author: By FESS, J.:

text:
    CLEVELAND TRUST COMPANY, Plaintiff-Appellant, v. BEIDLER et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21880.
    Decided August 14, 1950.

      William E. Todd, Sr., Cleveland, for plaintiff-appellant.
    Ewing & Hecker, Charles P. Mayo, Cleveland, for defendantappellees.
    (FESS, J, of Sixth District; DOYLE, J, and HUNSICKER, J, of Ninth District sitting by designation.)
   OPINION

By FESS, J.:

This is an appeal on questions of law by plaintiff, from a judgment entered by the common pleas court on behalf of defendants.

On May 26, 1931, The Beidler-Curry Coal Company, a corporation, acting through its president and treasurer, made, executed and delivered to the plaintiff, its promissory note in the amount of $2,800.00, payable ninety days after date. Said note bore the endorsement of E. W. Beidler, B. C. Tucker, H. T. Beidler and T. F. Beidler, each of whom were either officers or directors of The Beidler-Curry Coal Company, and each of whom, concurrent with said endorsement, guaranteed payment of said note, waived demand and notice of nonpayment, and authorized, any attorney at law to appear in any court of record in any State after said note became due and waive the issuance and service of summons and confess judgment against them in favor of the holder of said note for such amount as might then appear due.

In March of 1931, the assets of The Beidler-Curry Coal Company were sold as an entirety. After applying the proceeds of sale to outstanding obligations, the Company was still indebted to various creditors in an amount of approximately Sixteen Thousand Dollars, which amount included the note held by plaintiff. The four endorsers upon said note, being desirous of accomplishing the liquidation of said indebtedness and conscious that each of the several individuals, because of particular circumstances and past contact with the various creditors, could more successfully initiate and successfully conduct negotiations with particular creditors leading to the accomplishment of such result, in August, 1931, entered into a detailed agreement as to the individual responsibility of said four endorsers, among themselves, in bringing about the payment of said indebtedness.

In this agreement H. T. Beidler, E. W. Beidler and B. C. Tucker each agreed to pay $5,334.00 to the creditors of the coal company, and Theodore F. Beidler agreed to pay to each of the other three parties $1,333.51. With respect to the Cleveland Trust Company note, H. T. Beidler agreed to pay $921.00, E. W. Beidler $1,351.87, and B. C. Tucker $527.16. The agreement recites that the payments by each constitute one-fourth of the total obligations of the parties thereto, and were to be made in installments from time to time as each party is able to do so, and to protect the other three parties to the agreement.

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

On September 28, 1931, a note in the amount of $13,800.00, representing an indebtedness owed by H. T. Beidler for some time prior to said date, to the collateral loan department of plaintiff, matured. On October. 20, 1931, this latter note was renewed, the principal of same, however, being increased to $16,233.40. This latter note was secured by one hundred and ninety-three shares of National Screw & Manufacturing Company stock, several insurance policies upon the life of H. T. Beidler, and possibly other collateral. On October 20, 1931, the same day that the renewed note in an increased amount was delivered by H. T. Beidler, to the collateral department of plaintiff, such department transferred to its commercial department $2,826.00, and on the same day the record of the loan of plaintiff to The Beidler-Curry Coal Company was credited with $2,800.00 and such record was closed. On the same day, the plaintiff endorsed without recourse the $2,800.00 note to H. T. Beidler, who thereupon endorsed said note to plaintiff, and said note was deposited with the collateral loan department of plaintiff and pledged as additional collateral security for the indebtedness of H. T. Beidler, in the sum of $16,233.40.

H. T. Beidler’s collateral note in the sum of $2,805.07, dated July 31, 1935, and also his collateral note in the sum of $16,700.00 dated August 31, 1935, shows as collateral the one hundred and ninety-three shares of National Screw & Manufacturing Company, two insurance policies, and the $2,800.00 note of the coal company. These two collateral notes of H. T. Beidler were reduced to judgment and show a balance due on the note of $2,805:07, as of December 22, 1937, in the sum of $1,555.50, and on the $16,700.00 note, as of June 7, 1939, in the sum of $6,486.06.

On April 24, 1946, plaintiff recovered a cognovit judgment based upon said $2,800.00 note against the defendants, T. F. Beidler, B. C. Tucker and E. W. Beidler, said judgment being in the amount of $5,264.00. Judgment was not taken against the coal company or H. T. Beidler. After term, the defendants, B. C. Tucker and E. W. Beidler, filed their separate petitions to vacate said judgment, and on June 28, 1947, by separate entries, the judgment against the defendant, B. C. Tucker, and defendant, E. W. Beidler, was vacated; said vacations being conditioned, however, that said judgments vacating said judgment be suspended pending trial upon the issues joined. And thereafter, by leave of court, said two defendants filed their separate answers and, later, amended answers. The defendant, T. F. Beidler, deceased since the submission of this cause, did not during his lifetime question the judgment.

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

1. General denial.

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

3. That the note was wholly without consideration and for accommodation purposes only; that plaintiff became possessed of the instrument as pledgee after the maturity thereof; that, plaintiff is not an innocent holder for value or a holder in due course, and that defendant is not indebted to plaintiff in the sum of $2,800.00 by virtue of such accommodation endorsements or otherwise.

4. That the note has been paid.

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

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

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

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

3. Denies that the note has been paid.

4. Denies the agreement of August, 1931, or that plaintiff ever had any knowledge of said agreement; denies that plaintiff released any of the endorsers on said note, and denies that H. T. Beidler paid or has become possessed of said instrument.

Upon the pleadings and the evidence, the common pleas court found that the note in suit had been paid and rendered judgment for the defendants.

A review of the evidence discloses that on October 20, 1931, H. T. Beidler obtained an additional loan from the bank in the sum of $3,433.40; that $2,826.00 of the additional loan was applied by the bank in payment of the coal company note of $2,800.00. Instead of stamping the note “paid” it was endorsed without recourse by the bank to H. T. Beidler, who in turn endorsed it in blank and redelivered it to the bank as additional collateral upon his personal note of $16,233.40. Upon its redelivery to the bank, the $2,800.00 note was held by the bank as pledgee. Since the note was overdue, neither H. T. Beidler nor the bank became holders in due course.

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

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

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

Sec. 8156 GC provides:

“The holder of a negotiable instrument may sue thereon in his own name; and payment to him in due course discharges the instrument.”

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

The N. I. L. makes a distinction between a “holder” and a “holder in due course.” The latter holds the instrument free from defenses available to prior parties, but in the hands of any holder other than a holder in due course, a negotiable instrument is subject to the same defenses as if it were nonnegotiable. Secs. 8162 and 8163 GC.

Under §8156 GC the plaintiff can properly bring the action as holder of the note. Wick v. Cleveland Securities Co., 71 Oh Ap 393, 50 N. E. 2d 351, 26 O. O. 324. But since plaintiff took the note after it was past due, as pledgee, the note is subject to the same'defenses as if it were nonnegotiable. The Supreme Court of Ohio has recently held that the holder of a promissory note who takes it after maturity takes it subject to every objection, including .equitable set-off, to which it was subject in the hands of his assignor. Union Properties, Inc., v. Baldwin Bros. Co., 141 Oh St 303, 47 N. E. 2d 983, 25 O. O. 428, 149 A. L. R. 725.

It is interesting to note that the Union Properties case approved and followed Baker v. Kinsley, 41 Oh St 403, which was decided prior to the enactment of the N. I. L.

Since the plaintiff brought its action as pledgee (or assignee) and also as endorsee after maturity, it is subject to the defense that it is not the real party in interest. Osborn v. McClelland, 43 Oh St 284; Kernohan v. Durham, 48 Oh St 1. At the time H. T. Beidler transferred, or assigned the note to the bank, he had paid the maker’s obligation on the note, and having paid the principal obligation was entitled to contribution from his coguarantors. But prior to his payment H. T. Beidler had agreed with his coguarantors with respect to their mutual obligations on the indebtedness of the coal company, and could then recover from them only their proportionate share of the obligation to the bank. H. T. Beidler had paid the note. Since the maker of the note was nonexistent, all Beidler assigned to the bank as collateral was his right of contribution from his coguarantors.

The past-due note was held by the bank as pledgee from October 20, 1931, until judgment was taken thereon on April 24, 1946, against E. W. Beidler and Tucker. In the meantime E. W. Beidler and Tucker had paid an amount equal if not in excess of their two-thirds share of the coal company’s indebtedness, so that H. T. Beidler could then claim no contribution from them on account of their payment of the $2,800.00 note in 1931.

In Marling v. Fitzgerald (1909), 138 Wis. 93, 120 N. W. 388, 23 L. R. A. N. S. 177, the Supreme Court of Wisconsin held:

“Though assignment of a note for value and without notice is without due course, the defenses to which it is subject are only those existing at the time of the transfer, and not those which possibly may at some future time exist.”

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

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

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

The judgment of the common pleas court is afñrméd. Excel. S. J.

HUNSICKER, PJ, and DOYLE, J, concur.

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


source: Caselaw Access Project

author: By CRAWFORD, J.

license: Public Domain

text:
    WILLIAMS, Plaintiff, v. JONES et, Defendant.
    Common Pleas Court, Montgomery County.
    No. 102299.
    Decided August 23, 1950.
    Waiters & Carter, Dayton, Mayer & Mayer, Columbus, for plaintiff.
    Hodapp & Hodapp, Dayton, for defendants.
   OPINION

By CRAWFORD, J.

