author: By BRYANT, J.

text:
    VAUGHAN, Plaintiff-Appellee, v. VAUGHAN et, Defendants-Appellants.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5776.
    Decided May 20, 1958.
    Howard H. Gillard, Columbus, for plaintiff-appellee.
    Lewis M. Levinson, Columbus, for Verna Vaughan, defendant-appellant.
    Hylas A. Hilliard, Columbus, for The Buckeye Federal Savings & Loan Association, defendant-appellant.
    Samuel L. Devine, Pros. Atty., Ralph H. Heller, Asst. Pros. Atty., .Columbus, for Newton A. Thatcher; Franklin County Treasurer, defendant-appellant.
   OPINION

By BRYANT, J.

This matter was begun in the Court of Common Pleas of Franklin County, Ohio, by the filing of a petition seeking judgment on a promissory note and foreclosure of a mortgage given to secure the note. George P. Vaughan, plaintiff-appellee herein, will be referred to as plaintiff; Verna Vaughan, defendant-appellant herein, will be referred to as defendant, and other defendants-appellants will be referred to as in the court below.

Plaintiff asks judgment of $2,000 and interest and foreclosure of his mortgage and that the Buckeye Federal Savings & Loan Association be required to set up its claim and that after the sale of the premises involved, the money be distributed according to the preference to which the parties were entitled. Thereafter, Newton A. Thatcher, Treasurer of Franklin County, Ohio was made a party defendant, and the said Buckeye Federal Savings & Loan Association filed its answer and cross-petition setting up its claim under a note and mortgage.

Verna Vaughan filed her answer and cross-petition containing these four defenses: (1) denying execution of the note in question; (2) denying there was consideration for the note; (3) claiming that said note was procured by fraud, misrepresentation, deceit and duress and (4) alleging that the mortgage deed in favor of plaintiff is, therefore, wholly void. Said defendant prays for a declaration that the note and mortgage were void. The answer of the Franklin County Treasurer asks that his lien for taxes, assessments, penalties and interest be declared valid first and best lien.

The matter came on for hearing, following which Leach, J., found in favor of the plaintiff and against Verna Vaughan upon the prayer and judgment for $2,000 and the note and mortgage. The journal entry incorporating this decision gave judgment in favor of George P. Vaughan in the amount of $2,701.47 on the note and mortgage, recognized the claims of the other defendants, and directed sale of the property.

Motions for a new trial and for judgment non obstante veredicto were made and overruled, after which notice of appeal on questions of law and fact was filed by counsel for Verna Vaughan.

The principal arguments of counsel for Mrs. Vaughn seem to be with reference to the question of consideration or the lack thereof or the adequacy thereof and the effect upon the validity of the note and mortgage in question.

The lower court held that there was a failure of proof of inadequacy of consideration and that Mrs. Vaughan did in fact sign both the note and mortgage in question, and we find ourselves in agreement with this holding of the lower court. The lower court also found, as we do, that there was, in fact, adequate consideration for the execution of the note and mortgage, which was sufficient to sustain the cause of action thereon. It is our opinion that we are not required to weigh the exact value thereof, but on the other hand, unless such consideration was so inadequate as to indicate fraud, we should uphold it as sufficient.

The Supreme Court of Ohio, in the case of Judy v. Louderman, 48 Oh St 562, in the second branch of the syllabus held as follows:

“While it is necessary that the consideration of a promise should be of some value, it is sufficient if it be such as could be valuable to the party promising; and the law will not enter into an inquiry as to the adequacy of the consideration, but will leave the parties to be the sole judges of the benefits to be derived from their contracts, unless the inadequacy of consideration is so gross as of itself to prove fraud or imposition.”

After giving careful consideration to the issues involved in this case, the briefs and arguments of counsel and the record, we find ourselves in agreement with the holdings of the trial court, and we so hold.

In conclusion, therefore, it is our opinion that the court below rendered a proper decision in this case, which we approve and adopt. The entry will correspond to the one in the court below with proper modification due to the passage of time since March 14, 1957.

PETREE, PJ, MILLER, J, concur.


source: Caselaw Access Project

author: By McBRIDE, J.:

license: Public Domain

text:
    STATE v. MILNER and DIXON, Defendants. STATE v. STEPHENS, Defendant.
    Common Pleas Court, Montgomery County.
    Nos. 20522 and 20571.
    Decided April 5, 1958.

      John R. Hoover, Glen Mumpower, Asst. Pros., for the state.
    Scharrer & Porter, for defendants, Frank Milner and Ralph Warner Dixon.
    Ray E. White, for defendant, Ronnie Lee Stephens.
   OPINION

By McBRIDE, J.:

These two cases were submitted on motions, separately heard today. The motions seek dismissal of indictments because the constitutional right to a speedy trial was denied.

Very briefly, the testimony, the stipulation and the evidence judicially recognized indicate among other things, that from the time the affidavit was filed against Ralph Warner Dixon and Frank Milner until the time of the indictment a period of nine years and one month elapsed, during all of which time they were incarcerated in the Ohio Penitentiary for another offense. In Case No. 20571 against Ronnie Lee Stephens a period of twenty-eight months elapsed under similar circumstances. In both cases detainers were placed against the defendants for the entire period of their confinement and upon parole they were returned by the Dayton police to stand trial for the old charges.

The problem of a conflict of sovereign jurisdiction with another state or with the federal government does not arise in this case. The facts are confined to situations where defendants were officially accused by affidavits with more than one offense during the time of their arrest and where the State indicted and convicted on one of such offenses but stopped all legal procedure on the remaining offenses until the defendants were paroled, at which time they were returned from the penal institution to be indicted and to stand trial. Detainers were placed at the penal institution by the police at the time the sentences commenced.

Since the State is the complaining party to all criminal prosecutions it is immaterial whether one or more counties were involved.

A detainer or hold order is an informal demand by one exercising public authority for the possession of a person already in lawful custody of another. There is a difference of opinion as to the effect of a detainer upon prison privileges and upon the time of parole. However the custodial authorities and the parole board would be more than human if they were not influenced by formal accusations of additional crimes and they would be negligent if they disregarded the notice of the additional custodial risk. When such a convict is declared fit to return to society he is delivered to the demanding authorities to stand trial for the old offenses, be it two, five, or ten years later. If tried, it is under stale and difficult circumstances; if convicted, he may serve time for an offense for which he has already made a partial payment to society.

The circumstances as to the detainers in these two cases suggest an intent on the part of the police not to return the defendants promptly for trial and to require the defendants to serve their full sentence before their second trial. This process of trial only after parole could well be extended over the life time of defendants, limited only by the number and nature of the original offenses.

Where more than one charge exists it is necessary to dispose of all promptly, by consolidation if the facts permit. If consolidation is not possible the defendant may be sentenced and returned from confinement to stand trial for the remaining offenses. Secs. 2941.39 to 2941.45 R. C. The legislature enacted provisions to insure a speedy trial when the defendant is confined. These provisions are primarily within the control of the State. The court assumes that the legislature intended that the State use such statutes.

“It has always been the policy of our law to guarantee the accused a speedy public trial, since past experience has demonstrated that a prosecution too long delayed often amounts to persecution and that to accuse one publicly of crime casts a cloud upon the reputation and standing of the accused in the community. In earlier time, persons were in many instances confined in prison for years, under various pretexts, without being brought to trial. To prevent such abuse in this country, it is ordained in our Constitutions, federal and state, that the accused shall be entitled to a speedy public trial.” 15 O. Jur. 2d, 329. The speedy trial to which a person is entitled is one conducted according to fixed rules, regulations, and proceedings of law free from vexatious, capricious, and oppressive delay created by the ministers of justice. 15 O. Jur. 2d, 329.

The general rule in this country is that under a constitutional provision guaranteeing to the accused a speedy trial," and under statutes enacted for the purpose of making it effective, a sovereign may not deny an accused person a speedy trial even though he is incarcerated in one of that sovereign’s penal institutions under a prior conviction and sentence. 118 A. L. R. 1037.

It is not an obligation of the accused to demand a speedy trial, but rather the duty of the State to provide such a trial, in so far as may be consistent with the rights of the defendant. Shafer v. State, 43 Oh Ap 493, 12 Abs 732, 183 N. E. 774.

In a federal decision the failure to bring a defendant to trial until 1956, for an offense committed in 1950, was a denial of the constitutional right to a speedy trial and required reversal in view of the weakness of the evidence, though the delay was caused by imprisonment of defendant in New York for another offense, in the absence of showing of reasonable efforts by the government to obtain defendant’s return for trial. Taylor v. United States, 238 F. 2d 259. The suggestion that the constitutional right may be waived if the defendant has knowledge of an indictment and fails to demand a speedy trial, discussed in the Taylor case, is not the law of this State. Shafer v. State, supra.

In the instant cases the police merely filed affidavits with the court and failed to prosecute the criminal action to that point at which the defendants could have demanded a trial or counsel to represent them. Under such circumstances requiring a demand is unreasonable and the distinction purely technical.

Delaying the indictment and the trial on one offense after another, until time is served on each consecutively, and served under circumstances described, is a denial of a speedy trial. It requires no intellectual gymnastics to see that such a plan designed to indefinitely extend the punishment and postpone the liberty of an individual is a violation of constitutional rights.

The exercise of such control over a form of installment punishment, compounded by detainers, is a usurpation of the power of the court, of the jury, and of the parole board to determine guilt and punishment under the indeterminate sentence law. Whether consecutive or concurrent sentences should be imposed for more than one offense rests exclusively with the court and it cannot be assumed by any other agency.

