author: Guernsey, J.

text:
    Ridgeway, Assignee, Appellee, v. The Home Federal Savings & Loan Assn., Appellee; The National City Bank of Marion, Appellant, et al.
    (No. 1007
    Decided January 14, 1949.)

      Messrs. Car hart é Car hart, Messrs. Donithen, Michel dé Davis, Messrs. Bartram & Bartram and Mr. Carter M. Patton, for appellees.

      Messrs. Guthery, Harmon dé Conkle, for appellant.
   Guernsey, J.

This is an appeal on questions of Law from a judgment of the Common Pleas Court of Marion County, in an action wherein the appellee, D. C. Ridgeway, as assignee for the benefit of creditors of Clifford Richards and .Jessie Richards, husband and wife, was plaintiff, and the appellees, The Home Federal Savings & Loan Association, Paul D. Michel, and others, and the appellant, The National City Bank of Marion, were defendants.

The judgment appealed from was journalized on August 3, 1948, confirming the sale of real estate ordered sold in the action, and ordering distribution of the proceeds thereof.

No bill of exceptions has been filed herein and the appeal is submitted upon the pleadings and original papers filed in the Common Pleas Court, and the record in that court.

The brief of defendant, The National City Bank of Marion, appellant herein, assigns error in that the final order and judgment of the Common Pleas Court is contrary to law.

The following pertinent facts are apparent from the pleadings and original papers filed in the Common Pleas Court, the orders of the court, and the final entry:

Clifford Richards and Jessie Richards, bis wife, owned a piece of real estate in Marion, Ohio. The same was heavily encumbered by mortgages, judgment liens, tax liens, and mechanics liens.

On or about June 16, 1947, and subsequent to the attaching to the real estate of the mortgages and other liens mentioned, Richards and his wife made a deed of assignment to D. C. Ridgeway as assignee for the benefit of their creditors. This assignment was duly filed and recorded in the record of assignments of the Probate Court and D. C. Ridgeway duly qualified as such assignee.

The appellant is a lienholder by way of mortgage, its lien being found and adjudicated by the Common Pleas Court as fourth in priority of the liens on the premises.

The real estate in question was appraised at $9,000, which amount is less than the aggregate amount of the claimed liens thereon, as shown by the pleadings and original papers in the case.

The real estate being encumbered by liens, the assignee, pursuant to the provisions of Section 11127, General Code, brought this action in the Common Pleas Court to determine the amount of the liens, and to sell the real estate.

When the case came on for hearing on the pleadings for the purpose of determining the liens, the court found liens totaling $9,614.94, an amount in excess of the appraisement. And in addition to the liens found by the court, there were a number of liens barred by reason of the lien claimants being in default, either for pleading or for appearance.

The real estate was ordered sold and was purchased by the defendant bank for the sum of $6,000. The amount bid was insufficient to pay the defendant bank and the lienholders who held liens prior to the bank’s mortgage, and nothing was ordered paid to the bank on its lien.

Upon the order of confirmation, which is the final order in this case and the order appealed from, the court below allowed and ordered paid prior to the payment of liens, the following items:

1. To the treasurer of Marion county, Ohio, the taxes and penalties now due and owing on the real property, in the sum of $35.54.

2. To the clerk of the Common Pleas Court, the costs in the cause, in the sum of $639.75, including an assignee’s fee to D. C. Ridgeway of $240 and an attorney fee to Carhart & Carhart of $270.

3. To George J. Oriens, for premium on assignee’s bond, the sum of $100.

4. To F. C. Bender, plumbing, $2.44.

5. To J. J. Francis, auctioneer, $10.

6. To Judge Edward J. Ruzzo, Probate Court costs in the sum of $45.15.

The court then, following the order of priority mentioned, ordered payments to lienholders out of proceeds of sale, in the following order of priority:

7. To The Home Federal Savings & Loan Association, the sum of $4,774.17.

8. To the Avenue Lumber & Supply Company, the sum of $99.53.

9. To revenue stamps, $6.60.

10. To Joe Bain, to apply on his lien, the sum of $285.82.

The journal entry determining liens discloses that on March 10, 1948, Joe Bain recovered a judgment against Clifford Richards and Jessie Richards, husband and wife, in the sum of $385.11, so that after crediting the amount ordered paid him in the judgment of confirmation and distribution there remained due him on his lien, a sum in excess of $98.29, which amount he would be entitled to receive prior to any payment made to the defendant bank on account of its lien on the premises.

In its entry determining liens, the court finds that the bond in the sum of $10,000 heretofore filed by D. C. Ridgeway as assignee for the benefit of all the creditors of Clifford Richards and Jessie Richards, husband and wife, upon his appointment, is sufficient and is, therefore, approved and confirmed and no further bond is required for the sale of the real estate as described in plaintiff’s petition.

In his petition, the assignee prays that the rights, interests and liens of the defendants to the action may be fully determined, adjusted and protected, and that he “may be authorized to sell said real estate to pay the debts and costs aforesaid, according to the statute in such case made and provided, and for all proper orders and relief in the premises.”

In its answer and cross-petition, the defendant bank, among other things, prays “that said premises be sold agreeably to the prayer of plaintiff’s petition.”

In its brief, the defendant bank states that “It is to the allowance of a commission to the assignee, and fees to counsel for the assignee, and the costs of Probate Court and the general expenses of the assignment, to which the appellant objects.”

Defendant bank states further that the questions raised are:

I. Can an assignee be allowed his commission and counsel fees from “a sale of real estate where a lien-holder, not the first lienholder, bid in the property for a sum insufficient to pay the lienholder and those who hold liens prior to the purchaser’s?

II. Can the Common Pleas Court, in such a case, allow the assignee’s commission, counsel fees, and general costs of the assignment out of the proceeds of the sale prior to the distribution among lienholders?

Those questions involve the same subject matter and will be considered together.

Sections 11115, 11116, 11117, 11118, 11119, 11120, 11121, 11122, 11126, 11127, 11128, 11129, 11130, 11131, 11132, 11134, 11135, 11139, 11140, 11141, 11142, 11143 and 11144, General Code, are pertinent to the questions raised.

The sections mentioned were originally incorporated in sections of the Revised Statutes, as follows: Section 11115, in Section 6350, R. S.; Section 11116, in Section 6350a, R. S.; Section 11117, in Section 6350b, R. S.; Section 11118, in Section 6350c, R. S.; Sections 11119 and 11120, in Section 6350d, R. S.; Sections 11121 and 11122, in Section 6350e, R. S.; Sections 11126, 11127, 11128, 11129, 11130, 11131 and 11132, in Section 6351, R. S.; Sections 11134 and 11135, in Section 6352, R. S.; Section 11139, in Section 6355, R. S.; Sections 11140, 11141, 11142, in Section 6356, R. S.; and Sections 11143 and 11144, in Section 6357, R. S.

We will first consider the validity of the allowance of commission to the assignee.

While there are a number of cases bearing more or less upon the allowance of commission to an assignee for the benefit of creditors upon a sale, in an action brought by him for that purpose, of unencumbered real estate assigned to him by his assignor, there is a case decided by the Supreme Court of Ohio, directly in point, determining the validity of such allowance under the statutory provisions above referred to which were then incorporated in the above-named sections of the Revised Statutes of Ohio. The decision in that case has never been overruled, modified or questioned, and is the established law of Ohio upon the subject, so it will not be necessary to discuss any other cases bearing on the question. The case we refer to is Andrews, Assignee, v. Johns, 59 Ohio St., 65, 51 N. E., 880.

As appears from the report of the case in the Supreme Court, the case was tried in the Probate Court in which the action to sell the real estate of his assignor was instituted by the assignee, and appealed to the Common Pleas Court. The Common Pleas Court, upon the trial of the appeal, stated its conclusions of fact and law separately. Among the pertinent facts found by it were the following:

The real estate was bid off and purchased at the sale made by the assignee, by one Albert Hughes, who held the first mortgage lien on the real estate, and the same was sold for the sum of $5,900, which was not sufficient to pay the taxes, costs and the mortgage lien of Hughes. The assignee performed services in the sale of the real estate, of the value of $250. In the discharge of the trust, the assignee employed attorneys who rendered services in the action to sell the real estate, of the value of $148, which amount was paid by the assignee to the attorneys, and there were no funds of the assignee with which to pay for the legal services' except. the proceeds of the sale of the real estate.

And the Common Pleas Court, from the facts, found as conclusions of law, that the assignee should be allowed the sum of $148 paid by him to his attorneys and should also be allowed the sum of $33.70 on so much of the proceeds of the real estate collected by the assignee, for the payment of costs and taxes, but that the assignee was not entitled to be allowed any commission on the balance of the proceeds of the sale as the same were retained by Hughes on his mortgage lieu; and that the assignee was not entitled to recover anything by way of extraordinary services so rendered by the assignee, for the sole reason that there was no fund out of which to pay the same except the proceeds of the sale, which Hughes, as the purchaser of the real estate, was entitled to retain on his mortgage lien.

On error to the Circuit Court, prosecuted by the assignee, the judgment of the Common Pleas Court was affirmed. The assignee then prosecuted error from the Circuit Court to the Supreme Court.

The Supreme Court affirmed the judgment of the Circuit Court in the case, holding, in the syllabus of the case:

“1. The term ‘proceeds of the real estate sold," found in Section 6357, Revised Statutes, implies money arising from the sale actually received and accounted for as such by the assignee. Upon money so received he is entitled to the percentage compensation named in the section above cited.
“2. But, where the land offered for sale by the assignee is bid in by a mortgage creditor whose mortgage is the first lien, and the bid is less than the amount of the debt so secured, taxes and costs, the mortgagee is not required to pay over to the assignee, nor into court, the amount of such bid, and in such case the assignee is not entitled to the percentage compensation provided in said section.”