Plaintiff, Henry Williams, has filed a Petition against Alonzo Jones, the son of Marie MeKanse, deceased, and against Dale Hodapp, Administrator of said decedent’s estate, seeking to have them declared trustees for plaintiff of certain real estate and personal property, respectively, of which plaintiff claims to be the equitable owner. He also prays that they be enjoined from disposing of any such property and be required to transfer the same to him.

Both defendants have demurred to the Petition for lack of jurisdiction of the defendants and of the subject of the action, for failure to state a cause of action, and because of the pendency of a prior action.

While the Petition does not state that these items are included in the inventory and appraisement of the estate, it is alleged that the estate consists of said items. If they were not included in the inventory, there could be no question of the jurisdiction of this court; we shall assume, therefore, for present purposes that they are included, so that the real questions here presented may be determined.

The two principal questions raised and discussed in the memoranda are these:

(1) Does the Probate Court have exclusive jurisdiction?

(2) Is the presentation to the administrator and rejection by him of plaintiff’s “claim” a prerequisite to the present action?

The jurisdiction of the Probate Court is statutory and is conferred and defined by §10501-53 GC. After specifying thirteen subjects, including general control of fiduciaries, of which the Probate Court has jurisdiction, the statute says that such jurisdiction shall be exclusive unless otherwise provided by law. Then follows the final paragraph of the section which confers upon the court “plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is expressly otherwise limited or denied by statute.”

This section was construed by Judge McClelland of the Franklin County Probate Court in 3 O. O. 315, In re Estate of Joseph B. Rich. It was there decided that the Probate Court has no authority to terminate a testamentary trust. The first syllabus reads:

“The Probate Court has plenary power in law and equity in matters over which it has specific jurisdiction as set forth in statute. It has no implied power.”

In the opinion, Judge McClelland says on page 315:

“The jurisdiction of the Probate Court is one of • special limited and delegated jurisdiction.”

And on page 316 he comments further:

“In regard to the last paragraph (of §10501-53 GC) referred to, in which Probate Court is given plenary power, it is our opinion that this refers and is restricted to the specific jurisdiction given in the paragraphs immediately preceding it. In other words, the Probate Court has plenary power in law and in equity in matters over which it has specific jurisdiction as set forth in the statute, and conversely if the authority is not specifically given the Probate Court has no such authority.”

It is an inevitable corollary that, outside of the thirteen subjects named, none of the jurisdiction actually conferred upon the Probate Court is exclusive, unless specifically so provided by statute. And there is no statute conferring such exclusive jurisdiction over such a case as that now before us.

While under the provisions of §10509-59 GC exceptions may be filed to the inventory “by any person interested in the estate or any of the property included in the inventory,” yet obviously such a claimant is not required by the statute to do so, and such procedure is not exclusive. Scott v. Mofford, 65 Oh Ap 457, 18 O. O. 197.

Defendants cite Brown v. Trust Co., 22 Oh Ap 324. That case, decided in 1926 prior to the present Probate Code, holds that the Probate Court had jurisdiction to determine ownership of stock inventoried as assets of an intestate’s estate and the Common Pleas Court had jurisdiction on appeal. It was held, under the old Code, that a claimant of such stock could raise the question by direct proceeding in Probate Court and was not barred from so doing by failure to file exceptions to the inventory within time. The Court further says, on page 326:

“They may raise the question directly any time before the property is disposed of, and distribution made, by either a direct proceeding in the probate court or by a separate action filed in the court of common pleas for that purpose.”

We find nothing in the present Probate Code to change this rule.

Sec. 10501-55 GC, cited by defendants, refers to exclusive jurisdiction as between two or more probate courts and has no application here.

We shall not presume to define dogmatically the jurisdiction of another court; we are concerned here with that of the Probate Court only as it affects our own; and our conclusion is that in such a case as this, its jurisdiction is not exclusive.

Therefore, leaving as we must the Probate Court to determine its own exact jurisdiction, but assuming for present purposes the correctness of our belief that its jurisdiction over such a case as that before us is fully concurrent with our own, then this court, by virtue of having first assumed jurisdiction, would retain it.

As to the second question, whether plaintiff must first present this kind of “claim” to the administrator according to the requirements of §10509-112 GC, the answer is clearly that he need not do so. By the very title of that section, it is shown to apply to “Creditors’ Claims.”

Plaintiff does not place himself in the role of a creditor to whom the administrator must pay or refuse to pay a debt of the estate, but he claims, instead, to be an equitable owner of assets being administrated in the estate.

Besides, in none of the cases herein referred to or cited in counsel’s memoranda has a “claim” of this nature been presented to a fiduciary, nor has any question been raised or comment made upon the failure to do so.

Therefore, such presentation is obviously not a prerequisite to the bringing of this suit.

This disposes of all the grounds of demurrer save one, that a prior action is pending between the same parties for the same cause of action. As such a situation is not shown by .the pleadings and is not mentioned in defendants’ memorandum, this is probably meant to be but an alternative method of stating the first principal question dealt with herein; in other words, this ground of demurrer is probably framed on the theory that the probate court already has jurisdiction of the controversy.

Finding that this court possesses and has assumed jurisdiction, and that a cause of action has been stated, we find it necessary to overrule the demurrers.


author: By WISEMAN, J:

text:
    STOUT, Plaintiff-Appellee, v. WAGNER, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2092.
    Decided April 14, 1950.
    Mathews & Altick, Dayton, Hugh H. Altick, of Counsel, for plaintiff-appellee.
    Harshman & Young, Dayton, for defendant-appellant.
   OPINION

By WISEMAN, J:

This is an appeal on questions of law from the Common Pleas Court of Montgomery County, Ohio, which rendered judgment on a verdict rendered in favor of the plaintiff for two thousand dollars in an action to recover damages for personal injuries sustained by the plaintiff, a pedestrian, when struck by an automobile operated by the defendant at Fourth and Main Streets in the City of Dayton, Ohio.

The first trial of this action resulted in a verdict and judgment for the defendant, which was reversed on appeal by this Court on the ground that the trial court had committed prejudicial error in its general charge and in refusing to give certain special instructions requested by the plaintiff. The opinion of this Court is reported in 53 Abs 141, 83 N. E. (2d) 231 and, on the application for rehearing, in 85 N. E. (2d) 306.

The plaintiff in her petition alleges three specifications of negligence:

First, defendant negligently failed to yield the right of way.

Second, defendant failed to maintain a proper look out.

Third, defendant failed to have his automobile under control.

The defendant denies that he was negligent in any respect.

Contributory negligence on the part of the plaintiff was not pleaded, but became an issue for consideration of the jury upon the presentation of the evidence. The court charged the jury in regard to contributory negligence.

A brief statement of the facts will suffice. There is ample evidence to support factual findings, as follows: South Main Street extends in a northerly and southerly direction, and Fourth Street in an easterly and westerly direction and intersects South Main Street at right angles. On September 22, 1946, at about 7:30 p. m., the plaintiff, a woman seventy-one years of age, left the east curb of Main Street when the traffic light was green for traffic on Fourth Street and walked in a westwardly direction in the crosswalk along the north side of Fourth Street intending to cross to the west curb of Main Street, and was more than one-half way across Main Street when the accident occurred. The defendant was operating his automobile in a southerly direction on the west side of Main Street and had stopped his automobile at Fourth Street in the middle lane of three southbound traffic lanes, with the front end of his automobile about three feet north of the north edge of the crosswalk in which the pedestrian was walking, to wait for the traffic light controlling traffic on Main Street to change from red to green. Another automobile had stopped in the southbound traffic lane on the left of defendant, with the front end of the automobile about even with the north edge of the crosswalk. When the plaintiff neared the position of the defendant’s automobile the traffic lights changed, showing green for traffic on Main Street and first yellow and then red for traffic on Fourth Street. When the traffic light on Main Street flashed green the defendant moved his automobile forward into the crosswalk. Plaintiff approached the defendant’s automobile from the left and was struck by the left front fender of defendant’s automobile.

The defendant-appellant assigns as error: Refusal of the trial court to give before argument special instructions requested by defendant-appellant numbered four and five; and that the judgment is contrary to law.

The special instructions requested by the defendant-appellant, and refused by the trial court, are predicated on several provisions of the Uniform Traffic Act of the State of Ohio, which the defendant claims controls the care which the plaintiff was required to exercise in proceeding over the crosswalk after the traffic signal showed green for traffic on Main Street and yellow, then red, for traffic on Fourth Street.

In its former opinion in this case (53 Abs 141) this Court held that under §6307-13 (a) % and §6307-45 GC, the plaintiff was lawfully within the crosswalk at the time the traffic light signal changed and she was permitted to proceed across the intersection; that the defendant was required to yield the right of way to the plaintiff. The applicable portion of §6307-13 (a) % GC provides that when the traffic light shows green traffic facing the signal may proceed straight through,

“but such traffic shall yield the right of way to vehicles, street cars, and trackless trolleys lawfully within the intersection and to pedestrians lawfully within a crosswalk at the time such signal is exhibited.”'

The applicable part of §6307-45 GC provides:

“It shall be the duty of the operator of any vehicle, street car or trackless trolley to yield the right-of-way to a pedestrian lawfully crossing the roadway within any crosswalk.”