The questions as to whether witnesses are alive, available for the defense, or have any recollection of the facts, may be considered by the court as some of the reasons for the existence of the constitutional provision, but they are not necessarily determinative, particularly in a county where the criminal docket is current and cases are assigned and disposed of within a period less than a single term unless the defendant obtains a continuance. The constitutional right to a speedy trial is unqualified. Once the accused is known and steps are taken to commence a criminal action to control his person and his liberty the State may not sit idly by while the defendant is incarcerated under a prior conviction.

Statutes provide for the discharge of the accused if he is detained beyond a specified time without being indicted, or if he is indicted or on bail without being tried. These statutes have no application to a person confined in the penitentiary, however such a person is still entitled to a speedy trial and the standard accepted by the legislature for the one situation may be considered by the court where a person is confined in the penitentiary.

The court of appeals indicated in the Shafer opinion that if after the case had been pending eighteen months “the State fails to promptly bring Shafer to trial * * * his constitutional rights will be violated and he will be entitled to a discharge.” Allowing additional terms beyond this limitation, the time in the two instant cases is well beyond the period suggested.

The court finds that the defendants in both cases have been denied a speedy trial. The two motions to dismiss are sustained and entries ordered forthwith.


author: By PETREE, PJ.

text:
    WINTERS, Petitioner, v. ALVIS, as Warden et, Respondents.
    Ohio Appeals Tenth District, Franklin County.
    No. 5895.
    Decided April 15, 1958.
    Harry F. Winters, Columbus, for himself.
    William Saxbe, Atty. Geni., William M. Vance, Asst. Atty. Geni., Columbus, for respondents.
   OPINION

By PETREE, PJ.

This is a petition for a writ of habeas corpus wherein the petitioner claims he is being held in illegal custody by respondents as a result of a conviction, on February 14, 1957, of being an habitual criminal, in the Court of Common Pleas of Champaign County, Ohio, thereafter being sentenced to a term for life in case No. 5980.

The journal entry of the court recites as follows, beginning with the second sentence:

“Defendant having appeared in court with counsel and having-waived a jury, the trial was had to the court.”

The petitioner appeared6 in court and testified that he did not waive a jury or sign a waiver. Petitioner’s March 24, 1958, rebuttal memo has been considered.

Sec. 2945.05 R. C., not only requires that the waiver shall be in writing, but substantially sets out the form in which it shall be written.

The petitioner exhibited to the court a letter from Clerk O. R. Out-ram of the Common Pleas Court of Champaign County in answer to a request made by the petitioner for a certified copy of the written waiver if any could be found in the records of said court. Clerk O' R. Outram, in answer to his inquiry for a certified copy, replied, “No waiver of jury.” The petitioner had forwarded a sum of money for the fee for certification of the copy of the waiver.

Decision' on this case was postponed until the Assistant Attorney General, Mr. William M. Vance,' coxxld have an opportunity to check the appearance docket to see whether or not a written waiver had been filed and listed thereon. His inquiry showed that “The appearance docket shows no filing of such waiver.” Furthermore, he stated that “The records show no formal waiver of jxxry trial signed by defendant as required by §2945.05 R. C.” Mr. Vance further explained that the trial judge recalls no written waiver, but states that a jury was waived in open court, and the case was heard without objection.

In view of the above state of the record, we feel that the statute is mandatory and that said trial was a nullity. See State v. Fife, 100 Oh Ap 550, wherein the Court of Appeals of Wayne County arrives at the same conclusion as we have.

The petition will be remanded to the Common Pleas Court of Champaign County, Ohio, for further proceedings according to law. The petitioner was informed in court that should he be successful in obtaining his writ in this case, he would lose the time which he has served in the penitentiary towards any new sentence which the court might give in the event he is again convicted. Petitioner said he understood that matter and still wished to urge his case.

The entry in this case will be held a reasonable time to permit notice to the Common Pleas Court of Champaign County, to give said court an opportunity to arrange for the return of the petitioner to Champaign County for trial:

The writ will be allowed.

BRYANT and MILLER, JJ, concur.


author: By McCLINTOCK, PJ.

text:
    MUSSER, Plaintiff-Appellant, v. NEW YORK CENTRAL SYSTEM, a Corporation, Defendant-Appellee.
    Ohio Appeals, Fifth District, Fairfield County.
    No. 295.
    Decided September 25, 1957.
    Judson C. Kistler, Lancaster, for plaintiff-appellant.
    Silbaugh & Reed, Lancaster, Meyer, Johnson & Kincaid, Zanesville, for defendant-appellee.
   OPINION

By McCLINTOCK, PJ.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Fairfield County. I will refer to the parties in this opinion as they were designated in the Court below, to-wit: Musser, .plaintiff, and New York Central System, a corporation, defendant.

On the 17th day of August, 1954 the plaintiff filed a petition in the Court of Common Pleas of Fairfield County, praying for an injunction and for money judgment in the amount of $350,000.00, and costs of this suit. Summons of service was duly issued upon said petition by the Clerk of Courts of Fairfield County, served by the Sherfiff of Fairfield County.

The defendant did not file an answer for a considerable time, and on the 9th day of May, 1956 the plaintiff moved the Court for judgment on the pleadings. On the 15th day of March, 1957, the Court overruled the motion of the plaintiff for judgment on the pleadings, and granted the defendant thirty days additional time in which to plead to plaintiff’s petition, and the defendant thereafter filed its answer.

Thereafter the plaintiff appealed to this Court on questions of law, claiming that the Court erred in overruling the motion of the plaintiff for judgment on the pleadings, and the defendant filed a motion to dismiss the appeal, which the Court below sustained.

On this question we cite O. Jur. 2nd, Section 49, Page 623:

“Order on Motion for Judgment on Pleadings. A motion for judgment on the pleadings is in the nature of a general demurrer and presents only questions of law, and appeal may not be taken from the overruling of such motion unless the pleader stands on the motion and permits judgment to be entered against him.”

Also, Meyer v. Daniel, 147 Oh St 27, on Page 28:

“The Court of Appeals, adhering to a former pronouncement in J. & F. Harig Co. v. City of Cincinnati, 61 Oh Ap 314, 22 N. E. (2d). 540, sustained the motion and dismissed the appeal for the reason that “the overruling of a motion for judgment on the pleadings is not a final order constituting a predicate for appeal to the Court of Appeals.” The judges of such court, finding the judgment, upon which they had agreed, to be in conflict with the judgment of the Court of Appeals for Mahoning County in Marietta v. Nichol, 72 Oh Ap 387 , 52 N. E. (2d), 647, certified the record to this court for review.”
“BY THE COURT: We are in accord with the Court of Appeals in its conclusion that the overruling of a motion for judgment on the pleadings is not a final order upon which an appeal may be predicated.”

Sec. 2309.27 R. C., is as follows:

“Excepting averments as to value or the amount of damage, for the purposes of an action, every material allegation of a petition not controverted by the answer, and every material allegation of new matter in an answer not controverted by the reply, shall be taken as true. New matter alleged in a reply shall be deemed controverted by the adverse party as upon a denial or avoidance as the case requires.”

Also, §2323.11 R. C., is as follows:

“In the determination of any cause, if the taking of an account, proof of a fact, or the assessment of damages is necessary, the court may take the account, hear the proof, or assess the damages, or refer the case to a referee or master for such purpose, or direct the matter to be ascertained by a jury, as the action requires.”

Both of the above sections of the Code provide in substance that before any judgment may be rendered, proof of the damages must be presented to the court.

The third syllabus of Streeton v. Roehm, 38 Oh St 340 or 83 Oh Ap 148, reads as follows:

“It is within the discretion of the trial judge to require proof before entering a judgment against a defaulting defendant.”

In conclusion, for the reasons herein stated, the Court of Common Pleas properly overruled the motion for judgment on the pleadings and in so doing did not abuse his discretion, and the appeal of the plaintiff is dismissed.

PUTNAM and McLAUGHLIN, JJ, concur.


author: By MILLS, J.

text:
    STATE, Plaintiff, v. ROTHSCHILD, Defendant.
    Common Pleas Court, Montgomery County.
    No. 1949.
    Decided February 27, 1958.

      Mathias H. Heck, Pros. Atty., By Herbert M. Jacobson and Harold B. LeCrone, Assts., for the State of Ohio.
    Cohen, Baron, Druffel & Hogan, By Alfred M. Cohen and Alfred W. Rothenberg, for the defendant.
   OPINION

By MILLS, J.

This cause came on for hearing before the court, a jury having been waived by both the defendant herein and the State of Ohio in open court.

The charge in the information is as follows;

“That on or about the 8th day of Octoiber, 1956, in the County of Montgomery and State of Ohio, aforesaid, one Sylvan Rothschild, did unlawfully exhibit and have under his immediate control a motion picture film, to-wit, Garden of Eden, from the exhibition of which a public disorder is imminent, in that said film does advocate and teach that the violation of §2905.31 R. C., which statute prohibits the practice of nudism in the State of Ohio, as a proper and desirable course of conduct; in violation of the State Laws of Ohio, §2905.342 (B) R. C., contrary to the form of the Revised Code in such case made and provided, and against the peace and dignity of the State of Ohio.”

At the request of the prosecuting attorney’s office and counsel for the defendant, the court, along with counsel for both the state and the defendant, viewed the picture known as “Garden of Eden,” at Loews’ Theater just before the testimony was adduced. The film of this picture was then introduced into evidence at the time of trial, and after the trial and after arguments of counsel, the court expressed a desire to hear the dialogue used in connection with the film, and counsel arranged for the film to again be shown. The court, counsel for the state attended the viewing of the film the second time, and counsel thereupon filed their briefs, all of which the court has read.

