author: By BURNS, J:

text:
    BRANTINGHAM, Plaintiff, v. OSTROVECKY, Defendant.
    Municipal Court, Euclid (City).
    No. 84.
    Decided November 3, 1952.
    Fred J. Livingstone of Livingstone & Livingstone, Cleveland, for plaintiff.
    Paul Mancino, Cleveland, for defendant.
   OPINION

By BURNS, J:

Plaintiff’s residents of Cleveland, Ohio, filed their petition in Euclid Municipal Court against defendant, a resident of South Euclid, Ohio.

Plaintiff’s petition alleged that a collision occurred between the automobiles of the parties at the intersection of East 55th Street and Memorial Highway in the City of Cleveland, Ohio, and prayed for judgment, in the sum of $383.52 and costs.

SUMMONS was issued and MAIL SERVICE was had upon the defendant at his residence in South Euclid, Ohio.

MOTION TO QUASH service of SUMMONS, with SUPPORTING BRIEF, was filed by defendant on the following grounds:

1. That this court has no jurisdiction over the subject matter of this action.

2. That this court has no jurisdiction over any of the parties to this action.

To the MOTION TO QUASH service of summons, plaintiffs filed their ANSWER BRIEF.

SUPPLEMENTAL BRIEF in support of MOTION TO QUASH SUMMONS was subsequently filed by defendant and thereafter the following pleadings were timely filed:

ANSWER to defendant’s SUPPLEMENTAL BRIEF.

REPLY BRIEF to ANSWER BRIEF of Plaintiff.

ANSWER to defendant’s REPLY BRIEF.

To support his contention “That this court has no jurisdiction over the subject matter of this action” and “that this court has no jurisdiction over any of the parties of this action.” defendant cites §1582 GC which provides as follows: “The Municipal Courts established by §1581 GC shall have jurisdiction within the corporate limits of their respective Municipal Corporations.....”

Bailiff’s return of service showing summons served by mail at the residence of the defendant in South Euclid, Ohio, is not in dispute, nor is it disputed that Cleveland, Euclid, and South Euclid are municipalities within Cuyahoga County. Ohio. Plaintiff contends that jurisdiction of this court over non residents is conferred by virtue of §1595 —Subsections “E” and “H” GC and §6308 GC which provide as follows:

Sec. 1595. “Subject to §1593 GC, a municipal court shall have jurisdiction within the limits of the county or counties in which its territory is situated:” ....

"E” “and in all civil actions for the recovery of Money Only where the amount claimed bj the plaintiff exceeds the exclusive jurisdiction of justices of the peace;”

“H” “In any action for injury to person or property caused by the negligent operation of a motor vehicle, as provided by §§6308 and 6308-1 GC;”

Sec. 6308 GC. “Actions for injury to a person or property, caused by the negligence of the owner or operator of a motor vehicle, may be brought, by the person injured, against such owner or operator in the county wherein such injury occurs.”

SECTION 1593 OF THE GENERAL CODE REFERRED TO IN SECTION 1595 READS AS FOLLOWS:

“A municipal court shall have original jurisdiction only in those cases where the amount claimed by any party, or the appraised value of the personal property sought to be recovered, does not exceed two thousand dollars: . . . .”

The jurisdiction of justices of the peace as to amount referred to in §1595 “E” GC above is governed by §10226 GC:

Sec. 10226 GC. “Under the restrictions and limitations provided in this chapter, justices of the peace shall have exclusive original jurisdiction in civil actions for the recovery of sums not exceeding one hundred dollars. . .

This court is called upon to interpret §§1582, 1595 “E” and “H” and 6308 GC, and the effect of these sections on the jurisdiction of this court:

1. Over parties who are admittedly residents of Cuyahoga County, Ohio, but not residents of nor served with summons within the territorial limits of the court and—

2. Over a cause of action which arose outside of the territorial limits but within the county wherein the court is located and—

3. In the issuance and service of summons beyond the territorial limits of the court.

For a determination of these questions, we must consider legislative enactment. The power of the legislature to establish inferior courts of record and to define their jurisdiction is contained in Article 4, Section 1, of the Ohio Constitution;

CONSTITUTION — ARTICLE IV — SECTION 1.

“The judicial power of the state is vested in a supreme court, courts of appeals, courts of common pleas, courts of probate, and such other courts inferior to the courts of appeals as may from time to time be established by law.”

The courts of Ohio have consistently held that the legislature has the power to create these courts and to define jurisdiction over defendants and subject matter. See Miller v. Eagle, 96 Oh St 106, wherein it was held;

“The legislature may provide for the creation of Municipal Courts in Municipal Corporations and may prescribe the procedure and practice before each of these courts,”

See also Mendelson v. Miller 11 O. N. P. (N. S.) 586, wherein it was held;

“The General Assembly establishes a court when it enacts that there shall be a court, fixes the number of judges, defines the jurisdiction and prescribes the procedure to be followed therein.”

The Euclid Municipal Court was established by act of legislature on June 13th, 1951. The act which created this court, among others, is generally referred to as the Uniform Municipal Court Act. Uniformity in procedure and jurisdiction in the various municipal courts of the state was the apparent objective of the legislature. This difficult undertaking was accomplished with commendable results. In many instances the legislature was compelled to designate the jurisdictional boundaries of the court beyond the territorial limits of the court.

If the legislature wished to create a court and confine its jurisdiction over persons and subject matter to the City of Euclid, it could have done so. On the other hand, it the legislature wished to create a court and give the jurisdiction over person and subject matter within the county, it could have done so. It was solely a question of legislative desire and intent.

And since Uniformity was the apparent objective of the legislature, the Uniform Municipal Court Act “§§1581 and 1617 GC” was passed establishing the following classes of jurisdiction: (Only those parts are set forth herein that are deemed pertinent and applicable to the questions involved m the MOTION TO QUASH).

ORIGINAL JURISDICTION: AMOUNT INVOLVED: GENERAL CODE 1593

A municipal court shall have original jurisdiction only in those cases where the amount claimed by any party, or the appraised value of the personal property sought to be recovered, does not exceed two thousand dollars;

ORIGINAL JURISDICTION: TYPE OF ACTION: GENERAL CODE 1594

Subject to §1593 GC, a municipal court shall have original jurisdiction within its territory:

(B) In any action or proceeding at law for the recovery of money or personal property of which the court of common pleas has or may be given jurisdiction;

JURISDICTION WITHIN THE LIMITS OF COUNTY OR COUNTIES: GENERAL CODE 1595

Subject to §1593 GC a municipal court shall have jurisdiction within the limits of the county or counties in which its territory is situated: ....