In the opinion in the case, the statutory provisions above referred to are considered and construed. The construction of Section 6357, Revised Statutes, the provisions of which are now incorporated in Sections 11143 and 11144, General Code, is as set forth in paragraph one of the syllabus in the case.

The decision in the case is based on this construction and the following reasoning appearing in the opinion in the case:

“Now where the land exposed for sale by an assignee, which is incumbered by a mortgage constituting a first lien has been bid. in by the mortgagee for a sum less than the amount owing on his mortgage, there can be no ‘proceeds’ in the sense of money for distribution, for the legal effect of the bid and sale, followed by confirmation and deed, is only to satisfy the mortgage, and the debt pro tanto, and vest in the mortgagee, purchaser, the equity of redemption of the assignor, and is not to produce a fund for distribution. It has never been the law or practice in this state to require a mortgagee, purchasing under such circumstances, to pay the amount of his purchase either to the officer making the sale, nor into court. The reason is that having already the legal title subject to the equity of redemption of the mortgagor, the purchaser is in a sense the owner, and requires only a satisfaction in a legal manner of the equity of redemption, and of any subsequent liens, followed by possession, in order to give him a complete title to the land. To require the mortgagee to pay over to the assignee in money the amount of his bid, to be followed by a repayment to him by the assignee of all or the major part of the sum would not only be the requiring of a vain thing, a ceremony illogical and useless, but it would in many cases work downright injustice. * * *
“If no ‘proceeds,’ within the fair construction of the statute, arise from the sale, then it would seem to follow, necessarily, that there can be no percentage commission.”

Applying the converse of the above reasoning to the facts in the case at bar, it is obvious that where, as in the case at bar, the lienholder purchaser is under the duty as a matter of law of paying into the court in which the real estate was sold all or any part of the purchase price of the real estate to satisfy prior liens, the assignee is entitled to the rate of commission specified in Section 11143, General Code (Section 6357, Revised Statutes), on the proceeds of the sale coming into his hands as the result of the suit instituted by him for distribution among the lienholders having priority over the lien of the purchaser.

We therefore hold that the court did not err in the allowance made to the assignee by way of commission on the proceeds of sale coming into his hands.

We will next consider the validity of the allowance to the attorneys for the assignee for the services performed by them in the proceeding to sell the. real estate.

It will be noted that in the case of Andrews, Assignee, v. Johns, supra, an allowance to the attorneys of the assignee, for services performed by them in the proceedings to sell the real estate, was made by the Common Pleas Court, on the appeal from Probate Court, and no appeal was taken by the purchaser lien-holder from such allowance, so that such allowance was not a matter of consideration in the Supreme Court.

The. matter of the allowance of attorney fees of the assignee for the benefit of creditors, in an action brought by the assignee to sell real estate of his assignor, where there were two tracts of real estate covered by separate mortgage Liens and one tract was sold to the mortgagee of the tract for an amount not sufficient to pay the mortgage claim of the purchaser thereof in full, and the other tract was sold to the mortgagee of the tract for an amount not sufficient to pay the mortgage claim, was before the court in the case of Shaw, Trustee, v. Fifth Ward Bldg. Assn., 6 C. C., 41, 3 C. D., 340. The court held, in paragraph three of the syllabus, as follows:

“But it appearing that the proceeding was commenced by the assignee in good faith, and that it was apparently necessary to the proper discharge of his duty, and that the same in some degree operated to the benefit of lienholders, who otherwise would have been compelled to file several petitions for the foreclosure of their mortgages, resulting in greater costs, which would have to be paid from the proceeds of such sales, in such case, under the provisions of Section 6357, Revised Statutes, such assignee may be allowed for the fees of his counsel such sum as under all the circumstances of the case may seem to the court just and reasonable.”

In that case the appraisement shows that the properties were worth considerably more than the amount of the mortgages upon them and that something probably would be realized from the sale, for other creditors, after paying the mortgage claim thereon and the costs and expenses, and it would seem, therefore, that the assignee was justified in filing the petition.

In the opinion in the case, the judge writing the opinion comments on this fact and then states:

“And if this be so, it would also seem, that under the terms of the statute, the court having the right to order the distribution of the fund, can properly not only decree the payment therefrom of the usual and ordinary court costs in the case, but in addition such just, reasonable, and actual and necessary expenses of the assignee, and reasonable and necessary counsel fees incurred with reference to such fund, and the proceeds of the real estate so sold, thus brought before the court for distribution. If, however, the services of such assignee, or of his counsel, are not in any sense for the benefit of the fund thus realized, or of those having liens upon it, it is the law as we understand (and it is a reasonable doctrine), that such services should not be paid for from the fund in a case like this, for then it would be compelling the lienholder to pay from his own pocket, for that which could not benefit him.'”

While in the case at bar the appraisement did not show that the real estate was worth more than the amount of the mortgage upon it, the assignee apparently proceeded to sell the real estate, believing something would probably be realized from the sale, for other creditors, after paying the mortgage claim thereon, and the costs and expenses, and as the defendant bank, in its answer and cross-petition asks that the real estate be sold as prayed for in the assignee’s petition, it is estopped to deny that the assignee did not proceed in good faith to sell the real estate, so the decision in the case is applicable to the facts in this case, and supports the plaintiff's contention that the court in the instant case did not err in making the allowance for attorney fees.

Following the reasoning of the last-mentioned decision, we hold that the court did not err in the allowance of attorney fees to the assignee’s attorneys.

We will next consider the validity of the allowance for premium on assignee’s bond.

In an action for the sale of real estate by an assignee for the benefit of creditors, it is necessary that bond be given. In the instant case the court made an order approving the bond originally given by the assignee in the Probate Court to qualify him as such assignee, as the bond required in the action to sell real estate. Unless this had been done, the assignee would have been required to give a separate bond in the action in the Common Pleas Court, the premium on which would have been the same as the premium on the bond given by the assignee in the Probate Court. The lienholders, therefore, had the benefit of the bond as given and the premium therefor constituted a necessary expense of the action to sell real estate, so the court did not err in making this allowance.

There is nothing in the record for reviéw which shows the exact purpose for which the item for plumbing was allowed. In the absence of such evidence it must be presumed that the plumbing was performed on the real estate which was sold in the action and was necessary for its preservation, and was, therefore, properly allowed.

There is also nothing in the record for review showing exactly what services were performed by the auctioneer for which a ten-dollar allowance was made to iliim, and in this situation it must be presumed that the services of the auctioneer were in connection with the sale of the premises, and necessary in such proceeding, and, therefore, properly allowed.

The amount allowed to Judge Edward J. Ruzzo for Probate Court costs in the sum of $45.15 is less than the amount it would require to pay the balance owing on the lien of Joe Bain, so that if this allowance was made without authority of law and was for that reason cancelled, the amount thereof would be applied toward the payment of the Bain lien and the defendant bank would receive no part thereof to apply on the amount owing on its lien. Consequently, although this amount may have been improperly allowed, its allowance did not adversely affect any right or interest of the defendant bank, so the bank is not in a position to contest the allowance.

For the reasons mentioned, the judgment of the Common Pleas Court will be affirmed, at the costs of defendant bank.

Judgment affirmed.

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


source: Caselaw Access Project

author: Ross, P. J.

license: Public Domain

text:
    City of Cincinnati, Appellee, v. Luckey, Appellant. City of Cincinnati, Appellee, v. Warren, Appellant.

      (Nos. 7121 and 7122
    Decided July 5, 1949.)

      Mr. Ralph E. Cars, for appellee.

      Messrs. Waite, Schindel <& Bayless, Mr. Philip J. Schneider and Mr. David P. Tarbell, for appellants.
   Ross, P. J.

These appeals on questions of law from two judgments of the Municipal Court of Cincinnati and considered together in that they involve the same questions of law and the facts are identical, except that there are different defendants, who were, respectively, the engineer (case No. 1721) and conductor (case No. 1722) of a freight train, which it is charged blocked passage over a street in the city of Cincinnati, intersecting the railroad tracks of the Baltimore & Ohio Railroad, for more than ten minutes, contrary to the provisions of an ordinance of such city. Both defendants were found guilty of violating the provisions of such ordinance.

The defendants-appellants claim (1) that the ordinance invades the area of legislative power assumed by the General Assembly in enacting Section 7472, General Code, and that such ordinance is, therefore, unconstitutional by reason of conflict with the provisions of Section 3, Article XVIII of the Ohio Constitution; (2) that the ordinance has the effect of placing a limitation upon interstate commerce, contrary to the provisions of Section 8, Article I of the Constitution of the United States, and is, therefore, unconstitutional; and (3) that enforcement of the provisions of the ordinance constitutes an unreasonable exercise of the police power vested in the city, and such provisions should not, therefore, be enforced in the instant cases.

There is no conflict in the evidence.

The freight train in question, operated by defendants, moving slowly over the tracks of the Baltimore & Ohio Railroad Company, where such tracks intersect Este avenue in the city of Cincinnati, blocked such street crossing for more than ten minutes. The train consisted of 87 cars. The speed of the train was estimated at from 3 to 5 miles per hour.

Prom the evidence, it appears that the train originated in St. Louis, and that some of the cars were destined for points outside Ohio.

Motions made at the conclusion of the evidence for dismissal of the defendants and motions for new trials were overruled after the findings of guilty and sentence.

We will consider the claims of the defendants in order.