Sec. 2905.342 (B) R. C., reads as follows:

“No person shall produce, sell, lease, lend, give away or distribute for the purpose of exhibition or exhibit, or have in his possession or under his immediate control for any purpose:
“(A)____________
“(B) Any motion picture film, the exhibition of which has created a public disorder, or from the exhibition of which a public disorder is imminent.
“The exhibition of a motion picture film which teaches or advocates that the violation of any of the criminal laws of the State of Ohio or any of the criminal laws of the United States of America is a proper or desirable course of conduct shall, prima facie, be deemed to create an imminent public disorder for the purpose of initiating the arrest of any person for the violation of this section.
“Whoever violates this section shall be fined not more than five thousand dollars, or imprisoned not more than six months, or both.”

Now the statute involved in this case is a misdemeanor statute, §2905.31 R. C., which reads in part as follows:

“No person eighteen years of age or over shall willfully expose his or her private parts in the presence of two or more persons of the opposite sex, or aid or abet any such act, or procure another so to expose his or her private parts, or as owner, manager, lessee, director, promoter, or agent, or in any other capacity knowingly hire, lease, or permit the land, building, or premises of which he is owner or lessor, lessee, or tenant, or over which he has control, to be used for any such purposes.
“Whoever violates this section shall be fined not more than two hundred dollars or imprisoned not more than six months or both.”

This statute is known as the statute which prohibits nudism in the State of Ohio and held to be constitutional in the case of State, ex rel. Church v. Brown, 165 Oh St 31.

The court finds the facts involved in this case to be as follows:

That during the first week of October, 1956, a drive-in movie was open and in operation at 4249 Germantown Pike in Montgomery county, Ohio; the name of this drive in was “Sunset Cruise-In.” Sylvan Rothschild, the defendant herein, was a real estate broker in the City of Cincinnati, Ohio, and incident to that became the manager or the operator of the Sunset Cruise-In from January, 1956 to August, 1957, and was the actual manager or operator during the first week of October, 1956.

On Monday, October 1, 1956, a film delivery service out of Cincinnati, Ohio, delivered a film entitled “The Garden of Eden” to the Sunset Cruise-In and gave it to John Holokan, the projectionist and an employe of Sylvan Rothschild. Rothschild had previously personally previewed this movie and was the one responsible for the actual booking of said movie into the Sunset Cruise-In.

On October 2, 1956, Holokan rewound the film preparatory to showing said film on October 5, 1956 at the Sunset Cruise-In. The Sunset Cruise-In remained dark and was not in operation on Wednesday and Thursday, October 3 and 4, 1956. This was ordered by letter from the defendant with further instructions that “The Garden of Eden” be shown at the Sunset Cruise-In for the first time on October 5, 1956. On that night the defendant was present at the Sunset Cruise-In and was aware that the movie “The Garden of Eden” was being shown to audiences according to his written instructions.

On the evening of October 5, 1956, the defendant had a conversation at the Sunset Cruise-In with the projectionist, John Holokan, prior to the showing of this movie for the first time, during which conversation Holokan asked the defendant whether or not he (the defendant) didn’t think the picture was “kind of rough,” to which the defendant replied, “It’s a good picture.” Holokan then asked the defendant “Whether he (the defendant) thought he could get away with it in view of the picture showing bare breasts of the women.” To which the defendant replied, “Sure, it’s educational.”

Said movie was then exhibited twice on the evening of Friday, October 5, 1956, twice on Saturday evening, October 6 and twice on Sunday evening, October 7, and once again on Monday evening, October 8, 1956. The admission price during the showing of this movie was increased from the usual sixty-five cents (65c) per person to ninety cents (90c) per person as per agreement between the agent of the producer Walter Bibo, and Sylvan Rothschild. The proceeds of the week end showings of October 5, 6, 7, 1956 amounted to approximately $5500.00, which was an “unusually heavy week-end.” In fact, they were anywhere from eight to ten times the receipts of a normal week-end at said theater.

During the showings on October 5, 6, and 7, 1956, traffic was quite congested along; Germantown Pike with all' three lanes of the highway being occupied and cars were even parked along the berm of the road in front of the theater. At different intervals Township constables, the State Patrol, John Holokan and Gary Gemmell, another employee of the theater, were at the scene attempting to direct traffic and to relieve the congestion. At the end of the first showing on Ocober 5, 1956 the intermission lasted thirty (30) minutes as opposed to the usual ten (10) minutes because of traffic congestion of automobiles leaving the theater, which congestion extended from the theater exit to the intersection of Liberty Road and Germantown Pike, a distance of approximately one-quarter of a mile. Under normal conditions the exit of automobiles from the theater would be accomplished in three or four minutes.

After the first showing on October 8, 1956, during the intermission a Detective from the Montgomery County Sheriff’s Office confiscated the film and subsequently an information was filed charging the defendant herein with the violation of §2905.342 (b) R. C.

All the above facts were admitted by the opening statement -of counsel for the defendant or by direct testimony of the defendant himself with the exception of the conversation had with Holokan on October 5, 1956 prior to the first showing of this movie and the traffic congestion. The conversation was denied by the defendant but this was then rebutted by the direct testimony of John Holokan. Traffic conditions were testified to by Holokan and Gemmell in the State’s case.

Sec. 2905.342 (B) R. C., which became effective October 6th, 1955, was passed by the Ohio Legislature after the Supreme Court of Ohio, in RKO Pictures, Inc. v. Department of Education of the State of Ohio, 162 Oh St 263, held that the Ohio Motion Picture Censorship Act, §3305.01 et seq, R. C., was unconstitutional. The Supreme Court of Ohio, however, indicated in this decision that a state might censor motion pictures under a clearly drawn statute.

Sec. 2905.342 (B) R. C., prohibits the exhibition of any motion picture film which has created a public disorder or from the exhibition of which a public disorder is imminent. The statute further provides that for the purpose of inititating the arrest of any person for the violation of this section an exhibition of a motion picture film which teaches or advocates that the violation of any of the criminal laws of the State of Ohio is a proper or desirable course of conduct, shall prima facie, be deemed to create an imminent public disorder.

Now what is a public disorder? It is the opinion of this court a public disorder is what is ordinarily known as a breach of the peace. A breach of the peace is defined as a violation of public order or disturbance of public tranquility. Peace means tranquility which is enjoyed by citizens of a community where good order reigns. Soulis v. Mills Novelty Co. 17 S. C. 869; 198 S. C. 355.

In State v. Langston, 195 S. C. 190, it is held, “peace as used in law in connection with a breach of the peace is the tranquility which is enjoyed by the citizens of the community where good order reigns among its members, which is a natural right of all persons in political society.”

In the City of Wellsville v. O’Connor, and others, as reported in 1st Circuit Court Reports, new series, page 253, it is held:

“Peace is a word in common use among the people, and its meaning is well understood by them, and their understanding of its meaning is the same as that of lexicographers; the primary meaning is a state of quiet or tranquility, freedom from disturbance or agitation, calm, repose. It is a tranquility enjoyed by political society internally, by the good order which reigns among its members; a state of public order and decorum.”

It is the opinion of this court that a breach of the peace or a public disorder does not necessarily mean the disturbance of the people of the community through loud or boistrous noise and action, or accompanied by firing of guns or loud shouting, or an assault and battery; nor necessarily the violation of a law or ordinance which would hold up traffic unnecessarily for great distances, interferring with the free use of the streets and roads, but the disturbance of a tranquil mind of a person or persons in a community, which would shock the sensibilities of such person or persons, by exhibition of nude persons or nude pictures in the presence of other members of the same or opposite sex at the same time, openly, as in a public theater or other place where people may convene.

For “Breach .of the Peace” see the following citations:

In re Carroll 12 Weekly Law Bulletin, 9; 1 Restatement of the Law of Tort, Sec. 116; People v. Most, 171 N. Y. 423, at p. 429; People v. Phillips, 284 N. Y. 235; 30 N. E. 2nd 488; Town of Ponchatoula v. Bates, 173 La. 824; City of Ft. Scott v. Arbuckle, 164 Kans. 49; 11 C. J. S. Sec. 1; 8 Am. Jur., Sec. 6, p. 835; Fischback v. Ohio Racing Com., 76 Abs 540.

It is agreed by counsel and the court that this picture, “The Garden of Eden,” is not an obscene motion picture, because there is no exhibition of the genitalia of either sex. However, there was plain exhibition of the naked buttocks and breasts of both sexes, and it was so evident that the people of this nudist colony where the picture was taken, observed the genitalia of both sexes through parading their naked forms in the presence of each other. Some of the New York cases indicate that there is no violation of the rules of common decency in society. However, in Universal Film v. Bell, 167 N. Y. S. 124, 100 Misc. 281, it is held:

“Decency is propriety of action, speech, dress, etc. and what constitutes decency or in other words, what is propriety of action, must be determined by standards in vogue in highly civilized peoples, and not those that may prevail among the Fiji or South Sea Isles. Lewd men and women have no sense of decency, and what may be regarded as decent by one person may not be that regarded by others.”
“The matter is obscene, lewd or lascivious within the criminal code if it is offensive to common sense of decency and modesty of community, and tends to arouse or suggest sexual desires or thoughts in minds of those who may be depraved or corrupted thereby.” Dysart v. U. S. C. C. .A.-Texas, 4 Fed 2 — 265-766.

This legislation is under what, for lack of a better name, is called the police power of the state, a power incapable of exact definition, but the existence of which is essential to every well ordered government. By means of this power, the legislature exercises supervision over matters involving the common welfare, and enforces the observance, by each individual member of society of the duties which he owes to others and the community at large. It may be exerted whenever necessary to secure the peace, good order, health, morals and general welfare of the community, and the propriety of its exercise within constitutional limits is purely a matter of legislative discretion with which the courts cannot interfere, and the Supreme Court of this state has so held in the case of St. ex rel. Church v. Brown, Secretary of St., 165 Oh St 31; 59 O. O. 45.

However, there is no charge of obscenity or indecency in this information, nor is this an action against the right of censorship of a moving picture film.