“E” and in all civil actions for the recovery of MONEY ONLY where the amount claimed by the plaintiff exceeds the exclusive jurisdiction of justices of the peace;

“H” In any action for injury to person or property caused by the negligent operation of a motor vehicle, as provided by §§6308 and 6308-1 GC.

The territory referred to in §1594 GC is defined in §1583 GC, the pertinent parts of which it provides as follows:

Sec. 1583 GC. “Territory as used in §§1584 to 1617, inclusive, GC, means the geographical areas within which municipal courts have jurisdiction as provided §§1581 and 1582 GC."

It is further provided in §1582 GC that “The Municipal courts, established by §1581 GC, shall have jurisdiction within the corporate limits of their respective municipal corporations and shall be courts of records. . . .

“The following named municipal courts shall 'also have jurisdiction as herein designated;”

A study of §1582 GC reveals that the legislature provided that certain designated courts should have jurisdiction beyond their municipal boundry lines extending into various adjoining towns and villages; and in extending county and adjoining county jurisdiction to Fostoria Municipal Court, the legislature provided that “The Fostoria Municipal Court shall have jurisdiction within Loudin and Jackson Townships in Seneca County, Washington Township in Hancock County and Perry Township in Wood County;”

And in §§1593, 1594 and 1595 GC, the legislature provided an exception in the case of the municipal court of Cleveland, in jurisdictional amount, real property proceedings, execution proceedings and proceedings for the marshalling of liens. The power of the court to issue summons outside of its territory is conferred by §1596 GC, in the following language:

GENERAL CODE 1596

Powers of court. In any action or proceeding of which a municipal court has jurisdiction, the court or any judge thereof shall also have power:

(A) To issue process.....and to exercise such other powers as may be necessary to give effect to the jurisdiction of the court and to enforce its judgments, orders, or decrees;

The original jurisdiction, in MONEY ONLY cases, provided in §1593 GC (Referred to in §1595 “E” GC), limits the amount claimed to two thousand dollars. The original jurisdiction of the Justice of the Peace (referred to in §1595 “E” GC), is one hundred dollars as provided in §10226 GC.

The Uniform Municipal Court Act, by virtue of §1595 “E” and “H” GC, gives this court jurisdiction within the limits of the county in MONEY ONLY cases, where the amount claimed exceeds one hundred dollars, but does not exceed two thousand dollars and in actions for damages to persons or property arising through the negligent operation of a motor vehicle within the county. Defendant contends that §§1582, 1595 and 1603 GC, the jurisdiction sections of the Uniform Municipal Court Act are inconsistent. It is the judgment of this court, however, that these sections are in Pari Materia.

1. In §1582 GC, geographical boundaries of a territory are defined for one class of jurisdiction to be exercised by a municipal court within its boundaries.

2. In §1595 GC, additional classes of jurisdiction are conferred on a municipal court to be exercised by it within a county or counties wherein its territory is located.

3. In §1603 GC, the manner in which “Writs and process in a municipal court shall be served” is provided for.

Defendant is a resident of the City of South Euclid, which is within Cuyahoga County, Ohio. Euclid Municipal Court is also within Cuyahoga County. The action brought is for MONEY ONLY and the amount claimed, namely, $383.52, is in excess of the exclusive jurisdiction of the Justice of the Peace, but within the two thousand dollar jurisdictional maximum of Euclid Municipal Court. It is the judgment of this court that Euclid Municipal Court does have jurisdiction over the subject matter, as well as the parties to this action.

DEFENDANT’S MOTION TO QUASH SERVICE OF SUMMONS IS OVERRULED.

Defendant given leave to plead by November 13, 1952.


source: Caselaw Access Project

author: By FREED, District Judge.

license: Public Domain

text:
    BOIVIN v. TALCOTT
    United States District Court N. D. Ohio, E. D.
    No. 25835.
    Decided October 9, 1951.
    James A. Butler, Cleveland, for plaintiff.
    Leslie R. Ulrich, William F. Aigler, Cleveland, for defendant.
   OPINION

By FREED, District Judge.

The question presented is whether a default judgment against a citizen of Painesville. Ohio, rendered by a court in the Province of Quebec, Canada, is enforceable in this court by a citizen of Quebec when service of process was obtained by publication and mailing or delivering of a copy of the complaint to defendant at Painesville, Ohio. Notice by mail is not mandatory under the laws of Quebec but lies within the discretion of the court.

The original action presented to the Canadian forum was for personal injuries suffered by the plaintiff’s five year old daughter who, allegedly, had been struck by defendant’s automobile while it was being operated by defendant in Quebec.

The instant motion to dismiss is predicated on the proposition that the judgment of the Quebec court should not be recognized here because that court did not have jurisdiction of this defendant.

Service of process from the Quebec court was perfected in accordance with the Code of Civil Procedure of Quebec. The particular provisions which control the instant case are as follows:

Part III, Procedure in the Superior Court;

Article 94:

“In matters purely personal, other than those mentioned in Articles 96, 97, 98, 103, and 104, the defendant may always, notwithstanding any stipulation, agreement, or undertaking to the contrary, be summoned;

* * + *

Before the court of the place where the whole cause of action has arisen, or if it concerns a suit for libel published in a newspaper, before the court of any district in which such paper is circulated, and in which the plaintiff resides;”

Article 136:

“When a defendant who is absent from the Province has no domicile, ordinary residence, or place of business therein;

“The judge, or prothonotary, upon a return to that effect, may order the defendant to appear within one month from the last publication, in the matter hereinafter prescribed, of the order thus rendered.

“A synopsis of the order, drawn up in accordance with the form contained in Schedule B in the Appendix to this Code, is twice inserted in French and in English, in a newspaper published in each language respectively, in the district where the court sits. If there is no such newspaper in the district, it is inserted in a similar newspaper in the nearest locality. Such newspaper is mentioned in the order.”

Article 145: “The judge may, if circumstances require it, shorten or extend the delay mentioned in Articles 136 and 141, or order a mode of service other than that prescribed in those articles and in Articles 143 and 144.”

Pursuant to the procedure outlined above, this defendant was summoned by publication in Quebec as provided in Article 136 above and by delivery of a copy of the necessary documents to defendant in Painesville, Ohio in accordance with an order of the Quebec court as authorized by Article 145. It should be noted that the recited provisions merely extend the right to the court in its discretion, to order that some formal notice in addition to the publication be conveyed to defendant.

