author: By McBRIDE, J.:

text:
    BRUBAKER, Mayor, Village of Kettering, Plaintiff, v. MONTGOMERY COUNTY BOARD OF ELECTIONS, as individual members and as Board of Elections, Defendants.
    Common Pleas Court, Montgomery County.
    No. 108,273.
    Decided May 11, 1955.

      Jack E. Staley, Dayton, for plaintiff.
    Edgar J. Graef, Jr., Dayton, as Agent and Attorney for detaching petitioners representing himself.
    Mathias H. Heck, Montgomery County Pros., By: John P. McHugh, Dayton.
   OPINION

By McBRIDE, J.:

It appears anomalous that this court should be requested to restrain the Board of Elections when the same matter was recently in the Court of Appeals in mandamus to compel the same Board to hold an election. We are advised that the Court of Appeals overruled the Board’s demurrer, thereby finding that the petitioners for detachment alleged a cause of action and that thereafter the Board voluntarily reversed its decision as a result of which the mandamus action was dismissed, as moot, at the petitioners’ request. Although the decision of the Court of Appeals on the demurrer of the Board legally interpreted the petition as requiring an election, there was no testimony and no final order, particularly as to the Village of Kettering which had been permitted to answer. Voluntary action of the Board of Elections and dismissal of •the mandamus action in response to a decision on the Board’s demurrer does not defeat the right of the Village to test the validity of the action of the Board of Elections. A decision on demurrer by the Court of Appeals as to the same subject, indicating that as a matter of law, refusal to call an election constituted an abuse of discretion, must be respected by this court in the absence of new or different facts even though the decision of the Court of Appeals may not be formally considered “res judicata”.

Sec. 709.39 R. C. contains detailed provisions with respect to the contents, execution and filing of a petition for detachment from a village. The statute gives to the inhabitants within any portion of the village, such portion being (1) contiguous to an adjoining township and (2) comprising not less than 1500 acres, the right to petition for detachment. The petition for detachment must contain (a) an accurate description of the territory, (b) an accurate map or plat thereof, (c) the name of .the township, if a new township is proposed, (d) the name of the agent of the petitioners and (e) signatures to such petition equal to fifteen percent of the total number of votes cast at the last general election in such territory.

The same section provides

“Within ten days after the filing of such petition with the board, the board shall determine whether the petition conforms to this section. If it does not conform, no further action shall be taken thereon. If it does conform, the board shall order an election, * *

When the board finds that a petition conforms to the statute, the duty to order an election is mandatory. On demurrer in State of Ohio, ex rel, Graef v. Board of Elections, Montgomery County Court of Appeals, No. 2342, May 6, 1955.

This section of the statute is exclusive. Leach v. Collins, 123 Oh St 530.

Separation in school districts is a different provision of the statute and not applicable to this situation.

The court is aware of public sentiment against detachment in Kettering and, if we were not, it is apparent on the record of the Board of Elections, which originally and erroneously decided that it was morally obligated to follow a recent decision of the Supreme Court. State, ex Brubaker, v. Brown, Sec’y of State, 163 Oh St 241. That decision, not yet jounalized, is subject to the condition expressed in §703.06 R. C. which postpones Kettering’s transition to city status for thirty days after the issuance of the proclamation by the Secretary of State. State of Ohio, ex rel, Graef v. Board of Elections, No. 2342. Sub H. B. 31, to enact §703.011 R. C. relating to the classification of municipal corporation, a proposal supported by the officials of Kettering, contains a similar provision allowing a thirty day period for the filing of detachments before city status is effective. The existing, as well as the proposed, thirty day delay in transition from village to city status is a clear and unambiguous expression of legislative intent as to a political matter. Sec. 703.06 R. C.

Courts do not have legislative power. They are reluctant to interfere with the election procedure or election officials, except to enforce rights or such mandatory or ministerial duties as the statute may require. ' Where the statute imposes a discretionary duty, courts will compel, but not control, the exercise of that discretion. A court of equity may intervene in the election procedure only where there is proof of a violation of statute, fraud or abuse of discretion.

The fact that a statute may be inadequate does not authorize a court to exercise any equitable jurisdiction. State, ex rel, v. Board (Kettering cases on appeal 1953), 65 Abs 547. The fact that such statute liberally allows detachments without the consent of the village or the majority of all its voters is a matter of legislative policy.

The power to detach is in its nature political or legislative rather than judicial. Metcalf v. State, 49 Oh St 586. A political issue must be decided in a political rather than a judicial forum, according to the rules fixed by statute and not by equities or personal opinions.

This case was heard, argued and submitted on the question of issuance of a temporary restraining order based upon “great and irreparable injury” to the plaintiff. The plaintiff is described in the caption as an individual, mayor of the Village of Kettering. The pleading does not allege any special facts as to the capacity of the plaintiff in bringing this action.

The testimony and arguments were directed to the merits, failing to develop or explain how failure to issue a temporary restraining order would cause irreparable injury to the plaintiff in event he is successful on the merits. Proof of need for immediate, temporary relief is essential to invoke emergency equitable relief.

We are not permitted to decide this matter either on demurrer or its merits. If ultimately the opinion of the majority of the inhabitants is not in favor of the detachment, no harm can exist. If the majority are in favor of detachment, their right to vote has not been denied and the effect of such election and the procedure involved in accomplishing it, insofar as alleged in the petition, is pending before the court. The real issue in this case is not the loss or injury to the Village, as that is inherent in the statutory right to detach, but the issue is whether or not the right to detach has been exercised'according to law.

The plaintiff alleges that the Board of Elections acted contrary to law in only two respects:

(1) That the map and description of the territory sought to be detached are both inaccurate and contrary to Section 709.39. No testimony of such inaccuracy was introduced other than a variance as to the number of acres which in any event is in excess of the amount required by statute.

(2) That the portion described and shown on the map is not contiguous to any adjoining township. The statute provides for detachment of

“* * * ANY portion of a village, SUCH PORTION being contiguous to an adjoining township, and * *

The statute contains no further restrictions, conditions or requirements as to the form of the area that may detach. Arguments that the portion must be homogeneous, with definite qualities of physical unity that would promote a useful and efficient political subdivision are not supported by the Ohio statute. We do not question the right of the legislature to impose suitable conditions upon the right to detach. It is sufficient to say that the legislature has failed to do so.

The area described is “contiguous” or touches an adjoining township in Montgomery County and one or more adjoining townships in Greene County. The Supreme Court has defined “contiguous” as “in actual contact; touching.” Cleveland v. Public Utilities Commission, 130 Oh St 503, 5 O O 174. Words, said that court, must be given their plain and ordinarily accepted meaning, unless and until it is made manifest that a different meaning was intended by the enacting body. If there was any intent on the part of the legislature in this instance to give the words used a different meaning, such intent is not manifested. Arguments for such different meaning are based upon political or economic policy, a prerogative of the legislature, and not upon the statute which it is the function of the court to interpret and enforce.

The right to detach is initially given in the statute to “any” portion of a village. As indicated recently by the Supreme Court in State, ex rel, v. Brown, 163 Oh St 241, use of the word “any” tends to “create only an ambiguity with respect to the meaning of those statutory words.” p 247. In this instance, we are not aided by a constitutional provision requiring a liberal interpretation. On the contrary, the insertion of two expressed conditions by the legislature upon the portion involved prohibits any construction which would create additional restrictions.