We reaffirm our ruling in our former opinion as the factual development in this second hearing is the same as in the first hearing.

The defendant claims that there is evidence in the record to support his contention that the plaintiff did not proceed to use the crosswalk in a lawful manner after the traffic lights changed, showing first yellow and then red for traffic on Fourth Street. The defendant’s contention is based on that portion of §6307-13 GC, which reads as follows:

“(b) Yellow alone or ‘caution’ when shown following the green or ‘go’ signal.
“All traffic facing the signal sjiall stop provided that any traffic within the intersection shall be permitted to continue cautiously through the intersection.” (Emphasis ours.)

The defendant contends that there is evidence in the case tending to prove that the plaintiff did not proceed “cautiously” over the crosswalk after the lights changed but on the contrary that she continued heedlessly, precipitously and incautiously and as a consequence she was not proceeding “in a lawful manner.”

Special instructions requested by the defendant numbered four and five and refused to be given are predicated on the defendant’s interpretation of that portion of the Uniform. Traffic Act just quoted. Special Instruction No. 4 is as follows:

“The court charges you that the word ‘cautiously’ whichi is used in Subsection (b) of §6307-13 GC means attentive to examine the probable consequences of acts with a view to-avoiding danger. Thus one who does a thing cautiously does it warily, prudently, vigilantly, watchfully, and with senses alert to avoid danger.”

Special Instruction No. 5 is as follows:

“The court charges you that if you find that the traffic signal which Mary Stout faced as she proceeded across South Main Street showed a green light and changed directly from a green light to a yellow light she was required, as she continued through the intersection after such change occurred, to continue cautiously and if you find she did continue through the intersection after such change occurred, but failed to-do so cautiously she was not then proceeding lawfully and, while so proceeding, had no right of way over the defendant, Robert Wagner.”

The defendant contends that the section of the Uniform Traffic Act above quoted required the plaintiff to continue “cautiously” through the intersection and that a higher degree of care than ordinary care is required. We do not agree with this interpretation of the Act. We do not believe that it was the intention of the legislature to require a degree of care higher than ordinary care to be exercised in a situation covered by this section. Ordinary care to be exercised varies according to the factual situation involved. However, the standard of care in any given factual situation remains the same. The word “cautiously” is a word in common use and a definition or explanation was not required. The substance of Special Instruction No. 5 was given in Special Instruction No. 1 requested by the defendant. Furthermore, No. 5 as requested fails to state that plaintiff was permitted to proceed through the intersection and fails to state the degree of care required to be exercised by the plaintiff. The refusal to give Special Instruction No. 5 was not error. The verdict and judgment are not contrary to law.

Judgment affirmed.

MILLER, PJ, and HORNBECK, J, concur.


author: By DOYLE, J:

text:
    HARRIS, Estate of, In Re; FITCH, Plaintiff-Appellant, v. SUMPTER, Admr., Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21842.
    Decided July 24, 1950.
    Charles A. Chandler, George V. Johnson, Cleveland, for plaintiff-appellant.
    Morris H. Wolf, H. David Lefkowitz, Cleveland, for defendantappellee.
    (HUNSICKER, PJ, DOYLE, J, of the 9th District; FESS, J, of the 6th District, sitting by designation in the 8th District.)
   OPINION

By DOYLE, J:

This is an appeal from a judgment of the Probate Court of Cuyahoga County which overruled exceptions “to the inventory and appraisal in the estate of Alex Harris, deceased.” As properly stated by the trial judge,

“The issues * "• * stem from certain exceptions that were filed to the inventory and appraisal by Fannie Fitch, next of kin of the decedent, on the ground that Rose Harris, named as the widow of said decedent, is not his widow, and is not entitled to a year’s allowance. * *

From the record before us, we find that, in 1948, a hearing was had on the exceptions, in which it was determined by the Probate Court that,

“Rose Harris, named as the widow of Alex Harris, deceased, is not the surviving spouse of said decedent, and is not entitled to exemptions, allowance for a year’s' support or a distributive share in the estate of said decedent.”

Upon appeal to the Court of Appeals of the Eighth Judicial District, this judgment was reversed for “error of law in placing the burden of proof upon the defendant” and because the judgment was “manifestly against the weight of the evidence.” Upon retrial in the Probate Court, Rose Harris was found to have been the common-law wife of Alex Harris at the time of his death, and the exceptions were, accordingly, dismissed.

In the appellant’s appeal for a reversal of this judgment the following errors are assigned:

“1. The trial judge committed error prejudicial to the appellant in admitting in evidence and considering the transcript and record of testimony of the woman known as Rose Harris and as Rose Houston, in support of her alleged common-law marriage and against the claim of appellant as heir of Alex Harris, deceased.
“2. The order of the trial court overruling exceptions to inventory of appellee and holding that there was a common-law marriage, was contrary to law.
“3. The judgment of the trial court, holding that there was a common-law marriage between Alex Harris and Rose, was contrary to the great weight and to the manifest weight of the evidence and was unsupported by sufficient evidence.”

In, the first trial of this case, in the Probate Court, the competency of Rose Harris to testify on the subject of her claimed common law marriage was not challenged by objection or otherwise, and her testimony was recorded. Some time prior to the second trial she was murdered. As a consequence thereof, her testimony given in the first trial, was offered and admitted in evidence in the second trial, under authority claimed to exist by virtue of the provisions of §11496 GC. This testimony was challenged by objection in the second trial. The objection was based upon the provisions of §11495 GC.

Sec. 11495 GC in part provides:

“A party shall not testify when the adverse party * * * is an executor, or administrator, or claims or defends as heir, grantee, assignee, devisee or legatee of a deceased person, except: * * *
“7. If after testifying orally, a party dies, the evidence may be proved by either party on a further trial of the case, whereupon the opposite party may testify to the same matters

Sec. 11496 GC in part provides:

“When a party or witness, after testifying orally, dies * * * if the evidence given by such party or witness is incorporated into a bill of exceptions * * * the evidence so incorporated * * * may be read in evidence by either party on a further trial of the case. If no bill of exceptions has been taken * * * but the evidence of such party or witness has been taken down by an official stenographer, the evidence so taken may be read in evidence by either party on the further trial of the case and shall be prima facie evidence of what such deceased party or witness testified to orally on the former trial. * * '■ All testimony so offered shall be open to all objections which might be taken, if the witness was personally present.”

We are not called upon to determine the question as to whether the alleged wife, over objection, would have been competent to testify in the first trial. No objection was made to her testifying, and the law recognizes that it may be conducive to the ends of justice to permit a personal representative of a deceased person to exercise a discretion, by a failure to object, in making the testimony of such witness admissible. If the alleged wife, under the statute, was an incompetent witness, the failure to object waived the statutory barrier and made her testimony proper.

Proceeding now to the question of whether, under §§11495 (7) and 11496 GC, the testimony of the wife was admissible over objection in the second trial, (assuming that her capacity as a witness could have been successfully challenged on the first trial — which question we do not here decide) we are of the opinion that a majority of the courts in this country support the view that, when the competency of a claimed surviving spouse to testify was not challenged in a court of competent jurisdiction, the question in a retrial of the same case between the same parties in the same court following a reversal on other grounds by a reviewing court, does not become one of original presentation, nor does an invocation of the so-called “dead man’s statute” (§11495 GO negative a claimant’s right to testify. The circumstances out of which waiver resulted pertained to the cause, not to the court nor the particular trial in which they were developed. By virtue of the “waiver” claimant’s competency to testify in the cause became established and her status fixed.

“* * * Thereafter it was of the cause, alive and abiding, for however long, and in whatever forum, the merits of which remained in controversy. ‘The competency established at one trial obtains at subsequent trials of the same cause.’ * * "’ Faden v. Midcap’s Estate, 152 Pac. (2d) 682 at p. 685.

See also: 42 O. Jur., Witnesses, Sec. 160, p. 167; 64 A. L. R. 1181; 107 A. L. R. 496; 159 A. L. R. 427 and eases therein cited.

“* * * A majority of the courts * * * take the view that waiver of the incompetency of the surviving party as a witness with respect to transactions with the deceased, based upon examination of that party, operates not only during the proceedings in which the examination takes place, but extends to subsequent proceedings between the same parties. * * 58 Amer. Juris. Witnesses. Sec. 362, and cases therein cited.

Concluding, as we do, that had the claimant survived, the waiver of her competency to testify as a witness in the first trial would have carried over into the second trial, it would seem axiomatic that her testimony, later transcribed, was admissible in the second trial under the provisions of the statute. (Sec. 11496 GC supra.)

Examination has been made of the remaining claimed errors, and we find none to be prejudicial in character.

The judgment is affirmed.

HUNSICKER, PJ, FESS, J, concur.


author: By MILLER, PJ:

text:
    STATE, Plaintiff-Appellee, v. DAVIDSON, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2100.
    Decided May 4, 1950.
    Mathias H. Heck, Pros. Atty., William H. Wolff, First Asst. Pros. Atty., Dayton, for plaintiff-appellee.
    Gus W. Byttner, John Shanks, Dayton, for defendant-appellant.
   OPINION

By MILLER, PJ:

The defendant-appellant was indicted and charged with falsely making, uttering and publishing as true and genuine a certain receipt for goods and merchandise, with intent to defraud, in violation of §13083 GC. A plea of not guilty was entered and upon trial being had a verdict of guilty was returned and judgment entered.