The film and the dialogue of “The Garden of Eden” depicts life in a nudist camp and the general benefits derived therefrom. The entire theme from beginning to end, particularly the dialogue and the musical theme teaches and advocates that nudism is a proper course of conduct, in the opinion of this court.

The film opens with the musical theme as follows:

“Let’s go sunning, it’s so good for you,
Let’s go sunning, ’neath the skies of blue
Greet the sun every morn, free and happy as the day yoii’re born,
Let’s go native, get out in the sun and play
Be Creative, throw your cares away.,
Pretty flowers need the sun, this applies to everyone
Life’s worth living, when nature’s giving
Happiness to everyone,
So let’s go sunning.”

The opening scene depicts the lead male character, who is here designated as the father-in-law, choosing murals for a gymnasium which he is donating to “The Garden of Eden Nudist Camp.” The dialogue from the lawyer to the father-in-law is to the effect that a great change in personality has taken place in the man now donating the gymnasium. The father-in-law remarks “Yes, I used to be a grouchy old man.”

The film then, by flash back technique, explains why and how this change occurred. It is the story of a rapid evolution of the “grouchy old man” into a loving and understanding philanthropist, all brought about by the wonders of nudism.

The plot then unfolds with the daughter-in-law and granddaughter enroute to Miami, Florida becoming stranded unknowingly in the Garden of Eden Nudist Camp near Tampa, Florida. Awakening after a short nap she glances out the window and notices a group of nude children playing. The romantic lead enters the cottage and the following dialogue transpires: Girl: “I’ve never seen anything so delightfully natural.” The girl then notices nude adult figures walking across her line of vision; these are rear view shots showing completely nude males and females. Throughout the film there are full length nude shots from the side and front. Only on the full front shots are the figures covered in some slight manner in the public area by shorts, towels, magazines, dogs, branches or bushes.

Admittedly, no where in the movie, are the adult genitalia shown, although testimony of Walter Bibo, producer of the movie, is that the movie was actually filmed in a nudist camp and that all parties were completely nude during the filming of this picture. However, this action is not based upon obscenity or paragraph “A” of §2905.342 E. C., and the lack of showing the genitalia is therefore irrelevant and immaterial. There can be no other impression that these people parading before the camera are anything but completely nude.

Upon seeing the nude adult figures the girl comments to the effect that even the adults are nude, to which the romantic lead replies “Does that make these bodies any less natural? To walk around as God made them in his image.”

Later in the dialogue the girl states “This is a wonderful place for children,” to which the boy replies “Yes, of all ages.” This occurs at approximately twenty to twenty-five minutes running time. The small daughter of the girl then enters the cottage and in a conversation with her mother states “You are the only one with clothes on, don’t you feel funny?”

Later, after agreeing to allow the child to play outside without clothes, the mother ventures forth from the cottage fully clothed and holds a conversation with a reclining nude female, whose breasts are prominently displayed, concerning the mother’s desir.e to go swimming. The mother, after stating that she had no bathing suit, receives a reply from the nude female that “It’s- nice not having to get into a soggy suit. Wearing the uniform is more comfortable.” The girl queries “Uniform?” and the woman replies, “Yes, nature’s clothing. Clothes are so uncomfortable.”

Later the father-in-law searches for his daughter-in-law and his grandchild and finds them in this nudist colony. He arrives at night when ali parties are fully clothed and in no way, until the following morning, knows that he is in a nudist camp. Upon his discovery of this fact he irately telephones his attorney with instructions to file a custody action to regain custody of his grandchild on the grounds that his daughter-in-law being in a nudist camp constitutes her as an unfit mother. This conversation occurs at approximately fifty to fifty-five minutes running time. He is informed by his counsel that “The Garden of Eden” operates under state law and is perfectly legal, saying, “I myself am a sunbather and have been for many years. I insist you stay there.”

The father-in-law then begins a stroll of the grounds viewing all things beautiful, both animate and inanimate and is so impressed by nature in the raw that he, himself, joins the nudist group with a complete change of personality so much so that upon learning that the “Garden of Eden” lacks gymnasium facilities decides to contribute or build a gym for the group. The film flashes back to the opening scene wherein the father-in-law is discussing these plans with his legal counsel and other advisors. Enter here the daughter-in-law and her new husband, the romantic lead, whom she met at the nudist camp.

The dialogue then indicates that all is well between the father-in-law and his daughter-in-law and that not only love but theatrical success has come to the young couple through the guidance of the nudist dramatic group and “The Garden of Eden.” Further conversation is had concerning the change of the father-in-law and he states “Yes, if I hadn’t followed your advice to join the camp I might never have changed.”

All parties present then leave for “The Garden of Eden” and upon arrival the father-in-law confronts a hesitant prospective new male member whom he advises as follows: “Get comfortable, get out of your clothes, it will do you a world of good, I know.”

The picture then closes with the musical theme mentioned above and the following credit line:

“With the approval of the American Sunbathing Association and supervised by its executive director.”

It is well known that said association is an organization for the fostering and furtherance of nudism.

It is the court’s opinion that the entire theme of this movie teaches and advocates that nudism is desirable; “shed your clothes and you shed your inhibitions,” and that the showing of this film, “The Garden of Eden” is in violation of §2905.342 (B) R. C., because it advocates nudism and the exhibition of the nude form of both sexes over eighteen years of age in the presence of each other.

This court, therefore, finds the defendant, Sylvan Rothschild, guilty of the charge as set forth in the information filed in this cause.


author: By THE COURT.

text:
    STEPHENS, Plaintiff-Appellant, v. STEPHENS, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5522.
    Decided October 4, 1957.

      James F. Little, Columbus, for plaintiff-appellant.
    L. P. Henderson, John J. Chester, Columbus, for defendant-appellee.
   OPINION

By THE COURT.

This is a law appeal from a judgment of the Common Pleas Court dismissing the petition for a divorce at the close of the plaintiff’s case because of the lack of corroborating evidence and awarding a divorce and alimony to the defendant-appellee on her cross-petition based upon gross neglect of duty and extreme cruelty. We shall refer to the parties as they appeared in the trial court.

The record reveals that the plaintiff’s testimony consisted of two charges against the defendant, to wit:

(1) That the defendant was a “frigid woman with an oedipus complex.”

(2) That she failed to keep the home neat and clean.

He described the first charge in detail which related to their sexual life and stated that he found it to be “rather repulsive.” Counsel and the parties are familiar with this testimony and we deem it neither necessary nor proper to again restate it. The question presented is whether or not evidence of this character supports the charge of gross neglect. We do not think it does, but may be some support when the divorce is sought upon the grounds of extreme cruelty. In a charge of t.his character corroboration of course is not possible and hence should not be expected. It will be noted that the plaintiff himself testified that he found her conduct “rather repulsive” which relates to a mental condition.

The only corroborating evidence on the neglect of duty charge was that of one witness who had been employed for a short time in the home by the defendant and who testified as to the conditions there when the employment began. On page 40 of the record she was asked the following:

“Q. When you came out there what shape was the place in as far as cleanliness and orderliness was concerned?
“A. It could have been a little cleaner but I took my own equipment to use.
“Q. Why did you take your own equipment?
“A. Because it is a custom of mine to do that.
“Q. Was the equipment clean or dirty?
“A. Well, I can’t say that the equipment there was — I can’t say too much about it because 1 didn’t have time to look after all of it.”

The foregoing is all of the coroborating evidence found in the record which tends in any way to support the plaintiff’s charge that the defendant was a poor housekeeper and therefore guilty of gross neglect of duty.

For the purpose of the motion to dismiss, the court had to assume the truth of all the evidence supporting the charge, but in so doing it does not appear to this court that the corroboration was sufficiently definite to sustain a charge of gross neglect of duty. This term is not possible of precise definition, but when asserted the trial court has a broad discretion in interpreting the term. Buess v. Buess, 89 Oh Ap 37, 100 N. E. 2d 646. It is elusive of concrete definition and its application as a cause for granting a divorce must depend upon the circumstances of the particular case. Porter v. Lerch, 129 Oh St 47.

We are of the opinion that the court properly exercised its discretion in determining that the corroborating evidence required under §3103.11 R. C., was not sufficient to establish the ground for divorce set forth in the petition.

It is next urged that the court erred in awarding to the defendant the property located at 4210 East Broad Street as alimony. The record reveals that the said property awarded to the defendant cost approximately $35,000.00 in addition to the lot; that it was used as a home and also as a party house in which the business of catering and entertaining large groups of people was conducted. The building was jointly owned by the parties, constructed by them and approximately one-third of the cost of the same was paid by the defendant who also paid certain other personal obligations of the plaintiff.

It appears further that the plaintiff owned a drugstore, the value of which is indefinite, and also an apartment building which was sold on a land contract for $24,000.00, no part of which was given to this defendant. The property decreed to the defendant had an outstanding mortgage against it in the sum of $12,900.00 and also the taxes for the year 1955 were unpaid. These were encumbrances against the property all of which must be paid by the defendant.

Sec. 3105.18 R. C., provides:

“The court of common pleas may allow alimony as it deems reasonable to either party, having due regard to property which came to either by their marriage, the earning capacity of either and the value of real and personal estate of either, at the time of the decree.
“Such alimony may be allowed in real or personal property, or both, or by decreeing a sum of money, payable either in gross or by installments, as the court deems equitable.”

It will be observed that this statute provides that the alimony award must be reasonable. This requires the exercise' of a discretion based upon the evidence. The decree will not be disturbed unless it is made to appear manifestly and clearly that the judgment is unsupported by the evidence or is against the weight of the evidence. 17 O. Jur. 2d, p. 746, Section 285. We are of the opinion that the alimony decree awarded to the defendant is supported by the evidence and in accordance with §3105.18 R. C.