Defendant maintains that the Quebec laws for extra-territorial service of process are insufficient to grant jurisdiction to the court in the absence of a provision for service upon a local agent for the non-resident motorist; and that these are merely typical civil law provisions, consonant with the traditional attitude of that system of law, which permit substituted service upon non-residents in any case to confer personal jurisdiction. Plaintiff counters that the modern authorities of Hess v. Pawlowski, 1927, 274 U. S. 352, 47 S. Ct. 632, 71 L. Ed. 1091, International Shoe Co. v. State of Washington, office of Unemployment and Placement, 1945, 326 U. S. 310, 66 S. Ct. 154, 90 L. Ed. 95, and Restatement Judgments §23, hold that the operation of an automobile within a jurisdiction by a non-resident constitutes “submission” to the courts of that territory so that any method of substituted service, regardless of the agency fiction, will suffice.

Defendant stresses that even if we concede for the purpose of consideration of this motion the validity of plaintiff’s doubtful contention, it remains that the method of substituted service adopted must be one which is reasonably calculated to give the defendant notice of the pendency of the action and an opportunity to be heard, within the doctrine announced in Wuchter v. Pizzutti, 1928, 276 U. S. 13, 48 S. Ct. 259, 72 L. Ed. 446. There service had been perfected in compliance with a New Jersey statute providing for delivery of the summons to the Secretarw of State, the non-resident motorist’s statutory agent. The officer had in fact mailed a copy to the defendant who admittedly had actual notice of the lawsuit. However, this additional notice was not required by the statute.

In that case, the court commented 276 U. S. at page 24, 48 S. Ct. at page 262, as follows:

“These cases and others indicate a general trend of authority toward sustaining the validity of service of process, if the statutory provisions in themselves indicate that there is reasonable probability that if the statutes are complied with, the defendant will receive actual notice, and that is the principle that we think should apply here.

“But it is said that the defendant here had actual notice by service out of New Jersey in Pennsylvania. He did not, however, appear in the cause and such notice was not required by the statute. Not having been directed by the statute it can not, therefore, supply constitutional validity to the statute or to service under it.” (Citations omitted.)

This pronouncemen so completely approves the proposition urged by defendant that further discussion of plaintiff’s contention that by operating his motor vehicle in the Province of Quebec the defendant submitted to the jurisdiction of its courts, seems superfluous.

No essential feature which will distinguish the instant case from the principle enunciated in the Wuchter decision can be found by the Court. Notice by publication, the sole mandate of the Quebec law, is clearly insufficient to convey adequate notice. McDonald v. Mabee, 1917, 243 U. S. 90, 37 S. Ct. 343, 61 L. Ed. 608. Such notice is no more likely to come 'to the attention of a nonresident than the delivery of summons to the New Jersey Secretary of State. The discretion granted to the Quebec Court to vary the mode of service does not guarantee that the mode adopted will furnish adequate notice. “The right of a citizen to due process of law must rest upon a basis more substantial than favor or discretion.” Roller v. Holly, 1900, 176 U. S. 398, 409, 20 S. Ct. 410, 414, 44 L. Ed. 520; Coe v. Armour Fertilizer Works, 1915, 237 U. S. 413, 425, 35 S. Ct. 625, 59 L. Ed. 1027. In substance the personal service on this defendant in Painesville is of no more effect than the mailing of notice by the Secretary of State in the Wuchter case.

It obviously follows that the judgment which constitutes the sole foundation of the complaint in this cause, was rendered by a court of Canada without jurisdiction over the person of this defendant. Such judgment is not, therefore, entitled to recognition in this court. Hilton v. Guyot, 1895, 159 U. S. 113, 16 S. Ct. 139, 40 L. Ed. 95. “Moreover, due process requires that no other jurisdiction shall give effect, even as a matter of comity, to a judgment elsewhere acquired without due process.” Griffin v. Griffin, 1946, 327 U. S. 220, 229, 66 S. Ct. 556, 560, 90 L. Ed. 635.

A judgment obtained in a Canadian court without jurisdiction as viewed under our laws assuredly can have no greater force or effect than if it had been obtained in our

courts. Public policy and protection of the rights of our own citizens would so dictate. Hilton v. Guyot, supra; Bischoff v. Wethered, 1869. 9 Wall. 812, 76 U. S. 812, 19 L. Ed. 829; Pope v. Heckscher, 1934, 266 N. Y. 114, 194 N. E. 53, 97 A. L. R. 687; Grubel v. Nassauer, 1913, 210 N. Y. 149, 103 N. E. 1113, 52 L. R. A., N. S., 161.

The motion to dismiss for failure to state a cause of action will be granted.


author: By THE COURT:

text:
    VALDISERRI et, Plaintiff-Appellants, v. FLOYD et, Defendants-Appellees.
    Ohio Appeals, Second District, Darke County.
    No. 701.
    Decided March 28, 1952.
    T. A. Billingsley, Greenville, for plaintiff-appellants.
    Spidel, Staley & Hole, Greenville, for defendants-appellees.
   OPINION

By THE COURT:

This appeal is on questions of law from the judgment or the Common Pleas Court of Darke County in an action for the recovery of damages by reason of certain alleged false representations made by the defendants at the time of the execution of a written contract whereby the defendants sold to the plaintiffs a business known as “The International Chiropractic College,” located in Dayton, Ohio.

At the close of the plaintiffs’ case, the court sustained a demurrer to the evidence and directed a verdict for the defendants. The appellants contend there was sufficient evidence to go to the jury.

The written agreement provides that the plaintiffs herein expressly agree “that no representation, promise or agreement, not expressed in the foregoing contract has been made.” The testimony is to the effect that no representations were made concerning the equipment, contracts with the Veterans Administration or approval of the College by Governmental Agencies. But plaintiffs contend that the written contracts contain representations which were false. Plaintiffs claim that the contracts under which the college received money from the Federal Government for G. I. students were not transferable, and that defendants concealed this fact; that under the contract the defendants represented that sufficient equipment was on hand to operate the college with the approval of the Governmental Agencies.

The evidence shows that no one interested, either the plaintiffs, the defendants or counsel for the college who drew the contract of sale knew that the contracts with the Veterans Administration were not transferable. The plaintiffs did not know what equipment the college possessed and made no inquiry and no representations were made in regard thereto. Also, the contract of sale provides that with respect to contracts with the Veterans Administration, the defendants agreed to assign such “with all the benefits and advantages pertaining thereto, or to which the vendor is or can be entitled in respect to the said business.” The contract of sale further provides that with respect to the contracts with the Veterans Administration: “It is expressly understood hereby that the vendor shall not be held liable for any actions taken in respect to said contracts or in respect to said approvals from and after the date of this agreement.” Under the evidence presented, these provisions in the contract of sale preclude the assertion of any claim for damages, by reason of the fact that the contracts with the Veterans Administration were not transferable, or that plaintiffs were compelled to purchase additional equipment to secure the approval of Governmental Agencies in order to operate under the contracts with the Veterans Administration.