The record discloses that on the 18th day of August, 1949, the defendant, Alberta Davidson, went to the store of Lane Jewelers, Inc., and ordered a diamond wedding set, consisting of two rings; that upon being taken to the credit manager she gave her name as Lucille Wilson, 119 South Williams Street, Dayton, Ohio, and signed State’s Exhibit, No. 1, which is as follows:

LANE JEWELERS, INC.
Dayton, Ohio
Dayton 2, Ohio. 8/18/1949
Sold to Mrs. Lucille Wilson,
Address 119 S. Williams.
ARTICLE PRICE
L 466 Dia Wed Set
DP-256 67.50'
3% 2.03:
20% 13.50'
Dep 1.00 83.03
Mdse, for (signed) Lucile Wilson

She paid $1.00 deposit on the rings at the time and ordered1 them to be enlarged. Several days later she returned and: was given the rings on the payment of an additional $17.03.

The record discloses that upon payment not being made in accordance with the contract an investigation was made and it was found that Lucille Wilson was not residing at the address given and had not been at the time of the purchase; that a representative of the company called upon Alberta Davidson, who identified her as being the one who purchased the rings and identified the rings on her hand at the time.

The record discloses further that the defendant purchased merchandise from the Booth Furniture Company under similar conditions and gave the name of Lucille Wilson. The State offered evidence to show further that the handwriting on the receipts for merchandise from the Lane Jewelers, Inc., and Booth Furniture Company showing the name Lucille Wilson was that of Alberta Davidson.

The defendant did not take the stand in her own behalf and neither did she offer any defense, but rested her case as soon as the State rested its case in chief.

The first error assigned has reference to State’s Exhibit 1, which the defense contends is not a receipt in the meaning of §13083 GC. On this question the defendant requested the following instruction be given to the jury, which was refused, the same being made at the close of the case and before argument:

“The Court instructs you as a matter of law that if you find that State’s Exhibit 1 is not a receipt, you must find the defendant ‘not guilty.’ ”

We are of the opinion that no prejudicial error intervened by reason of this refusal, as the Court charged in substance what was requested when it charged:

“The first element of proof is satisfied if you find beyond :a reasonable doubt that State’s Exhibit 1 is a receipt for ■goods, and you further find that the defendant, Alberta Davidson, forged the signature or name of Lucille Wilson at the bottom of State’s Exhibit 1, and you also find that defendant passed or delivered State’s Exhibit 1 to Lane Jewelers, Inc., or knowingly permitted it to come into the possession of Lane Jewelers, Inc., with such signature thereon, and you, in addition, find that the said Alberta Davidson knew such •signature to be false and fraudulent.”

In criminal cases the Court is not required to give special charges verbatim, even though they are legally sound, if the general proposition of law on the point requested is contained in the general charge. State of Ohio v. Cheat-wood, 84 Oh Ap 125, 82 N. E. (2d) 770, 39 O. O. 152; State of Ohio v. Petro, 148 Oh St 473. It was in the province of the jury to determine from State’s Exhibit 1 and all the surrounding facts and circumstances whether or not it was a receipt.

The next error assigned is that the court should have given the following special instructions to the jury before argument, which is known as Defendant’s Request No. 1:

“The Court instructs you as a matter of law that before you can find the defendant guilty, the State of Ohio must prove beyond a reasonable doubt, that the defendant not only signed the name of Lucile Wilson to the paper which is known as State’s Exhibit 1, herein, but the State must also prove beyond a reasonable doubt that the defendant did not have authority to sign the name of Lucile Wilson to that paper. The defendant need not prove that she did have authority to sign the name of Lucile Wilson to that paper.”

We find that the Court covered this request to charge in substance in the general charge when the Court defined all of the elements of the offense charged. The Court stated:

“Under this statute the State, to make out a case against defendant warranting a verdict of guilty, must prove by evidence beyond a reasonable doubt the following elements:
1. That defendant falsely made or forged and uttered and published an instrument constituting a receipt for goods and merchandise, knowing it to be false and fraudulent.
2. That defendant, in making or forging said receipt, intended to unlawfully defraud Lane Jewelers, Inc., the complaining witness in this case.
3. That such false and fraudulent acts of defendant, if any, resulted in a prejudice or loss, or the possibility of a prejudice or loss to Lane Jewelers, Inc.
4. That the offense of forgery charged in the indictment was committed in Montgomery County, Ohio, on or about August 18, 1949.
“In determining this issue, you should take into consideration all the surrounding circumstances disclosed by the evidence in this case. Before you can find the defendant, Alberta Davidson, guilty of forgery as charged in the indictment in this case, it will be necessary for you to find that she placed the name, Lucile Wilson, on State’s Exhibit 1, in her own handwriting, under such circumstances as to make the attaching of such handwritten name unlawful, that is, contrary to law. In determining whether or not the defendant’s attaching the name ‘Lucile Wilson,’ if such she did, to State’s Exhibit 1 was unlawful, you should determine among other things, from all the evidence in this case, whether or not the defendant, Alberta Davidson, wrote the name ‘Lucile Wilson’ on State’s Exhibit 1, without any authority from Lucile Wilson so to do. In the event you find defendant wrote the name, ‘Lucile Wilson,’ on State’s Exhibit 1, before you can find that such signature was false, fraudulent and unlawful, the evidence must show beyond a reasonable doubt that there was a want or lack of authority on defendant’s part to attach the name or signature, ‘Lucile Wilson.’ ”

The defendant cites the case of Romans v. State, 51 Oh St 528, which holds that in a prosecution for forgery, when the defendant admits the making of the signature, the burden is not on him to prove that he had authority; that in such a case the burden remains on the State to prove that it was without authority, before a conviction can be had. We think the Court in its general charge met the requirements laid down in the case of Romans v. State, supra. We are of the opinion that the trial court properly charged upon all of the essential elements necessary to constitute the crime of forgery, but that proof of one of the essential elements of the offense was completely lacking. The State offered no evidence to establish the fact that the defendant was not authorized to sign the name of “Lucile Wilson.” Likewise, there was no evidence presented from which such an inference could reasonably have been drawn. It is true that the defendant falsely represented herself to be “Lucile Wilson,” but this fact throws no light upon her authority to sign the name. As stated in the Romans case, supra, this was a burden resting upon the State and failing to meet it, the State fails to make a prima facie case. The defendant’s motion for a directed verdict at the close of all of the evidence should have been sustained. The judgment is reversed and case is ordered remanded with instructions that the defendant’s motion to dismiss be sustained.

HORNBECK and WISEMAN, JJ, concur.


author: PER CURIAM. MIDDLETON, J,

text:
    KORR v. THOMAS EMERY’S SONS, INC.
    Ohio Appeals, First District, Hamilton County.
    June 29, 1949.
    Matthews & Matthews, Cincinnati, for plaintiff-appellee.
    Rendigs & Fry, Cincinnati, for defendant-appellant.
    GUERNSEY, MIDDLETON and JACKSON, JJ, of the Third Appellate District, sitting by designation in the First Appellate District.
   OPINION

PER CURIAM.

This is an appeal upon questions of law.

It is from a judgment of the Common Pleas Court of Hamilton County, Ohio, affirming a judgment of the Municipal Court, of Cincinnati, Ohio, in favor of plaintiff-appellee, Reta J. Korr, and against defendant-appellant, Thomas Emery’s Sons,. Inc., in the sum of $374.95.

The action as originally filed in the Municipal Court of Cincinnati where it was tried before the court sitting without a jury, was one wherein plaintiff sought to recover damages alleged to have resulted from the loss of a piece of luggage, to-wit, a suitcase and the contents thereof, which piece of luggage was taken into custody by the doorman at the Netherland-Plaza Hotel, an inn owned and operated by the defendant, in Cincinnati, Ohio, on May 17, 1946, when plaintiff arrived at the hotel entrance in a taxicab and registered there as a guest after said piece of luggage was taken in custody as aforesaid.

The evidence introduced on the trial of said cause in the Common Pleas Court tended to prove the facts mentioned' in the preceding paragraph, and also that the reasonable value of the suitcase and its contents was $374.95, and judgment was entered by the Municipal Court in plaintiff’s favor for this amount.

The defendant-appellant assigns as error, that the judgment of the Municipal Court and the judgment of the Common Pleas Court affirming said judgment are contrary to law.

The taking in custody by an employee of an innkeeper,, pending registration and the assignment to a room, of a-guest, of the trunks, valises, boxes, bundles, and/or packages-of such guest, as in the instant case, is an incident to the relationship of innkeeper and guest, and the rules of law applicable to that relationship are determinative of the respective rights and liabilities of the parties.

It is a matter of common knowledge of which the courts; 'take judicial notice, that guests of innkeepers, before registering, customarily bring the personal property which they .desire to have with them during their sojourn at an inn, other than the apparel, jewelry and ornaments which they .are wearing, and personal property carried on their persons, .in trunks, valises, boxes, bundles, and/or packages the contents ■of which are unknown to the innkeeper or his or its employees.

Under the common law the liability of an innkeeper for 'the personal property brought by a guest to the inn was that ■of an insurer but this rule of liability was materially modified by the passage of the Act of March 3, 1860, 50 Ohio Laws, 15, which subsequently became Section 4427, Revised Statutes, and following codification is now designated as §§5981 and 5982 GC.