Section 3, Article XVIII of the Ohio Constitution, provides:

“Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

Section 7472, General Code, provides:

“A person or corporation, or a conductor of a. train of railroad cars, or other agent or servant of a railroad company, who obstructs, unnecessarily, a public road or highway authorized by any law of this-state, by permitting a railroad car or locomotive to-remain upon or across it for longer than five minutes,, or permits timber, lumber, wood, or other obstructions-to remain upon or across it to the hindrance or inconvenience of travelers, or a person passing along or-upon such road or highway, shall forfeit and pay for each offense, not less than two dollars, nor more than twenty dollars.”

In Capelle v. B. & O. Rd. Co., 136 Ohio St., 203, 208, 24 N. E. (2d), 822, it is stated:

“Statutes almost identical in language with present. Sections 7472 and 7473, General Code, have existed in. Ohio since 1853. In relation to railroads, the expressed object is to penalize railroad employees for-permitting a railroad car or locomotive to obstruct a highway, unnecessarily, for longer than five minutes-to the hindrance or inconvenience of travelers. The underlying purpose is to facilitate the movement of traffic on highways and to discourage unnecessary-blockades, causing congestion and delay.”

In Section 410-8 of the ordinances of the city of Cincinnati, in full force and effect at the time involved in-these prosecutions, it is provided:

“It shall be unlawful for any railroad company Cooperate its locomotives, cars or trains of cars in such manner as to block a street crossing for a period of' more than ten minutes. Violations of this section shall be punished according to the penalties of Section 410-13.”

In Section 410-26 of the ordinances of the city of Cincinnati, also in full force and effect at the times herein involved, it is provided:

“It shall be unlawful for any person or corporation to operate or run any locomotive or railroad car on or across any street, road, lane or alley, at the grade thereof, at a greater speed than ten (10) miles per hour.”

It has been firmly established that where the state has assumed jurisdiction of an area of the police power, no municipality may enter such area with municipal legislation in conflict with the acts of the state legislature expressing such exercise of power. 28 Ohio Jurisprudence, 442, Section 277.

The subject of the ordinance forming the basis of the prosecutions involved and the statute, Section 7472, General Code, is the blocking of streets or roads.

The city and the state have each exercised inherent police powers to protect the public from interference with a reasonable right to proceed upon streets crossing railroad tracks. In each form of legislation the object and purpose is the same. The specific formula differs somewhat in terms, but in the end it is obvious that the aim of each form of legislation is to secure as nearly as possible uninterrupted passage over railroad crossings. The statute applies to a train remaining upon a crossing; the ordinance applies to the operation of a train over a crossing.

The statute applies to the unnecessary blocking of the. crossing; the ordinance provides á penalty for blocking, regardless of necessity produced by incidents of railroad operation.

The statute limits the time of stopping to five minutes; the ordinance permits a ten-minute interruption of street traffic.

In the widest sense, the term, “operate,” might include starting, running, and stopping, and, so construing the word, it might be that a conflict in exercise of police power between the state and the municipal corporation would exist.

The duty rests upon courts considering the acts of legislative bodies to so construe the language employed as to give effect, if possible, to the provisions therein contained. 37 Ohio Jurisprudence, 624, Section 344.

The same rule applying to the construction of statutes applies to the construction of ordinances pf a municipal corporation.

It may be assumed that the council of the city of Cincinnati was aware of the provisions of Section 7472, General Code, and did not intend to legislate upon a subject fully covered by that statute. In the use of' the word, “operate,” it may, therefore, be presumed that council intended to reach a different situation than that covered by the statute, to wit, permitting a train or portion thereof “to remain” upon a crossing. The effect of the ordinance is to govern the speed of a train, imposing by its limitations a. minimum speed when crossing a street, just as Section 410-26, supra, of the Cincinnati ordinances prescribes a maximum speed.

These considerations require a conclusion that council has not usurped a function assumed by the General Assembly.

The same considerations, however, involve the second claim of defendants, that is, that the effect of these two ordinances, Sections 410-8 and 410-26, is an attempted regulation of interstate commerce. Any limitation placed on the length of a train engaged in interstate commerce, imposed by a council of a municipal corporation, would obviously be an interference with interstate commerce. The Supreme Court of the United States has held such a limitation beyond the power of a state and obviously such limitation would be beyond the power of any political subdivision thereof. Southern Pacific Co. v. Arizona, ex rel. Sullivan, Atty. Genl., 325 U. S., 761, 89 L. Ed., 1915, 65 S. Ct., 1515, the second paragraph of the syllabus of which is:

“The Arizona Train Limit Law (Arizona Code Ann., 1939, Sections 69-119), making it unlawful to operate within the state a passenger train of more than fourteen cars or a freight train of more than seventy cars, held, as applied to interstate trains, invalid as contravening the commerce clause of the federal Constitution.”

By application of the two ordinances, every train is required to clear the crossing in ten minutes, and yet no train is permitted to travel faster than ten miles per hour, or 60 minutes, or a mile in six minutes. This means that the longest train which could lawfully pass in ten minutes would be a train one and 4/6th miles long or, as a mile is 5,280 feet, a train 8,800 feet long. The average length of a freight car is approximately 50 feet, so that any freight train containing more than 176 cars could not pass the crossing in ten minutes, and such operation would violate the provisions of Section 410-8 of the ordinances, and if the train went faster than ten miles an hour in order to clear the crossing, such operation would violate the-provisions of Section 410-26 of the ordinances.

Considering the two ordinances together, which the Municipal Court was required to do and as this courl is required to do, since it must take judicial notice of that of which the trial court took judicial notice, we must conclude that the effect of the ordinances is au interference with interstate commerce, and, under the circumstances existing in these cases, cannot be enforced against the defendants.

The third claim of the defendants is in effect disposed of by these conclusions.

For these reasons, the judgments of the Municipal Court are reversed and the defendants will be discharged.

Judgments reversed,.

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


author: Fess, J.

text:
    Baker, Appellee, v. Baker, Appellant.

      (No. 457
    Decided April 25, 1949.)

      Mr. B. B. Dewey and Mr. A. W. Overmyer, for appellee.

      Messrs. Stout é Stout, for appellant.
   Fess, J.

In 1941 plaintiff, James E. Baker, since deceased, was divorced from the defendant, appellant herein, and custody of an infant child was awarded to the then plaintiff. On June 13, 1947, defendant filed a motion in the case reciting that the plaintiff had died and that the child was residing with its paternal grandparents at Clyde, Ohio; and defendant moved that the former order be modified and the care, control and custody of the child, now seven years of age, be confided to the defendant mother.

On November 12, 1948, an entry was filed reciting that the cause came on to be heard upon the motion and the evidence, and the court being fully advised m the premises finds that Alma J. Baker (now Alma J. Rathbun) is the surviving parent of James Thomas Baker, a minor of the age of eight years, and that as such surviving parent she is entitled to the care and custody of the child. The entry provides further that the mother shall have the care, custody and control of the child until further order of the court.

The entry provides also that the paternal grandmother, Leona Baker, if she so desires, may have the child in her home every other weekend during the school year from Friday evening until Sunday evening and have the child for one week during the Christmas or the spring vacation; also may have the child for one month during the summer. It was further ordered that the mother and grandmother shall have the right of visitation at reasonable times during the absence of the child from either home and while in the custody of the other until further order of the court.

Defendant filed notice of appeal on questions of law from the order entered on November 12, 1948. Pursuant to praecipe, a transcript of the docket and journal entries and pleadings was filed. No bill of exceptions or transcript of the evidence was filed.

Leona Baker, the grandmother, as defendant-appellee, moves to dismiss the appeal on the ground (1) that no application for new trial was filed and (2) that no bill of exceptions was filed. Alma Rathbun in turn moves to dismiss the motion on the ground that Leona Baker is not a party to the action or the appeal.

The transcript of the docket reveals that pursuant to a praecipe appended to Alma Rathbun’s motion, summons was served upon Mr. and Mrs. Baker on June 14, 1947. Since the Bakers had actual custody of the child, they should have been formally made parties in the action. But the motion to change the custody of the child is a special proceeding ancillary to the divorce action, and the service of summons and their participation in the proceeding below and in this court is sufficient to recognize them as parties herein. Therefore, the motion to dismiss the motion to dismiss the appeal is overruled.

Coming to pass upon the merits of the motion to dismiss, an application for new trial is no longer necessary to lay the foundation for appellate consideration-of the contention that the verdict, report or decision is contrary to law, provided the matter has been submitted to the trial court and the error claimed appears-as a part of the record. Section 11576-1, General Code. Failure to file a bill of exceptions is not a valid ground for dismissing an appeal. In case no bill of exceptions is filed, the appellate court may consider and pass upon only those assigned errors which may appear from the transcript of the docket and journal-entries and other original papers certified as the record. It has no testimony or any of the proceedings incident to the hearing below before it. The motion to-dismiss the appeal is, therefore, overruled.

It is the contention of the defendant that the import of the entry with respect to the custody of the child is-to divide its custody between its mother and its paternal grandmother, contrary to the provisions of Sections 8032, 8033 and 8034, General Code, and that as-between a parent and grandparent, the parent has the-right to the sole custody of a minor child in the absence of a finding that the parent is an unfit person to have-such custody. Since the entry makes separate provision for visitation, it is apparent that custody is-divided between the mother and grandmother.

