished apartment from the defendants, appellants herein, Mabel-K.'and George V. Gustin. The apartment was occupied by plaintiff as a home. Later certain differences arose between the parties which resulted in a notice being given to the plaintiff to vacate at the end of her rental period. The sufficiency of the notice was not-disputed and the -trial-court instructed the jury that the plaintiff’s term had expired. Upon the failure of the plaintiff to vacate the apartment at the end of the term and in accordance with the notice previously given, the defendants went to the plaintiff's apartment and, receiving no response to the alarm given at the door, forcibly entered by breaking the lock on the door. The apartment was occupied by the plaintiff at the time of the entry, and in her presence the defendants removed all her belongings from. the apartment. She offered no resistance other than to refuse admittance to the defendants.

The first alleged error is in the refusal of the court to give three special charges to the jury, all to the effect that the defendants might re-enter and might repossess the property by the use of such force as may be necessary provided that in so doing no act was committed amounting to a breach of the peace. It is stated in 24 Ohio Jurisprudence, 1250, Section 493, that while the Ohio cases are not entirely consistent, the great weight of authority supports this view. One of the cases cited as authority is that of Simmons v. Thompson, 1 Handy, 521, 12 Dec. Rep., 268, wherein it is said:

“Upon a careful examination of numerous cases on this subject, both English and American, we have not found one in which it has been held that a person having the right of possession to land entered upon by another, or kept from him unlawfully by a tenant holding over, might not enter and take possession, using as much force as should be necessary for that purpose; provided that, in so doing, he committed no act amounting to a breach of the peace, or leading directly thereto. And in all cases, where an action has been sustained in favor of the party thus entered upon, either he himself, or some person in his behalf, has been personally in possession of the premises or his goods have been removed in such manner, as to occasion them special damage and thus caused the other party to be regarded as a trespasser ab initio.”

It will be noted that the court said the actions by the tenant have been sustained'where “he himself, or some person in his behalf, has been personally in possession of the premises.” The facts in the case at bar are the same in this regard. We are of the opinion that the forcible breaking and entering of the plaintiff’s apartment while in her actual possession, all of which is admitted by the defendants, constituted a breach of the peace as a matter of law, and the court properly rejected the special charges even though the principle of law was correctly pronounced. This, however, we are not required to decide.

The most recent case we have been able to find on this proposition is that of Ratnour v. Fissell, 5 Ohio Law Abs., 795, which holds that Section 10449, General Code, authorizes an action in forcible entry and detainer when the tenant refuses to vacate; that the statute must be followed and any other procedure to regain possession of the premises would result in taking the law in one’s own hand and, therefore, be illegal. Should this pronouncement of the law be correct, again the special requests were properly refused.

The only other error assigned by the defendants which is covered in their brief is that the court, erred in permitting two witnesses from the office of rent control to refuse to answer certain questions concerning complaints made to their office by the plaintiff for the reason that their records were confidential and private. Regardless of the admissibility of these records we cannot say that their rejection constituted prejudicial error. Clearly, they would not alter the remedy possessed by these defendants in order to regain possession of their property. Neither could they be the basis for damages alleged under the first cause of action in the cross-petition. The record discloses that the plaintiff made a number of reports to the office of rent control but none of which were acted upon to the detriment of these defendants. The actual contents of the report, therefore, do not become pertinent.

We find that the trial court committed no prejudicial error in rejecting that testimony. We find no error in the record and the judgment is affirmed.

Judgment affirmed.

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


author: Wiseman, J.

text:
    The State, ex rel. Dye, v. Alvis, Warden.
    (No. 4266
    — Decided July 5, 1949.)

      Mr. Lawrence H. Dye, in propria persona.

      Mr. Herbert 8. Duffy, attorney general, and Mr. Walter R. Hill, for respondent.
   Wiseman, J.

This is a proceeding in habeas corpus.

The petitioner was indicted on two counts for issuing two separate checks with intent to defraud, in violation of Section 710-176, General Code. The petitioner pleaded guilty and on November 23, 1945, he was sentenced to be imprisoned in the Ohio state penitentiary until legally discharged. The sentence did not specifically provide whether the sentences on the two counts were to run concurrently or cumulatively.

The rule in Ohio is that where the record is silent us to whether two or more sentences are to be served cumulatively the presumption obtains that the sentencing court intended the __ prisoner should serve the full aggregate of all sentences. Anderson, Sheriff, v. Brown, 117 Ohio St., 393, 159 N. E., 372; Williams v. State, 18 Ohio St., 46; 12 Ohio Jurisprudence, 701, Section 683.