As §§5981 and 5982 GC were parts of the original .section of the Act of 1860, they must necessarily be interpreted and construed as parts of the same section, and when so interpreted and construed it is clear that the common-law liability of the innkeeper is only modified as to the particular items of property specified therein and to the extent pre- • scribed therein, upon the innkeeper’s compliance with the •terms and conditions prescribed in said sections.

By an Act passed April 27, 1896, 92 Ohio Laws, 322, Section 4427, Revised Statutes, was supplemented by the enactment •of Section 4427a, Revised Statutes, which further limited the -common-law liability of innkeepers, and which reads as follows: “Section 4427a. The liability of the keeper of any inn whether individual, partnership, or corporation, for loss of or injury to personal property placed by his guests under his ■care, other than that described in the preceding section, shall be that of a depositary for hire; provided, however, that in ■no case, shall such liability exceed the sum of one hundred ■ and fifty dollars for each trunk and its contents, fifty dollars for each valise and its contents, and ten dollars for each box, bundle or package, and contents, so placed under his •care, unless he shall have consented in writing with such ■guest to assume a greater liability.”

This section, following codification, is now known and ■designated as §5983 GC, and differs from the original section ■only in the change of the phrase “described in the preceding ■section,” to the phrase “described in the next two preceding .-sections.”

It will be noted that this section in terms applies to liability of an innkeeper for loss of or injury to personal property placed in his care by his guest and that the property described in the next two preceding sections, which are §§5981 and 5982 GC, above mentioned, is expressly exempted from its operation.

While not necessary to a decision of the case, the interpretation and construction of this section as originally enacted, is discussed in the opinion in the case of Palace Hotel Co. v. Medart, 87 Oh St 130, at pages 136 and 137, 100 N. E. 317, at page 319, Ann. Cas. 1913E, 860, as follows: “The supplemental section expressly refers to the other, and they seem to be component parts of one plan or purpose, which is to provide a limitation upon the amount of the liability of the innkeeper for the property of every sort or description of his guest that may or should be directly placed in his charge. This is clear as to the original section with reference to money, jewelry, and other valuables, and the language used in the supplemental section indicates that the property referred to is to be presented in the convenient and usual form of either a trunk, valise, box, bundle, or package for checking or storage in a place specially adapted and devoted to that purpose; and for each trunk, valise, etc., and contents an amount is fixed as the maximum liability of the innkeeper, which would seem to be fair and reasonable, as the innkeeper is not in a position to know the contents, and would not be warranted in opening every trunk, valise, and package to find out. This reasoning does not apply to the apparel and effects of guests kept in their rooms, nor agree with the general custom and usage of guests in that regard.”

Because this discussion was occasioned by the contention of counsel that the section was intended to apply only to personal property such as is directly placed in the care of the innkeeper, that is, to be kept in his check room or storage room, as distinguished from personal property kept by a guest in his room, it is necessarily limited to property of this character, but the reasoning in the discussion applies as well to a trunk, valise, box, bundle or package placed by a guest under the care of the innkeeper, irrespective of whether it is checked or placed in a storage room, or cared for in another manner, as in the instant case.

The suitcase in controversy in the instant case comes within the definition of a valise, as used in §5983 GC, and adopting and applying the reasoning in the opinion of the Supreme Court, above mentioned, we conclude that the liability of the defendant innkeeper for the loss of the suitcase and its contents is limited by said section, to fifty dollars.

The judgment of the Municipal Court, which was affirmed by the Common Pleas Court, is an excess of this amount, so the judgment of the Court of Common Pleas will be reversed as being contrary to law, at the costs of the appellee, and this court rendering the judgment the Common Pleas Court should have rendered will modify the judgment rendered by the Municipal Court so that the recovery in said cause shall be for the sum of fifty dollars and costs, and affirm said judgment as modified, at the costs of the appellee, and will remand the cause for execution.

GUERNSEY, PJ, and JACKSON, J, concur.

MIDDLETON, J, dissents.

MIDDLETON, J,

(dissenting).

The only question in the instant case is whether by the provisions of §5983 GC, the plaintiff is restricted in the amount of her recovery to the sum of fifty dollars. The facts are not in dispute. The plaintiff arrived by taxi at the Netherland Plaza Hotel. The doorman picked up her suitcase and placed it at the foot of the staircase leading to the hotel lobby. The doorman directed plaintiff to leave the suitcase with him, and stated that a bell boy would be sent to bring it to her. Plaintiff then proceeded up the stairs to the clerk’s desk to register, and, immediately after registering, a bell boy was sent to get the suitcase, and found it had dissappeared. It has not been recovered, and at the time it was lost it contained several items of jewelry and personal wearing apparel.

To plaintiff’s petition the defendant filed a general denial, and on trial offered no evidence.

Judge O’Hara, delivering the opinion for the court in the case of Palace Hotel Co. v. Medart, 87 Oh St 130, 100 N. E. 317, 319, Ann. Cas. 1913E, 860, construes §4427a, now §5983 GC, as follows: “Section 4427a was originally enacted on April 27, 1896 (92 O. L. 322), as ‘supplemental’ to Section 4427, which was then amended and re-enacted, and both were made parts of what was designated ‘An act to amend and supplement Section 4427 of the Revised Statutes of Ohio.’ The supplemental section expressly refers to the other, and they seem to be component parts of one plan or purpose, which is to provide a limitation upon the amount of the liability of the innkeeper for the property of every sore or description of his guest that may or should be directly placed in his charge. This is clear as to the original section with reference to money, jewelry and other valuables, and the language used in the supplemental section indicates that the property referred to is to be presented in the convenient and usual form of either a trunk, valise, box, bundle, or package for checking or storage in a place specially adapted and devoted to that purpose.”

While the property lost in the Palace Hotel case was in the guest's room, the reasoning used by Judge O’Hara and the construction placed on Section 4427a is that the limitations of this section do not apply unless the property is placed directly in the innkeeper’s charge for checking or storing in a place specially adapted and devoted to that purpose. The limitations in this section as construed by Judge O’Hara do not apply to the facts in the instant case where possession of the suitcase was taken by the doorman pending the registration by the plaintiff as a guest.

It is my opinion that the Supreme Court in the Palace Hotel case has clearly stated that the limitations of §5983 GO do not apply to a loss of baggage occurring under the circumstances shown to have existed in the instant case. The judgment of the Court of Common Pleas and the Municipal Court should be affirmed.


author: By HORNBECK, J. By THE COURT.

text:
    STATE, Plaintiff-Appellee, v. JOSEPH, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4392.
    Decided June 14, 1950.
    Ralph J. Bartlett, Pros. Atty., George T. Tarbutton, First .Asst. Pros. Atty., Columbus, for plaintiff-appellee.
    Herbert & Dombey, Paul M. Herbert, of Counsel, Columbus, Joseph L. Meenan, New Lexington, for defendant-appellant.
   OPINION

By HORNBECK, J.

The defendant was charged with subornation of perjury in an indictment of fourteen counts. At the conclusion of the evidence five of the counts were dismissed. The defendant was tried on the other nine counts, acquitted on six of them and convicted on three, the 9th, 10th, and the 14th. Motion for new trial having been submitted and overruled, defendant was sentenced to pay the costs of the prosecution and to be imprisoned in the Ohio Penitentiary until discharged according to law. The “three counts to be served consecutively.”

Fourteen errors are assigned to the judgment and sentence, all of which we have carefully considered. We are satisfied to say, without discussion, that no one of them, unless it be Nos. 4 or 8, is supported upon the record. Assignments of error Nos. 4 and 8'require elucidation. No. 4 is:

“There was not any evidence to support the verdict of the jury of guilty upon the three counts of the indictment upon which the jury found the defendant-appellant guilty.”

The three counts under consideration in this appeal are the 9th, 10th, and the 14th. The 9th count of the indictment relates to the divorce case of Pearl Wehr v. Crumbley Wehr and, in so far as is pertinent to the inquiry here, charges, that “the defendant did * * * suborn said Pearl Wehr to commit perjury by testifying on oath lawfully administered as follows: that said Pearl Wehr was and had been for at least thirty days immediately preceding the filing of the petition in said cause aforesaid a bona fide resident of the said Franklin County, Ohio, said testimony being material to said: cause and being false in the following respects: that said Pearl Wehr had not resided in Franklin County, Ohio, during any of the time so testified, * * *.”

The charges in the 10th count involving the divorce case of Charles Wm. Bash v. Leanette Hazel Bash and in the 14th count involving the divorce action of Robert W. Mehl, Jr., v. Lillian B. Mehl are identical with that in the Wehr case except for the interposition of the name of Charles Wm. Bash in the 10th count and of Robert W. Mehl, Jr., in the-14th count.

Pearl Wehr, Charles Wm. Bash and Robert W. Mehl, Jr., all testified that they were not at the time of their divorce trials and had not been at any time prior thereto residents of' Franklin County. They also testified to facts from which it could be inferred that the defendant when he filed their petitions, and at the time of their trials, knew that they were not then and had not theretofore been residents of Franklin County and that he knew what had been done to present an indicia of bona fide residence in said county as required by the divorce statute.