The decision in Newburgh Heights v. Franch, 28 O. C. A. 586, decided by the Court of Appeals for Cuyahoga County in 1918 is of interest because of similarity of the factual situation. In that case the court commented as follows:

“It is also averred that the description of the part sought to be detached follows no regular or well-defined lines, but was drawn in such a manner as to include in it the large manufacturing plants of said village and farm land containing but few residences and mercantile buildings, and that said attempt to detach was instigated by certain large corporations owning valuable property in said detached part. It is claimed that the detachment of said part was an unreasonable, arbitrary and an unfair division of the village, and that its detachment will work an irreparable injury to the village and its citizens.” p. 587

4c * * * *

“This court might think and perhaps does think that it is the most unwise kind of legislation, but this consideration can in no way control our action. It is solely a question of power to enact a law, no matter whether the law be wise or otherwise, it is no concern of the court. Thus, in spite of the arbitrariness of the boundaries fixed for this detached territory: in spite of the damage that may be done to the remaining territory, it was within the province of the legislature to enact the law under which this detachment occurred, and in our opinion, the statute under which the detachment took place is constitutional.

“We have no doubt that the situation which has occurred in this village is unfortunate, and we deeply deplore its occurrence, but our conclusion that the statute is constitutional deprives, us of all power to consider the allegations of the petition to the effect that the line is arbitrary and unfair. All that we can say upon this point is that the legislature did not see fit to define where such lines should run in its enactment and put no limitations upon the same. All that the court can say from examination of this petition is, that the inhabitants of a certain territory wished to relinquish their village government and again become a township. The laws of Ohio provide for the gratification of this desire.” p. 591, 592.

In State, ex McKay, v. Board of Elections, 65 Abs 547, the Court of Appeals for Montgomery County had this to say regarding earlier detachments in Kettering:

“The requisite conditions to the submission of the question of detachment of territory are that the portion of the village to be detached shall be contiguous to an adjoining township, and comprise not less than 1500 acres of land. This seems to be the extent of the physical limitations in such a proceeding.” p. 554.

A preliminary motion -was filed by Edgar J. Graef, Jr., on behalf of the detaching petitioners to dismiss the case for lack of capacity of plaintiff to sue. Cited on his behalf was Grall, Mayor, v. King, 14 Oh Ap 88, which held that a mayor, as such, has no right to prosecute an action on behalf of the corporation. There is merit to this motion in view of the allegations missing from this petition, however, since the petition may be construed as an individual action, decision thereon is reserved in view of the action of the court on the request for a preliminary order.

Motion was made on behalf of the Board of Elections to strike the petition from the files for the reason that the subject is “res judicata” and that the petition fails to allege fraud or abuse of discretion. This motion is overruled because, as previously indicated, no final order was issued by the Court of Appeals on the mandamus action and the petition in this case does allege a failure to comply with the statute.

On the application for a temporary order to restrain the Board of Elections, the court finds that the plaintiff failed to establish irreparable injury as a result of any wrongful or illegal act and failed to establish his allegation of a violation of statute by the Board of Elections.

The application for a temporary order is denied.


source: Caselaw Access Project

author: By CONN, PJ:

license: Public Domain

text:
    CLEVELAND (City), Plaintiff-Appellee, v. LOVINESS, ALLEN, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23394.
    Decided April 14, 1955.

      Ralph S. Locher, Director of Law and John H. Urbancik, Asst. Director of Law, Cleveland, for plaintiff-appellee.
    Alan Meltzer (for appellant Rose Allen), Cleveland, for defendants-appellants.
    (CONN, PJ, DEEDS, J, and FESS, J, of the Sixth District sitting by designation in the Eighth District.)
   OPINION

By CONN, PJ:

This is an appeal on questions of law from a judgment entered in the Civil Branch of the Municipal Court of the City of Cleveland overruling the motion of defendant-appellant, Rose Allen, to vacate the judgment which had been rendered against her and defendant James Loviness.

The City of Cleveland, on April 26, 1954, filed its petition in the Municipal Court, Civil Branch, No. A-305266, against James Loviness and Rose Allen, alleging that on November 1, 1953, one James Richardson filed an affidavit in the Municipal Court of the City of Cleveland charging the defendant, James Loviness, “with operating a car while under the influence of liquor.”

It is alleged in said petition that James Loviness and Rose Allen personally appeared in said court and jointly and severally acknowledged themselves to owe the City of Cleveland the sum of Two Hundred and no/ 100 ($200.00) to be levied on their goods and chattels, lands and tenements; * * * if default should be made in condition following, to-wit:”

“That the said James Loviness should personally be and appear before the Cleveland Municipal Court of Cleveland in the Municipal Court Room, Payne Avenue and East 21st Street in said City on the 24th day of November, 1953, at 10 o’clock a. m., then and there to answer to the charge of operating a motor vehicle while under the influence of liquor, and shall further appear before said Court from time to time, on such days as may be required, until the case shall be finally disposed of, and abide the judgment of the court and not depart without leave, as by the terms of said Bond, as the record thereof in said Court duly attested according to law will appear, a copy of which said Bond is hereto attached and filed herewith, marked ‘Exhibit A’.”

It is further alleged that said James Loviness did not appear before the said court; that thereupon said bond was forfeited in open court; that said James Loviness and Rose Allen, “sureties”, were given notice pursuant to §13435-18 GC to produce the body of the defendant or show cause why judgment should not be entered against them for the amount of the bond, “but came not and made default.”

Plaintiff prays for judgment in the amount of $200.00 and costs.

No summons was issued or notice of any kind given defendant-appellant of the filing and prayer of plaintiff’s petition.

On April 27, 1954, the day following the filing of the petition, the following docket entry was made:

“Notice having been duly given pursuant to provisions of §13435-18 GC and defendant having failed to apear to show cause, judgment is rendered for plaintiff for $200.00 and costs. Referred to County Auditor for further proceedings according to law. Journal entry filed April 27, 1954.”

September 2, 1954, defendant-appellant, Rose Allen, filed a motion to vacate and set aside said judgment on the ground of irregularities in obtaining same, which motion was supported by affidavit of Alan Meltzer, attorney for defendant-appellant, wherein it was averred among other things, that defendant-appellant on March 27, 1954, filed a motion in the criminal case to vacate the order of forfeiture made on said bond; that defendant-appellant be discharged from her obligation on said bond; and that on April 6, 1954, said motion was overruled.

Affiant further avers that immediately following the overruling of said motion, he conferred with the attorney for plaintiff and advised him that as an appeal would be taken from the decision on said motion, he requested that legal action on said bond be withheld until said decision forfeiting the bond could be reviewed on appeal; that said request was agreed to but that notwithstanding same, and while said cause was pending in the Court of Appeals, the aforesaid judgment, without notice to defendant-appellant, was entered against her; and that affiant did not-learn that said judgment had been entered until August 27, 1954.

Appellant’s former appeal from the order entered in the criminal case was dismissed upon the ground that it was not taken from a final order.

It further appears that defendant-appellant, upon the hearing of her said motion to vacate, tendered her answer in which she admits having executed, as surety, the bond providing that James Loviness should appear before the Cleveland Municipal Court on such days as might be required of him; that on March 11, 1954, James Loviness appeared in said court and entered a plea of guilty; that said defendant was sentenced to 30 days’ imprisonment in the workhouse, which was suspended, and fined $50.00 and costs, license conditionally suspended and “To pay 3-15-54”; that appellant-defendant admits said bond was forfeitured by order of the court on or about March 15, 1954.