In our opinion reasonable minds could reach only one conclusion, which was the conclusion of the trial court. We find no error assigned well made.

Judgment affirmed.

HORNBECK, PJ, WISEMAN and MILLER, JJ, concur.


author: By SWAN, Chief Judge.

text:
    HADDEN v. RUMSEY PRODUCTS, Inc., et.
    United States Court of Appeals
    No. 106.
    Decided April 1, 1952.
    Saperston, McNaughton & Saperston (Howard T. Saperston and Richard H. Wile, of counsel), Buffalo, N. Y., Arter Hadden, Wykoff & Van Duzer (Leward C. Wykoff, of counsel), Cleveland, for appellant.
    Averbach & Bonney, Seneca Falls, N. Y. (Albert Averbach. Seneca Falls, N. Y., William W. Barron, Washington, D. C., of counsel), for appellees.
    Before SWAN, Chief Judge, and L. HAND and CLARK, Circuit Judges.
   OPINION

By SWAN, Chief Judge.

John A. Hadden, Disinterested Trustee for Manufactures Trading Corporation, a corporation in reorganization under Chapter X of the Bankruptcy Act, 11 U. S. C. A. §501 et seq., obtained, on December 30, 1949, in the United States District Court for the Northern District of Ohio, Eastern Division, a judgment by confession against Rumsey Products, Inc., a New York corporation, and five individuals, residents of New York. The judgment was confessed by the plaintiff’s attorney upon cognovit promissory notes made by Rumsey Products Inc., and endorsed by each of the five individual defendants. For brevity the court which entered the judgment by confession will be referred to as the Ohio court. On January 16, 1950, the judgment creditor forwarded to the Clerk of the United States District Court for the Western District of New York (referred to hereafter as the New York court) an exemplified copy of the Ohio court’s judgment for registration in the New York court pursuant to §1963 of Title 28 of the Code. Upon learning from the Clerk of the existence of the Ohio judgment and of the judgment creditor’s attempt to register it in the office of the Clerk of the New York court, the judgment debtors initiated by petition for a show cause order the proceeding in which was entered on April 2, 1951 the judgment brought before us by the present appeal. This judgment permanently enjoins the judgment creditor from attempting to enforce the Ohio judgment and permanently restrains the Clerk of the New York court from entering the transcript of said judgment in his office. The appeal presents two questions: (1) whether the New York court had acquired personal jurisdiction of the judgment creditor and (2) whether the judgment by confession was obtained by fraud upon the Ohio court. These questions will be considered seriatim.

In its procedural aspects the question whether the New York court had jurisdiction of the judgment creditor is quite complex. The appellees’ first petition for a show cause order was filed January 20, 1950., It alleged that the judgment by confession was taken without notice to the maker and endorsers of the notes, that they had absolute defenses to the notes, and that filing in the New York court of a copy of the judgment was premature because the time to appeal had not expired. No summons was issued on the petition. The court forthwith issued a show cause order returnable January 30, ■ and directed that the order be served Cleveland attorneys by mail. On the return date, the judgment creditor not appearing, the court found that service had been had by mail and forthwith granted a preliminary injunction against causing execution to be issued on the judgment, restrain the Clerk of the New York court “from entering the transcript” of the Ohio judgment, and ordered that the matter remain open for further orders. Thereafter on October 3, 1950 the appellees filed a second petition more fully alleging the defenses referred to in their first petition, except as to the unexpired time to appeal, and sought an order to set aside the Ohio judgment. The court issued an order to show cause returnable October 10. The petition and order were served on the trustee by mail. On October 9 the appellees filed a “Supplemental Petition” which alleged that the appellant’s attorney had confessed judgment on the notes despite notice given by the maker and endorsers that they had- absolute defenses to the notes. Such action was alleged to be a fraud on the court, rendering the Ohio judgment void. A copy of the Supplemental Petition was handed to the appellant’s local attorney during the hearing on the show cause order returnable October 10. The attorney attempted to appear specially to contest jurisdiction, but the court ruled that the appellant had appeared generally.

Rule 60 (b) of the Federal Rules of Civil Procedure, 28 U. S. C. A., provides that on motion and upon such terms as are just, the court may relieve a party from a final judgment for fraud misrepresentation or other misconduct of an adverse party. Whether an attack under this Rule is limited to the district court which originally entered the judgment or may also be made in another district where the judgment was registered under 28 U. S. C. A., §1963 does not appear to have been judicially determined. The judgment debtors evidently assumed that they could make such a motion in the New York court as soon as the judgment creditor forwarded a copy of the judgment to the Clerk of the New York court. But we need not decide whether the Ohio judgment could properly be attacked by motion in the New York court. Rule 60 (b) expressly provides that the rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment. The appellees’ several petitions to the New York court may be treated as an independent action to obtain equitable relief from-the Ohio judgment. Although Rule 3 states that an action is commenced by filing a complaint it would be quite out of harmony with the spirit of Rule 1 to hold the appellees bound by the labels placed on the papery submitted to the district court. Nor is it necessary that a summons should have been issued and served as contemplated by Rule 4, provided the appellant took action equivalent to entering his general appearance. The district court’s opinion as quoted in note 5 supra, states that on October 10 the appellant’s attorney “again” attempted to file an exemplified copy of the journal entry of the Ohio judgment. By thus seeking affirmative relief from the court, the appellant on well settled principles waived any question of personal jurisdiction. Consequently the appellant’s contention that the court never acquired jurisdiction over him cannot be sustained.

The next question for consideration is the court’s ruling that the judgment was procured by a fraud upon the Ohio court because the plaintiff’s attorney confessed judgment without informing that court that the defendants had asserted defenses to the notes. That ruling is erroneous. The notes contained warrants of attorney expressly authorizing the precise procedure which the plaintiff followed. The very purpose of cognovit notes is to permit the note holder to obtain judgment without a trial of possible defenses which the signers of the notes might assert. The validity of such warrants of attorney is recognized both by statute and decisión in Ohio. To do precisely what the warrants of attorney authorized cannot be a fraud upon the court. This does not mean, however, that the judgment debtors cannot attack the Ohio judgment in an independent action in the New York court on charges of fraud in procuring the execution of the notes. As already stated, that court has jurisdiction to entertain an independent action to relieve a party from a judgment. The appellees’ allegations of duress, fraudulent misrepresentation and concealment, if substantiated upon a trial, may entitle them to a decree. Without taking proof on these charges, the court entered the judgment appealed from. This was error. The judgment must be reversed and the cause remanded for further proceedings. It is so ordered, with costs of the appeal awarded the appellant.