The provisions of Sections 8032, 8033 and 8034, General Code, were first enacted in 1893. 90 Ohio Laws, 186. Prior to 1893, Section 5696, Revised Statutes, the predecessor of present Section 11987, General Code, was in force in substantially the same phraseology. Section 11987, General Code, originated in the act of December 29, 1804 (3 Ohio Laws, 177), which provided that:

“The court shall take [sic] such order for the distribution, care and maintenance of the children of such marriage, if any there be, as shall appear just and reasonable, and the circumstances of the parties may require. ’ ’

(The territorial act of 1795 provided that in case of divorce because of aggression of the wife, the court shall make such distribution of the children as the court shall think proper.)

Prior to and since 1893 it has been held that in determining the custody of children, the paramount consideration is what is for the best interest of the child. Hoffman v. Hoffman, 15 Ohio St., 427; Clark v. Bayer, 32 Ohio St., 299, 30 Am. Rep., 593; Neil v. Neil, 38 Ohio St., 558; Rogers v. Rogers, 51 Ohio St., 1, 36 N. E., 310; Addams v. State, ex rel., 104 Ohio St., 475, 135 N. E., 667; In re Coons, 20 C. C., 47, 11 C. D., 208; In re Hampshire, 17 Ohio App., 139, 144; Weiss v. Fite, 19 Ohio App., 309.

In support of her contention that the court below erred in awarding partial custody to the child’s grandmother, defendant cites Luebkeman v. Luebkeman, 75 Ohio App., 566, 61 N. E. (2d), 638, which holds custody of children may not be awarded to any other person than their parents unless a finding is made of the unfitness of the parents to have their children’s custody as provided by Section 8033, General Code. In that case the award of custody of a child to his grandparents incident to the granting of a divorce was reversed. In In re Duffy, 78 Ohio App., 16, 68 N. E. (2d), 842, the same Court of Appeals again held that a parent has the right to the custody of his child against ail persons, unless shown to be unfit. However, as between grandparents who have had the custody of a child and a parent who has not, the courts have approved retention of custody by the grandparents or given them partial custody. The court which decided the Luebkeman and Duffy cases apparently overlooked its previous unofficially reported decision in Harsh v. Harsh, 30 Ohio Law Abs., 580, wherein upon authority of Clark v. Bayer, 32 Ohio St., 299, 30 Am. Rep., 593, it approved retention of custody by grandparents who-had had the custody of the child for 12 years. In Blaisdell v. Blaisdell, 7 Ohio Law Abs., 685, this Court of Appeals approved the award of custody to the mother’s parents with whom the mother and children were residing, although the syllabus recites that the-court has no power to give custody of children to persons others than parents, unless proven unfit.

Regardless of the foregoing comment, the instant case involves a change of custody previously ordered in the original divorce proceeding. With respect to a change of custody, Section 8034-1, General Code, as amended January 1, 1946, provides in part:

‘ ‘ In any case where a Common Pleas Court, or other court having jurisdiction, has made an award of the custody or an order for support or both of a minor child or children, the jurisdiction of such court shall not abate upon the death of the person awarded custody of said child or children, but shall continue for all purposes during the minority of said child or children and such court, upon its own motion or the motion of either parent or upon the motion of an interested person, acting in behalf of the child or children, may proceed to make further disposition of the case in the best interests of the child or children, * * (Italics ours.)

Section 8034-1, General Code, by specific terms, makes it applicable to pending actions, so Section 26, General Code, does not apply.

Although the entry here in question does not staN that it is for the best interest of the child, it does recite that it was made upon the evidence and that the court was fully advised in the premises. It therefore cannot be held that that portion awarding partial custody to the grandmother is contrary to law, nor can it be found that it was an abuse of discretion. In the absence of a bill of exceptions, for aught we know, there was ample evidence to justify upon equitable principles the terms of the entry. In argument and the briefs, it is conceded that the mother and grandmother are reputable persons and able to care for the child; that at the time of the divorce the mother was but 16 years of age; and that, pursuant to the custody awarded the father, the child had been raised in the home of the grandparents from the time it was six months old. We are not permitted to consider this' upon the appeal, but direct attention to it as an indication of what may have been before the court below in making the award. The court may have justified the entry upon the principle stated by Ashburn, J., in Clark v. Bayer, supra, at page 306:

“After the affections of both child and adopted parent become engaged, and a state of things has arisen which cannot be altered without risking the happiness of the child, and the father wants to reclaim it, the better opinion is that he is not in a position to have the interference of a court in his favor. His parental rights must yield to the feelings, interests, and rights of other parties acquired with his consent.”

The trial court retains jurisdiction to modify the award upon a change of conditions in case the order shall not operate for the best interests of the child. Corbett v. Corbett, 123 Ohio St., 76, 174 N. E., 10; Dailey v. Dailey, 146 Ohio St., 93, 64 N. E. (2d), 246.

Judgment affirmed.

Conn and Carpenter, JJ., concur.


author: By the Court.

text:
    Penter, Appellant, v. Schwartz, Appellee.
    (No. 7060
    Decided February 21, 1949.)

      Mr. Leonard H. Freiberg, for appellant.

      Messrs. Pogue, Relmholz, Culbertson & French, for appellee.
   By the Court.

The trial court instructed a verdict for the defendant at the close of plaintiff’s case, in an action for damages for personal injuries growing out of an automobile collision. The appeal is here on questions of law.

The petition alleges that on June 17, 1947, at approximately 11 p. m., plaintiff was driving his automobile in a northerly direction on Colerain pike in Hamilton county, Ohio; and that a dump truck owned by defendant was backed by the defendant out of a private driveway on the east side of the highway, onto the paved portion thereof, whereupon the automobile of plaintiff collided with the truck of the defendant causing the damages as alleged in the petition.

Plaintiff makes three assignments of negligence, to wit:

“1. Defendant negligently and carelessly operated his motor vehicle into and upon the highway without due regard for the safety and rights of the plaintiff and in such manner that he did endanger the life and property of the plaintiff while plaintiff was in lawful use of the highway.
“2. Defendant backed Ms motor veMcle upon the highway without giving warning and exercising vigilance, all in violation of the statutes of the state of Ohio made and provided in such cases.
“3. Defendant failed to have upon his motor vehicle and in operation the lamps and reflectors required by the laws of Ohio and by regulations made pursuant to laws.”

Defendant, in a first defense in the answer, admits plaintiff was driving along the highway at the time and place alleged. Defendant specifically denies that a dump truck owned by him was backed out of a private driveway lying to the east of the highway, and that he backed from a driveway at ail, but admits that a car driven by plaintiff collided with a. truck belonging to defendant, which defendant says was parked at the easterly side of Colerain pike at the time it was struck by the car operated by plaintiff.

The second defense in the answer charges plaintiff with contributory negligence.

Plaintiff himself was the only witness to testify concerning the collision, and, after describing the night as misty with a fine rain, but not foggy, and that he was driving at about 30 miles per hour, with Ms lights on low beam, with which he was able to see approximately 150.feet ahead, he testified:

‘‘Q. What if anything did you see in front of you? A. There was nothing on the road. The only thing I noticed was the headlight on the garage door. * * *
“Q. Now what did you next remember when you got to Round Top road, or next to the school there? A. There was nothing on the road that I seen at all.
“Q. Where were you looking? A. Straight ahead.
“Q. You saw nothing? A. Nothing.
“Q. What did you next remember? A. I woke up in the hospital. * * *
“Q. Now from the time you reached the crest of the hill you had the road al] to yourself? A. Yes.
“Q. There was no traffic moving in front of you, there was no traffic coming from the opposite direction, was there? A. No, sir.
“Q. There was nothing coming on the west side of the highway at all, was there? A. No, sir.
“Q. That is, there were no lights of vehicles coming in your direction at ail? A. No, sir.
“Q. Now, you didn’t — Weil, you didn’t know what happened to you out there, did you; that is, you don’t know of your own knowledge what happened to you? A. I don’t know what hit me; no, sir.
“Q. You don’t know what hit you, do you? A. No, sir.
“Q. You didn’t see anything, did you? A. Just that light, as I told you.
“Q. A light that you saw over on the garage? A. About two hundred feet from there.
“Q. But you saw nothing in the highway? A. Not a thing, sir.
“Q. Or at the side of the highway? A. Not a thing.
“Q. And you didn’t see anything at any time before a collision occurred, isn’t that right? A. There was nothing on the road at all.
“Q. You saw no substantial object in the highway? A. No, sir.
“Q. You didn’t see a car in the ditch at the west side of the road, did you? A. No, sir, I didn’t.
“Q. In fact you proceeded along there on that highway as if it were absolutely cleared, didn’t you? A. It was clear, sir.
“Q. When I say you proceeded along there as if the road were clear, didn’t you? A. Yes, sir.
“Q. In other words, you did nothing, took no action to avoid a collision, did you? A. There was nothing there to cause a collision.
“Q. Will you answer my question? A. Just like I told you before, I seen the lights. I eased up. I lifted my foot off the accelerator.
“Q. Further than that you took no action whatever to avoid a collision with anything, did you? A. No, sir. * * *
“Q. And, now, did you see anyone in the highway? A. No, sir.
“Q. You don’t know whether Mr. Schwartz was in the highway or not, do you? A. No, sir, I didn’t see anybody. Nothing was in front of me. * * *
“Q. What was the time from the time that you first saw the lights until you reached the point in the road opposite where the lights were? * * * A. A few, maybe two or three; I don’t know. * * *
“Q. In other words, you ran a distance of two hundred feet in two or three seconds, is that your answer? A. I don’t know the exact. I couldn’t say exact number; but shortly after I seen that the next 1 knew I was in the hospital. * * *
“Q. Now, Mr. Penter, in your petition you say that, ‘ Defendant negligently and carelessly operated his motor vehicle into and upon the highway without due regard for the safety and rights of the plaintiff and in such manner that he did endanger the life and property of the plaintiff while plaintiff was in lawful use of the highway.’ You don’t know that of your own knowledge, do you? A. No, sir.
“Q. When you say that the defendant backed his motor vehicle upon the highway without giving warning, you don’t know that of your own knowledge, do you? A. No, sir. There was nothing else there.
“Q. Now you say that the defendant failed to have upon his motor vehicle and in operation the lamps and reflectors required by the laws of Ohio. You don’t know that of your own knowledge? A. There was no light.
“Q. But you didn’t know what was there, did you? A. There was nothing there.”