It is further averred in said answer that the conditions of said “bond were satisfied under §1901.01 R. C. of Ohio and Rule 2C-l-a of the Criminal Branch of the Cleveland Municipal Court” and that there is nothing due and owing plaintiff. However, defendant-appellant’s answer does not contain a general denial.

Said answer contains a second defense, so-called, that in event the Court should find that the conditions of the bond had not been satisfied, then defendant says she cannot be held for any sum in excess of $50.00, the amount of said fine and costs.

It appears in briefs of counsel that the charge laid by affidavit against James Loviness and filed in the Criminal Branch of the Municipal Court was numbered 492979.

Upon the hearing, the motion to vacate said judgment was overruled. Defendant-appellant contends that this action of the trial court was erroneous, and submits the following assignments of error:

1. Error in refusing to vacate the judgment rendered against defendant-appellant on said bond, which judgment was rendered contrary to the promise of plaintiff-appellee, and without service of process on appellant and without notice of hearing.

2. That said judgment is contrary to the evidence, not supported by the evidence, and is contrary to law.

Upon the hearing on the motion to vacate, evidence was introduced on the alleged understanding between counsel to the effect that any action on the bond would be deferred during the appeal taken from the order forfeiting the bond. It appears that the order of forfeiture had been made in the criminal branch of the Municipal Court. The evidence on this issue was in conflict. However, in view of the conclusion we have reached, this issue of fact is not material.

The first assignment of error challenges the validity of the judgment entered against the surety, defendant-appellant, on the ground of want of due process. This issue is raised by the motion to vacate the judgment and tender of answer.

Plaintiff-appellee contends that the summary judgment entered against the surety is authorized and predicates its contention on the ground that the original proceeding in the Municipal Court, Criminal Branch, No. 429979, wherein an order was made forfeiting the bond, and this proceeding, begun in the Municipal Court, Civil Branch, No. A-305266, were one and the same continuous action and that no new civil action was commenced.

We are not in accord with this contention and shall briefly set forth the reasons for the conclusion we have reached.

We first call attention to the conditions of the bond, executed by defendant Loviness, and the defendant-appellant, as surety. The bond required said defendant to appear before the Cleveland Municipal Court, Criminal Branch, on a given day,

“and shall further appear before said court, from time to time, on such days as may be required, until the case shall be finally disposed of, and abide the judgment of the court and not depart without leave, then this bond shall be void, otherwise it shall be and remain in' full force and effect in law.”

The form of this bond and its conditions are broader and more comprehensive than that provided by §2937.44 R. C. prescribing the form of recognizance bonds in the common pleas court. Sec. 1901.21(B) R. C., relating to recognizance bonds in the Cleveland Municipal Court, without setting forth a form such as is found in §2937.44 R. C. merely provides:

“The recognizance shall require. the prisoner to appear before the court to answer the charge against him, or before the court of common pleas when the defendant is held to the grand jury.”

No specific procedure for the forfeiture of bonds is provided in the Municipal Court Act. However, pursuant to Chapter 2937 R. C. (§§2937.21 to 2937.45 R. C. inclusive), the procedure in the common pleas court relative to bail and recognizance in criminal cases, qualification of sureties, forfeiture, etc. is expressly made applicable to all courts of record or magistrates.

Sec. 2937.38 R. C. (13435-18 GC) makes provision for procedure when the party recognized fails to apear and answer, “fails to perform the conditions thereof”, and provides that the court shall give the surety 20 days’ notice to appear on or before a given date and produce the body of the defendant, or show cause why the judgment should not be entered against them for the amount of the bond.

The petition filed by the plaintiff-appellee in this case sets up the conditions of the bond and alleges that defendant, Loviness, did not appear, and thereupon the bond was forfeited in open court.

The answer tendered by defendant-appellant contains an averment that defendant, Loviness, did appear before the Municipal Court on February 11, 1954, was found guilty and sentenced to 30 days in the workhouse and fined $50.00 and costs, “To pay 3-15-54.” The sentence contained further provisions not material here.

Notwithstanding the allegations in the petition that defendant, Loviness, was ordered to appear November 24, 1953, at 10.00 o’clock a. m., it is contended by plaintiff-appellee that “the final disposition of the criminal case took place on March 15, 1954,” a date subsequent to the trial of defendant at which time he was found guilty, and that no appearance was made by defendant, Loviness, on said last mentioned date, and further that the bond was rightfully forfeited.

Sec. 2937.38 R. C. above referred to, outlines the procedure where the “person under recognizance to appear and answer” fails to perform the conditions of the bond and contemplates summary judgment against the surety upon orders to show cause in the criminal case itself. If default be made, it shall be recorded and such recognizance forfeited in open court. Further provision is made for remission of the penalty as well as issuance of execution upon the judgment “as in civil actions.” This section further authorizes the court to enter judgment “for such sum as it sees fit, not exceeding the full amount thereof.”

Sec. 2937.43 R. C. (§13435-24 GC) also contains provisions for remission or reduction of the penalty of a forfeited recognizance “either under §2937.38 R. C. or by civil action.”

We call attention to §2937.41 R. C. (§13435-21 GC) which provides as follows:

“The prosecuting attorney shall prosecute recognizances received by him, for the penalty thereof, unless judgment is taken thereon under §2937.38 R. C. Such actions shall follow civil procedure as far as applicable.”

The defendant, Loviness, having appeared for trial, it is our opinion that §2937.38 R. C. is not applicable to the instant case. Plaintiff-appellee in filing an independent action, as it has done, tacitly concedes that it is proceeding under §2837.41 R. C. in filing its action in the Civil Branch of the Municipal Court against defendant Loviness and Rose Allen, the surety, praying for judgment in the full amount of the bond.

It is apparent that the petition in the instant case filed in the Civil Branch of the court is brought pursuant to the provisions of §2937.41 R. C. It does, however, allege, after setting up the conditions of the bond, that the defendant did not appear and thereupon the bond was forfeited in open court.

In 7 O. Jur. 2nd, 71, et seq., Sees. 45 to 52 inclusive, consideration is given to the provisions of the statutes relating to “actions and proceedings on bonds and recognizances”. The author points out that there are two ways in which a forfeited bond given in a criminal case can be enforced. That is to say, either by proceeding and judgment upon an order to show cause in the original criminal proceeding, or by separate action.

We call special attention to Sec. 47, page 73, relating to actions on bonds and recognizances, as follows:

“47. An action by the state on a criminal bail bond is civil, and not criminal, in its nature. The action does not involve the guilt or innocence, conviction or acquittal, of any person; though it may be a proceeding arising in a criminal case, it is in no sense a continuation of the criminal proceedings in which the bail bond was given. The Code provides that such actions shall follow civil procedure so far as applicable.”

We also call attention to the Municipal Court Act, subsection B, of §1901.21 R. C. in re “Criminal and Civil Procedure; Bond.” This subsection contains provisions, among others, for recognizances for the appearance of a defendant, and qualifications of the surety, and further provides that:

“The recognizance shall require the prisoner to appear before the court to answer the charge against him, or before the Court of Common Pleas when the defendant is held to the grand jury.”

Sec. 2307.01 R. C. defines an action as follows:

“An action is an ordinary proceeding in a court of justice, involving process, pleadings, and ending in a judgment or decree, by which a party prosecutes another for the redress of a legal wrong, enforcement of a legal right, or the punishment of a public offense.”