      . Each note contained the following clause: “The undersigned and all endorsers, whose names now appear or are hereafter written on the reverse side of this instrument, do jointly and severally, waive presentment, demand, protest, and notice of protest and non-payment hereof, and further do hereby authorize any attorney-at-law to appear before any -Justice of the Peace, or in any court of record in the State of Ohio, or in any other State of Federal District in the United States, after the above obligation becomes due, and waives the issuing and service of process and confess a judgment against the undersigned and the endorsers, jointly and severally, in favor of the payee or any holder of this note, for the amount then appearing due, together with all costs of suit, and thereupon release all errors and waive all right of appeal, stay of execution and right of appraisal of real and personal property.”
      A similar clause was printed on the reverse side of each note immediately above the signature of the endorsers.

      . 28 U. S. C. A. § 1963 provides: “A judgment in an action for the recovery of money or property entered in any district court which has become final by appeal or expiration of time for appeal may be registered in any other district by filing therein a certified copy of such judgment. A judgment so registered shall have the same effect as a judgment of the district court of the district where registered and may be enforced in like manner.”

      . The case in the New York court is entitled the same as is the Ohio judgment; hence the judgment creditor appears as plaintiff, although the moving parties seeking relief from the Ohio judgment are the judgment debtors.

      . We find it unnecessary to determine whether the waiver in the notes of “all rights of appeal”, accelerated the time for registration under 28 U. S. C. A. § 1963.

      . The court’s opinion states (96 P. Supp. 991): “By attempt to file an exemplified copy of the journal entry of the judgment on January 16, 1950, and again on October 10, 1950, the plaintiff must be deemed to have submitted the validity of the judgment to this Court to take jurisdiction of the investigation and to have appeared generally so that any words of ‘special appearance’ are not sufficient to produce such a result. Farmer v. National Life Association, 138 N. Y. 265, 270, 33 N. E. 1075; Merchants Heat & L. Co. v. James B. Clow & Sons, 204 U. S. 286, 290, 27 S. Ct. 285, 51 L. Ed. 488.”

      . Cf. Moore’s Commentary on the U. S. Judicial Code. 385-6.

      . See Merchants Heat & Light Co. v. James B. Clow & Sons, 204 U. S. 286, 289, 27 S. Ct. 285, 51 L. Ed. 488; Marcus v. Otis, 2 Cir., 168 F. 2d 649, 659; Leonardi v. Chase National Bank, 2 Cir., 81 F. 2d 19, 20, certiorari denied 298 U. S. 677, 56 S. Ct. 941, 80 L. Ed. 1398; Jos. Riedel Glass Works, Inc., v. Keegan, D. C., 43 F. Supp. 153, 159.

      . Ohio Gen. Code. § 11597; First National Bank of Findlay v. Trout, 58 Ohio St. 347, 51 N. E. 27; Swisher v. Orrison Cigar Co., 122 Ohio St. 195, 171 N. E. 92. See also Wassell v. Reardon, 11 Ark. 705, 54 Am. Dec. 245; Withers v. Starace, D. C. E. D. N. Y., 22 F. Supp. 773.

      . See Notes of Advisory Committee on Amendments to Rules, Rule 60(b); Moore’s Federal Rules 1951, 279-280; Wallace v. United States, 2 Cir., 142 F. 2d 240, 244, certiorari denied 323 U. S. 712, 65 S. Ct. 37, 89 L. Ed. 573.

      . See Simon v. Southern Ry. Co., 236 U. S. 115, 35 S. Ct. 255, 59 L. Ed. 492; Wyman v. Newhouse, 2 Cir., 93 F. 2d 313, certiorari denied 303 U. S. 664, 58 S. Ct. 831, 82 L. Ed. 1122; Griffith v. Bank of New York, 2 Cir., 147 F. 2d 899, 901, 160 A. L. R. 1340, certiorari denied 325 U. S. 874, 65 S. Ct. 1414, 89 L. Ed. 1992: Brone v. Golde, 267 N. Y. 284, 196 N. E. 58; Trebilcox v. McAlpine, 62 Hun. 317, 17 N. Y. S. 221.


author: By THOMPSON, J:

text:
    MARTIN et, Plaintiffs-Appellants, v. MANSFIELD SAVINGS & TRUST NATIONAL BANK et al., Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22508.
    Decided July 7, 1952.
    Sheldon Zoslov, H. K. Braun, Cleveland, for plaintiff-appellants.
    Guarnieri & Secrest, Warren, for defendants-appellees.
   OPINION

By THOMPSON, J:

This case is an appeal to this court on questions of law from a judgment of the Common Pleas Court of Cuyahoga County dismissing the petition of plaintiffs in a will contest case as a result of a motion filed by certain of the defendants made parties by the petition. The ground stated in the motion was that more than six months had elapsed since the last will and testament was admitted to probate and that no one during that time had been made a party to the action in a fiduciary capacity as executor or administrator, and no praecipe had been filed for service of summons on, and no summons issued for, or served on, anyone in a fiduciary capacity. The common pleas court, after hearing, granted the motion of defendants and dismissed the petition at plaintiffs’ cost, for which judgment was rendered. Plaintiffs are appellants in this court.

The case has been submitted to us on the transcript of the record and briefs. The sole question is whether the trial court properly dismissed the petition.

The record discloses that a petition to contest the will of one Roeliff B. Martin was filed in the common pleas court on November 16, 1951. Plaintiffs, four in number, alleged that Martin died on or about March 26, 1951 and that plaintiffs were his only heirs. Plaintiffs further alleged that on April 8, 1951, a certain paper writing purporting to be the last will and testament of Martin was admitted to probate by the Probate Court of Cuyahoga County, and that letters testamentary “were issued to the defendant, The Mansfield Savings Trust National Bank, as sole executor thereof, which thereupon qualified and is now acting as such executor.” Plaintiffs further alleged that by the terms of said paper writing defendants, Schweitzer, Lingle and Boals were named as sole legatees and devisees of Martin and that the paper writing was not the last will and testament of the deceased.

The caption of the petition named The Mansfield Savings Trust National Bank as a defendant, together with the three other defendants referred to as legatees, but the bank was not described as a corporation, or as executor or trustee, being described merely as “The Mansfield Savings Trust National Bank.” Summons was issued for the four defendants, the bank being described in the summons as “The Mansfield Savings Trust National Bank” and the sheriff’s return stated that on November 20, the “writ was served on the within named Mansfield Savings Trust National Bank by personally handing to Henry G. Brunner, President of said bank, a true and certified copy of this writ with all the endorsements thereon.”