Finally, counsel urge that the journal entry differs in certain respects from the written decision of the trial judge. It is fundamental that a court speaks through its journal, and not its written decision, and in case of a conflict the former shall control. Counsel for the appellant called the judge’s attention to the alleged discrepancy in his motion for a new trial, which was overruled. Therefore, it must be determined that the entry correctly reflects the intention of the court.

We find no prejudicial error in the record and the judgment will be affirmed.

PETREE, PJ, BRYANT and MILLER, JJ, concur.


author: By HESS, J.

text:
    DARROW, Plaintiff, v. FIFTH THIRD UNION TRUST COMPANY, Executor, etc., et, Defendants.
    Common Pleas Court, Hamilton County.
    No. A-137519.
    Decided November 30, 1954.

      H. G. Hightower, Hightower & Fisher, Cincinnati, for plaintiff.
    Bruce I. Petrie, John W. Warrington, Graydon, Head Sz Ritchey, Cincinnati, for defendants.
   OPINION

By HESS, J.

This cause came on to be heard on the pleadings, evidence, stipulation of facts, arguments and briefs of counsel.

The action is for a declaratory judgment in which the plaintiff seeks the determination of this court concerning her rights in personal property held by the defendant, The Fifth Third Union Trust Company, under an amendable trust agreement executed by the plaintiff’s husband prior to his death. Generally, the plaintiff maintains that by reason of her election not to take under her husband’s last will and testament, she is entitled to share in the assets of said inter vivos trust.

The defendants deny the plaintiff is entitled to invade the trust.

Specific issues will be discussed in this opinion.

At the hearing, counsel for the parties offered the following stipulation of facts:

“It is hereby stipulated and agreed by and between the plaintiff and the defendants, by their respective attorneys, and the following stipulated facts may be admitted in evidence, subject, however, to the general-objections of any party as to competency, materiality and/or relevancy:
“1. That the plaintiff, Florence C. Darrow, is the surviving spouse of Eleazar Darrow, deceased.
“2. That Eleazar Darrow was the settlor under a trust agreement known as Trust Number L-3030, entered into with The Fifth Third Union Trust Company, trustee, on October 4, 19^7, a true copy of which trust agreement with amendments thereto is attached to plaintiff’s petition.
“3. That Eleazar Darrow upon the creation of said trust deposited with The Fifth Third Union Trust Company, trustee, certain property to be held under the provisions of said trust agreement, which property, and the market value thereof at the date of the creation of said trust, was as follows:
33,000 U. S. 2 % % — 9/15/47 @ 102 12/32 $33,783.75
1,000 U. S. 2 7/8% — 3/15/60 @ 100 12/32 $1,003.75
60 Cincinnati Gas & Electrict Company 5% pfd. @ 100 $6,000.00
Total market value ______________________________$40,787.50
“4. That Eleazer Darrow was married to Madelyn Darrow at the time of the execution of said trust agreement.
“5. That Madelyn Darrow died on November 29, 1940.
“6. That the plaintiff and Eleazar Darrow were married at Cincinnati, Ohio on June 7, 1941.
“7. That Eleazar Darrow died September 10, 1952 and was domiciled in Miami, Florida at the time of his death.
“8. That the last will and testament of Eleazar Darrow was admitted to probate by the Probate Court of Hamilton County, Ohio on October 27, 1952, under the provisions of §10504-15 GC (§§2107.11, 2107.12 R. C.), a true copy of which last will and testament is attached to plaintiff’s petition.
“9. That defendant, The Fifth Third Union Trust Company, qualified in said Probate Court of Hamilton County, Ohio as executor of the estate of Eleazer Darrow on October 27, 1952.
“10. That said executor filed with said Probate Court an inventory of said estate on October 31, 1952, listing personal properties with a total value of $1,288.38 as the sole assets of said estate.
“11. That plaintiff made no objections to the inventory of said estate as filed by the executor with said Probate Court.
“12. That said Probate Court under the provisions of §10509-78 GC (§2117.23 R. C.), set off to plaintiff $1,800.00 as her year’s allowance, $1,000.00 <?f which has been paid to plaintiff by said executor.
“13. That the executor has in its possession only enough assets to pay proper fees and costs chargeable to said estate, and does not have in its possession sufficient assets to pay in full the year’s allowance set off to the plaintiff.
“14. That said executor and the appraisers of said estate did not set off to plaintiff 20% of the assets of the estate.
“15. That on October 31, 1952, plaintiff filed with said Probate Court an election not to take under the last will and testament of her deceased husband, under the provisions of §10504-55 GC (§2107.39 R. C.)
“16. That Eleazar Darrow made withdrawals of assets from said trust as follows:
May 17, 1939 Eleazar Darrow withdrew $2,197.50
August 24, 1939 Eleazar Darrow withdrew 1,084.69
February 15, 1941 Eleazar Darrow withdrew 1,080.94
May 15, 1949 Eleazar Darrow withdrew 1,080.69
July 20, 1944 Eleazar Darrow withdrew 5,000.00
August 18, 1945 Eleazar Darrow withdrew 3,003.75
September 6, 1951 Eleazar Darrow withdrew 1,000.00
Total withdrawals ________________$14,447.57
“17. That upon the death of Eleazar Darrow, plaintiff became entitled to the income for life under said trust agreement, and that the market value of the trust assets at the time of Eleazar Darrow’s death was $28,753.84.
“18. That The Fifth Third Union Trust Company, trustee, pursuant to authority given in said trust agreement, paid claims from the principal of said trust as follows:
November 3, 1952 Agnes Smart, Nursing Eleazar Darrow $ 24.00
November 3, 1952 Murphy’s Pharmacy — medicine 11.37
November 21, 1952 John R. Harding, M. D. 214.00
December 1, 1952 W. Mack Johnson — funeral 881.52
$1,130.89
“19. That plaintiff was born February 12, 1892.
“20. That the value of plaintiff’s life estate in said trust at the time of Eleazar Darrow’s death, based upon the American Experience Table of Mortality and computing interest at the rate of 4% per annum on the value of the trust assets, less the claims referred to in Item 18 above, was $10,285.68.
“21. That The Fifth Third Union Trust Company, trustee, pursuant to the provisions of said trust agreement, has paid to plaintiff the total sum of $1,587.82, in monthly installments, said amount being the income of said trust from the date of Eleazar Darrow’s death, less proper charges thereon.
“22. That decisions of the Florida courts, as reported in the official Reports thereof, may be offered in evidence merely by submission of the book and page number thereof.”

The last will and testament of Eleazar Darrow reads as follows:

“I, Eleazar Darrow, being now a resident of the City of Cincinnati, Hamilton County, Ohio, being of full age, sound and disposing mind and memory and under no restraint or disability of law whatsoever, do hereby make, publish and declare this my last will and testament, expressly revoking all former wills and codicils by me made.
“ITEM I. To my wife, Florence C. Darrow, if living at the time of my death, I bequeath the sum of Four Thousand ($4,000.00) Dollars provided she is willing to accept the same in lieu of her right to a year’s allowance under §10509-74 GC of the present Ohio Laws (§2117.20 R. C.), and in lieu of her right to property exempt from administration under §10509-54 GC of the present Ohio Laws (§2115.13 R. C.), and in lieu of all other claims against my estate. I make no further provisions for my wife because I believe that she has sufficient property of her own to care for her needs.
“ITEM II. To my granddaughter, Nancy Townsend, if living at the time of my death, I bequeath my diamond ring.
“ITEM III. To my daughter, Virginia Darrow Mays, if living at the time of my death, I bequeath any automobiles that I may then own, all my household goods, personal effects, and jewelry, with the exception of the diamond ring bequeathed to my granddaughter as hereinabove provided.
“ITEM IV. I direct my executors to pay the sum of Three Hundred Dollars ($300.00) to the Forest Hills Cemetery of Ann Arbor, Michigan, for the perpetual care of the family lot which is in the name of my grandfather, Robert Barry.
“ITEM V. All the remainder of my estate, real, personal and mixed of whatsoever nature and wheresoever situated, I devise and bequeath to The Fifth-Third Union Trust Company of Cincinnati, trustee under an agreement executed by me on October 4, 1937, and modifications of said trust agreement made by me March 29, 1944, and August 4, 1947. Said trustee shall add the property received by it under said trust agreement, and shall thereafter hold and administer all of said property in accordance with the terms of said trust agreement and modifications thereof hereinabove referred to.
“ITEM VI. I hereby appoint the Fifth-Third Union Trust Company, of Cincinnati, Ohio, as executor of this my last will and testament.
“I request that no inventory be made of my personal effects and household furnishings.
“IN WITNESS WHEREOF, I have hereunto set my hand this 4th day of August, 1947.
Eleazar Darrow”

On October 4, 1937, Eleazar Darrow, then domiciled in Ohio, entered into a trust agreement with The Fifth-Third Union Trust Company. This trust agreement was amendable at the option of Eleazar Darrow, and pursuant to such option the trust agreement was amended on November 5, 1941, on December 3, 1943, on March 29, 1944, and on August 4, 1947.

The trust agreement remained amendable by Eleazar Darrow up to the time of his death on December 10, 1952.

In essence the trust agreement as amended, at the time of the death of Eleazar Darrow, provided that his widow, Florence C. Darrow, would receive a life estate consisting of income from the corpus of the trust; that upon the death of the survivor of Eleazar Darrow and his wife, but not before specific payments provided for in the trust, such as expenses incident to his death and debts, the trustee would pay the corpus of the estate to the Board of Regents of the University of Michigan, Ann Arbor, Michigan, to be used by the Board of Regents of said university for the benefit of students of that university who may be in need of financial aid.