The answer tendered by defendant-appellant raises several issues, including the issue relating to the character of the bond and the further issue that the bond was satisfied by reason of the fact that defendant Loviness, appeared for trial.

It appears that the several statutes containing provisions for bail and recognizances and qualifications and rights of sureties are in pari materia and must be construed together. We have called attention to a number of them.

Having in view the several statutory provisions referred to above and our Code of Civil Procedure, so far as they are applicable to the fact situation presented, it is our conclusion , that the action begun by plaintiff-appellee in the Municipal Court, Civil Branch, is a civil action and that defendant-appellant is entitled to due process and a judicial determination of the issues raised.

The defendant-appellant having made a prima facie showing that she had a valid defense, if sustained, the judgment of the trial court should have been suspended and the defendant-appellant given leave to file her answer. The refusal of the trial court so to do was error prejudicial to defendant-appellant, and contrary to law. See Bellows v. Bowlus, 83 Oh Ap 90, 94, and cases cited.

The judgment of the trial court should be reversed and the cause remanded thereto with instructions that the motion to vacate the judgment be granted; that the judgment be suspended; that defendant-appellant be permitted to file her answer, and that the issues raised on the pleadings and the evidence be determined by the trial court.

Cause remanded to the Municipal Court of Cleveland, Civil Branch, for further proceedings.

Exceptions noted. Order see journal.

DEEDS, J, PESS, J, concur.


author: By HORNBECK, J:

text:
    AMOLE, Plaintiff-Appellant, v. AMOLE, Defendant-Appellee.
    Ohio Appeals, Second District, Greene County.
    No. 554.
    Decided March 3, 1955.
    Roof & Roof, Kenton, for plaintiff-appellant.
    Miller & Finney, Xenia, for defendant-appellee.
   OPINION

By HORNBECK, J:

This is an appeal on questions of law.

The appellant instituted his action for a divorce charging the defendant with gross neglect of duty and extreme cruelty. To this petition, defendant answered, seeking divorce and asserting that the plaintiff was chargeable with extreme cruelty and gross neglect of duty. The case came on to trial, a number of witnesses were heard and at the conclusion thereof, the Court denied a divorce to the plaintiff, dismissed his petition, granted a decree to the defendant on her cross-petition on the ground of extreme cruelty.

Nine errors are assigned which were originally set up and argued in a brief on behalf of plaintiff-appellant, and thereafter upon a more extended supplemental brief.

At the time of the oral presentation of the appeal, a motion was made to strike appellant’s brief because filed out of rule. The motion was overruled and appellee given leave to file answer brief within two weeks. Upon a reading of the record in its entirety we find that it is not necessary to our decision to require appellee to file her brief.

Nine errors are assigned most of which we overrule without comment. We discuss the others.

It is asserted that the decree is against the manifest weight of the evidence. We cannot so find. The plaintiff’s testimony was corroborated only in a very minor part by one witness. The defendant’s testimony was supported by all three of the children of the parties and by others. Her claim that the plaintiff had been cruel to her by physical abuse throughout most of their married life was amply sustained, if the trial judge accepted her evidence as true which he had full right to do.

It is urged in appellant’s brief that if misconduct of the plaintiff was established it had been condoned. This asignment is not well-made for two reasons. One — condonation is an affirmative defense which was not pleaded, 27 C. J. S. 703 or suggested at the trial. Two — it does not appear that there was cohabitation by the parties or other forgiveness after the occurences which led up to plaintiff’s final leaving of his home, at which time the defendant testified he struck her which testimony is corroborated by one of her witnesses. This conduct revives all the former acts of cruelty of which there is proof.

The supplemental brief claims as error that the trial judge predetermined the case respecting division of property and thus denied plaintiff a fair and impartial trial. It is true that at a certain period during the trial the judge indicated that he was satisfied what he should do respecting division of property if he awarded a decree. No objection was interposed to this ruling, no testimony then or there after proffered and none was developed except such as was incidental to the other evidence. The error assigned is not exemplified by the record.

The principal exception to the decree is that the division of the property and the conditions attached thereto was inequitable.

In this connection it should be noted that at the time of the trial the plaintiff was badly in arrears in the observance of the temporary support order made by the Court. The Court made no order for the payment to defendant of any permanent support money in installments which could have been done even out of plaintiff’s future earnings. Lape v. Lape, 99 Oh St 143. No allowance was made to defendant for her attorney fees. It is common knowledge that a very substantial sum of money or property of considerable value is required to provide enough to supply simple living expenses. That which was allowed the plaintiff will afford her little more that a place of abode. This obligation of support which was subsisting against the plaintiff by the decree, he no longer is required to meet. His income of $6500 upward annually is untouched.

The parties own jointly 26 acres of land upon which they resided and which plaintiff left when he separated from his wife. He had indicated that he did not want to live there longer. He estimated the value of this farm at $18,000 to $20,000; estimated the debts of the parties at $7000, $2058.45 of which was on the farm and secured by mortgage. Other assets, personal property, were valued at about $6000. The household effects were not appraised. The Court awarded to defendant plaintiff’s undivided one-half of the farm and the household effects. She was required to assume the mortgage indebtedness on the farm and to pay $4000 to the plaintiff. He was given all the personal property and required to pay the remaining indebtedness.

Inasmuch as the award was made for the aggression of the husband, it properly came from his share of the holdings of the parties No recourse could have been had against the one-half of the farm which defendant owned.

As we analyze the award, defendant received one-half of the farm of the value $10,000.00

She was obligated to pay indebtedness against the farm in the sum of $2,058.45

To pay to the plaintiff the sum of 4,000.00

A total of ; 6,058 45

Leaving net to defendant, value sum of $3,941.55

The plaintiff had the personal property of the value of $6,000.00

Amount paid to him by defendant 4,000.00

Total $10,000.00

From this sum he must pay the remaining indebtedness of 4,941.55

Value retained by plaintiff $5,058.45

As we before indicated the plaintiff’s personal annual income is not affected and it is probable that he has assets which we have not considered in our analysis.

The setting out of the division of the property is convincing that the Court was quite considerate of the plaintiff and that the decree was so fair and equitable that he has no just ground to object thereto.

The judgment will be affirmed.

MILLER, PJ, WISEMAN, J, concur.


author: By WARREN, J.

text:
    DULLE, Deceased, Estate of, In re.
    Probate Court, Putnam County.
    No. 17199.
    Decided June 29, 1955.
   OPINION

By WARREN, J.

On May 6, 1955, one Max Boroff filed a petition in this court for authority to present his claim against the estate of Lawrence Dulle in the amount of $40,000.00 for injuries sustained in an auto-tractor collision. The petition alleges that he had no actual knowledge of the death of Lawrence Dulle or of the appointment of the executrix of said estate in sufficient itme to present his claim within four months of executrix’s appointment, and prayed the court for an order authorizing him to present his claim to said fiduciary.

The petition was heard on June 2, 1955. Both the claimant and the executrix, together with their attorneys, were present.

Such a claim against a decedent’s estate must be filed with the fiduciary for allowance or rejection within four months of the appointment of such fiduciary in compliance with §2117.06 R. C.