On January 22, 1952, a motion to dismiss the petition was filed by two of the defendants named as legatees in the will, on the score that more than six months had elapsed since the last will and testament of Martin was admitted to probate and no one during said period had been made a party in a fiduciary capacity as executor or administrator and no precipe had been filed for service of summons on, and no summons issued for or served on anyone in such fiduciary capacity. The trial court, after hearing, granted the motion to dismiss and on February 27, 1952, the petition was dismissed at plaintiffs’ costs.

This court finds that the action by the trial court was properly taken in view of §12080 and §12087 GC, and upon authority of Bynner v. Jones, 154 Oh St 184, interpreting those sections.

Numerous courts in Ohio have had for decision similar situations and we believe the case of Bynner v. Jones, supra, now settles the question in Ohio. That case was certified to the Supreme Court of Ohio by the Court of Appeals for Franklin County, on the ground of conflict with a judgment of the Court of Appeals for Pickaway County in the case of Bockert v. Bockert, 82 Oh Ap 274, 81 N. E. 2d. 549, and with the judgment of the Court of Appeals for Lucas County in the case of Morisse v. Billau, 70 Oh Ap 215, 45 N. E. 2d. 798.

Sec. 12080 GC provides as follows:

“Necessary Parties: All the devisees, legatees and heirs of the testator, and other interested persons, including the executor or administrator must be made parties to the action.”

It will be noted that under §12087 GC, an action to contest a will shall be brought within six months after it has been admitted to probate.

In the case of Bynner v. Jones, 154 Oh St 184, no one was made a party in the fiduciary capacity of executor and no precipe was filed or summons issued on anyone in that capacity within the statutory period. The defendant, Howard M. Jones, was named in the caption of the petition and was served in his individual capacity as devisee and legatee only. The body of the petition, however, contained a statement that Jones was appointed executor by the probate court, as the body of the petition in the instant case similarly relates that The Mansfield Savings Trust National Bank is executor of the Martin estate.

Our examination of Bynner v. Jones requires us to hold that the trial court properly dismissed the petition in the instant case. We cannot find that there, is a sufficient differentiation between the two cases in the mere fact that the Mansfield Savings Trust National Bank was not a devisee or legatee as was Jones in the Supreme Court case, referred to. The bank in the body of the petition in the instant case was advised that it was executor of the Martin estate and Jones, if he read the petition in his case, was advised that he was executor as well as devisee. The important I act in the case of Bynner v. Jones and emphasized by the Supreme Court is that the executor was not expressly made a party to the action and that §12080 GC requires the executor to be made party to the action within the six months specified in §12087 GC.

If this result seems harsh, it is to be pointed out that the right to contest a will is a statutory one and that, in order to comply therewith, one must conform strictly to the provisions of the statute. The statute conferring jurisdiction on the court in will contest cases limits the jurisdiction to a six month period. Furthermore, the six month limitation, instead of a longer one, was provided by the General Assembly in recognizing that estates of deceased persons should be promptly distributed for the benefit of heirs, creditors and all other persons interested.

We might add that in order to verify the facts in the case of Bynner v. Jones, supra, and to be certain of the application of that case to the present case, we examined the briefs in the Supreme Court of Ohio. We find that in that case, certified by the Court of Appeals of Franklin County to the Supreme Court of Ohio on the ground of conflict, the brief of defendants appellees declared:

“The first question of law is: Whether, when the plaintiffs in an action to contest a will, fail to name a necessary executor as a party defendant, in the caption of their petition, an allegation in the body of the petition alleging that an executor was appointed is sufficient to constitute such executor a party defendant in the action.”

In no unmistakable terms, the Supreme Court answered the foregoing question in the negative.

A case note in 20 Cincinnati Law Review 305, (1951) by James A. Beinkemper, discusses the decision of Bynner v. Jones and points out, with appropriate authorities, that the designation of a party in a case in one capacity does not constitute a description of him in another capacity in which he may be engaged. A person acting in two different capacities is, for all intents and purposes, two separate and distinct persons.

For the reasons stated, the judgment of the trial court dismissing the petition is affirmed. Exceptions noted. Order see journal.

SKEEL, PJ, HURD, J, concur.


text:
    KOLLMEYER, a minor, Guardianship, In re: NIXON, Guardian, Appellant, v. HAPNER, Appellee.
    Ohio Appeals, Second District, Darke Coupty.
    No. 704.
    Decided August 19, 1952.
    Herman J. Marchal, Greenville, for appellant.
    Myers, Mills, Boesch & Cline, Dayton, for appellee.
   OPINION

By THE COURT:

Submitted on two motions of appellee filed the same date. One moves the Court for an order dismissing the appeal on questions of law and fact on the grounds that the appointment of a guardian is not a chancery case. The other is for an order remanding the bill of exceptions to the trial court for diminution of the record in the particular set out in the motion.

The first motion must be sustained in-so-far as it relates to the appeal on questions of law and fact on the authority of an opinion of this Court In re Jacobs, 26 Abs 670. To like effect is In re Moyer, a minor, 68 Oh Ap 319.

The appeal on questions of law and fact must be dismissed and the .appeal will be retained as upon questions of law and appellant will be given 30 days from the filing of the entryjournalizing this decision within which to have a bill of exceptions settled and allowed in the trial court.

The second motion must be overruled because it is not timely. A bill of exceptions is not appropriate on an appeal of questions of law and fact. Inasmuch as it appears that there is a transcript of the testimony which, in probability, has been designated bill of exceptions, it could be refiled, as such, as soon as the trial judge can again approve it. The subject matter of the second motion can, when the bill of exceptions is presented to the trial judge be brought to his attention and if there is error in the bill it can then be corrected.

HORNBECK, PJ, WISEMAN and MILLER, JJ, concur.


author: By MILLER, J:

text:
    KOLLMEYER, a minor, Guardianship, In re.
    No. 704.
    Decided December 5, 1952.
    Myers, Mills, Boesch & Cline, James T. Cline, of Counsel, Dayton, for applicant, H. E. Hapner, Appellee.
    Marchal & Marchal, Herman J. Marchal, of Counsel, Green-ville, for Corwin Nixon, defendant-appellant.
   OPINION

By MILLER, J:

This is a law appeal from the judgment of the Probate Court of Darke County, Ohio, appointing one H. E. Hapner guardian of the estate of Kay Carmen Kollmeyer, a minor, of the age of seventeen years. An examination of the record discloses the following facts:

Kay Carmen Kollmeyer and her father were residents of Warren County, Ohio, the mother of said minor having died prior to the 13th day of October, 1937; that on the 13th day of October, 1937, Arthur Kollmeyer, father of said minor, was appointed guardian of the person and estate of said minor by the Probate Court of Warren County, Ohio; that the estate of said minor was substantial and consisted entirely of personal property; that the said Arthur Kollmeyer, father of said minor, continued to be the guardian of said minor until the 13th day of August, 1947; that exceptions had been filed to his account as guardian and that he resigned as guardian of the minor’s estate on or before the 13th day of August, 1947; that on said date Corwin Nixon, a resident of Warren County, Ohio, which was the legal residence of the minor, was duly appointed and qualified as the guardian of the estate of said minor; that this guardianship has continued up until the present time and is still continuing, said Corwin Nixon being under the jurisdiction of the Probate Court of Warren County, Ohio; that the real estate now owned by the minor was purchased by her guardian in approximately 1947 and that since that time the minor and her father have resided on said real estate, which is located near the Village of Arcanum in Darke County, Ohio, and that the renting of said real estate and management of the same has been under the direction and control of the said Corwin Nixon, guardian of the estate of said minor, and that.the said Corwin Nixon is the duly appointed and acting guardian of the estate of the said Kay Carmen Kollmeyer and is still acting in that capacity; that while so acting in that capacity the minor filed her selection of guardian in the Probate Court of Darke County, Ohio, which resulted in the judgment to which this appeal is directed.

The first claimed error is that the Court erred in overruling the defendant’s motion to dismiss the application for the appointment of a guardian on the grounds that the application was not fully completed. An examination of the application filed herein discloses that one application for the appointment of H. E. Hapner as guardian was prepared, which listed the value of all the personal and real property together with the probable rental income and that the same was properly notarized. On the back of this application there was no selection of guardian signed by the minor. On the second application the same information was set forth but it was not verified. The back of this application had the selection of a guardian by the minor which was properly signed and witnessed. These two applications appear in the record attached together as one instrument and when considered as a whole contain all of the allegations necessary under §10507-3 GC.

It is to be noted further that they were filed as one instrument on March 25, 1952. We therefore find no merit in this error assignment.

It is next urged that the Court erred in overruling this appellant’s motion to dismiss the application for the appointment of a guardian for the reason that the Probate Court of Darke County, Ohio, did not have jurisdiction to make such an appointment. The appellant does not challenge the right of a minor over the age of fourteen years to select his or her own guardian. It is challenging, however, the right of said minor to make its selection in the Probate Court of Darke County, Ohio, when there is in existence a duly qualified and acting guardian of her estate having been appointed by the Probate Court of Warren County, Ohio, said appointment having been made while said Court had full jurisdiction of said minor’s estate and having been in existence for a number of years. Sec. 10501-55 GC sets forth the jurisdiction of Probate Courts as follows:

“The jurisdiction acquired by a probate court over a matter or proceeding is exclusive of that of any other probate court, except when otherwise provided by law.”

In the case of State, ex rel. v. White, 132 Oh St 58, the Court passed upon the above section of the Code, paragraph 1 of the syllabus of which provides:

“Where the administration of an estate has been lawfully committed to the Probate Court of a particular county, the jurisdiction of such court to settle such estate is exclusive.”

See also, State, ex rel. v. Gregory, 122 Oh St 512; Netting v. Strickland, 18 O. C. C. 136; In re Worthington, 4 O. D. (N. P.) 381; Newton v. Hammond, 38 Oh St 430. The appellee appears to rely solely upon the case of Scobey v. Gano, 35 Oh St 550, the facts in which, we think, are not on all fours with those in the case at bar. In the cited case the guardian was not eligible for the appointment for the reason that she was also the administratrix of the estate in which her ward was interested, which was in violation of R. S. 6256. At page 553 the Court recognized the principle of law urged by this appellant, saying:

“We come, then, to the consideration of the question whether the Probate Court of Butler county could lawfully appoint Scobey guardian, no order having been made setting aside or rescinding the appointment of Amanda, mother of Eliza Kinney. In determining this question we fully recognize the general rule that where a guardian has been appointed by the proper authority, and is in the discharge of the duties of his trust, the appointment of another person to the same office is void. Griffith v. Frazier, 8 Cranch (U. S.) 9; Thomas v. Burrus, 23 Miss. 550; Copp v. Copp, 20 N. H. 284; Fay v. Hurd, 8 Pick. 528; Robinson v. Zollinger, 9 Watts, 169. But we do not think that principle applies in this case. Amanda, being the administratrix of Horatio S. Kinney, was ineligible to be guardian of the estate of a minor who was interested in the estate of the decedent. She was merely a guardian de facto; but she had performed only one act as guardian, so far as the record discloses, when she voluntarily relinquished all claim to the office, surrendered to Scobey the due-bill which had been imposed upon her, and evidently desired Scobey’s appointment. Besides, no other court than the Probate Court of Butler county had jurisdiction on April 6, 1874, to appoint a guardian for Eliza Kinney, for she was then a resident of that county and subject to guardianship therein. True, as already stated, no formal resignation of Amanda, her mother, had been entered of record, nor had any order been made setting aside or rescinding her appointment; but this did not interfere with the power of the Probate Court to appoint Scobey as guardian, under the circumstances of this case.”

It is our conclusion that the Probate Court of Darke County was without jurisdiction to hear this matter for the reason that the same rested solely within the jurisdiction of the Probate Court of Warren County. The appointment of H. E. Hapner is therefore null and void.

We find none of the other errors assigned to be well taken.

The judgment will be reversed and cause remanded.

HORNBECK, PJ, WISEMAN, J, concur.


author: By HUNSICKER, PJ.

text:
    ULMER, Trustee, Appellant, v. HONEYWELL et, Appellees.
    Ohio Appeals, Ninth District, Summit County.
    No. 4303.
    Decided June 4, 1952.
    John A. Smith, Akron, for appellant.
    Vernon Weygandt, Donald L. Mills, Akron, for appellees.
   OPINION

By HUNSICKER, PJ.

This is an appeal on questions of law.

The appellant, herein called Ulmer, became the owner of 119 lots in a subdivision allotment called Beverly Park Allotment, within the city of Akron, Summit County, Ohio. These lots were entered on the tax lists made by the county auditor of Summit County, Ohio, from year to year. Each lot was described separately and valued separately. The taxes and assessments were carried in the tax lists separately as to each lot.

The taxes on these lots became delinquent, and by proper procedure the lots were forfeited to the State of Ohio. The appellant, Ulmer, makes no complaint as to the manner or mode of the forfeiture proceedings, but admits that such forfeiture is regular in all respects.

After such forfeiture, the auditor of Summit County pub-fished a notice, for the required length of time, that the lots so forfeited would be sold for taxes.

This notice described these lots as follows:

“J. M. Ulmer, Trustee, Beverly Park.