Under Section 710-176, General Code, the maximum period of imprisonment is three years. Since the sentences run consecutively the term of imprisonment has not exjñred.

But the petitioner contends that the sentence is defective in that it does not appear that the petitioner was sentenced on both counts. A general sentence is authorized by Section 2166, General Code. In the absence of affirmative proof to the contrary we are re-required to indulge the presumption in favor of the validity of the judgment and the regularity and legality of the proceeding. 2 (Rev.) Ohio Jurisprudence, 1015, Section 565. A sentence on two or more counts is not defective because the sentence is general. See Bailey v. State, 4 Ohio St., 440, 444. Furthermore, a defect in the sentence is not jurisdictional. Where there is a defect in the sentence of a court of competent jurisdiction habeas corpus does not lie to review it; the proper remedy is by appeal in the original action. State, ex rel. Conners, v. DeMuth, Supt., 96 Ohio St., 519, 118 N. E., 98; In re Allen, 91 Ohio St., 315, 110 N. E., 535; Ex parte Van Hagan, 25 Ohio St., 426; Ex parte Shaw, 7 Ohio St., 81, 70 Am. Dec., 55; 20 Ohio Jurisprudence, 425, 445, Section 6, 23.

The petition is denied.

Petition denied.

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


author: Hunsicker, J.

text:
    Vida, Appellee, v. Vida, Appellant.
    (No. 1180
    — Decided April 18, 1949.)

      Mr. Joseph A. Ujhelyi, for appellee,

      Messrs. Levin & Levin, for appellant.
   Hunsicker, J.

At the January, 1939, term of the Common Pleas Court of Lorain County, Margaret Vida, appellee herein, secured a decree of divorce and custody of minor child from Louis Vida, appellant herein. The summons in the divorce action was personally served on the defendant. The decree provided that Louis Vida pay to Margaret Vida the sum of $4 a week for the minor child’s support until the further order of the court.

On October 7, 1948, Margaret Vida, now Margaret Miller, filed a motion to modify the award of support by increasing the allowance, and a motion, affidavit and notice in contempt, alleging Louis Vida to be in arrears on the order of support in the sum of $536. On the same date, a precipe for service of the motions and notice by registered mail was filed with the clerk, directed to the sheriff of Lorain county, and returnable according to law. On October 15, 1948, the sheriff of Lorain county made return of the motion and notice as follows:

“Received this writ on the 7th day of October, 1948, and pursuant to its command, on the 7th day of October, 1948, I deposited in the United States mail, registered and with return receipt requested, a true and certified copy of the motion and notice, with all the endorsements thereon, addressed to the within named, Louis Vida, 8610 Saratoga W., Ferndale 20, Michigan.
“I now return this writ, together with a return receipt signed by Louis Vida. ’ ’

On October 22, 1948, Louis Vida, appearing only for the purpose of his previously filed motions and for no other purpose, asked the court to set aside the sheriff’s return of service of notice of hearing, for the reason that this defendant (appellant), Louis Vida, was a nonresident of the state of Ohio and that service of notice as made by registered mail at Ferndale, Michigan, was contrary to law and void upon its face.

The trial court, after hearing, overruled Louis Vida’s motions as to the service of notice, and granted the motions filed by Margaret Vida Miller, by increasing the allowance of support to $10 a week, found the amount of arrearage for support at the sum of $524, and found Louis Vida guilty of contempt.

It is from the judgment on these motions that this appeal on questions of law is taken by Louis Vida, who says the trial court erred in overruling the motions to set aside the sheriff’s return of notice of service, the trial court erred in granting the motions as filed by Margaret Vida Miller, and there are other errors manifest upon the face of the record.

Section 11987, General Code, authorizes a court in a divorce action to “make such order for the disposition, care and maintenance of the children, if any, as is just.”

The Supreme Court of this state has consistently held that, where a decree of divorce provides for the support of a minor child of the divorced parents, the jurisdiction of the court in the matter of such support continues. Corbett v. Corbett, 123 Ohio St., 76, 174 N. E., 10; Tullis v. Tullis, 138 Ohio St., 187, 34 N. E. (2d), 212.