By virtue of §2117.07 R. C. a creditor who fails to file his claim with the fiduciary within four months of the appointment may file a petition in the Probate Court for authority to present his claim after such time. Sec. 2117.07 R. C. further provides:

“The Court may authorize such claimant to present his claim to the executor or administrator, if, on the hearing, the court finds as follows:

(A) That the claimant did not have actual notice of the decedent’s death or of the appointment of the executor or administrator in sufficient time to present his claim within the period prescribed by §2117.06 R. C.:” * * *

Sec. 2117.06 R. C. is jurisdictional and a creditor must file his claim within four months of the appointment of the 'fiduciary or -be forever barred, unless the creditor can meet one of the requirements stipulated in §2117.07 in which case he may present his claim after four months

In the instant case the undisputed evidence discloses that Lawrence Dulle, a resident of Putnam County, died on November 8, 1954; that letters testamentary were issued by the Probate Court of Putnam County, Ohio, on November 19, 1954; that Max Boroff actually learned of the death of Lawrence Dulle and of the appointment of the executrix on April 27, 1955, and that he had no knowledge of these facts prior to that time.

Secs. 2117.06 and 2117.07 R. C. (formerly §§10509-112 and 10509-134 GC) are statutes of limitation. See Beach v. Mizner, 131 Oh St 481; 3 N. E. (2), 417; and Prudential Ins. Co. v. Bank, 143 Oh St 564.

However, if creditor did not have (1) actual notice of decedent’s death, of (2) actual notice of the appointment of the fiduciary the court must authorize creditor, to present his claim to fiduciary after the four month period has expired.

Estate of Fahle, 105 N. E. (2), 429; 90 Oh Ap 195.

The creditor may present his claim to the executrix.

An entry may be drawn in accordance with this opinion and allowing exceptions to executrix.


author: By WISEMAN, J:

text:
    BEACH, Plaintiff-Appellee, v. BEACH, JR., Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2319.
    Decided April 21, 1955.

      Robert W. Schroader, Dayton, and James C. Baggot, Dayton, for plaintiff-appellee.
    Canny, Stewart & Cromer, Dayton, By Hon. Clarence J. Stewart. Of Counsel, and Landis, Ferguson, Bieser & Greer, Dayton, By Charles S. Bridge, Of Counsel, for defendant-appellant.
   OPINION

By WISEMAN, J:

This is an appeal on questions of law from an order of the Common Pleas Court, Division of Domestic Relations, Montgomery. County, Ohio, in an action for divorce, in which the court found the defendant guilty of contempt of court, and pronounced sentence, for failure to comply with a former order of the court.

An order finding defendant guilty of contempt for failure to comply with the former order to pay $400 to counsel for plaintiff and sentencing defendant to pay a fine of $200 and to be confined in jail for 10 days, is a final order and reviewable. See Brady v. Brady, 47 Abs 73, 67 N. E. (2d) 447.

Sec. 3105.14 R. C., in part provides: “On notice to the opposite party of the time and place of the application, the court of common pleas, or a judge thereof in vacation, may grant alimony to either of the parties for his sustenance and expenses during the suit * * *.”

The pertinent part of this section authorizes the court to: “Grant alimony to either of the parties for * * *' expenses during the suit”. The term “expenses” properly includes attorney fees. Stuart v. Stuart, 144 Oh St 289, 58 N. E. (2d) 656; Keath v. Keath, 78 Oh Ap 517, 71 N. E. (2d) 520.

The record in this Court is a transcript of a part of the docket and journal entries, and a bill of exceptions. We do not have before us the petition of plaintiff, nor the answer of the defendant.

The record shows that on November 24, 1954, plaintiff filed a motion, which is not in the record, requesting an order for partial payment of counsel fees. On November 26, 1954 the court made an order, which is in the record, the pertinent part of which is as follows:

“The Court orders the defendant, John M. Beach, Jr. to pay the sum of Four Hundred ($400.00) Dollars as and for attorney fees upon account to counsel for the plaintiff.

“It is further ordered that the same be paid at the office of James C. Baggot * *

This amount was not paid. On December 13, 1954, James C. Baggot, counsel for plaintiff, filed a motion for citation against the defendant to show cause why he should not be punished for contempt. This motion recited the former order and the non-payment. A citation was issued on which the court took evidence. The pertinent part of the finding and order from which the appeal was taken is as follows:

“This day this cause came on to be heard upon a citation for contempt of Court made and issued December 13, 1954, to the defendant John M. Beach, Jr. to show' cause why he should not be punished for contempt of Court for his failure to abide the Order of the Court entered November 26, 1954, to pay the sum of Four Hundred ($400.00) Dollars on account for plaintiff’s attorney fees. Upon hearing had and testimony taken by counsel for the parties hereto and by the Court, it is the finding of the Court that said defendant, John M. Beach, Jr., at the time of making the Order and at all times since then has been financially able to comply with the Order of the Court but has willfully and without legal excuse failed and refused to abide by said Order.”

The contention of the appellant that the order ran in favor of the attorneys for the plaintiff and not to the plaintiff herself, raises an interesting question under §3105.14 R. C., heretofore quoted. As the record comes to us, there is nothing in the motions of orders of the court indicating that the allowance was made to the plaintiff, or was allowed as temporary alimony. The money was ordered to be paid directly to counsel. In the absence of a showing that the order was made in favor of the plaintiff and as temporary alimony under §3105.14 R. C., the order made was without authority and invalid.

This Court, in Riebel v. Riebel, 15 Abs 233, held in the 6th paragraph of the syllabus as follows: “It is irregular for the court in a divorce action to make an order to pay counsel fees of the wife direct to counsel.” In Parker v. Parker, 28 Abs 49, 56 N. E. (2d) 527, this Court again, on a similar record, on page 52 said:

“The Court cannot award a sum to counsel direct to the exclusion of the litigant but of course may take into consideration counsel’s fees in making the award for expenses during the suit, and we are of the opinion that the amount so awarded to defendant’s counsel is without warranty and that the final entry should be so modified.”

In Keath v. Keath, supra, a similar question was presented to the Court of Appeals of Summit County. The second paragraph of the syllabus states: “The term ‘expenses’ includes attorney fees, and an award of expenses for such fees must be made to a spouse as alimony and not directly to the attorney.” In that case, other questions were involved, but the court very definitely approved the above principle. See also Black v. Stewart, 28 O. C. A. 433. In 14 O. Jur., p. 456, Sec. 64, the author states that “although the court may consider attorney fees in making an allowance pendente lite, such allowance must be made to the party, and cannot be made directly to the attorney.” We consider the above to be the true rule.

The order of November 26, 1954 was invalid. It follows that a contempt charge cannot be predicated thereon. Prejudicial error resulted in finding the defendant guilty of contempt in failing to comply with such invalid order.

The finding of the court that the defendant was financially able to comply with the order was based on the evidence that the defendant possessed a National Service Life Insurance policy, issued by the United States Government, the cash surrender value of which was $3,200 It will be observed that the order of the court did not require the defendant to surrender the policy. The policy of insurance was not mentioned in the order. However, it appears to be conceded that this was the only property or assets possessed by the defendant from which he would be able to secure the money to pay counsel as ordered. Whether the court could legally require the defendant to surrender the National Service Life Insurance policy for the purpose of securing cash money out of which to pay counsel fees under the order need not be, and is not here, determined.

Judgment reversed and cause remanded.