In addition, plaintiff introduced into evidence photographs of five different views of his 1937 Chevrolet coach automobile, all showing considerable damage on the right side to the rear of the single door, with no appreciable damage forward, although a direct front view is not shown.

Plaintiff testified merely that these were pictures of his car after the accident, and, on cross-examination, stated they were taken at his brother’s place in November following the accident in June. The pictures reveal considerable snow on the ground, both front wheels without tires, but there is no further explanatory testimony of the pictures in the record.

Plaintiff called three other witnesses, none of whom witnessed the accident nor offered any probative evidence concerning it.

Plaintiff’s contention is that, indulging every reasonable inference arising from plaintiff’s own testimony, together with all other evidence and circumstances, he is entitled to an inference from his testimony that, because he was looking straight ahead and saw nothing, no discernible object was 'there, and from the pictures locating the damage to the right rear of his automobile, to the further inferences that the truck backed out of the driveway into plaintiff’s car, and, because of defendant’s admission of ownership of a truck with which plaintiff collided, that defendant is responsible in damages.

With this contention, this court cannot agree.

The burden is on the plaintiff to produce some evidence upon every element essential to establish liability or produce evidence of a fact upon which a reasonable inference may be predicated to support such element.

There is a complete absence here of any evidence tending to establish liability on the part of the defendant.

The admission of ownership on the part of defendant of the truck with which plaintiff collided, contained in the answer, is insufficient to cure such absence of evidence.

There is no proof in this record at all as to who was the operator of the truck, if any, at the time. Mere proof of or the admission of ownership alone is not sufficient to sustain an inference of all the elements necessary to establish liability.

In Halkias v. Wilkoff Co., 141 Ohio St., 139, 47 N. E. (2d), 199, the first paragraph of the syllabus states:

“Mere proof of ownership of an instrumentality is not sufficient to raise an inference that a person operating it is in the owner’s employ for that purpose, and as such is, at any specific time, acting within the scope of his authority. To raise such an inference it must be shown, in addition to such ownership, not only that the operator is an employee of the owner but that he is employed generally in the business of his employer to operate such instrumentality.”

In White Oak Coal Co. v. Rivoux, Admx., 88 Ohio St., 18, 102 N. E., 302, 46 L. R. A. (N. S.), 1091, Ann. Cas. 1914C, 1082, it is stated in paragraph two of the syllabus:

“The facts that the automobile was owned by the defendant and that the same was negligently operated by an employee do not make a prima facie case of negligence against the owner, unless it appears that the employee was driving the automobile with authority, express or implied, of the owner.”

The record here not only fails to connect the defendant with the operation of the truck, but the plaintiff himself testified that he did not know of his own knowledge anything about the specifications of negligence set forth in his petition.

Except for the admission of ownership in the answer, there was no evidence by whom or in whose behalf the truck was operated, if being operated at the time.

It, therefore, appears that the reasoning set forth in Sobolovitz v. Lubric Oil Co., 107 Ohio St., 204, 140 N. E., 634, is applicable here. The syllabus of that case is:

“1. To entitle the plaintiff in a personal injury suit to have his case submitted to a jury, it is necessary that he produce some evidence upon every element essential to create liability, or produce evidence of a fact upon which a reasonable inference may be predicated to support such element.
“2. An inference of fact cannot be predicated upon another inference, but must be predicated upon a fact supported by evidence.
“3. Where the plaintiff fails to produce any evidence upon an essential element of his case and no reasonable inference can be drawn from a fact supported by evidence which would tend to prove such element, it is error for the court to submit the case to a jury.”

The judgment of the trial court is, therefore, affirmed.

Judgment affirmed.

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


author: Hildebrant, J.

text:
    Robinson, Appellee, v. Gatch, Exr., et al., Appellants.
    (No. 7104
    Decided July 5, 1949.)

      Messrs. Burke & Cooney, for appellee.

      Mr. John N. Gatch, Mr. Frank A. Roberts, Mr. Robberi F. Groneman and Mr. Win. J. Creed, for appellants.
   Hildebrant, J.

This is an appeal on questions of law from a judgment setting aside the will of Margaret Curley, deceased, after a jury’s verdict against the will.

After the verdict and judgment entered thereon and during the pendency of a motion for new trial, it was discovered that no guardian ad litem had been appointed prior to the trial for a ten-year-old defendant, upon whom service of summons had been properly made, and to whom by item six of the will was given the sum of $1,000.

On motion, a guardian ad litem was appointed, who accepted the assignment and filed what was styled “Report of guardian ad litem” reciting inter alia that the plaintiff had voluntarily paid to the clerk of courts the sum of $1,000, to be paid to the minor defendant, so that he would thereby receive exactly the same amount bequeathed him in the will, had it been sustained. Thereafter, the court approved an entry authorizing the payment of the full $1,000 to the regular guardian of the estate of such minor.

The failure to appoint the guardian ad litem before trial was included as a ground in the motion for new trial.

What is the effect of the failure to appoint a guardian ad litem for the minor defendant, prior to the trial?

Section 11252, General Code, requiring the defense of a minor to be made by a guardian for the suit, is mandatory and not a mere matter of form. Burns v. Burns, 20 N. P. (N. S.), 116, 27 O. D. (N. P.), 510; Long v. Mulford, 17 Ohio St., 484, 93 Am. Dec., 638. The Long case is the leading Ohio case setting forth the duties of a guardian ad litem and the purpose of the appointment.

In Hasty v. Weller, 33 Ohio Law Abs., 190, the court, after reviewing the statutory and case law, made the following deductions with which this court is in accord:

“The purpose for appointing a guardian ad litem or trustee to make defense for persons under disability, is to have a competent person make a proper defense for the ward; to put in issue all of the material allegations in the petition, and to make certain that the interest of the ward is properly brought to the attention of the court: the appointment of a guardian ad litem or trustee cannot be dispensed with except by statute; it is error for the court to render judgment or decree until the answer of the guardian ad litem or trustee is filed; the failure to appoint a guardian ad litem or trustee does not render the proceedings absolutely void, but only voidable; such irregularity cannot be attacked collaterally, but it is such an irregularity as to be considered reversible error.”

It is, therefore, clear that the original judgment herein could not bind the minor defendant, and, on appeal by the guardian ad litem, this court would be required to reverse the judgment and remand the cause for retrial.

However, it is well settled in Ohio and universally held that after service of summons properly made upon a minor defendant, as in this case, the appointment of a guardian ad litem is a mere matter of procedure and not one of jurisdiction, so that a judgment entered against a minor defendant for whom no guardian ad litem was appointed is not absolutely void, but voidable only. Johnson, Gdn., v. Pomeroy, 31 Ohio St., 247, wherein it is stated in the first paragraph of the syllabus:

“A judgment rendered against an insane person, without the intervention of a trustee or guardian, and in favor of one having knowledge of the insanity, is not void.”

See, also, 21 Ohio Jurisprudence, 910, 915, Sections 51, 53, and 27 American Jurisprudence, 842, Section 121, in which it is stated:

“While the appointment of a guardian ad litem for an infant defendant is not jurisdictional in the sense that failure to make such appointment deprives the court of power to act and renders such judgment void, a judgment rendered against an infant in an action in which he was not represented by a guardian-ad litem or a general guardian is erroneous, and can be overthrown by writ of error coram nobis, or by motion in the same court, or by proper appellate proceedings, at least where the want of such representative -affects the substantia] rights of the infant.”

In 43 Corpus Juris Secundum, 279, Section 108, it is stated:

“The fact that an infant party is not represented by -a guardian ad litem or next friend, as a general rule, renders the proceedings erroneous, but the judgment entered therein is not void. * * *
“Adult parties cannot invoke the infancy of another party not represented by guardian ad litem to set aside the decree as to themselves.”

It therefore becomes apparent that the real question in this case is the validity of the settlement effected by the guardian ad litem and approved by the court.

After judgment adverse to his ward, the guardian ad litem has the right to appeal and the duty to do so if it reasonably appears to be to the advantage of the minor defendant.

By appeal here, the guardian ad litem could obtain a reversal of the judgment adverse to his ward and a retrial of the issues involved. By a compromise or settlement of the right to appeal, approved by the court, the guardian gained for the ward everything the ward would ever have been entitled to on appeal and ultimately successful retrial. It was, therefore, clearly to the advantage of the ward. The guardian ad litem effected a compromise and settlement of the right to appeal the judgment adverse to his ward by securing the payment into court for his ward the full sum of $1,000 given him by the will. This settlement ivas approved by the court, as obviously to the utmost advantage ever to be secured to the minor defendant. To disapprove this settlement now would do equally obvious disadvantage to the minor defendant.

It is universally held, as stated in 43 Corpus Juris Secundum, 302, Section 111:

“By leave of court. Ordinarily a guardian ad litem or next friend may, with the consent of the court, agree to a settlement or compromise beneficial to the infant, and the court has power to authorize it.”