This court in an opinion by Stevens, J., in the case of Collins v. Collins, 79 Ohio App., 329, 333, 73 N. E. (2d), 814, said:

“The rule is that an order for support, payable in installments, over which the court reserves a continuing jurisdiction, must first be modified by proper proceedings, so as to reduce the installment order to a lump sum award, before a judgment may be entered thereon.
“The ‘proper proceedings’ to procure a modification may be by motion filed in the same court which entered the order and in the same case in which the original order was made, or by petition filed in a separate action in the same court.
“In either event, whether by motion or petition, notice to the adverse party is essential to invest the court with jurisdiction to determine the question presented.”

The only question, then, that confronts us, is: Has proper notice to . the adverse party — in this case, Louis Vida — been given so as to invest the court with jurisdiction of the person of Louis Vida?

• Section 11372 et seq., General Code, govern the giving of notice of motions, and Section 11374 specifically says in part:

“The service of a notice shall be made as required for the service of a summons * *

The methods of service are personal service, constructive service, also called service by publication, and service by mail.

Mail service (Section 11297-1, General Code) may be provided for by rule of court. It is agreed herein that the judges of the Common Pleas Court of Lorain County by rule provided for the service of writs and summonses by mail.

In the case of Struble v. Meredith, 51 Ohio App., 201, 200 N. E., 194, the court held:

“Service of summons by registered mail upon a non-resident defendant may be made under the provisions of Section 11297-1, General Code, when the action is one in which service by publication is permitted. ’ ’

See, also, Compton, Jr., v. Compton, 62 Ohio App., 368, 23 N. E. (2d), 987.

Thus, if the action instituted by the filing of these motions by Margaret Vida Miller would support service by publication upon Louis Vida, then the additional method of service provided in Section 11297-1, General Code — to wit, mail service — could properly be employed' to subject him to the jurisdiction of the Common Pleas Court of Lorain County.

The provision for service by publication is Section 11292, General Code, which says, in part:

“Service may be made by publication in any of the following cases:
“11. In an action or proceeding for a new trial or other relief after judgment * * *.”

Does the appellee, mother of the minor child, seek “other relief after judgment”? If she does, then service by publication is permissible, and therefore-service by mail is likewise permissible under the facts of this case.

The phrase “other relief after judgment” is the title given to Chapter 6, Division IV, Title IV, Part Third, of the General Code, which Division IV relates to “Judgment.” The sections of the General Code contained in such Chapter 6 relate to the power.of a court to change its orders during ot after term, and the procedure to correct mistakes, omissions or irregularity in obtaining judgments. An examination of these statutes does not disclose any power in a court to exercise jurisdiction over the person of a litigant when a judgment is sought to be modified.

The phrase “other relief after judgment” as used-in paragraph “11” of the service-by-publication section (Section 11292, General Code) refers to the type of relief called for by Chapter 6, of the said Division IV relating to judgments, and does not relate to the modification of judgments where the court has continuing jurisdiction of the subject matter and not of the person.

In order, therefore, for the court to obtain jurisdiction of the person of Louis Vida, a proper service of the notice of the pending motions is essential; and since it was not obtained in this ease, the judgment must be reversed and tlje cause remanded for further proceedings.

Judgment reversed.

Stevens, P. J., and Doyle, J., concur.


text:
    The State of Ohio, Appellee, v. Beck, Appellant.
    (No. 492
    — Decided December 19, 1947.)

      Mr. Joe M. Moorhead, for appellee.

      Mr. W. S. Snook, for appellant.
   By the Court.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Hancock county, wherein the defendant, appellant herein, Hallie J. Beck, was, by verdict of the jury therein, found guilty of shooting his wife with intent to kill her, and judgment of conviction and sentence was rendered and entered on the verdict.

The errors complained of by the defendant will be considered in the same order in which they are assigned.

1. The evidence produced on the trial of the cause tended to prove beyond a reasonable doubt every essential element of the offense charged and was sufficient to sustain the verdict of guilty and the judgment of conviction and sentence.

2. While the defendant, under this assignment of error, claims error in the admission of evidence offered by the state, he does not specify or argue any such claimed error in his brief, so that this court, under its statutory prerogative, will not consider this assigned error.

As shown by the proffer of evidence by the defendant, he sought to introduce his own testimony, which the court refused to admit, to the effect that on April 6, 1947, the prosecuting witness, Elsie M. Beck, telephoned the defendant at Findlay from Bowling Green and asked him to come over and get her, and that he went over to get her, found she had stayed all night with one Floyd May in a cabin near Bowling Green, and brought them both back.

The offense for which the defendant was indicted and tried is stated in the indictment as having occurred on May 15, 1947, and all the evidence tended to prove it did occur on that date, which was more than five weeks after the date of the Bowling Green incident.