It will be observed from the stipulation of facts that Eleazar Darrow died on September 10, 1952; that he was domiciled and a resident of Miami, Florida on the date of his death; that his last will and testament was offered for and admitted to probate by the Probate Court of Hamilton County, Ohio, on October 27, 1952, under .the provisions of §10504-15 GC (§2107.11 R. C.); that The Fifth Third Union Trust Company qualified as executor of the estate of Eleazar Darrow on October 27, 1952; that the executor filed an inventory of the estate on October 31, 1952, listing personal properties with a total value of $1,288.38 as the sole assets of the estate; that no objection was filed to the inventory; that the Probate Court of Hamilton County set off to plaintiff $1,800 as her year’s allowance, and the executor has paid $1,000 of said allowance; and that on October 31, 1952, the plaintiff filed her election not to take under the will of her deceased husband.

Sec. 10504-15 GC (§2107.11 R. C.), provides as follows:

“A will shall be admitted to probate:
“(A) In the county in which the testator was domiciled if, at the time of his death, he was domiciled in this state;
“(B) In the county of this state where any real or personal property of such testator is located if, at the time of his death, he was not domiciled in this state, and provided .that such will has not previously been admitted to probate in this state or in the state of such testator’s domicile.”

Sec. 10511-13 GC (§2129.11 R. C.), provides:

“If no domiciliary administration has been commenced, the ancillary administrator shall proceed with the administration in Ohio as though the decedent had been a resident of Ohio at the time of his death.”

There is no evidence in this record of any administration of Eleazar Darrow’s estate in Florida before his last will and testament was offered for probate in Hamilton County, Ohio; nor is there any evidence that there has been any administration of his estate in Florida since the probate of his will in Hamilton County, Ohio.

It must be concluded that the proceedings in the Probate Court of Hamilton County are in fact an original ancillary administration in pursuance Of §10511-13 GC (§2129.11 R. C.) and §10504-15 GC (§2107.11 R. C.).

It therefore follows that since the estate is to be administered the same as if Eleazar Darrow had died domiciled in Ohio, the law of Ohio governing the probate of estates, including the statutes of descent and distribution, will be applicable.

It is well settled in Ohio that an amendable trust may be invaded, and under such a trust agreement settlor does not part absolutely with the domination of such property, and if his widow elects to take under the statute of descent and distribution she may assert her right to a distributive share of the property in such trust at settlor’s death. Bolles v. Toledo Trust Co., 144 Oh St 195, 29 O. O. 376; Harris v. Harris. 147 Oh St 437, 34 O. O. 371.

Counsel for defendants argue that the law established in the Bolles and Harris cases is not in keeping with general law and that they should be reconsidered. However, those cases must be followed by this court until the Supreme Court of Ohio sees fit to change its pronouncement.

The law at this time appears to be that the validity of an inter vivos trust is determined by the law of the situs of the trust, which, in the instant case, is the state of Ohio. Restatement of Trusts, Section 294; Hutchinson v. Ross, 262 N. Y., 38, 187 N. E., 65; 89 A. L. R., 1007-1023; Girard Trust Co. v. Dunham, 29 O. O. 324.

Having determined the wife of the deceased Eleazar Darrow is entitled to invade the amendable trust created by the deceased, three questions are presented: First, is the balance due on the widow’s year’s allowance to be paid from the corpus of the trust and before her distributive share under statute of descent and distribution? Second, is the widow entitled to receive the income from the remaining assets in the trust after her distributive share of one half of the corpus of the trust has been paid to her? And, third, what disposition is to be made of the balance of the trust funds after the widow’s claims have been satisfied?

These questions will be determined as they appear.

First. This question appears to be answered in the second syllabus of Davidson v. Trust Company, 129 Oh St 418, 2 O. O. 404, which reads as follows:

“The widow’s year’s allowance and the allowance given her under §10509-54 GC (§2115.13 R. C.), are a debt and preferred claim, respectively, against her deceased husband’s estate, deductible before a determination of the share of the estate to be taken by the widow ‘under the statute of descent and distribution.’ ”

It is the contention of the executor herein that since there are not sufficient funds in the estate outside the trust fund to pay the first year’s allowance, the widow is a mere creditor to that extent, and that creditors are not permitted to invade an amendable trust after the death of the settlor. The case of Schofield, Trustee v. Cleveland Trust Company, 135 Oh St 328, 14 O. O. 224, would appear to support that conclusion if no fraud is shown. There is no fraud alleged or proven in the instant case.

However, the Bolles and Davidson cases, supra, have different views. The Davidson case refers to the widow’s year’s allowance as a “preferred claim” “deductible before a determination of the share of the estate to be taken by the widow under the statute of descent and distribution.” The Bolles case holds that “a wife’s right to elect to take under the law places her in a higher position than a mere creditor in respect to the personal property in an unrevoked revocable trust” and therefore the case of Schofield, Trustee v. Cleveland Trust Company, supra, has no application to the facts in the Bolles case. The Davidson case was decided on May 8, 1935, the Schofield case was decided May 3, 1938, and the Bolles case was decided on December 6, 1944. The Bolles case was cited with approval in the case of Harris v. Harris, 147 Oh St 437, 34 O. O. 371, decided February 28, 1947.

Under §10504-61 GC (§2107.42 R. C.), a testator may, by express direction in his will, bar the right of his widow to receive one year’s allowance for the support of herself and children if she elects to take under the will; but if the will does not contain such express direction, the widow is entitled to her year’s allowance.

There is no express direction in the will in the instant case which would bar the widow from her year’s allowance in the event of her election not to take under the will.

A study of the cases and statutes referred to would indicate that the balance due on the widow’s year’s allowance, determined by the Probate Court of Hamilton County, should be paid from the corpus of the trust estate before there is a distribution to the widow of her lawful share of the trust funds under the statutes of descent and distribution.

Second. Is the widow entitled to receive the income for life on the balance of the trust estate after she has received her widow’s year’s allowance and her share under the statute of descent and distribution?

It is well settled in Ohio that if the widow chooses to take her lawful share of an estate and not under the terms of the will, the will ceases to afford her any consideration. No one is permitted to claim under and at the same time adverse to a will. Bebout v. Quick, 81 Oh St 196; White v. Brocaw, 14 Oh St 339; Weller v. Weller, 32 N. P. 329; Davidson v. Miners and Mechanics Savings & Trust Co., 129 Oh St 418, 2 O. O. 404.

The widow in the instant case is not entitled to receive any income from the funds remaining in the trust estate after she has received the balance of her year’s allowance and her distributive share under the statutes of descent and distribution.

Third. Having determined the rights of the widow, what disposition is to be made of the balance of the funds in the trust estate?

The docti’ine of acceleration of remainders is recognized by the law of Ohio.

The life interest of the widow in the remainder of the trust ceased to exist when she elected not to take under the will.

It is the rule in Ohio that a renunciation by the widow of a life interest given her by the terms of a will is equivalent to its termination by her death, so far as the vesting in possession of a gift.is concerned. 16 O. Jur. 493-495, sections 114 to 116.

It follows that if the widow has no further right to the life income under the trust agreement, the remainder interest of the University of Michigan accelerates and becomes payable immediately.

Having determined the widow is entitled to invade the trust, the questions of by whom and how shall the funds in the trust estate be distributed, are presented.

The executor and trustee herein are one and the same entity. The last will and testament of the deceased recognized his widow may elect not to take under his will when he wrote in his will that “* * * if living at the time of my death, I bequeath the sum of Four Thousand ($4,-000.00) Dollars provided she is willing to accept the same in lieu of her right to a year’s allowance * * *, and in lieu of her right to property exempt from administration * * * and in lieu of all other claims against my estate.” And the will further provides that all the remainder of the estate of the deceased should be held in trust for the benefit of the University of Michigan.

At the time he made his will the deceased was chargeable with the knowledge that if his widow elected to take under the law of descent and distribution and not under the will, his amendable trust estate would be depleted to the extent determined herein, and the balance due the University of Michigan from the trust would become payable at once by the trustee under the law of acceleration.

The depletion of the trust estate .to the extent determined does not invalidate the trust, but merely reduces its funds by operation of law.

Since there is no question concerning the validity of the will, ar*l having determined the trust is valid except the widow’s right to such funds in the trust as are necessary to satisfy her year’s allowance and her distributive share, it would follow that the balance of the widow’s year’s allowance and her distributive share, as determined herein, should be turned over to the executor by the trustee for administration, and the balance remaining in the trust estate paid by the trustee to the University of Michigan.

In summation, the court concludes as follows on the issues present:

1. The law of Ohio will be applied in determining plaintiff’s right to invade the trust.

2. The plaintiff has the right to invade the trust.

3. The law of Florida is not applicable in determining the issues herein.

4. The law of Ohio governs the share of the trust funds to which the plaintiff is entitled.

5. Plaintiff has the right to collect the balance due on her year’s allowance from the corpus of the trust fund and one half of the remainder.

6. The plaintiff is not entitled to collect the income from the remainder of the trust fund after she has collected her year’s allowance and .her distributive share.

7. The remainder interest in the trust fund after the plaintiff’s claims have been satisfied is payable immediately to the University of Michigan.

8. The trustee should pay to the executor the necessary funds re-, quired to satisfy the widow’s year’s allowance and her distributive share, and then pay the remainder to the University of Michigan.

An entry may be presented in accordance with this opinion.


text:
    HEBDEN, Plaintiff-Appellant, v. HEBDEN, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5783.
    Decided January 9, 1958.
    Gross & King, Columbus, for plaintiff-^appellant.
    Carlisle O. Dollings, Columbus, for defendant-appellee.
   OPINION

By BRYANT, J.

This matter is again up for consideration upon a motion for rehearing and reconsideration. In the court below, Henrietta Jane Hebden, plaintiff-appellant, was plaintiff and Earl August Hebden, defendantappellee, was defendant. They will be referred to as in the court below.