In 27 American Jurisprudence, 851, Section 131, we find the following statement:

“If a compromise should seem desirable to a next friend or guardian ad litem, the proper course is for him to submit it to the court, by whom he was appointed or permitted to act, for its approval and sanction. When so approved, it will be valid and binding. If a compromise agreed to by the next friend is put into judgment, it thereby becomes the action of the court and will bind the infant. All questions of authority of the next friend of an infant to bind him by an agreement to compromise an action are eliminated by the entry of an agreed judgment based upon the compromise agreement of the parties. It has been held in a number of cases that the court has power to sanction compromises in the settlement of estates, or litigations generally, in which the property rights of infants are concerned. If the court approves a compromise after an examination of the facts, the judgment or decree is binding upon the infant.”

There is nothing in the in rem character of this suit as a will contest which prevents settlement of the minor’s right of appeal to his advantage, as approved by the court.

We find no error in the record, prejudicial to any of the appellants herein. The judgment is, therefore, affirmed.

Judgment affirmed.

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


text:
    The State, ex rel. Warman, v. Bushong, Supt.
    (No. 933
    Decided April 8, 1947.)

      Messrs. Rockey £ Rockey, for petitioner.

      Mr. Hugh S. Jenkins, attorney general, Mr. H. R. P. Niehoff and Mr. Roland B. Lee, for respondent.
   Guernsey, J.

This is an action in habeas corpus instituted in this court.

Thomas J. Warman, the petitioner herein, was indicted by the grand jury of Hamilton county in 1944 for possessing burglar tools. Thereafter, he was tried before the Common Pleas Court of Hamilton county and convicted of the afore-mentioned felony, the penalty for which, under the provisions of Section 12439, General Code, is imprisonment in the penitentiary not less than one year nor more than five years.

Before imposition of sentence, Warman was examined by two reputable psychiatric physicians and examiners appointed by the Court of Common Pleas pursuant to the provisions of Sections 13451-19 to 13451-23, General Code (118 Ohio Laws, 686); whereupon, after hearing, the court found that Warman was a mentally defective prisoner as defined in Section 13451-19, General Code (118 Ohio Laws, 686), and on May 18, 1944, pursuant to the provisions of Section 13451-20, General Code (118 Ohio Laws, 687), committed him to Lima State Hospital for the Criminal Insane, for an indefinite period and until such time as he might lawfully be released therefrom.

Thereafter, in 1945, upon application duly filed in the court by the superintendent of Lima State Hospital, the court duly directed that hearing be held regarding the mental condition of the prisoner, and War-man was then duly re-examined by two reputable psychiatric physicians and examiners appointed by the Court of Common Pleas of Hamilton county pursuant to Sections 13451-20 and 13451-22, General Code (118 Ohio Laws, 686), whereupon, hearing having been duly had, the court found that Warman was still a mentally defective prisoner, as defined in Section 13451-19, General Code (118 Ohio Laws, 686); and on June 22, 1945, ordered that he be recommitted to Lima State Hospital for the Criminal Insane for an indefinite period and until he might lawfully be released therefrom.

Thereafter, on March 7, 1947, Warman filed in the Court of Appeals for Allen county, a petition for a writ of habeas corpus, alleging that he is sane and is unlawfully restrained of his liberty by R. E. Bushong. superintendent of Lima State Hospital, respondent herein.

To the writ the respondent filed his return, averring that he has had the petitioner in his custody from May 19, 1944, to March 28, 1945, and from June 26, 1945, to the present time by virtue of the commitment papers aforesaid issued by the Court of Common Pleas of Hamilton county, under the provisions of Section 13451-20, General Code (118 Ohio Laws, 687).

From the return it appears that the time when the petitioner would be eligible for parole upon sentence for the crime of which he was convicted has expired, but that the maximum term of imprisonment prescribed by law for the crime of which he was convicted has not expired.

Assuming that the petitioner is not at this time mentally defective, the question arises as to what jurisdiction, if any, this court has to make such determination as to his mental condition and discharge the petitioner in this proceeding.

Clause 2, of Section 9, Article I of the Constitution of the United States, and Section 8, Article I of the Constitution of Ohio, guarantee the petitioner’s right, if unlawfully imprisoned, to a writ of habeas corpus, and it has been uniformly held by the courts of this state and other states that a person committed for an indefinite time or until restored to reason, to a hospital for the insane as insane or mentally defective is entitled to his release therefrom on a writ of habeas corpus upon being found sane at a trial of such proceeding. However, these decisions are largely predicated upon the theory that the courts committing such a person are without jurisdiction to order his release or discharge, and that he has no remedy other than through a writ of habeas corpus to procure his release or discharge.

However, in cases where a person is indicted for a felony under the laws of Ohio, and before trial on such indictment an inquest is held as to his sanity under the provisions of the statutes, and he is found insane and committed to Lima State Hospital for the Criminal Insane, pursuant to such statutes, he is, upon discharge from the custody of the superintendent of the hospital upon writ of habeas corpus, required to be returned for trial on such indictment.

What jurisdiction the court has and what orders the court shall make where the commitment of the petitioner for writ of habeas corpus is to Lima State Hospital for the Criminal Insane, pursuant to the above-mentioned sections of the statutes, has not been heretofore determined by this court. To make such determination, a consideration of the statutory provisions relating to the subject matter is essential.

The pertinent provisions of the sections of the General Code, above mentioned, were as follows:

“Section 13451-20. When, as to any prisoner awaiting sentence, it has been suggested, or appears to the court, before or during the trial of such prisoner, or after his conviction, that such prisoner is mentally defective, then, upon conviction of such prisoner and before imposition of sentence, the court may, in its discretion, refer such prisoner to the psychiatric clinic of such court, if there be one, or commit such prisoner to a hospital or other institution designated by the court, for the purpose of examination of such prisoner’s mental condition, such reference or commitment to be for a period not in excess of ten days. Such examination of such prisoner shall be made by at least two psychiatric examiners or by a psychiatric examiner and a psychologist, and for such purpose the court may, in its discretion, designate psychiatric examiners and psychologists who are on the staff of any such psychiatric clinic. * * * The psychiatric examiners and psychologists so appointed shall, upon notification of their appointment, and acceptance thereof, proceed promptly to make a careful examination of the prisoner, and shall, upon completion of such examination, report in writing to the court the facts found by them and their interpretation thereof, including their conclusions as to the then mental condition of the prisoner, and such recommendations, suggestions and opinions as in their judgment may be helpful to the court. * * * If, upon consideration of such report and of such other evidence as shall so be submitted to the court, the court shall find that such-prisoner is a mentally defective prisoner as defined in this act, and that the welfare and general safety of the community require the indefinite commitment of such' prisoner under this act, the court may, in its discretion, in lieu of sentencing such prisoner for the crime of which he has been convicted, enter an order of indefinite commitment of such prisoner to such available institution, maintained by this state or by the county or municipality in which such court exercises jurisdiction, as shall by the court be considered best adapted to carry out the purpose of this act in respect to such mentally defective prisoner. Any such order of indefinite commitment shall constitute a final order. The provisions of law relating to motions for new trial, bail and appeal and error shall be applicable to such cases.” (118 Ohio Laws, 687.)
‘‘Section 13451-22. At any time after a prisoner has been committed as a mentally defective prisoner to any institution, as provided in this act, but not prior to {he time when such prisoner would be eligible for parole upon sentence for the crime of which he was convicted, the superintendent of the institution wherein such prisoner is confined may, with the written consent of a medical officer of such institution, file with the court an application for the release or discharge of such prisoner, which application shall set forth the opinions and findings of such medical officer and superintendent respecting the then existing mental condition of such prisoner, and upon receipt of such application the court may, in its discretion, direct that a hearing be held regarding the mental condition of such prisoner, in the manner provided by this act regarding prisoners awaiting sentence.
“Upon the expiration of the maximum term of imprisonment prescribed by law for the crime of which any mentally defective prisoner was convicted, and if such prisoner has not theretofore been released or discharged as in this act provided, the court shall, upon application of the superintendent or a medical officer of the institution in which such prisoner is at the time confined, or of such prisoner or his guardian or next friend, direct that a hearing be held regarding the mental condition of such prisoner, in the manner prescribed by this act regarding prisoners awaiting sentence.
“If, upon any hearing provided by this section, the court finds that such prisoner is not, at the time of such hearing, mentally defective, the court shall, if the maximum term of imprisonment prescribed by law for the crime of which such prisoner was convicted has not expired, grant such application upon such terms and conditions as the court shall prescribe and, if such maximum term of imprisonment has expired, shall order the discharge of such prisoner and shall cause any such order of the court to be duly certified to the superintendent of the institution in which such prisoner is confined, and thereupon such superintendent shall carry such order into effect, and upon any such discharge such prisoner shall be entitled to all the rights and allowances provided by law to be granted to other prisoners upon discharge from a penal or correctional institution.” (118 Ohio Laws, 689.)

The Ascherman Act, of which the above-mentioned General Code sections were a part, was changed by the amendment of Sections 13451-19, 13451-20 and 13451-22, the enactment of 13451-22a, and the repeal of Section 13451-21, General Code (121 Ohio Laws, 443, effective on October 11, 1945), and this new act has changed, to some extent, the procedure for the release of a prisoner committed under an indefinite commitment.

However, the petitioner having been committed and recommitted under the old Ascherman Act (118 Ohio Laws, 686), the provisions of the old sections above mentioned constitute an integral part of his commitment and recommitment and govern his rights in the premises uothwithstauding such sections have been repealed and neiv sections enacted in their place.

It will be noted that under the quoted provisions of the General Code the original commitment in the instant case was in lieu of sentence and constituted a final order so that the Common Pleas Court, after such commitment, was and is without jurisdiction to sentence the petitioner.