Upon the specific charge in the indictment Pearl Wehr said that in her divorce action she “swore in the presence of Mr. Joseph that she had been a bona fide resident in Franklin County for 30 days preceding June 18,” the petition being filed on June 21, 1948, and that “30 days before filing the petition she had a residence in Franklin County.” This, in our judgment, was sufficient to establish that she had testified falsely in a material matter in her case and in the particulars set out in the 9th count of the indictment.

The testimony in the Bash and Mehl counts as to residence is not specific on the material question of residence. Mr. Bash said that in his divorce case he was asked how long he lived in Franklin County and he made the reply, “Thirty days.” Manifestly this did not support the charge. He did not say when he lived in Franklin County for 30 days as related to the filing of his petition. As a matter of fact he did not define any 30 days when he lived in the county. Of course, Bash said nothing about his true residence at the time of the divorce hearing because upon the theory of the State it was his purpose and that of his counsel, the defendant, that the trial judge be misled to believe that he was a bona fide resident of- Franklin County. If there was any testimony in the Bash divorce case to the effect that he had been a resident of Franklin County for 30 days immediately preceding the filing of the petition it is not established in the record in this case.

The same infirmity is found in the testimony of Robert W. Mehl, Jr. It appeared that in his divorce case he testified that he had lived at the address given in his petition but he did not state when he moved there, how long he had lived there, and did not relate his residence to any period of time immediately prior to the date of the filing of his petition. In both the Bash and Mehl counts, the essential evidence to establish the specific charges respecting the testimony as to residence of these parties was not forthcoming.

Sec. 11980 GC provides in part:

“Actions for divorce * * * shall be brought in the county of which the plaintiff is and has been for at least thirty days immediately preceding the filing of the petition, a bona fide resident * * *.”

Both of these requisites, namely, that the plaintiff (1) is :and (2) has been for at least thirty days a bona fide resident relate to the time of the filing of the petition. The first re- • quires that the plaintiff shall be a bona fide resident when •the petition is filed and the second that he shall have been a bona fide resident for at least 30 days immediately pre- • ceding the filing of the petition. A mere statement that a party at the time of the hearing lived in the county where the : action was brought, or that he had lived there for a certain length of time which could not be fixed as 30 days before the •filing of the petition is not probative of the material requirements of the section as to residence essential to venue in a • divorce action.

To constitute perjury in a trial the subject matter falsely testified to must be in respect to a matter material upon that trial. Sec. 12842 GC. McCaffrey v. State of Ohio, 105 Oh St 508. The State properly selected the language in the ‘indictment which set forth the material matter which it claimed had been falsely sworn to but it failed to produce the proof to support the charges. The trial' judge properly instructed the jury that it must find that Bash and Mehl “made or testified to the statements alleged” in the indictment.

The Court said in McCaffrey v. State, 105 Oh St 510:

“Under the constitutional provision and this statute, it is quite clear that there must be an averment of the false -testimony McCaffrey gave upon the McCannon trial; that .such testimony was in respect to a matter upon that trial.”

It is likewise quite clear that the averment of the false -testimony having been set forth the proof must conform to -the charge. It requires no extensive citation of authority for the proposition that the State must prove every essential •element of the offense charged. It was a requisite of proof -that it appear that the testimony was given in the divorce • cases, if not exactly, at least substantially, as set out in the indictment. If this was not sworn to the corpus delicti, i. e. -the falsity of the matter assigned could not be established. State v. Courtright, 66 Oh St 35.

We do not ground our conclusion upon the proposition that "the testimony of Bash and Mehl, as shown to have been given in their divorce cases, could not have been the proper basis for a charge of perjury in any circumstances, in that it was not material to a matter to be proven in the trial, viz., their residence when the case was filed, but that it was not the basis of the perjury charged in the 10th and 14th counts of the indictment in this case.

The eighth assignment of error is:

“After the case was submitted to the jury and it had retired for deliberations it was later taken out to dinner by three officials properly sworn to perform their duty, but the court himself ate dinner with the jury at the same table and engaged in conversation with the jury, to the prejudice of the defendant-appellant.”

Upon this assignment the record is as follows:

MR. HERBERT: “Could the record show this,. Your Honor please, that after the Court had charged the jury and had submitted the case to the jury and the jury had retired for deliberation upon the case, that the court then * * * released the jury under the presence of two officials of the Court, * * ", to go to dinner, and that the Court joined them and sat at the table and ate dinner with the jury.”

THE COURT: “The record may show that the jury was not released in the sense that you have used that word but the jury was in the charge of three officials of the Court, and in a body were conducted to a place where they had their evening meal and that the Court was also present watching the three officers who had charge of the jury.”

MR. HERBERT: “And ate with the jury, is that correct, Your Honor?”

THE COURT: “And with the officers, yes.”

It thus appears that after the submission of the case to the jury and after it had been placed in charge of officers of the Court but before it had entered upon its secret deliberations the trial Judge, the jurors and the officers ate together. Nothing more appearing, was this conduct on the part of the trial Judge prejudicial error? We believe not.

The mere statement of the facts is conclusive that the record affords no proof that anything was said or done by the Judge in the presence of the jury which would have a tendency to affect its verdict. If prejudice is to be found it must be determined by the mere fact that the Judge was with the jury, had opportunity to, and possibly talked to them. In other words, that a presumption of prejudice arises when it appears that the trial Judge was with the jurors after the case has finally been submitted to them. There are several cases wherein it has been held that it was prejudicial for a trial judge to talk to a juror under certain conditions which arose after the submission of the case and while the jury had it under consideration.

It has been held in Ohio that the holding of conversations by the jury while in their room with persons on the street in regard to any subject of their deliberation, before their verdict is rendered is, in general, good cause for setting aside their verdict. Farrer v. State, 2 Oh St 54. The prejudice in this irregular conduct on the part of the jury is clear particularly because the conversation related to the subject matter which the jury had under consideration and upon which it was required to pass its judgment.

In State v. Adams, 141 Oh St 423, it was held that the violation by a court officer in charge of the jury of §13448-1 GC, in communicating with the jury except in inquiring as to whether it had reached a verdict raised a presumption of prejudice to the defendant. Sec. 13448-1 GC expressly provides that when a cause is finally submitted, the jurors must be kept together in a convenient place, under the charge of an officer, until they agree upon a verdict, or are discharged by the court. Such officer or officers shall not permit a communication to be made to them, nor make any himself, except to ask if they have agreed upon a verdict, unless by order of the court; * * *. It was appropriate that the court in State v. Adams should hold that a violation of this statute raised a presumption of prejudice but there is no like statutory prohibition relating to the trial judge.

It has been the policy of the law to require in the accord of “due process” to a defendant in a criminal case that the trial judge make no communication respecting the law of the case in its application to the facts in the absence of the defendant and his counsel. The case which is most nearly an exception to this rule is Gandolfo v. The State, 11 Oh St 114.

Here it must be noted that it is not suggested that anything was said to any juror respecting the facts or the law of the case. If the defendant had any reason to believe that he was prejudiced by the act of the trial judge he had the full right to take the affidavits or testimony óf the jurors on the subject. As late as State v. Adams, supra, it was held that the rule that affidavits or testimony of jurors will not be received to impeach their verdict unless evidence aliunde of irregularity in the deliberations of the jury or in the return of a verdict is first shown, has no application where such irregularity is due to the misconduct of an officer of the court. See also Emmert v. State, 127 Oh St 235. The same rule would attend if the misconduct was on the part of the court itself

Actually, it does not appear that the Judge had any communication with the jurors and in that particular it may be distinguished from the several cases outside Ohio cited by the appellant: DuCate v. Brighton, (Wis.) 114 N. W. 108; Hurst v. Manufacturing Company, (Wis.) 107 N. W. 666; Kehrley v. Shaffer, 36 N. Y. Supp. 510; Crabtree v. Hagenbaugh, 23 Ill. 349. The one exception as to communication to-the jury in the cited cases is Gibbons v. Van Alstyne, 9 N. Y. Supp. 156. Here, the trial judge entered the jury room after submission of the cause but it does not appear that any communication passed between him and the jury.

Sec. 13449-5 GC having application to criminal procedure-provides that,

“No motion for a new trial shall be granted or verdict set. aside, nor shall any judgment of conviction be reversed in any court * * * for any other cause whatsoever unless it. shall affirmatively appear from the record that the accused was prejudiced thereby or was prevented from having a fair-trial/’

And in McHugh v. The State, 42 Oh St 154, it is said that a reviewing court regards the record as free from error until the contrary clearly appears. This section of the Code alone-would preclude this Court holding that the action of the-trial judge was prejudicial to the defendant.

Independent of statute, it is highly improbable that the-trial Judge whose first concern is that the jury return a fair and impartial verdict, who has presided throughout the-trial and controlled the deliberations with that purpose in mind and has charged the jury upon every separation that, it should not discuss the case with any person nor permit-anyone to discuss it in their presence in its absence from the-courtroom, would violate in the slightest degree the obligation which he had enjoined upon the jurors.

Although the action of the trial Judge was unusual and, in so far as we know unprecedented, we are satisfied that it was-not prejudicial to the cause of the defendant in any particular whatever.

The judgment of conviction and sentence of the defendant. on the 9th count of the indictment will be affirmed and will be reversed as to the convictions and sentences under counts Nos. 10 and 14 for failure of proof of the offenses charged in said counts and the cause will be remanded for further proceedings according to law.