The court refused to admit evidence of the Bowling Green incident, on the ground that it occurred at a period too remote from the time of the offense charged to reflect on the state of mind of the defendant at the time the offense was committed.

This evidence if admitted would not have tended 1o prove that the offense was committed by the defendant in the heat of passion, without premeditation, as contended by the defendant, but on the other hand would have tended to prove a motive of jealousy and revenge on the part of defendant and time for deliberation and premeditation.

If this evidence had been offered by the state, it would have been error for the court to refuse to admit it, but as it was offered by the defendant it was not error for the court to refuse to admit it, for such refusal could not in any way have been prejudicial to defendant.

3 and 4.' The verdict of the jury is neither contrary to the evidence nor contrary to law, as there was substantial credible evidence tending to prove beyond a reasonable doubt every essential element of the offense charged.

5. Under this assignment defendant claims error in the portion of the court’s general charge to the jury, which reads as follows:

“The intent to kill is a ‘specific intent,’ that is the defendant must have intended to kill Elsie M. Beck. Intent is a state or condition of mind and is not susceptible of proof by direct or positive evidence. Intent may be inferred if facts have been proved by the evidence adduced from which the jury will reasonably infer such intent. In determining whether there was an intent to kill you may consider whether any method or instrument was used by the defendant which in your judgment was reasonably calculated to cause death. A sane person who does an act which it is known will produce a particular result is from our own common experience presumed to have anticipated and, intended, the result.”

Defendant’s claim of error is directed to that part of the instruction, which we have written in italics.

In support of his claim of error he relies on the case of Brown v. State, 156 Ark., 288, 245 S. W., 813, in which it was held:

“An instruction in a prosecution for assault with intent to kill which told the jury that the proof must show a specific intent to take life, but also that every sane man is presumed to intend the natural and probable consequences of his acts, was contradictory within itself and was calculated to confuse and mislead the jury.”

In the above case, the defense of the accused was that he did not attack the prosecuting witness, Pierce, with a knife; that the fight was between his son and Pierce, in which both used their knives; and that his son inflicted the wounds on Pierce in self-defense.

In its opinion in that case, the court held that the instruction mentioned “was prejudicial, because the * * * [defendant] denied that he assaulted Pierce at all.”

That case differs from the one at bar in that in the latter there was no defense that some person other than defendant committed the acts of which complaint was made.

The applicable Ohio rule is: *

“The law presumes a man to intend the reasonable and natural consequences of acts deliberately done; that is, of course, where he is capable of choosing, and free to choose, between right and wrong, * # * one who deliberately points a loaded gun at another and purposely shoots him in a vital part of the body, so that death ensues, will be presumed to have intended that which he did, or that which was the natural and probable result of his deliberate acts * * *. The same is true where any deadly weapon is used.” 12 Ohio Jurisprudence, 291, Section 288.

Whether such presumption, or any presumption, applies, where death does not ensue, has not been rlecided in any reported Ohio case, but upon the same reasoning upon which the above-mentioned presumption is based it would appear that, where, as in the instant case, there was evidence tending to prove that the accused discharged a loaded gun into the body of the prosecuting witness, causing two lead bullets of large caliber to lodge in a vital part of his body, there is a presumption that the accused, if sane, intended to wound in a vital part of the body.

Adopting this presumption and considering the same with the other evidence in the case as to threats made by the defendant to and against the prosecuting witness, and the method and instrument used by the defendant in committing the offense charged, the jury could have properly found that the defendant intended to kill the prosecuting witness.

Before giving the instruction complained of, the court instructed the jury as to the various matters the state had to prove beyond a reasonable doubt to authorize a verdict of guilty, and, among other matters, “that the act, namely, the shooting of Elsie M. Beck by the defendant, was done with malicious intfent to kill the said Elsie M. Beck.”

The general instruction complained of simply informed the jury of the various matters it could consider in arriving at a verdict on the matter of intent. The particular part of the instruction complained of, considered in connection with the other instructions, did not, as the defendant contends, inform the jury that from the act of the defendant in shooting the prosecuting witness it could presume an intent to kill, but only that from such act it could presume he anticipated and intended the result thereof which was a discharge of two lead bullets of large caliber into a vital part of the body of the prosecuting witness.

Considering the charge on the subject matter as a whole, we find no error in the respect claimed.

6. Under the provisions of Section 13452-1, General Code, for the suspension of the imposition of sentence of a person who had pleaded guilty or been found guilty, the matter of such suspension is within the discretion of the trial court, and although, in the case at bar, defendant’s application for such suspension was refused, there is nothing in the record to show that the trial court erred by abusing its discretion in so doing.