It will be noted further that under the provisions of Section 13451-22, General Code (118 Ohio Laws, 686), the Common Pleas Court which committed the petitioner retained jurisdiction after the commitment of the petitioner as mentally defective, not to be exercised prior to the time the petitioner would be eligible for parole upon hearing from time to time during the course of the prisoner’s commitment to the hospital, to determine his then existing mental condition, and if he is then found mentally defective to recommit him to the hospital, and if he is found not mentally defective at the time of hearing and prior to the expiration of the maximum term of imprisonment prescribed by law for the crime of which he was convicted, to order his release or discharge upon such terms and conditions as the court shall prescribe; and if, on hearing, after the expiration of the maximum term of imprisonment prescribed by law for the crime of which petitioner was convicted has expired and the petitioner is found not then mentally defective, to order the release and discharge of the petitioner.

It is the clear intent and purpose of those statutory provisions which are not unreasonable and which are not in derogation of any of the petitioner’s constitutional rights, that, until the expiration of the maximum term of imprisonment prescribed by law for the crime of which the petitioner was convicted, the petitioner shall remain under the exclusive jurisdiction of the committing court for determination from time to time of his mental condition, and subject to the adjudications of the court with reference thereto, and the orders of the court made on the adjudications, and that the remedy therein prescribed for his release and discharge prior to the expiration of the maximum term is exclusive. This conclusion is reinforced and emphasized by the provisions prescribing that prior to the expiration of such maximum term his release and discharge shall be on terms and conditions prescribed by the committing court.

As the Court of Common Pleas which committed petitioner has retained such jurisdiction, and remedies are prescribed in the sections and provisions of sections hereinbefore quoted, for the release and discharge of petitioner, available from the time the petitioner was eligible for a parole upon the sentence for the crime of which he was convicted, up to and including the time of the expiration of the maximum term of imprisonment prescribed by law for the crime of which the petitioner was convicted, this court is without jurisdiction in a proceeding in habeas corpus to determine the mental condition of the petitioner or to order his release and discharge from such commitment, at least until the expiration of the maximum term of imprisonment prescribed by law for the crime of which petitioner was convicted. Whether such remedy is available to petitioner after the expiration of such maximum term it is unnecessary to determine, as such maximum term has not yet expired.

It is, therefore, ordered and adjudged that the petition herein be.dismissed and that the petitioner be remanded to the custody of R. E. Bushong, Superintendent of Lima State Iiospital for the Criminal Insane, to be held in conformity with the commitment and recommitment hereinbefore mentioned.

Judgment accordingly.

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


text:
    Monaghan, Gdn., Appellee, v. Rietzke, Appellant.

      (No. 4345
    Decided January 17, 1949.)

      Mr. Ben Neidlinger, for appellee.

      Mr. Percy B. Taylor and Mr. Fred G. Carpenter, for appellant.
   Fess, J.

At the conclusion of the taking of testimony the trial court directed the jury to return a verdict for the plaintiff, but submitted to the jury the determination of the amount of damages. From a judgment entered on a verdict in the sum of $5,000 defendant appeals on questions of law.

Plaintiff, as guardian of Nettie A. Kreuch, an incompetent, brought his action against her stepdaughter, the defendant, Olive Rietzke, for fraud and deceit incident to the execution of a quitclaim deed conveying to the defendant a life interest in three rooms in a two-family dwelling. For convenience and clarity, the parties will be referred to as Nettie and Olive. In 1919, Nettie married the father of Olive. On June 1, 1934, Nettie and her husband conveyed the premises, consisting of a two-story duplex, to Olive by quitclaim deed “subject to a life lease in the apartment now occupied by the grantors herein.” The evidence fairly discloses that the “life lease” referred to three rooms at the rear of the first floor, which Nettie and her husband occupied until shortly before the latter's death in 1947. The uncontradicted testimony of Olive was that from June 1934 Olive permitted her father to retain the rents from that portion of the premises not occupied by him and Nettie. This rent amounted to about $585 annually. Olive testified also that she voluntarily paid the delinquent and current taxes and made repairs and improvements amounting to .$2,500.

About the middle of June 1947, Olive’s father was taken to a hospital and Nettie, then 83 years old, went to live with Olive as a member of her family. He died June 28, 1947. Several days before his death, Olive asked Nettie if she would be willing to move into the two front rooms of the downstairs apartment instead of occupying the three rear rooms. Nettie replied that “she wouldn’t, want to live there if he went on.” In answer to Olive’s inquiry whether Nettie would be willing to put that in writing, Nettie said, “yes,” and on July 5, 1947, she executed a quitclaim deed conveying her interest in the premises to Olive in consideration of one dollar and other good and valuable consideration. On July 9, 1947, Olive applied for an old age pension on behalf of Nettie, which was granted in November. An application for old age pension in 1935 on behalf of Nettie and her husband had been denied, as well as a second application in 1943. On November 26, 1947, Olive sold the premises to third persons for the sum of $7,650.

Nettie continued to reside in Olive’s home until shortly after Christmas when she developed “wanderlust,” evidenced by a desire to engage a taxicab and go on a visiting tour among old friends. Out of her $50 per month pension Olive took $35 per month for board and room for November and December, but with the remaining $15 Nettie proceeded on shopping and visiting tours. On December 29, 1947, she ended up in the East Toledo police station, having been delivered there by a cabdriver when she ran out of funds to pay her fare. Nettie remained in the police station until January 6, 1948. Olive refused to assume any responsibility for Nettie’s further care except to have her committed to the Toledo State Hospital on January 6, 1948. At the instigation of one of Nettie’s octogenarian friends, plaintiff was appointed guardian of Nettie on March 2, 1948. On recommendation of the staff of the Toledo hospital, Nettie was released on February 20, 1948, and plaintiff placed her with an old friend for a month and thereafter in a convalescent home. Upon calling Olive regarding Nettie’s situation, Olive stated to plaintiff that “I won’t have anything to do with that dirty old lady.” Plaintiff thereafter filed his petition for damages. The petition is a more or. Jess blunderbuss affair, probably on account of Nettie’s incompetence. It alleges in substance that Olive induced Nettie to execute the quitclaim deed because she was mentally infirm and unable to comprehend the nature of the transaction and upon the representation that Olive would support Nettie for the rest of her life, which representation was untrue, etc.

Nettie did not testify at the trial, and counsel in argument stated she was not competent to testify.

At the conclusion of the whole case, the trial court instructed the jury to return a verdict for the plaintiff and' submitted to the ,-jury only the matter of determining the amount of damages, including punitive damages. Notwithstanding the reprehensible conduct of the defendant as disclosed by the evidence, we are of the opinion that the action of the court in finding for the plaintiff as a matter of law was erroneous.

In equity, if it appears that a fiduciary or confidential relationship existed between the parties to a transaction, or if it be established by evidence that one of the parties possessed a power or influence over the other, or that one was of very weak mind by reason of sickness or mental decline, the burden of proof lies upon the party filling the position of active confidence or possessing the power or influence, as the case may be, to clearly establish the perfect fairness and honesty of the transaction. Atwater, Gdn., v. Jones, 24 C. C. (N. S.), 328, 34 C. D., 605; Kime v. Addlesperger, 2 C. C. (N. S.), 270, 277, 14 C. D., 397; Peterson v. Mitchener, 79 Ohio App., 125, 133, 71 N. E. (2d), 510.

But in an action at law the circumstances of the parties, as well as whether the defendant has clearly shown the fairness of the deal, present questions of fact to be submitted for determination by the jury.

As we view the allegations of the petition, it is possible that the damages suffered by Nettie might be measured upon two alternative grounds or theories. First, if the jury should find that Nettie conveyed her life interest without consideration, the measure of damages would be the value of Nettie’s life interest in the three rooms. In this connection, evidence of Nettie’s life expectancy and the reasonable value of the use and occupancy of the three rooms for such period was admissible.

A more serious and disturbing problem as to the measure of damages arises under the allegation that Olive fraudulently promised to support Nettie for the balance of her life. Contracts of a grantee to support the grantor, or to provide a home for him, are regarded as belonging to a special class, imposing upon the grantee the duty of performance in case he retains the benefits of the grant induced by the promise. The general rule that fraud cannot be predicated merely on an unfulfilled future promise is inapplicable to prevent an action for damages for failure to provide support where there is a wilful and wrongful refusal to comply with the contract. Where the agreement is made by the grantee for the fraudulent purpose of securing the deed, without intention of performance, there is fraud vitiating the conveyance and equity will set it aside. 51 A. L. R., 139. But in the instant case pilaintiff does not seek to set aside the deed and dam.ages, nor does he seek damages for a breach of the defendant’s promise of support. The gist of his action is damages for the fraud itself. Under this theory of the case, is the measure of damages the value of the life interest in the three rooms or the reasonable cost of the support and care of Nettie for her life expectancy? We are inclined to the opinion that the so-called “benefit of the bargain” rule which has been adopted in Ohio should be applied to the instant case. Cf. Molnar v. Beriswell, 122 Ohio St., 348, 171 N. E., 593. Applying this principle, if there was sufficient evidence to support the fraudulent promise, the jury should have been instructed that, if it found that the defendant made such fraudulent promise, the measure of damages would be the reasonable value of the support and care of Nettie from December 29, 1947, for the remainder of her life, disregarding any old age compensation which Nettie may have received or may be entitled to receive. Cf. Bacon v. Gibbs, 4 Dec. Rep., 23.