On September 26, 1957 this court announced a decision sustaining the motion of Mrs. Hebden for an order requiring the defendant temporarily to pay Forty Dollars per week for child support and requiring defendant also to pay One Hundred Dollars as expense allowance for attorney fees. The appeal, once dismissed, has since been reinstated.

In the court below, Mrs. Hebden was awarded a divorce and the custody of the three minor children and Mr. Hebden had been ordered to pay Forty Dollars per week child support. Visitation rights, originally denied Mr. Hebden, later were restored by the court below Mrs. Hebden’s appeal from said restoration recently was rejected by the Ohio Supreme Court. Mr. Hebden, meanwhile, obtained an order from the court below cutting off all support payments for the three children. There appears to have been no evidence taken or change of circumstances other than a desire to punish Mrs. Hebden for having appealed. The payments were to be made up if Mrs. Hebden won her appeal.

When the support payments were ordered discontinued by the court below, Mrs. Hebden appealed to this court and the decision by this court of September 26, 1957, above referred to, sustained her motion for support payments pendente lite and in effect, during the pendency of the appeal, reinstated the order previously made by the Divorce Court.

Counsel for Mr. Hebden cites the case of Carmiaux v. Carmiaux, 74 Abs 234 decided June 13, 1955 and Beach v. Beach, Jr., 99 Oh Ap 428. decided March 24, 1955 and asks the question as to how the law has been changed since that date. The answer, of course, is that many changes have been made in the law since the occurrences took place mentioned in those decisions.

It must be remembered that the Ohio Constitution, Article IV, Section 6, deals with jurisdiction of the court of appeals and as it read between 1912 and 1944 was the sole source of the jurisdiction of this court. In other words, during that period, the Constitution, not the General Assembly delineated the extent and scope of the powers of this court.

In the case of Cincinnati Polyclinic v. Balch, 92 Oh St 415, decided July 2, 1915, the first branch of the syllabus is as follows:

“1. Section 6, Article IV, Ohio Constitution, as amended September 3, 1912, confers jurisdiction upon the courts of appeals to review, affirm, modify or reverse the judgments of the court of common pleas, superior courts, and other courts of record within the district. The general assembly has no power to enlarge or limit the jurisdiction conferred by the constitution of the state, but may provide by law for the method of exercising that jurisdiction.”

In the case of Hoffman v. Knollman, 135 Oh St 170, decided March 22, 1939, the third branch of the syllabus is as follows:

“3. The jurisdiction of the Court of Appeals is conferred by Section 6, Article IV, Ohio Constitution, and cannot be enlarged or curtailed by legislative action.”

As has been noted here, they were decided prior to the amendment of Article IV, Section 6, Ohio Constitution, effective January 1, 1945.

In comparing the language used in the earlier (1912) form of Article IV, Section. 6, supra, we need refer only to a single sentence (the 9th sentence) of said section. In the 1912 form, this sentence read as follows:

“The courts of appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and appellate jurisdiction in the trial of chancery cases, and, to review, affirm, modify, or reverse the judgments of the courts of common pleas, superior courts and other courts of record within the district as may be provided by law, and judgments of the courts of appeals shall be final in all cases, except cases involving questions arising under the constitution of the United States or of this state, cases of felony, cases of which it has original jurisdiction, and cases of public or great general interest in which the supreme court may direct any court of appeals to certify its record to that court.” (Emphasis added.)

In the amended form of said Article IV, Section 6, Ohio Constitution, effective January 1, 1945, a vast and important change was made. The General Assembly was given broad new powers. We quote from the seventh sentence of the said section as amended in 1945, which deals with the same subject matter as just above quoted and also from the final sentence which is as follows:

“The courts of appeals shall have original jurisdiction -in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and such jurisdiction as may be provided by law to review, affirm, modify, set aside, or reverse judgments or final orders of boards, commissions, officers, or tribunals, and of courts of record inferior to the court of appeals within the district, and judgments of the courts of appeals shall be final in all cases, except cases involving questions arising under the constitution of the United States or of this state, cases of felony, cases of which it has original jurisdiction, and cases of public or great general interest in which the supreme court may direct any court of appeals to certify its record to that court. * * All laws now in force, not inconsistent herewith, shall continue in force until amended or repealed; provided, that all cases, actions, or proceedings pending before or in any board, commission, officer, tribunal, or court on the first day of January, 1945, shall be heard, tried, and reviewed in the same manner and by the same procedure as is now authorized by law.” (Emphasis added.)

Thus it will be seen that the new form of this constitutional provision made several important changes. For example, it empowered but did not require the General Assembly to change the appellate jurisdiction of the court of appeals and further, until the Legislature acted, the appellate jurisdiction of the court of appeals remained the same as it had been prior to the 1945 amendment.

In the case of the Youngstown Municipal Railway Co. v. City of Youngstown, 147 Oh St 221, decided December 18, 1946, the two branches of the syllabus are as follows:

“1. Section 6, Article IV, Ohio Constitution, as amended November 7, 1944, empowers but does not require the General Assembly to change the appellate jurisdiction of the Courts of Appeals.
“2. Unless and until there is such legislative action, the appellate jurisdiction of the Courts of Appeals remains as it was at the time the amendment was adopted.”

In the course of the opinion the court said:

“The expressed intention is to accomplish the simple result of empowering the General Assembly to change the appellate jurisdiction of the Courts of Appeals if it should desire so to do: and unless and until there is such legislative action, the appellate jurisdiction of the Courts of Appeals remains- as it was at the time the amendment was adopted.”

See also Meyer v. Meyer, 153 Oh St 408 at page 414, decided April 19, 1950, to the same effect.

It was soon decided that a statute which conflicted with the Constitution prior to the 1945 amendment was not automatically revived by said amendment and only action by the Legislature in the future, that is after January l, 1945 would be considered as changing the jurisdiction of the court of appeals. See Jelm v. Jelm, 155 Oh St 236 decided in 1951, citing 50 Am. Jur., page 546.

The Supreme Court reaffirmed its position that no change would result in the jurisdiction of the court of appeals until legislative action was taken and as late as 1954 observed that no such change had been brought to its attention. See State v. Edwards, 157 Oh St 175, syllabus 2, decided in 1952 and Connelly v. Balkwill, 160 Oh St 430 at page 437, decided in 1954.

As above noted the two cases cited by counsel for defendant were decided in the Spring of 1955. Obviously, the important date with respect to a change in the law is not when the decision is announced in an appellate court, but the date either when the cause of action arose or the proceeding was begun. We have not been furnished with either.

It was on October 4, 1955 that the amended form of §2501.02 R. C., became effective. (See 126 Ohio Laws, page 56.) The amended section provided that in addition to the original jurisdiction spelled out in the Constitution the several courts of appeals shall have jurisdiction over appeals both on questions of Taw and questions of law and fact. Ten types of cases are described specifically wherein what amounts to a trial de novo may be had. Cases not falling within the ten classes so enumerated are classed as appeals on questions of law only and the section concludes:

“The court, on good cause shown, may issue writ of supersedeas in any case, and all other writs, not specially provided for or prohibited by statute, necessary to enforce the administration of justice.”

Also of direct importance here are the provisions of §3105.14 R. C., which in its present form concludes as follows:

“When an appeal is taken by either party, the court of appeals, or a judge thereof in vacation, may grant like alimony, custody, and' support during the pendency of the appeal, upon like notice.”

The present form of this statute was enatced in 126 Ohio Laws at page 610 effective October 5, 1955 at which time the word, “custody,” was inserted in this very sentence showing that it .was not merely a re-enactment of language already in the law, but received careful consideration by the Legislature. This section previously was amended in 124 Ohio Laws 178 (186), effective October 1, 1953.

In the case of Westerhaus Co., Inc. v. City of Cincinnati, 165 Oh St 327, decided June 6, 1956, the court at page 333 of the opinion takes notice of the fact that the Legislature has acted. (See final fourteen lines of note on page 333.)

The effect of this will be seen in the article on Divorce and Separation, 18 O. Jur. 2d, page 10, Section 92, where it is said:

“It is provided by statute that when an appeal is taken by either party to the Court of Appeals, the Court of Appeals, or a judge thereof in vacation, may grant like alimony, custody, and support during the pendency of the appeal, upon like notice.”

For the reasons above set forth the motion for a rehearing of the previous decision of this court should be and the same is hereby overruled.

PETREE, PJ, MILLER, J, concur.


author: Per CURIAM:

text:
    BEHRMAN, Plaintiff-Appellee, v. MASSACHUSETTS CASUALTY INSURANCE COMPANY, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24332.
    Decided March 6, 1958.
    J. Leslie Morgan, Mark F. McChesney, for plaintiff-appellee.
    Arthur J. Stern, for defendant-appellant.
   OPINION

Per CURIAM:

In this appeal on questions of law and fact, appellant claims non-liability upon a policy of health and accident insurance on the ground of misrepresentation of the appellee as to his physical condition at the time of the issuance of the policy on December 21, 1948.

The policy contains a provision (paragraph five) that it is noncancellable and incontestable after the expiration of two years from date of. issuance and there is no exception for fraud or misrepresentation.

The policy was issued December 21, 1948, and an action for money only was filed December 7, 1955. The issue as to appellee’s misrepresentations was by way of cross-petition by the appellant for cancellation.

The facts show premiums were paid for a period of approximately nine years and certain payments of premiums were accepted by the appellant even after the action was commenced.

For these reasons and for the reasons set forth in extenso in the findings of fact , and conclusions of law of the trial judge, the decree must be for plaintiff as in tire Municipal Court of Cleveland.