7. Defendant has not specified or argued in his brief any errors under this assignment of error, so under its statutory prerogative the court will not consider this assignment of error.

As we find no error in any of the respects assigned, specified and argued in defendant’s brief, the judgment of the Court of Common Pleas is affirmed at the costs of the defendant, and the cause is remanded for execution.

Judgment affirmed.

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


author: Doyle, J. By the Court.

text:
    Leatherman et al., Appellants, v. Abrams et al., Appellees.

      (No. 217
    — Decided July 8, 1949.)

      Mr. John A. Weber and Mr. Harold L. Williams, for appellants.

      Mr. Roy E. Sebrell, Mr. Carl W. Tschants and Mr. Ralph Burroughs, for appellees.
   Doyle, J.

This is an action to enjoin Roy E. Sebrell, an attorney at law, from delivering purported deeds to certain grantees named therein, or from submitting the same for tranfer or record to the proper county officials in Medina county; and to have declared that the purported deeds are “void and of no force and effect.”

The amended petition states that Milton H. Leather-man died July 3, 1946; that he was the father of three children — Prank W. Leatherman, Mary Abrams and Carrie Jones; that Carrie Jones predeceased her father but left surviving an adopted son. Dale C. .Jones, one of the plaintiffs herein; that at the time of Leather-man’a death he was seized of nine parcels of real estate which vested one-third in each: the son Frank, the daughter Mary, and Dale C. Jones, the adopted son of the deceased daughter Carrie; that within a period of two years prior to his death, he signed papers “which are purported and pretended deeds of the real estate,” and which, if valid, would constitute an inequitable division of the decedent’s estate; that the purported deeds were signed by the deceased at a time when he was unable, through mental infirmity, to make valid disposition of his property, and at a time when undue influence was exerted upon him by various ones of the defendants who occupied positions of trust and confidence to him.

In addition to the above claims, it is pleaded “that said purported and pretended deeds, pursuant to an understanding with the defendant Roy E. Sebrell, were placed with him to be held until after the death of said decedent, Milton H. Leatherman, under a claimed understanding with the said decedent that the same would be delivered to the purported grantees after the death of said decedent, upon payment of inheritance or succession taxes, if any, by said purported grantees, and that said defendants, and each of them, regard said purported deeds as deeds of gift. Plaintiffs further say that said purported and pretended deeds were predated or dated back with the intent and purpose of evading any inheritance tax on the pretended successions purportedly created thereby. Plaintiffs further say that none of said purported and pretended deeds are properly signed, witnessed, dated, acknowledged or delivered, and that none of them are of any force or effect whatsoever.”

Issues were joined by the answers of the defendants. Pursuant to trial in the Court of Common Pleas of Medina County, a decree was entered denying an injunction and establishing the validity of the deeds.

Appeal on questions of law and fact to this court, brings here the case for trial de novo.

Tt appears in the record, and we so find the facts lo be, that Milton H. Leatherman, a retired lumber and building supply dealer, was the owner of nine different parcels of real property, and, being desirous of distributing this property among his own children and the children of his second wife at a time shortly following the death of the second wife (Carrie Selby Leatherman), he did the following things to effectuate his plan:

1. On November 10, 1944, he requested his lawyer, Roy E. Sebrell, to prepare two deeds, one to convey property No. 1 to Ethel and Clarence Selby (Clarence was the son of bis second wife by a former marriage, and Ethel was the wife of Clarence), and the other to convey property No. 2 to his daughter, Mary E. Abrams. On the following day, in the presence of' his daughter, Mary, he signed the prepared deeds in his lawyer’s office, after which they were duly executed. He and his daughter then executed an instrument designated “escrow agreement,” which is in the following language:

“Whereas, M. H. Leatherman has executed and delivered to Mary E. Abrams a certain deed dated November 10,1944, and,
" Whereas, it is desired by both parties not to record said deed at this time but that said deed shall be placed in escrow with Roy E. Sebrell with instructions not to record said deed until requested so to do by the said Mary E. Abrams:
“Now therefore, I the said Mary E. Abrams do herewith submit to Roy E. Sebrell the above-described deed under the conditions aforesaid, and, I, the said M. H. Leatherman, do hereby consent to such escrow and I agree as a part of my board and room with the said Mary E. Abrams to pay all taxes and assessments and insurance on said premises that may become due and payable during my lifetime.
“In the event of the death of Mary E. Abrams before the death of M. ET. Leatherman we hereby direct the said Roy E. Sebrell to return the said deed to ¡VI. H. Leatherman and in the event of the death of M. H. Leatherman before Mary E. Abrams the said Roy E. Sebrell shall immediately record said deed.
“In witness whereof, we have hereunto set our hands this 11th day of November, 1944.
“(Signed) Milton H. Leatherman
“Mary E. Abrams.
“Received of Mary Abrams the deed for Wadsworth City Lot No. 1065. Dated Nov. 11,1944.
“(Signed) Roy E. Sebrell.”