Evidence was likewise admitted on cross-examination that, after receiving the deed in 1934, Olive permitted her father to retain all the rents from the premises and such rent as Olive collected she turned over to him. Probably the 1934 deed was in anticipation of Nettie and her husband’s unsuccessful application for old age compensation, but there is no direct evidence of such purpose. No claim is made in the petition that the 1934 deed was in consideration of the grantors receiving the rents for life. The court, however, erroneously told the jury that as a matter of law the-right to collect the rentals was retained by Nettie and-her husband when they conveyed title to Olive in 1934,. and that after the death of her husband in 1947 Nettie retained the right to continue to collect the rents for-the remainder of her life.

The circumstances disclosed by the evidence warrant the consideration by the jury of exemplary damages in case it should find for plaintiff.

For error in instructing the jury to return a verdict for plaintiff and in instructing on the measure of damages, the judgment is reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Conn and Carpenter, JJ'., concur.


author: Doyle, J.

text:
    Keech, Appellant, v. City of Elyria, Appellee.

      (No. 1191
    Decided June 15, 1949.)

      Mr. F. A. Stetson and Mr. Frank M. Wilcox, for appellant.

      Mr. Richard E. Baird, city solicitor, for appellee.
   Doyle, J.

This appeal is by plaintiff from the Court of Common Pleas of Lorain County, which entered a judgment for the defendant, notwithstanding a verdict of a jury for the said plaintiff, in an action for damages through personal injuries, based upon the claimed maintenance of a nuisance by the defendant which proximately caused her injury.

There is evidence to indicate that Almeda Keech, while walking on a public sidewalk in the '‘downtown” business district of the city of Elyria, tripped and fell over iron bolts or rods which protruded upward and out of the sidewalk. The obstructions had come into being through wear and deterioration of the materials used in construction of the walk. As a consequence of the fall, the lady claimant suffered serious injuries.

The action was tried on the theory of qualified nuisanee; i. e., nuisance dependent on negligence. The specific claims were :

“1. * * * defendant (the city of Elyria) did not keep the public sidewalk, on Broad street, * * * open, in repair and free from nuisance.
“2. * * * defendant, when it knew or by the exercise of reasonable care should have known that said iron pins were sticking up through said public sidewalk at the place hereinbefore described, did not remove or cause the same to be removed.
“3. * * * defendant, well knowing that said iron pins or bolts were sticking up through the public sidewalk and constituted a nuisance and were dangerous to any pedestrian lawfully using said public sidewalk at the place in question, permitted said bolts or pins to remain in said sidewalk.”

These claims were met and the issues joined by a general denial, the specific charge of sole negligence of the plaintiff (classified under general denial), and the affirmative defense of contributory negligence.

The sole question presented is whether the pleadings and the evidence can sustain a verdict for the plaintiff. If so, the court erred to the prejudice of the appellant. If not, the judgment must be affirmed.

1. Section 3714, General Code, requires municipalities to keep sidewalks within their corporate .limits open, in repair and free from nuisance; the legislation imposing this duty is an exercise of the sovereignty of the state, and municipalities, as creatures of the same sovereignty, are subject to the liability which follows a failure to discharge that duty. City of Wooster v. Arbenz, 116 Ohio St., 281, 156 N. E., 210, 52 A. L. R., 518; Wall, Jr., v. City of Cincinnati, 150 Ohio St., 411, 83 N. E. (2d), 389.

The tort of nuisance as we meet it in this case is claimed wrongful conduct through negligence, which invaded the right of the plaintiff, as she walked on the sidewalk in Elyria, to have the walk in repair and free from a condition which imperiled her travel and caused her harm.

[n safeguarding this right of pedestrians, it is incumbent upon cities to exercise reasonable and ordinary care and vigilance, in view of all the surroundings. This standard of care is not the care that similar municipal officers exercise under like circumstances -and conditions, but is that care which persons of reasonable and ordinary prudence exercise under like circumstances and conditions. The duty does not exact that which is unreasonable and impracticable; and li.ability attaches only after actual or constructive notice to the city. Taylor v. City of Cincinnati, 143 Ohio St., 426, 55 N. E. (2d), 724, 155 A. L. R., 44; Jones v. Village of Girard, 111 Ohio St., 258, 144 N. E., 847.

As we read the record before us, we find evidence of sufficient probative value to sustain the claims of the existence of a nuisance, in that the city, negligently, after constructive notice, permitted the existence of a potential and unreasonable risk of harm in the form of projecting iron rods out of its sidewalk in a busy part of the city, and that, as a direct and proximate result thereof, the appellant was hurt. One of the characteristics of a nuisance of this kind is that it imperils travel. Certainly, reasonable minds cannot come to but one conclusion and say that the injured lady’s travel was not endangered, nor that the travel of all pedestrians was not imperiled, by the projecting rods.

2. It is claimed by the city that, the evidence warrants the conclusion that the plaintiff was guilty of contributory negligence as a matter of law.

The record shows the following testimony, which, it is claimed, is appropriate to the argument of contributory negligence:

“Q. But. you were watching where you were walking? A. Yes, sir, I was.
“Q. You didn’t see those bolts you claim stuck up an inch or an inch and a half? A. No, sir, I did not. * * *
“Q. So that before you fell you were at least as close to the bolts as you were when you saw them afterwards, weren’t you? A. I suppose so, when l fell. Of course, I wouldn’t have fell if I hadn’t of been.”

The city argues that, the accident having occurred in the daytime and the sidewalks being dry, “it is apparent * * * that (she) could and should have seen the bolts in question before falling over them” and that “if the defect is plainly visible there can be no recovery.” And, further, that she had walked over the sidewalk on occasions prior thereto.

While this argument might have force under certain factual situations, it cannot be fitted to the facts before us. A traveler on a public sidewalk is not required under all conditions to constantly direct the sight of his eyes to the ground. To hold otherwise would limit and restrict the direction of sight to one spot — the defective spot — to avoid an act of negligence.

Such a rule, if followed by the public, could well bring about many serious injuries which would be-avoided by pedestrians directing their sight elsewhere. And, in answer to the claim that she had passed over this part of the walk on previous occasions and-therefore should have known of the condition, we find nothing in the record to indicate her awareness of the condition of the walk, or, if she had been aware of it, that she failed, in the exercise of ordinary care, to keep the condition in mind and to guard against it. See Cleveland Ry. Co. v. Halterman, 22 Ohio App., 234, 236, 237, 153 N. E., 922; Lawson v. City of Waterbury, 115 Conn., 716, 161 A., 667.

The legal duty of the plaintiff was to not fail to do those things for her own safety which a reasonably prudent person, guided by those impulses which regulate the conduct of human affairs, would ordinarily do in the exercise of ordinary care. The. jury, by its verdict, after a full and complete charge on the law of contributory negligence, found no delict of the plaintiff which proximately contributed to cause her damage. This finding we find to be neither contrary to law nor manifestly against the weight of the evidence.

It cannot be said, as a matter of law, that, in view of the existing conditions at the time, the plaintiff was chargeable with knowledge of the defect, or failed to act as persons of ordinary prudence would have acted under the same or similar circumstances.

As heretofore stated, the action is grounded in qualified nuisance. This being so, the defense of contributory negligence is a proper one and could defeat the plaintiff’s claims under certain factual situations. Academically, it may be a proper defense to a claimed nuisance growing out of negligence. Whether it is a defense to an action founded on absolute nuisance, we are not called upon to decide, so, therefore, do not pursue the question further. See McFarlane v. City of Niagara Falls, 247 N. Y., 340, 160 N. E., 391, 57 A. L. R., 1.

The judgment is reversed as being contrary to law, and the cause is remanded to the trial court with instructions to enter judgment on the verdict.

Judgment reversed and cause remanded.

Stevens, P. .1., and Hunsicker, J., concur.


text:
    Mattis, Appellee, v. Vancil, Appellant.
    (No. 2043
    Decided March 2, 1949.)

      Mr. Arthur W. Meyring, for appellee.

      Mr. D. E. Wysong, for appellant.
   By the Court.

This cause is submitted on motion of plaintiff, appellee herein, to dismiss the appeal on questions of Jaw and fact on the ground that it is not a chancery action. An examination of the record discloses that this is a civil action for the recovery of money only. The motion to dismiss the appeal on questions of law and fact will be sustained. The case will be retained as an appeal on questions of law.

The court orders a bill of exceptions, assignments of error and briefs to be filed in conformity to the provisions of Supplement to Rule VII.

Judgment accordingly.

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


text:
    Staley, Appellant, v. Kreinbihl et al., Exrs., Appellees.
    (No. 376
    Decided February 14, 1949.)

      Mr. Roy Warren Roof, for appellant.

      Mr. Paul T. Mahon and Mr. Oren E Dichas on, for appellees.
   Fess, J.

On November 6, 1948, plaintiff filed a notice of appeal from this court to the Supreme Court of Ohio from a judgment, entered in this court after a trial de novo herein. On the same day, but after the filing of plaintiff’s notice of appeal, the defendants filed a notice of cross-appeal in this court to the Supreme Court. Plaintiff filed a motion to strike the notice of cross-appeal from the files for the reason that no statute or rule of this court provides for the filing and perfecting of cross-appeals from this court to the Supreme Court. However, the right of appeal can be determined only by the court or tribunal to which the appeal is sought to be taken. State, ex rel. Cleveland, A. & C. Ry. Co., v. Glasgo, Aud., 105 Ohio St., 225, 137 N. E., 35. The motion to strike is therefore overruled without prejudice to the plaintiff to raise the question in the Supreme Court.

Motion overruled.

Conn, P. J., and Carpenter, J., concur.