MILLER, PJ, and WISEMAN, J, concur.

ON APPLICATION FOR REHEARING

No. 4392. Decided July 25, 1950.

By THE COURT.

Applications for rehearing have been filed in this cause by both parties. Such applications are not appropriate under our present rules of practice. However, we given some attention to the matters urged in the applications.

Appellee urges that the Court failed to give proper consideration to the probative effect of the divorce decrees in the Bash and Mehl divorce cases. Giving full force and effect to these decrees they do not reach the infirmity in the proof upon which we predicated our opinion. They are probative of the fact that at the time the decrees were entered Bash and Mehl were residents of Franklin County and inferentially that somebody testified under oath to these facts. However, such proof does not establish that either Bash or Mehl so testified. The direct evidence of the testimony which the indictments alleged they had given failed to support the specific charges in the respective counts of the indictment. The State charged that Bash and Mehl had testified specifically. The proof was not forthcoming.

If the only question presented was whether or not Bash and Mehl were actually bona fide residents of Franklin County when the decrees were granted there would be no doubt of the sufficiency of the proof that they were not such residents.

The testimony of Mr. Romanoff was confirmatory of this fact but it did not tend to prove that Bash or Mehl specifically testified under oath in their divorce cases.

In the application of the appellant it is urged that we improperly concluded that the presence of the judge with the jury was before it had entered upon its secret deliberations, whereas the truth was that the incident occurred after the jury had entered upon its deliberations. The distinction in the facts, if well made, in our judgment, does not require any conclusion other or different than we heretofore have reached. We predicated our conclusion that the conduct of the trial judge did not justify a reversal, in the main, on the failure of the record to show that any prejudice had intervened to the rights of the appellant which showing was necessary to a reversal under the statute cited.

Both applications will be denied.

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


author: By DRUCKER, J.

text:
    PETTIBONE v. SHAFFNER et.
    Municipal Court of Cleveland.
    No. A-109779.
    Decided May 16, 1948.

      Martin H. Wilkinson, Cleveland, for plaintiff.
    H. C. Wedren, Cleveland, for defendant.
   OPINION

By DRUCKER, J.

This case is now before the court upon a motion filed by the defendants for vacation of the judgment heretofore rendered in favor of the plaintiff. Four grounds are assigned in support of the defendants’ motion. These are—

1. That the plaintiff obtained a judgment upon a promissory note without proper notice to the defendants.

2. That the obligation evidenced by the note has been paid.

3. That there was no service of summons upon the defendants.

4. That the defendants have a valid defense to the action, to wit, payment in full.

Plaintiff’s judgment in this case was based upon a cognovit note, and, by virtue of the warrant of attorney therein contained, service of summons by the defendants was waived and judgment was rendered for the amount prayed for by the plaintiff without prior notice having been given to the defendants of the institution of the proceedings or the procuring of the judgment.

The defendant’s motion to vacate the judgment in this matter has been filed in the same term of court within which the judgment was rendered. On its face, the motion of the defendants, supported by an affidavit, indicates to the court the existence of a possible valid defense to the plaintiff’s claim in the event the case is permitted to proceed to trial on the merits. However, at this point the court is met with the direct challenge of the plaintiff that the mere assertion on paper of the existence of a possible valid defense is not sufficient ground to justify suspending the judgment heretofore rendered in favor of the plaintiff and directing that the cause proceed to trial upon the merits of the alleged •defense.

It would appear that this situation raises no new or novel • question of law which has not heretofore been considered and ■decided on many occasions.

The court finds that very considerable and unfortunate confusion exists concerning the procedure which must be or •ought to be followed in the consideration of motions to va•cate judgments filed within the same term at which the judgments were rendered.

A study of the numerous cases discloses frequent use of igeneralizations regarding procedural points when such generalizations are far beyond the scope of the issues before the •court, as well as considerable laxity in the employment of procedural requirements assumed to be based upon statutory mandates which do not in fact apply to the situations before the court. Accordingly, there will be no labored effort here directed toward an attempt to harmonize what may .appear to be conflicting decisions. Rather do we prefer to present an analysis of the situations which are or may be involved in a motion to vacate judgment filed within term.

The first question to consider is the source and the extent -of the authority vested in the court upon the filing of such a motion. While quotations from encyclopedic texts should be sparingly employed, at the same time they may well be •used to state a rule of law amply supported by authorities. We therefore quote from the text of Volume 23 O. Jur., at page 1217:

“It is the general rule that courts of record or of general jurisdiction, such as the Court of Common Pleas, possess the inherent power of controlling their own judgments and of correcting, modifying or vacating such judgments during the term at which they were rendered. This is an inherent power which in no way is regulated or abridged by statute in Ohio.”

The Supreme Court of Ohio has on numerous occasions stated and reaffirmed the rule announced in the foregoing text. It •will be sufficient here to cite the case of First National Bank of Dunkirk v. Smith, 102 Oh St 120, 130 N. E. 502.

The full extent of the court’s authority in this case is set forth in the opinion of the Supreme Court:—

“Examination of the authorities discloses the fact that at ■common law a court of general jurisdiction is endowed with the power to control its own orders and judgments during the term at which they are rendered, and the power to vacate or modify them is in the exercise of a sound discretion; and. this is an inherent power, in no way regulated or abridged by statute.
“This principle was early announced in the case of Huntington & McIntyre v. Finch & Co., 3 Oh St 445, and the doctrine' is approved in later cases of this court, notably Knox County Bank of Mt. Vernon v. Doty, 9 Oh St 505; Niles v. Parks, 49 Oh St 370, 34 N. E. 735; Huber Mfg. Co. v. Sweny, 57 Oh St. 169, 48 N. E. 879; Weber v. State, 58 Oh St 616, 51 N. E. 116, and in others.
“There appears to be no limitation or restriction to the rule except that the power must be exercised with a sound discretion — limited only to cases in which there is an abuse of discretion. It follows, therefore, that the court in the instant case had the power to suspend the judgment upon any ground enumerated in §11631 GC, or for any other reason within the exercise of a sound discretion.”

As to the procedure to be followed by this court in exercising its plenary power in such a case the Supreme Court continues its opinion with the following pronouncements:

“We find that in cases of this character the lower courts have followed a practice of holding that the procedure laid down in Chapter 6, supra (§§11631 et seq, GC), is the proper procedure to be followed upon an application to vacate or suspend a judgment made at the same term in which tiie judgment was rendered; and, further, that in some jurisdictions a rule of court exists making it necessary as a matter of practice to follow the procedure outlined in Chapter 6 in seeking to vacate or suspend a judgment, where the application is made at the same term in which the judgment was rendered.
“We think this is a wholesome rule in furtherance of good practice, especially in reference to judgments taken on cognovit instruments and by confession. But we are constrained to hold that in the face of such a rule the court may not be limited or concluded to the grounds enumerated in §11631 GC; and, in the absence of such a rule of court, may not be limited or concluded by the method of procedure outlined in Chapter 6.
“We therefore hold that the court had control over this judgment during the term at which it was entered, and had the power to suspend it without reference to the method of procedure outlined in Chapter 6.”

It would seem on the face of it that this decision of the Supreme Court of Ohio ought to dispose of most of the questions involved in the issue presented to this court. Unfortunately, they do not do so for two reasons — first, because of the confusion in existing authorities as to the method of applying the procedure outlined in Chapter 6, Division 4, Title 4, Part Third, General Code, entitled — Other Relief After Judgment; second, because of a peculiar rule of this court which has existed for many years. We shall discuss these reasons in inverse order. Rule 20 of the Rules of the Municipal Court of Cleveland states, in part:—

“all motions to vacate judgments must be in writing accompanied by affidavit showing ground for vacation and a defense, or if the plaintiff seeks the vacation of a cause of action and proof of notice in accordance with §§11372-3-4 GC. The statutory procedure applicable to motions to vacate judgments after term shall apply to motions to vacate judgment in term.”

It is contended that under this rule the court required tc follow the procedure provided under the terms of §§11636 and 11637 GC. Proceedings to vacate judgment which are governed by those sections of the Code require, in the first instance, a determination by the court of the existence of sufficient grounds to vacate judgment, and then a subsequent adjudication by the court that “there is a valid defense to the action.” It is the latter provision which has caused the greatest amount of confusion.

A well defined line of authorities — most of them of long standing but some of recent origin — have held that the court is under no obligation to require or to consider evidence relating to the merits of the alleged defense. On the other hand, there is another line of authorities in this state holding that under the provisions of §11637 GC, the presentation on paper of what would constitute a valid defense, unless supported by evidence, is not sufficient, and that there is an obligation on the part of the court to adjudge the “probable existence” of a defense to the action.

In the view of this court such procedure is not applicable in the Municipal Court of Cleveland or elsewhere in the hearing of a motion to vacate judgment within term.

It may be a matter of some dispute whether the rule of this court quoted supra is or is not properly or adequately phrased. The court is obliged to apply the rule as it exists. The rule states that upon the consideration of motions to vacate filed within term, the same procedure is to be followed as in the case of motions to vacate filed after term. It appears that in the application of this rule, the court has heretofore neglected to observe that the provisions of §§11636 and 11637 GC, do not govern the hearing of motions to vacate filed after term. Those sections of the Code govern the procedure to be followed upon the filing of a petition to vacate after term.