Following this business transaction, he left the lawyer’s office possessed of the deed to property No. 1, in which the Selbys were named as grantees. The deed to property No. 2 and the instrument designated “escrow agreement” were left with the attorney. Mr. Leatherman personally handed the deed to property No. 1 to the Selbys, with instructions that it should be given to attorney Sebrell, to be held by him “as long as he (Leatherman) lived.” Shortly thereafter, the Selbys gave the deed to the attorney.

Epitomizing the above, it is found that both deeds were manually handed to the grantees. The deed to Mary Abrams was accompanied with the agreement set out in full above, which purported to condition her title on the fact of survivorship. The deed to the Selbys was accompanied with no conditions, either written or verbal, on the fact of survivorship. It was understood, however, that they were to give the deed to Mr. Sebrell, who was to record the instrument upon the death of the grantor.

In addition to the foregoing, it appears that Mr. Leatherman had written to one' Howard Selby (a brother of Clarence) at his army station in Europe, and advised him that he intended to deed him a property. On the 6th day of February, 1945, he again appeared at Mr. Sebrell’s office and, at his request, there was prepared and executed a deed to property No. 3, in which Howard Selby was the named grantee. This deed, pursuant to instructions of the grantor, was forwarded to the grantee in Prance, with a letter explaining that the deed was to be returned to Mr. Sebrell, to be held during the lifetime of the grantor, and that the grantor was to receive all income, would pay taxes, insurance, upkeep, etc. The letter further stated that if the grantee should predecease the grantor, Mr. Sebrell should deliver back the deed to the grantor; however, if Mr. Leatherman died first, then Mr. Sebrell was to record the deed upon the payment by Mr. Selby of taxes, revenue stamps, recording fees, etc. This deed and letter were remailed from Prance back to attorney Sebrell, and the contents are in the record before us.

As we view these transactions, we do not believe that there was intended a delivery of title to the grantees when the deeds were manually given to the grantees. The deeds were not, at those times, to become absolute. There did not exist the necessary intent to furnish a muniment of title. On the contrary, the deeds were to be placed in the hands of a third person, and, by him, kept until certain events occurred. It may be properly said, we think, that when the deeds were in the hands of the grantees, they were “in transit” to the possession of Sebrell — as much so as if words to that effect had been pronounced by Leatherman at the time he handed them or sent them to the grantees. The giving of the’deeds to the grantees, and the agreement. upon the deposit with a third person with directions to give them to the survivor grantee or grantor, was one continuous transaction, and refutes a claim of an absolute delivery in the first instance. Fairbanks, Admr., v. Metcalf, 8 Mass., 230; Stone v. Daily, 181 Cal., 571, 185 P., 665.

Under ■ circumstances which present a sufficient physical delivery of a deed by a grantor to a grantee named therein, if the evidence accompanying such physical delivery compels the conclusion that the grantor did not intend that the delivery of the instruments to the grantees should become operative as a conveyance of the property, and the grantee so understood the facts to be, such delivery would not constitute a conveyance of the property. In other words, the mere manual transfer of a deed to a grantee is not conclusive evidence of delivery since the transfer of possession of a deed must be with the intent of presently passing title. However, under the factual situation shown here, the named grantees did become the agents of the named grantor, for the purpose of delivery of the deeds to the third person (Sebrell).

We now come to the next problem: What is the effect of the delivery of a deed by a grantor through his agent to a third person, with directions to the third person to record the deed upon the death of the grantor if, at such time, the grantee be living, but in the event of the death of the grantee before the death of the grantor, that the third person shall return the deed to the grantor ?

This court, in 1947, had occasion to examine the law applicable to a factual situation in which A, after executing a deed to B, and intending thereby to make the instrument operative as his deed, delivered it as such to X, with instructions to deliver the instrument to B at the time of his (A’s) death. We there said:

“1. Where a grantor delivers his duly executed deed to a third' person, to be delivered by him to the grantees named therein at the grantor’s death, and the grantor then and there intends to part with all i-ight to withdraw, revoke or control the instrument, and such deed is delivered accordingly and recorded, the title to the property passes to the grantees.” Oberholtz v. Oberholtz, 79 Ohio App., 540, 74 N. E. (2d), 574.