“188 to 201 inc. all. 208, 211 to 216 inc. all. 219 to 228 inc. all. 241 to 244 inc. all. 247 to 257 inc. all. 261, 270 to 275 inc. all. 280 to 288 inc. all. 291 to 294 inc. all. 299, 304, 322 to 330 inc. all. 335, 336, 368, 382, 383, 386, 399, 400, 401, 409, 410 to 417 inc. all. 423, 456 to 461 inc. all. 466, 474, 477, 503, 511 to 516 inc. all. 518 to 522 inc. all. 524 to 529 inc. all. 535, 536, 548, 551, 553, 554, 555, 562, 563, 564, 565 all. Val. $12,410.00. Tax $58,632.38.”

Such notice also contained the following statement:

“And notice is hereby given, to all concerned, that if the taxes, assessments, penalties, interest and costs charged on said lots are not paid into the county treasury, and the treasurer’s receipt produced therefor, before the respective dates hereinabove mentioned for said sale, each tract, lot and part of lot, so forfeited, on which the taxes, assessments, penalties, interest and costs remain unpaid, will be offered for sale on the respective dates hereinabove mentioned for said sale, at the Court House in said county, in order to satisfy such taxes, assessments, penalties, interest and costs, from day to day until each tract, lot and part of lot specified in said fist has been disposed of, or offered for sale.”

Pursuant to such notice, the county auditor of Summit County, Ohio, conducted a sale on May 16, 1950, of such lots above described. He did not offer for sale each lot, tract or part of lot, but offered all of these lots in a group, and requested bids for the lots as a group. Appellees Honeywell made a bid for the lots as so offered, and, such bid being the highest and best bid received by the county auditor, such lots as a group were sold to appellees Honeywell for the sum of $7300.

On May 18, 1950, the county auditor delivered his deed for such lots to Honeywell, who on the same day filed it for record in the office of the county recorder of Summit County, Ohio.

Appellant, Ulmer, has offered and continues his offer to return to Honeywell the amount of the purchase price paid by Honeywell for the lots, together with all taxes, assessments, penalties, costs and interest, for a return of the lots.

Ulmer insists that the sale so made to Honeywell “was void and of no effect by reason of the failure to comply with the statutes in such cases made and provided, and in the following particulars, to wit:

“1. That the list made up by the county auditor for his sale of lots did not correspond to his tax list or duplicate, nor to his forfeiture list so used in the forfeiture proceedings, in that he collected numerous lots into groups instead of enumerating them separately as shown on the tax list kept by the auditor in his office and used by him in the forfeiture proceedings.

“2. That the county auditor did not advertise said lots as they appear in his tax duplicate, nor as they appeared in the tax forfeiture case.

“3. That the county auditor did not sell each lot, tract or part of lot separately as required of him by law.

“4. That said county auditor did not sell or offer for sale, each lot, tract or part of lot separately according to the notice of sale which he caused to be published.”

Ulmer asks that, upon payment by him to Honeywell of the amounts found to be due, the deed to Honeywell be can-celled, and he be restored to all things lost by reason of the pretended sale of these lots by the county auditor.

The petition herein was filed by Ulmer on April 24, 1952, nearly two years after the sale and transfer of the lois to Honeywell.

The defendant Honeywell filed a demurrer to the petition of Ulmer, on the ground that the action by Ulmer was not brought within the time limited for the commencement of such action. The trial court sustained such demurrer, and, Ulmer not desiring to plead further, the petition was dismissed. It is from the judgment dismissing the action so filed by Ulmer that an appeal on questions of law is before this court.

Of what force and effect in the instant case is §5762-1 GC, which is the limitation-of-actions section applicable in such-cases?

This court, in the unreported Summit County case of Frank T. Magennis v. Marian H. Myers, et al., No. 4241, decided February 6, 1952, said that a sale similarly advertised and conducted could be attacked by the former owner within a period of one year, and the deed of the county auditor to the purchaser at forfeiture sale cancelled. We expressly, by a supplement to such decision on February 21, 1952, said that in such case of Magennis v. Myers, et al., we were not “called upon to determine whether the one-year limitation in §5762-1 GC, would apply in similar circumstances.”

We do not now recede from the position taken in that case, for we are firmly convinced our decision as applied to the facts therein is correct. We here, however, have the problem of a former owner who has waited for more than one year to bring his action to set aside the forfeiture sale made by the county auditor.

Ulmer does not say that the deed is void on its face. We must presume that, in all respects, such deed, if given by a private owner, would transfer the lots and lands it purports to transfer. Ulmer does not say that the county auditor may not sell forfeited lands, for it is admitted that he is the proper officer of the county to conduct such sales. And after forfeiture is declared, the title to such lands forfeited is in the State of Ohio.

The Supreme Court of Ohio, in the case of Bauman v. Guckenberger, Aud., et al., 148 Oh St 292, at p. 299, said:

“The purpose of the statutes dealing with the procedure in the sale of real property for the nonpayment of taxes and assessments thereon is to provide a means by which a state can collect money due it in an orderly manner which will protect the owner of the land and give him an opportunity to pay his taxes if he so desires. * * * After the forfeiture is declared, title rests in the state and it then becomes the duty of the state to proceed as expeditiously as possible to collect the taxes.”

There is no complaint herein that Ulmer did not know of the tax delinquencies, the subsequent forfeiture, and the fact of the proposed sale.

The problem then becomes one of the force and effect of the statute on the time limitation within which an action to question the sale may be filed. No question is raised as to the right of the legislature to enact a limitation-of-actions statute. The time limit and nature of such legislative enactment rests within the sound discretion of the general assembly of Ohio.

Our examination of the enactment discloses that §5762-1 GC, was amended effective August 11, 1943, and made to read in part as follows:

“In all cases * * * no action shall be commenced nor shall any defense be set up to question the validity of the title * * * for any irregularity, informality or omission in the proceedings relative to the foreclosure or forfeiture * * *.” (Emphasis oursJ

Thereafter this section was again amended by the legislature, effective September 23, 1947, and only one significant addition was made: by the inclusion of the words “or sale” after the word “forfeiture.” This addition indicates clearly that, not only the proceedings relative to the foreclosure or forfeiture shall be subject to the limitation, but any irregularity in the sale should not be subject to question after the one-year period of limitation has expired.

We believe and so hold, that, by this change, the legislature intended to protect the buyer of real property at forfeiture sale from an act of the county auditor, which, if the action to set aside the transfer was filed in less than one year after the sale, would otherwise (as in the case of Magennis v. Myers, supra) be subject to the right of the former owner of the forfeited lands to bring an action to set aside a sale conducted as was the one herein.

Finding as we do that, under the circumstances herein, the limitations-of-actions section (§5762-1 GC) is a bar to the suit brought by appellant, Ulmer, we affirm the judgment of the trial court.

Judgment affirmed.

DOYLE, J, STEVENS, J, concur.