The statutory procedure provided in Chapter 6 makes a clear distinction between the procedure to be followed on the filing of a motion and the procedure to be followed on the filing of a petition to vacate a judgment after the term in which it was rendered. The procedure to be followed upon the filing of a petition to vacate after term is discussed in those sections of the Code beginning with §11635 GC. The procedure to be followed in the hearing of a motion to vacate after term is governed only by the provisions of §11634 GC. That section of the Code provides substantially the same method and type of hearing on a motion to vacate that is followed by this court in connection with motions of every type.

In the case of Washington v. Levison, 66 Oh Ap 461, 20 O. O. 427, (1941)

“The court said, in discussing the procedure in a petition to vacate ‘At a hearing * * * the court does not decide the merits of the original controversy. * * * in order that an opportunity to litigate the original controversy may not be entirely vain and futile, it also determines whether there is a valid defense to that action in the sense that a valid defense is alleged and sufficient evidence produced, if believed, to lead the court to conclude that the trier of the facts in the original action would decide that it was sufficient, and on these issues, the parties have a right to introduce all relevant evidence * * * in reaching its conclusion.’ ” (Emphasis ours.)

Neither a paper defense, nor an affidavit alone is sufficient. There should be some evidence offered, which if true, would be considered as competent evidence by a trial court which will ultimately try the case.

In Consolidated Press v. Leibowitz, 27 Abs 10 (1938) the court said,

“It is not alone sufficient for a defendant against whom a default judgment is entered and who wants it vacated, to set up a claim that he has a valid defense; he is further required to support such claim by sufficient evidence to show that he has a meritorious defense which, if proved, would not have warranted the judgment entered against him * * *”

This disposes of the chief hurdle presented by the plaintiff in relying upon the provision of Rule 20 of this court. Before concluding this opinion, however, a further observation concerning the language and the application of that rule is called for. The rule states a motion to vacate judgment must be accompanied by an “affidavit showing ground for vacation and a defense.” Does the existence of this portion of the rule interfere with the employment in any case of the inherent and plenary power of this court existing over judgments during the term in which they were rendered, as outlined by the Supreme Court of Ohio in the case of First National Bank of Dunkirk v. Smith, supra? In the view of this court no rule adopted by the court could accomplish such a result.

In analyzing the application of this portion of the rule, it should be borne in mind that there are three general types of situations involved in the hearing of motions to vacate filed within term. These are, first, a motion to vacate a judgment obtained by default, where the defendant failed to appear at the time the judgment was rendered; second, a motion to vacate a judgment obtained by warrant of attorney, where the defendant expressly and in advance of the proceeding authorized the taking of the judgment without notice to him; third, a motion to vacate a judgment rendered after a contested trial, in which the defendant was present in person or by counsel and undertook to defend against the plaintiff’s claim.

It would serve little purpose to attempt to analyze the numerous grounds for vacation advanced in the first two types of situations above referred to. It should be noted, however, that where the defendant has failed to appear and to present his defense at the time of the original trial of the action, either because of inadvertence, lack of notice, negligence or otherwise, there is nothing in the record before the court to indicate the existence of a possible defense until the institution of the proceeding to vacate judgment. Accordingly, the requirement that the alleged defense be set forth under oath and accompany the motion to vacate is a salutary rule, enabling the court to have before it, as a matter of record, the issue between the parties. However, where there has already been a trial on the merits, contested by the defendant, upon issues properly presented, the filing of an affidavit in support of a motion to vacate such ■a judgment can serve no purpose whatever in the absence ■of a single contention by the defendant, that of newly discovered evidence.

As in the case of statutory enactments, rules of court must be applied with reasonableness and so as to serve a useful purpose.

“It is a maxim that the law never requires the doing of an idle thing or compels the doing of impossibilities. Accordingly, the courts will not assume, or presume, that the legislature intended the doing of a vain, useless, purposeless or impossible thing.* * *
“It is to be assumed that the legislature aims to promote convenience. It may not be presumed to have intended to ■enact a law producing an opposite effect. * * *
“It is to be assumed that the legislature intends to enact •only that which is reasonable, and courts sometimes refer to presumption against absurdity in the provisions of a ■legislative enactment.”

37 O. Jur. 634-644.

The same principles apply to the interpretation of court 'rules. Thus, Rule 20 of this court, providing for the filing •of an affidavit together with a motion to vacate judgment within term, would not apply to a situation where no new Issue of fact is presented or is to be presented to the court. In actual practice the provisions of Rule 20 have always been Interpreted by the court as we have here indicated. While an affidavit has been required wherever a question of fact Is presented in connection with the filing of a motion to vacate judgment, it has been the universal practice of the members of this court not to require the filing of such an affidavit where the motion to vacate judgment present's no new question of fact and where no evidence is necessary for the determination of the motion. Accordingly, the court has come to the following conclusions:

1. This court has complete control over a judgment of the court during the term within which it is rendered.

2. There is no limitation or restriction, either statutory or otherwise, upon the power of the court to vacate a judgment within term within the exercise of a sound discretion.

3. There is no statutory or other procedure which the court is required to follow in the consideration of a motion to vacate filed within term.

4. The provisions of Rule 20 of the Municipal Court of Cleveland furnish no procedural guide for the determination of such a motion.

5. Upon the filing of a motion within term to vacate a judgment obtained by default or by confession, the court will first determine the existence of sufficient grounds to suspend the operation of the judgment.

6. If sufficient grounds to vacate the judgment are determined to exist, the court will then determine whether the-defendant has set forth, under oath, the existence of a possible valid defense to the action.

7. If the court, then determines that the defendant has: set forth under oath a possible valid defense to the action,, the court will not inquire into the merits of such defense,, or require the presentation of any evidence in support thereof, since the determination of such an issue depends upon. the introduction and consideration of all relevant and pertinent testimony that the parties may desire to offer with reference thereto; and a partial hearing on the merits of the defense can serve no good purpose, and would, in most, instances, require the presentation of the same evidence and. argument of the same issued twice.

8. Accordingly, the court will then suspend the operation, of the judgment and assign the case for prompt hearing and. determination upon its merits.


author: By THE COURT:

text:
    O’LEARY, Plaintiff-Appellee, v. BURNETT, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2040.
    Decided January 12, 1950.
    Paul H. Blum, Dayton, for plaintiff-appellee.
    Howard H. Durst, Eugene B. Bacher, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

Submitted on motion of plaintiff-appellee to remand the bill of exceptions to the trial court for correction. The motion is made under §11572~a GC, which provides:

“When justice requires it, upon notice to all parties, an •omission in a bill of exceptions, occurring through accident ■'or error, may be corrected by the reviewing court, or it may Ibe remanded to the trial court for such correction.”

Under this section an omission in a bill of exceptions may be corrected which occurs through accident or error. The motion itself does not state that the omission occurred through accident or error. In a memorandum attached to the motion counsel for plaintiff-appellee claims that the bill of •exceptions did not include a letter written by the defendant- . appellant, and that the omission was due to the accident of not formally introducing the letter into evidence. Thus, it .appears that the omission did not occur through accident ■or error in the preparation of the bill of exceptions but in the failure to introduce the letter into evidence as an exhibit at the trial. The plaintiff-appellee does not claim that the bill of exceptions fails to show the true facts as they transpired at the trial. Sec. 11572-a GC, permits an omission in a bill of exceptions to be corrected only when the omission occurs through accident or error in the preparation of the bill of exceptions. Counsel for plaintiff-appellee in the instant case is seeking an order correcting the bill of •exceptions by incorporating a letter as an exhibit which was never introduced at the trial. This is not permitted under the law. Elser v. Parke, 142 Oh St 261, 51 N. E. (2d) 711; State v. Caldwell, 29 O. O. 48, 55 N. E. (2d) 865, appeal dismissed, 143 Oh St 563.

The motion in this case was made after the opinion was .■announced. The plaintiff’s action was predicated on a contract which was not to be performed within one year, and the principal question involved was whether the different •exhibits submitted, consisting of several memoranda, constituted a written instrument signed by the person sought-to be charged. The letter which plaintiff-appellee wishes to-make a part of the record is as follows:

“January 1, 1936

Mrs. W. J. O’Leary

Dear Mrs. O’Leary

Please send receipt and return in address envelope.

Thanking you, very truly,

H. L. Burnett

Wishing you and yours a Happy New Year.”

We fail to see where this letter, if introduced, would' strengthen the position of plaintiff-appellee. It is well. settled that a motion to correct a bill of exceptions will be denied where the correction of the bill would not result in a different conclusion from the one already announced.. Ekleberry v. Sanford, 73 Oh Ap 571, 576, 57 N. E. (2d) 270; Hawke v. Roberts and Hall, 13 Oh Ap 198, motion to certify overruled, 18 O. L. R. 287. The letter in question, if made a part of the bill of exceptions, would not result in a different conclusion than that heretofore announced.

Motion overruled.

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

ON MOTION TO CERTIFY RECORD

No. 2040. Decided January 27, 1950.

By THE COURT:

Submitted on motion by plaintiff-appellee to certify the record of this case to the Supreme Court for review on the ground that the judgment of this Court is in conflict with the judgment of the First District Court of Appeals in Frohn v. Central Trust Company, 47 Abs 341, 72 N. E. (2d) 303.

We find no conflict between the judgment of this Court and the judgment of the First District Court of Appeals in the case cited.

Motion overruled.

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