See, also, Crooks v. Crooks, 34 Ohio St., 610; Ball v. Foreman, 37 Ohio St., 132; Patrick v. Parrott, 92 Ohio St., 184, 110 N. E., 725; Streeper, Admr., v. Myers, 132 Ohio St., 322, 7 N. E. (2d), 554.

In our examination into the law pertinent to the Oberholtz case, supra, as well as to other cases before this court not officially reported, we assembled the characteristic features of several groups of cases. In one group, we found cases involving delivery by a grantor A to the depositary X, in which there was no intention to pass title thereby to a named grantee B, and the question as to whether any title ever would pass to B depended on the future conduct of the grantee in complying with the terms of a business transaction between A and B, sufficient to create in B an interest in the land and which could be protected in a court of equity. Here was encountered a delivery in escrow, in the true sense of the term “escrow.”

In another group, we found the state of affairs to be the opposite. In this class, there were no transactions between A and B sufficient to create an equitable estate in the land, but when A delivered his deed to the depositary, his intent was that it should definitely operate in B’s favor unqualifiedly. Under certain language employed, it was sometimes found that it was the grantor’s intent that the giving of the possessory interest should be for a time postponed, but that was the only qualification. Into this group, we found Oberholtz v. Oberholtz, supra, to fall, in which title passed to the grantee unqualifiedly.

The affirmative factors shown in these groups of cases do no! appear in the part of this case now under consideration (the deeds to Mrs. Abrams and to Howard Selby, properties No. 2 and No. 3). There was no transaction between the grantor and grantees sufficient to create in the grantees an equitable interest in the land; nor is it clear that the grantor, by his delivery of the deeds in the grantees’ favor to the depositary, intended to part with all control over tbe deeds and to vest in the grantees an unconditional interest in the land, postponed only with respect to possessory rights until the grantor’s death.

In this state, in determining the question of the sufficiency of delivery, courts have, for long, posed the question: “Does the grantor by his act mean to part with his title?” And in this connection, the courts have said: “* * * whatever satisfactorily manifests this design is as good as an explicit declaration. No precise form of words is necessary. Anything that shows the purpose is enough. Usually it is held that when the grantor delivers his deed to a third person to be delivered by him to the grantee at the death of the grantor, without reserving to himself any control over the instrument, a valid delivery is shown. But if the grantor reserves the right or power to recall the deed at any time before his death, there is no delivery; in such case, the depositary is the agent of the grantor, and holds the deed subject to his direction and control.” 13 Ohio Jurisprudence, Deeds, Section 75.

The deliveries under discussion, which must be relied upon in order to make the deeds effective, were the deliveries to Sebrell by the grantees, acting as agents for the grantor; and, in the light of the mutual understanding and agreement of the parties, there was, in no case, such an absolute delivery, with an intention to pass title, as the law requires. The agreement and understanding between the parties, whether written or verbal, made the passing, in each case, of title, conditional upon the grantees surviving the grantor.

It may be stated concisely that, when a deed is given to a third person, instructed to keep it until the death of either grantor or grantee, and then to deliver it to the survivor, the delivery is not effectual. Such a delivery is not absolute, but is conditional upon grantee surviving grantor. It is not a delivery dependent upon the happening of an event which is certain to occur, and is not sufficient to pass title. Stone v. Daily, supra; Weber v. Brak, 289 Ill., 564, 124 N. E., 654; Stanforth v. Bailey, 344 Ill., 38, 175 N. E., 784.

Such a transaction is “in the nature of a testamentary disposition of property” and invalid as a deed to property. Williams v. Schatz, 42 Ohio St., 47.

Proceeding now to the deed to property No. 1, in which Ethel and Clarence Selby are the named grantees, wo find it to be absolute and unconditional and to be held only by the third person, Sebrell, until the death of the grantor. Neither the deed itself nor the circumstances surrounding its delivery bring the transaction within the rules, heretofore pronounced, applicable to the deeds to properties No. 2 and No. 3.

It is the conclusion of this court that the injunction prayed for in respect to properties No. 2 and No. 3 should be granted, and the deeds held void and of no effect, for the reason of insufficient delivery; that, as to property No. 1, the injunction should be denied and the deed be determined valid.