MILLER, PJ, HORNBECK, J, concur.


author: By BARTLETT, J.

text:
    GORNALL, Plaintiff, v. GORNALL et, Defendants.
    Common Pleas Court. Franklin County.
    No. 190,638.
    Decided October 25, 1954.
    Lynch & Rosenberry, Columbus, for plaintiff.
    James E. Buchan, Columbus, for defendants.
   OPINION

By BARTLETT, J.

1. A co-tenant of personal property has a right to have the same partitioned, and the exercise of this right is not subject to the control of another tenant.

2. Demurrer to second cause of action in the petition, (on the ground that the facts therein contained do not constitute a cause of action), is overruled.

The first cause of action is for partition of real estate between tenants in common. The second cause of action sets out there is a grocery store upon part of the real estate described in the first cause, and that “plaintiff and defendant have conducted said grocery store as tenants in common and that there is a large inventory and miscellaneous equipment therein.” By incorporation of allegations in the first cause, the plaintiff avers in his second cause of action that “he has a legal estate in fee simple of the undivided one-half part as a tenant-in-common of the following described premises, * * A demurrer was filed to the second cause on the ground it did not state a cause of action.

“A petition is not open to demurrer merely because the language used therein is indefinite, uncertain, or vague”; 31 O. Jur. Pleading, Sec. 130, p. 688.

“It is a universal rule, so well known as hardly to require citation of authority, that for the purpose of testing the sufficiency in law of the facts pleaded, — for its own purpose, — a demurrer confesses the truth of the proper and well pleaded averments of the pleading attacked, and whatever can, by fair and reasonable intendment be implied from those allegations, so far as is necessary to enable the court to determine the sufficiency of the pleading objected to, and no farther.”

Ibid, Sec. 103, p. 661.

“In thus passing upon the sufficiency of the facts alleged, the court is required to follow the code rule requiring pleadings to be construed favorably to the pleader, and to give to the language of the petition' a liberal construction * * * to sustain his pleading; * * * the court must make the most out of a pleading, and not the least.”

Ibid, Sec. 142, p. 700.

The common law rule that the pleadings be construed most strongly against the pleader — is completely abrogated in Ohio, by the code provision “that the allegations of a pleading shall be liberally construed, with a view to substantial justice between the parties”; (Now §2309.40 R. C.). Ibid Sec. 49, p. 58.

“At common law owners of personalty could not compel partition, and the entire absence of any remedy at law induced courts of chancery to take jurisdiction of actions for partition of personalty. Though there are decisions to the contrary, it is now the well-settled general rule that a cotenant of personal property has a right to have the same partitioned, and the exercise of this right is not subject to the control of another tenant.” 30 O. Jur., Partition, Sec. 32, p. 865; to same effect, 40 Am. Jur. Partition, See. 104, p. 86;

“A tenant in common of personal property has a right to partition, if partition is possible, and if not, to a regulation of its use equivalent to partition, or a sale.”

40 Am. Jur. Ibid, p. 85, citing Pickering v. Moore, 67 N. H. 533.

“Where one of two or more joint owners of personal property which is susceptible of division has taken possession of such property and refuses to make a division thereof, an action- in partition may be maintained in equity by one of the joint owners, and the share of each set off to him in severalty, if such share is ascertainable.”

Syl. Martin v. Eaton, 18 C. C. (N. S.) p 300.

The foregoing case was on a demurrer to the petition, averring the plaintiff and defendant were joint owners of wheat in equal shares, and that plaintiff desires to have his share set off to him in severalty, with prayer that partition be made of the joint property.

Metcalf, J, in delivering the opinion of the Circuit Court in the foregoing case says on p. 300:

“A demurrer is filed to this petition on the ground that the facts stated do not constitute a cause of action, and it is argued that under the law of Ohio no partition can be made of personal property, and that is the only question we have to decide on this demurrer.

“It is true there is no statute authorizing this proceeding, at least our attention has been called to none, and so far we have been unable to find one. But in the absence of such statute does it necessarily follow that such an action can not be maintained? It is the province of equity to deal with the rights of parties upon principles of natural justice, and when the right ought to be enforced, is clearly just and contravenes no statute or principle of law, surely the absence of a statute specifically defining such right, or establishing some particular method of procedure in obtaining it, or the want of a precedent, should not prevent the court from doing what seems to be equal and exact justice between the parties. When two parties own personal property in common, and it is easily susceptible of division, and the share of each is ascertainable, what more appropriate method can be conceived of disposing of a controversy about it than to divide it between them, and what sound principle can be urged against it? On principle we think the right to partition is clear, and we are not entirely without light from the authorities. 21 A. & Eng. Encl, of L., 1160; Weeks v. Weeks, 5 Iredell Eq., 111 (s. c. Am. Dec., 358); Pell v. Ball, Cheves Ch., 99; Robinson v. Dickey, 52 Am. St. Rep., 417; Pickering v. Moore, 68 Am. St. Rep., 695; Wetmore v. Zabriskie, 29 N. J. Eq., 62; Perry v. Smith, 42 N. J. Eq., 504.

“The demurrer is overruled.”

The foot note to the foregoing case is as follows:

“Upon the trial of this case on the merits, at a subsequent term before Norris, Pollock and Metcalfe, JJ., the same conclusion was reached as to the right to partition as announced in the above opinion, and partition of the property was ordered.”

“Courts should be, and are, adverse to any rule which will compel unwilling persons to use their property in common. * * * The right of partition, either under the statute or in equity, is remedial in its nature, and should be liberally construed.”

30 O. Jur., Partition, Sec. 2, p. 834; Black, et v. Sylvania Producing Co., 105 Oh St 346.

The demurrer to the second cause of action in the petition is overruled. Entry accordingly with exceptions by counsel for defendants


author: By JOHNSON, J.

text:
    SPAHR, FERGUSON, and SPARKS, Acting as and Constituting a Majority of The Board of Elections of Greene County, Ohio, Plaintiffs, v. POWERS and DEATHERAGE, Defendants.
    Common Pleas Court, Greene County.
    No. 28956.
    Decided October 19, 1954.
    John A. Neatherton, Assistant Prosecuting Attorney, Xenia, for the plaintiffs.
    Marcus Shoup, Xenia, for the defendants.
   OPINION

By JOHNSON, J.

This matter is before the Court on the petition of the plaintiffs, Carl C. Spahr, Paul L. Ferguson and John C. Sparks, Acting as and Constituting a Majority of the Board of Elections of Greene County, Ohio, wherein said plaintiffs pray for a declaratory judgment defining the rights of said designated defendants, John R. Powers and Harry O. Deatherage concerning their respective eligibility to vote at . the May 4, 1954, primary election to be held in Greene County, Ohio, the petition alleging that in addition to the defendants, John R. Powers and Harry O Deatherage, there are other persons similarly situated; said petition further prays for a finding of the Court defining the duties of the Board of Elections relative to withdrawing the names of said defendants from the registration lists of said Board and for such other and further relief as may be just and proper. The record discloses personal service of summons was had upon the defendants as required by law, and all proper and necessary parties are before the Court.

On May 3, 1954, the Court directed and ordered, as provided in the entry therein filed, that the question of the legality of the registration of the defendants, John R. Powers and Harry O. Deatherage, and the right of said defendants to vote at the Primary, which question affects the right of other persons similarly situated should be held in abeyance and determined by the Court at a time to be set by the Court subsequent to the May, 1954, primary election, and wherein it was further ordered that said defendants and persons similarly situated as the defendants should be permitted to cast their ballots at said Primary, said order further stipulating that the Board of Elections should require the precinct officials to impound said ballots voted by the defendants as well as persons similarly situated and to keep said ballots separate and apart from the other voted ballots, and that said ballots should remain secret, sealed, and retained in the possession of the Board of Elections pending further orders to the Board of Elections by the Court.