See John Hancock Mut. Life Ins. Co. v. Snyder, 20 Abs 251 (Court of Appeals, Ninth District); Insurance Law and Practice, Vol. 1, Appleton, Sec. 332, et seq.; 170 A. L. R. 1048, et seq., and numerous cases therein cited holding that insurer is precluded from asserting defense of fraud on the theory that a non-cancellable and incontestable provision of a policy, without exception for fraud, is, in effect, a short statute of limitations.

SKEEL. PJ. HURD and KOVACHY, JJ, concur.


author: By PHILLIPS, J.

text:
    PERRIN, Plaintiff-Appellee, v. COULTER et, Defendants-Appellees, COULTER, Defendant-Appellant.
    Ohio Appeals, Seventh District, Columbiana County.
    No. 754.
    Decided August 22, 1957.
    Ben H. Berman, East Liverpool, for plaintiff-appellee.
    Vodrey, Buzzard & Shay, East Liverpool, for defendant-appellee, Frank Coulter.
    Lawrence W. Smith, East Liverpool, for defendant-appellee, The Potters Bank & Trust Company.
    Warren Bettis, Lisbon, for defendant-appellee, Joseph Abraham.
    Paul Tobin, East Liverpool, for defendant-appellant.
   OPINION

By PHILLIPS, J.

A separation agreement dated April 14, 1953, executed by Jack Coulter and his wife, Marian Coulter, was confirmed by the trial judge and made a part of his decree dismissing Jack Coulter’s cross-petition and granting Marian Coulter a divorce from Jack Coulter in her action against Jack Coulter for divorce.

The separation agreement provided inter alia as follows:—

“6. It is further agreed between the parties that the Tavern, known as ‘Sandy’s Tavern,’ located at 639 St. Clair Avenue, East Liverpool, Ohio, that the said Jack Coulter, has a one-half interest in, is to be operated by the said Jack Coulter, and that further the said business is not to be sold or mortgaged by the said Jack Coulter, until he has notified Marian Coulter, or her attorney as to the amount of money the Tavern is to be sold for or the amount of money the Tavern is to be mortgaged for; if and when said Tavern is sold, out of the proceeds of said sale, belonging to the said Jack Coulter, the following indebtedness are to be paid:
“A. All business debts of the Tavern.
“B. The mortgages on the home property to be paid off.
“C. The balance of the money left to be divided equally between both Marian Coulter and Jack Coulter.”

An action was commenced in the court of common pleas on April 15, 1955, for dissolution of the partnership existing between Joseph Perrin and Jack Coulter in the operation of Sandy’s Tavern in East Liverpool, to which reference is made in the separation agreement, and sale of assets of such partnership. In that action Joseph Perrin prayed the court to “determine the value of said business and permit plaintiff to purchase the interest of said defendant,” Jack Coulter, “by paying the purchase price into court or upon such terms as may be decreed or for the sale of said business and the division of the proceeds in accordance with the interest of the partners for payment of debts and for any and all other and further relief to which this plaintiff may be entitled.”

Subsequent to the confirmation of such sale the Potters Bank and Trust Company of East Liverpool, Ohio, Joseph Abraham and Frank Coulter were made parties defendant and claimed liens on Jack Coulter’s share of the sale of such partnership to the amount of his share therein.

Marian Coulter was made a party defendant to the action for dissolution of partnership and sale of partnership assets and filed a cross-petition setting forth the separation agreement and asked that she be ■found to have a first good, valid and subsisting lien upon the interest of defendant, Jack Coulter, in the partnership of Sandy’s Tavern.

Marian Coulter received nothing in cash from Jack Coulter’s share of such partnership business, the trial judge finding and entering judgment as shown by the following excerpt from the journal entry:—

“The Court further finds that there is due defendant, Marian Coulter, against defendant, Jack Coulter, under the divorce decree set forth in her cross-petition, sufficient money to pay the Potters Savings & Loan Company of East Liverpool, on her home, the mortgage amounting to approximately $3,800.00 and one-half of Jack Coulter’s share of the proceeds of the sale of the partnership, but the court further finds that said decree of divorce and property settlement was not notice to creditors of Jack Coulter and cannot take precedence over their liens.”

The court taxed the costs of dissolution, advertising for sale and of appraisers against plaintiff and defendant, Jack Coulter, and taxed all costs caused by cross-petition seeking recovery from Jack Coulter’s share against Jack Coulter; and entered judgment on Frank Coulter’s cross-petition against Jack and Marian Coulter for $4,690.16 and costs; and found that there is due Potters Bank and Trust Company of East Liverpool, Ohio, from Jack Coulter the sum of $741.61 on judgments set up in its cross-petition; that there is due Joseph M. Abraham from Jack Coulter the sum of $2,094.09 on the judgment set forth in his cross-petition; that there is due Marian Coulter under the decree of divorce set forth in her cross-petition sufficient money to pay the Potters Savings and Loan Company of East Liverpool, the mortgage on her home amounting to approximately $3,800.00 and one-half of Jack Coulter’s share of the proceeds of the sale of the partnership but that the “decree of divorce and property settlement was not notice to creditors of Jack Coulter and cannot take precedence over their liens”; that “the defendants, The Potters Bank and Trust Company, Joseph M. Abraham and Frank Coulter, shall share pro rata in the share of defendant, Jack Coulter; that $203.22 is the amount of costs to be paid equally by plaintiff and defendant, Jack Coulter, and that an additional amount of $24.60 in costs shall be paid solely by defendant, Jack Coulter; that plaintiff is ordered to pay into the Clerk of Courts the sum of $101.61 as his share of the costs; that there is on deposit with the clerk of courts the sum of $5,377.52 which added to the costs paid into court in the amount of $101.61 equals $5,479.13 which the court ordered the clerk to distribute as follows:—

“1. To John W. Coleman, Clerk of Courts, the sum of $227.82.
“2. To Frank Coulter the sum of $3,272.62.
“3. To Joseph M. Abraham, the sum of $1,560.91.
“4. To Potters Bank and Trust Company of East Liverpool, the sum of $517.78.”

The question presented to this court by the appeal of Marian Coulter on-questions of law and fact is whether the decree of divorce of April 14,1953, some two years prior to the earliest of the other lien claims to this hearing for distribution, was in any way lis pendens to them, and in any way notice to them.

It is the contention of Marian Coulter that such property was specifically described not only in the divorce petition but in the journal entry of the court of common pleas of April 14, 1953, in which it specifically states: “The court further finds that the parties hereto have entered into a separation agreement dated April 14, 1953, which the court hereby approves, and it is ordered and adjudged that said separation agreement between the said parties be made a part of this decree.”

Marian Coulter’s lien was dated and fixed on April 14, 1953. The earliest judgment obtained by any of the other claiming parties was the judgment of The Potters Bank and Trust Company in the Municipal Court of East Liverpool on August 18, 1955, and filed in the Court of Common Pleas on November 16, 1955.

On these facts Marian Coulter argues:—

“Under all the above such effects and in view of the law of the state of Ohio on the question of lis pendens as affecting a judgment rendered in a divorce and alimony action, it is difficult for this defendant, Marian Coulter, to see how the court of common pleas could find otherwise than that she had a lien prior to the other claim liens and therefore was entitled to have it satisfied first. Defendant, Marian Coulter, does respectfully petition this Honorable Court that her lien be declared such first lien upon the funds obtained from the sale of the property that belonged to the defendant, Jack Coulter, by virtue of her judgment lien in her divorce action against the said Jack Coulter and that the decision of the court of common pleas be reversed and that final judgment be entered in her favor declaring her lien to be a prior lien over those claimed by the other parties.”

The Potters Bank and Trust Company argues that the doctrine of lis pendens does not apply in the case under consideration; that the Coulter divorce action was not notification to it of the rights of defendant, Marion Coulter, to a share in the interest of defendant, Jack Coulter, in the Perrin-Coulter partnership; that it relied upon the apparent interest of defendant, Jack Coulter, in such partnership, and having no notice or knowledge, of such divorce decree, more than two years after entry thereof on April 14, 1953, loaned money to defendant, Jack Coulter, in June, 1955.

Counsel for defendant, Frank Coulter, state by brief:—

“It will be noted from the answer and cross-petition of Frank Coulter that on or about February 15, 1947 he loaned Jack Coulter and his wife, Marian Coulter $4,500.00 to purchase an interest in Sandys Tavern in East Liverpool, Ohio. Both Jack Coulter and Marian Coulter signed the note and agreed to repay. How then in good conscience can Marian Coulter now claim that she should receive personally any part of the proceeds of the sale of the interest of her ex-husband Jack Coulter in preference to the claim of the man who made the original purchase possible?”

The doctrine of lis pendens applied only while the divorce action was pending between the Coulters, and operated only during its pend-ency. It did not extend beyond the termination thereof. The final decree in the Coulter divorce action was no notice of matters in controversy. It was the pendency of such suit that created the notice.

See Turner v. Crebill, 1 Ohio 372; Phoenix Amusement Co., v. Glander, 148 Oh St 592; and 25 O. Jur., Page 698, Section 29 — Lis Pendens.

There is no worth in the argument that the decree in the Coulter divorce action was not final because certain acts were to be performed subject to journalization of the decree.

All matters in litigation in the Coulter divorce case were decided by the decree of the trial judge, and the fact that certain acts were to be performed subsequent thereto did not make the decree less final. It was a final decree.

See Heirs of Ludlow v. Kidd’s Executors, Bank United States, et al, 3 Ohio 541.

As stated by counsel for Frank Coulter by brief:—

“No one of the defendants had any lien on the interest of Jack Coulter and hence the matter must be disposed of on the basis of an equity, and it is submitted that court of common pleas correctly determined the equities and should not be disturbed.”

It is apparent from what has been said that the finding and judgment of this court is the same as that of the court of common pleas. Decree accordingly.

NICHOLS, PJ, GRIFFITH. J. concur.