2. We now proceed to state the circumstances surrounding the transfer of deeds to the remaining six parcels of property, and to give our conclusion respecting the legal effect thereof.

In February of 1946, Leatherman again called upon his lawyer, Sebrell, and requested the preparation of six deeds, three of them to name his daughter, Mary Abrams, as the grantee of three different properties, and three of them to name his son, Frank W. Leather-man, as grantee of three other properties. The deeds were prepared, and, pursuant to request, were carried by the attorney to a meeting between the grantor and various members of his family, which included the two named grantees.

At the meeting, after examination of the deeds, the grantor signed them and transmitted them to the lawyer, who thereupon signed his name as a witness to each of them and took the acknowledgement as a notary public of the grantor’s signature on each of them. The deeds were then handed back to the grantor, who handed the three deeds, on which the name of Mary Abrams appeared as grantee, to the said Mary Abrams, and he did likewise with respect to the three other deeds to Frank W. Leatherman, the named grantee. During these proceedings, the grantor instructed the respective recipients to give them to the lawyer, who was directed to hold them until his (the grantor’s) death, after which the deeds would be recorded, upon the payment by the respective. grantees of revenue stamps, recording fees, etc.

On the next morning, the named grantor, Milton H. Leatherman, again appeared at the office of attorney Sebrell, and, in the presence of one Kathryn Miller and attorney Sebrell, acknowledged his signature to the deeds and requested Mrs. Miller to sign as a second witness. This she did, and thereafter attorney Sebrell affixed his notary seal on each of the instruments. These deeds have continued in the possession of Sebrell from that time.

Upon analysis of the circumstances as shown in the record, we are of the opinion that these deeds were, in fact, delivered to the third person, Sebrell, by the grantor as his deeds (as was the case involving property No. 1 noted supra), to be later delivered, to the respective grantees named therein, by the third person, at the time of the grantor’s death, and that such delivery made them the grantor’s deeds presently and that the depositary became an agent of the grantees. These facts we find to be sufficient to pass title to the properties involved to the grantees. There was an intent to furnish a muniment of title. Crooks v. Crooks, supra.

We do not find here any reservation of a right or power to recall the deeds at any time before the grantor’s death, which power, if it existed, would have made the depositary the agent of the grantor, and in which event there would have been no delivery. Ball v. Foreman, 37 Ohio St., 132, at p. 139.

It is our conclusion that these six instruments convey a legal title to the grantees named therein.

3. Passing directly now on all of the remaining claims that the deeds are “void and of no effect to pass title,” we conclude that:

A. The claim of no consideration cannot be sustained to invalidate the instruments.

B. “Fraud and undue influence” did not result in the transactions involving property No. 2, which transactions we have heretofore found, however, were insufficient to pass title under the instrument. Neither do we find that fraud or undue influence is shown to exist in the transactions involving any of the other properties here under consideration.

O. The deeds to the last six properties involved were properly witnessed. The events transpiring at the meeting of the family in February, 1946, and those transpiring at the office of the attorney, were all a part of one continuous transaction, climaxed by delivery to the depositary as agent for the grantees.

D. The execution of the deeds under certain circumstances not found necessary to set forth herein was not against public policy.

(Decided January 4, 1950.)

4. The case of Hale v. Hale, reported in 31 Ohio Law Abs., 299, has been stressed in argument as determinative of several of the questions involved here. In a re-examination of that case, decided several years ago by this court, we find an entirely different factual situation. There we found a delivery of a deed direct to a grantee, with intent to furnish a muniment of title to the grantee.

A decree will be prepared in conformity to the findings herein expressed.

Decree accordingly.

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

On Rehearing.

By the Court.

We have re-examined the record in the light of the additional evidence admitted by this court pursuant to our allowance of a motion to reopen the case for the purpose of presenting such testimony.

It cannot be contrariwise argued that the crucial test of the valid delivery of a deed is the intention of the grantor to pass title; and when it is shown that the owner of property has not intended to part with all dominion or control over his property during his lifetime, the instrument becomes, upon his death, a mere nullity.

As we view this entire record, we come to no other conclusion than that the mere handing to the grantees of the deeds in question, was not sufficient to infer an intent in the grantor to pass present title to the property, he thereby releasing any further right or interest in himself to the title to the property. In fact, the evidence speaks to the contrary, for it was understood by all, at the time of the manual giving of the deeds from one to the other, that ultimately the deeds were to be given into the custody of a third person depositary, who was to return them to the grantor in the event the grantee named should predecease the said grantor.

A decree will be entered as directed in the original opinion.

Decree accordingly.

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