Said petition for declaratory judgment alleges that the defendants, John R. Powers and Harry O. Deatherage, are persons residing in the Village of Yellow Springs and so registered with the Board of Elections * * * that on or about April 27, 1954, separate applications were filed with the Board of Elections for correction of the precinct registration list and challenge of the rights of the defendants to vote; that the challenge in respect to the defendant, John R. Powers, is based on the following grounds:

“Said John Powers is not legally qualified to have his name contained on the registration voter’s list of the above designated precinct by virtue of these facts:

“1. His home residence is Rome, New York.

“2. He enrolled in Antioch College, Yellow Springs, Ohio in 1950-1951.,

“3. His registration on 9-27-50 as a qualified elector of said precinct was illegal and without authority of law and contrary to and prohibited by the provisions of §4785-33a GC (Now §3503.05 R. C.).

“4. The above applicant for the said stated reasons challenges the right of said John Powers to vote at said precinct and herein applies to and requests said Board of Elections to cause the name of John Powers to be removed from such precinct registration list as required and provided for under §3503.24 R. C.”

That the challenge in respect to the defendant, Harry O. Deatherage, is based on the following grounds:

“Said Harry Deatherage is not legally qualified to have his name contained on the registration voter’s list of the above designated precinct by virtue of these facts:

“1. His home residence is Beardstown, Illinois.

“2. He enrolled in Antioch College, Yellow Springs, Ohio in 1951-1952.

“3. His registration on 3-26-52 as a qualified elector of said precinct was illegal and without authority of law and contra to and prohibited by the provisions of §4785-33a GC (Now §3503.05 R. C.).

“4. The above applicant for the said stated reasons challenges the right of said Harry Deatherage to vote at said precinct and herein applies to and requests said Board of Elections to cause the name of Harry Deatherage to be removed from such precinct registration list as required and provided for under §3503.24 R. C.”

The evidence introduced before the Board of Elections on April 29, 1954, pertaining to the residence of said defendants, the dates of enrollment at Antioch College, the dates of withdrawal or graduation from said College, and the dates of registration with the Board of Elections, relative to the defendant, John R. Powers, disclosed:

“Enrolled in Antioch College, January 27, 1946. Graduated from Antioch College, June 23, 1951. Registered with the Board of Elections, September 27, 1950. Residence prior to enrollment, Utica, New York. Residence since graduation, Yellow Springs, Ohio.”

These facts pertaining to the defendant, Harry O. Deatherage, disclosed:

“Enrolled in Antioch College, September 1, 1947. Graduated from Antioch College, June 23, 1951. Registered with the Board of Elections, March 26, 1952. Residence prior to enrollment, Beardstown, Illinois. Residence since graduation, Yellow Springs, Ohio.”

In order to determine the qualifications and eligibility of the defendants and those similarly situated to vote in said Primary, based on the facts so presented, it is necessary to resort to the election statutes controlling the same.

At the outset it can be stated generally that the right to vote is not a necessary incident to citizenship; neither is it a natural right, such as the right to personal security, the right to personal liberty, or the right to acquire and enjoy property. Except where restrained by the Constitution, the power of the General Assembly over it is unlimited. The right of suffrage in this state has its source in and is guaranteed by Sec. 1 of Art. 5 of the Constitution, which provides:

“Every citizen of the United States of the age of twenty-one years, who shall have been a resident of the State one year next preceding the election, and of the County, Township or ward, in which he resides, such time as may be provided by law, shall have the qualifications of an elect- or, and be entitled to vote at all elections.”

The legislature has further provided that the qualifications for voting at a primary election are that the person offering to vote is twenty-one years of age, or will have attained such age on or before the date of the next general election, that he is in other respects a qualified elect- or, and that he is a member of the party for which such primary election is being held. See §4785-82 GC (3513.19 R. C.).

Sec. 4785-35 GC (3503.07 R. C.) in respect to qualifications for registration provides:

“Each person, who will be of the age of twenty-one years or more at the next ensuing November election, who is a citizen of the United States, and who, if he continues to reside in the precinct until the next election, will at that time have fulfilled all the requirements as to length of residence to qualify him as an elector shall, unless otherwise disqualified be entitled to be registered as an elector in such precinct. ' When once registered in accordance with this act, an elector shall not be required to register again unless his registration is canceled for reasons as hereinafter provided.”

However, in addition to the above general requirements necessary to qualify an elector, there is a special statute §4785-33a GC applicable to the voting residence of students attending institutions of learning and which said section (now §3503.05 R. C.) was in force and effect at the time of the respective registrations of the defendants in question. Said section provides:

“If any person shall attend any institution of learning which is located in a county other than the county in which the voting residence of such person was located immediately preceding the time he commences to attend such institution, and if such person while so attending such institution, shall reside in the county in which such institution is located, his voting residence, while so attending such institution, shall be deemed to be at that location in the precinct in which it was located immediately preceding the time he commenced attending such institution.”

This statute clearly states that where a person attends any institution of learning located in a County other than the County in which the voting residence of such person was located immediately preceding the-time he commences to attend such institution, and where such person while so attending such institution continues to reside where such institution is located, his “voting residence”, while so attending such institution, shall be deemed to be at that precinct in which it was located immediately preceding the time he commenced attending such institution.

Do each of the defendants come within the controlling provisions of this special law?

It is conceded the defendant, John R. Powers, enrolled at Antioch College, January 27, 1946; that he graduated therefrom on June 23, 1951; that he registered with the Board of Elections on September 27, 1950; that he was a resident of Utica, N. Y. immediately prior to his enrollment at Antioch College and his residence since graduation has been in Yellow Springs, Ohio.

Under such conceded facts, and by virtue of §4785-33a GC it is clear that the voting residence of said John R. Powers on September 27, 1950, (that being the date of his registration with the Greene County, Ohio, Board of Elections) was in fact, Utica, N. Y. Since he, at that time, was ineligible for purpose of registration with the Greene County Board of Elections, such registration so made was contrary to law, and accordingly the challenge so made on April 27,1954, to require the Board of Elections to cause the name of said John R. Powers to be removed from such precinct registration list as entered on September 27, 1950, is well taken, and it is the order of the Court that said registration of John R. Powers, individually, as well as those persons similarly situated, be removed from the precinct registration list by the said Board of Elections.

In respect to Harry O. Deatherage, the agreed facts disclose that he enrolled at Antioch College September 1, 1947; graduated June 23, 1951; registered with the Board of Elections of Greene County, Ohio, on March 26, 1952; that prior to his enrollment he was a resident of Beardstown, Illinois, and since graduating has been a resident of Yellow Springs, Ohio.

The variance in the facts of Deatherage as distinguished from the case of Powers is evidenced from the fact the former graduated from Antioch College on June 23, 1951, and registered with the Board of Elections on March 26, 1952. If Deatherage, by virtue of Sec. 4785-33a, could not qualify for registration during his enrollment at college, when, then, would he be eligible to become registered as an elector of Yellow Springs? The answer to this inquiry must be ascertained by reference to the general statutes defining the residence qualifications of electors.

In the recent case of State ex rel Ehring v. Bliss et, Board of Elections of Summit County, 155 Oh St 99, a decision rendered March 21, 1951, the second syllabus of the same provides:

“Under the provisions of amended §4785-71 GC, the terms ‘voting residence’ and ‘postoffice address’ are not synonymous.”

Syl. 3. “Under the provisions of §4785-3 GC, an elector or qualified elector is a person having the qualifications provided by law to entitle him to vote.”

For the same reasons above heretofore stated, the voting residence of defendant Deatherage on June 23, 1951, (that being the date of his graduation) was necessarily, Beardstown, Illinois. The record discloses, however, he registered at Yellow Springs on March 26, 1952, the period being approximately nine calendar months succeeding his graduation. If he was so disqualified until June 23, 1951, was he required to obtain one year’s residence immediately thereafter, in Ohio, before being eligible to register?

Sec. 4785-30 GC provides:

“No person shall be permitted to vote at any election unless he shall have been a resident of the State one year, of the County forty days and of the voting precinct forty days next preceding the election at which he offers to vote * *

Deatherage, for purpose of procuring an actual voting residence in Ohio would have had to reside in the State for one year and in the County and voting precinct forty days. Under the provisions of §4785-33a GC his voting residence as of June 23, 1951, was Beardstown, Illinois, and it logically follows that for the purpose of obtaining the one year’s required voting residence in Ohio, such period would not have run until June 23, 1952.

The Secretary of the State of Ohio in a ruling entered in 1952 held:

“One must have been a resident of the State one year at the time of the next election in order to register prior to such election. Therefore, if a person will not have been a resident of the State for one year until June, 1952, such person may not register prior to the primary election, nor may such person vote in the primary election.” - Annotation to §3503.07 R. C. (Baldwin’s Ohio Code).

This ruling seems to have full application to the facts in the Deatherage case.

The election laws of this State are enactments of the legislative body, and where the provisions are clear and unmistakable it is the duty of the Court to uphold the same even though such conclusion in effect sometimes works an unsatisfactory result. In interpreting statutes of plain and unambiguous terms not susceptible of more than one construction, the Courts should not be concerned with the consequences, but should enforce the law as they find it. If the consequences of such statutes are objectionable, they may only be avoided by a change of the law itself, to be effected by legislative, not judicial action.

The controlling provisions of said §4785-33a GC apply to every institution of learning in the State and undoubtedly the purpose of its enactment was to provide uniform voting regulations applicable to persons attending such institutions within this State.

It is, therefore, the further judgment of the Court that the voting registration of said defendant, Harry O. Deatherage, as entered on March 26, 1952, as well as the names of those similarly situated, be removed from the respective precinct registration lists, and that any ballots so cast by such parties in question, in present custody of the Board of Elections, be destroyed.


author: By THE COURT.

text:
    ANDERSON, Estate of, In re.
    Ohio Appeals, Second District, Franklin County.
    No. 5228.
    Decided March 17, 1955.
    Jenkins, Williams, Wendt, Murray & Deeg, Richard C. Deeg, of Counsel, Columbus, for appellee, Opal Green.
    Sater & Sater, Kenneth L. Sater, of Counsel, Columbus, for appellant, Edith R. Funke, Executrix and Beneficiary.
   OPINION

By THE COURT.

This is a motion to dismiss the appeal for the alleged reason that the appellant has failed to comply with Rule VII of this Court in that no assignments of error or bill of exceptions have been filed within 50 days from the filing of the notice of appeal. The record discloses that appellant’s opening brief was filed within the required time and an examination of the same discloses that a bill of exceptions is not necessary to exemplify the errors complained of, but that they appear from the record. A bill of exceptions is therefore not necessary to perfect the appeal. Hoffman Candy Co. v. Dept. of Liquor Control, 56 Abs 257.

Decided April 7, 1955.

It is also urged that no assignment of errors has been filed. An examination of the brief discloses fully the errors complained of, although, it has not been so designated, but is noted as the issue presented. This is a sufficient compliance with the rule.

The motion will be overruled.

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

No. 5228.

OPINION

By THE COURT.

This is a motion filed by Opal Green, appellee, seeking an order dismissing the appeal of Edith R. Funke, Executrix, for the reason that the same, in so far as it relates to the executrix, is not appealable by her in such a capacity. The record reveals that the appeal is from a decision of the Probate Court of Franklin County declaring which of several claimants is entitled to receive rents accruing after the death of the testatrix. While the will does not specifically provide for the disposition of said rents, it is urged by the appellee that the decision is not against the executrix, and that it does not affect her in any manner. Therefore under §2101.42 R. C. she has no right of appeal. The cited section of the Code provides as follows:

“An appeal on a question of law and fact may be taken to the court of appeals in all cases in which such court has appellate jurisdiction. Such appeal may be taken from any order, decision, or judgment of the probate court, by a person against whom it is made or whom it affects, in the manner and within the time provided for the prosecution of such appeals from the court of common pleas to the court of appeals. * * *”

It has been repeatedly held by our Supreme Court that the right of appeal is not an inherent or inalienable right, but must be conferred by authority upon the person who would enjoy it. City of Middletown v. Commission, 138 Oh St 596; Lindblom v. Board of Tax Appeals, 151 Oh St 250; Corn v. Board of Liquor Control, 160 Oh St 9. In Miller v. B. U. C., 160 Oh St 561, at page 563, the Court says:

“As a general rule an administrative agency has no partisan interests in its decisions. Unless there is express statutory authority therefor, an agency may not appeal from a judgment which, in effect, vacates its decision.”

It appears to us that the duties of the executrix in this case are purely administrative and in which she is not interested. She officially represents the court, the estate, the creditors, the legatees, the devisees, all equally and without favor or prejudice, and in so doing the decision of the Probate Court is not adverse to her. It is more in the nature of instructions to her and as such does not present an issue or question which she may appeal. The principle of law applicable to this question was stated by this Court in the case of In re Estate of Turpen, 26 Abs. 587, Syl. 2:

“An administrator as to whose inventory an exception has been filed and overruled by the court is not an aggrieved party or one whose substantial right was affected by the order, and has no right under §§10501-56, 10509-60, or 12223-2 GC, to appeal from such order.”

This Court also announced the same legal principle in the case of Binns v. Smith, 26 Abs 225:

“A trustee under a will who secures a declaratory judgment designating the beneficiary entitled to a bequest thereunder has no such adverse relationship to the beneficiary named, as to authorize him to prosecute an appeal from the judgment construing the will.”

The appellant cites the case of Central Trust Company v. McCarthy et, 73 Oh Ap 431, in which an executor was prosecuting an appeal and upon a motion to dismiss being filed the same was overruled, but the Court held the same until the appeal was argued on the merit. When the case came on for final determination the Court found that no substantial prejudice to the estate or the purpose of the settlor was manifest and affirmed the judgment. This case we do not feel is in conflict with our views in this matter announced supra.

We are also referred to the case of Sokolowski v. Lucey et, 37 Abs 392, wherein a co-administrator refused to join in the prosecution of ah appeal and upon a motion to dismiss being filed the Court ordered the other co-administrator to be made an appellee in said appeal. It does not appear that the question presented in our case was even considered in the Sokolowski case, supra. We adhere to the legal pronouncements made in the cases of In re Estate of Turpén, and in Binns v. Smith, supra, and sustain the motion to dismiss the appeal of Edith R. Funke, Executrix.

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