text:
    McCLURG, Plaintiff-Appellant, v. DHUME, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5196.
    Decided December 7, 1954,
    J. Roger McClurg, Columbus, for plaintiff-appellant.
    Bryant & Phillips, Columbus, for defendant-appellee.
   OPINION

By THE COURT.

Submitted on motion of the defendant-appellee seeking an order dismissing the appeal for the reason that the order appealed from is not a final order. The record discloses that the order appealed from is one sustaining a demurrer to the petition. No order of dismissal has been entered. Therefore, there is no final order, as the ruling on the demurrer does not terminate the action. See Collins v. Cab Co., 157 Oh St 311. Motion sustained.

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


source: Caselaw Access Project

author: By McBRIDE, J.

license: Public Domain

text:
    BATES, Plaintiff, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant.
    Common Pleas Court, Montgomery County.
    No. 107984.
    Decided March 28, 1956.

      Myers, Mills, Boesch & Cline, Dayton, for plaintiff.
    Anthony A. McCarthy, Dayton, for defendant.
   OPINION

By McBRIDE, J.

The plaintiff, as beneficiary, brought this action on a life insurance policy in the amount of five hundred dollars on the life of Edward A. Bates, deceased. The defendant admitted the issuance of the policy in the amount alleged, the death of the insured and the beneficiary named in the policy. In effect, the defendant admitted the allegations of the petition, but set up an affirmative defense of fraud. The defendant alleged that the decedent, Edward A. Bates, fraudulently, and with intent to mislead the defendant, gave false information in answering questions contained in the application which was made a part of the policy; that the decedent knew the statements were false and that the defendant relied upon the statements and issued the policy, whereas had the answers in the application been truthful, the defendant would have refused to issue the policy. The plaintiff, by way of his reply, generally denied the defense. It was stipulated at the trial that the defendant company had tendered into court for the plaintiff the premiums paid on the policy.

The case was tried before a jury on the issues raised by the answer and the reply, the facts alleged in the petition having been admitted in the answer.

The evidence clearly established the existence in the application of false statements known by the decedent to be false. The decedent was confined in a hospital shortly after the issuance of the policy and died from physical ailments for which he had been regularly treated by a physician prior to the application for insurance. The decedent was a fifty-five year old butcher, advised by his physician that he had a bad heart and kidneys and that he could not lift or carry the weights required in his trade. At the time the decedent applied for the policy he carried a lapsed policy with the defendant company. The lapsed policy required a physical examination for reinstatement. The new policy did not require an examination.

After closing arguments, the defendant company requested a special verdict pursuant to §2315.14 R. C„ as amended and effective October 4, 1955.

The defense of a false answer in an application for life insurance is subject to the provisions contained in §3911.06 R. C. (§9391 GC), which provides: “No answer to any interrogatory made by an applicant in his application for a policy shall bar the right to recover upon any policy issued thereon, or be used in evidence at any trial to recover upon such policy, unless it is clearly proved that such answer is willfully false, that it was fraudulently made, that it is material, and that it induced the company to issue the policy, that but for such answer the policy would not have been issued, and that the agent or company had no knowledge of the falsity or fraud of such answer.” (Emphasis supplied.)

It is the opinion of the court that where a special verdict is to be rendered under the amended statutes, it is the duty of the court in its general charge (1) to fully, clearly and separately outline and explain each issue necessary for a complete determination of the case; (2) to separately submit in writing to the jury each determinative issue; (3) to furnish instructions as to the rules in weighing and in considering the evidence as to the burden of proof necessary to establish the facts, and as to the rules in determining the credibility of witnesses; (4) to furnish such definitions and instructions of specific law as are necessary to enable the jury to intelligently resolve each determinative issue, without disclosing the general law or judgment that may be rendered; and (5) to explain the function and duty of the jury concerning the rendition of the special verdict. (Secs. 2315.14 and 2315.15 R. C., as effective October 4, 1955; Dowd-Feder v. Schreyer, 124 Oh St 504; Landon v. Lee Motors, 161 Oh St 82, 53 O. O. 25.

Since the foregoing is a modification pf the established rule it should be noted that the second item is required by §2315.15 R. C., which provides that the court submit “in writing each determinative issue,” and §2315.14 R. C., which provides that the jury find “separately upon each determinative issue.”

The fourth item is a more specific statement as to instructions of law that are ‘“necessary to enable the jury to clearly understand its function” in a special verdict case. Amplification of the rule as to instructions of law is necessary under the amendments, not because the duty of the trial judge is different in that respect but because of the argument that the court is required to furnish the complete law of the case. 16 O. S. L. J. 460. The established rule prohibiting any instructions except those generally enumerated fails to distinguish between instructions of law that are necessary and those which are improper, and therefore does not constitute a practical guide for the trial court. The modification expressed here has been accepted in several cases but not directly approved by the Supreme Court.

In presenting the issues the court submitted the following six questions to the jury:

“1. Did the decedent, Edward A. Bates, furnish information relating to his health in the written application for Policy No. 540 855 744?
“2. Was the written information furnished by the decedent, Edward A. Bates, in the application, regarding the condition of his health false?
“3. Was this information, which Edward A. Bates furnished, material to the purpose of the application and the issuance of the policy?
“4. Did the decedent, Edward A. Bates, willfully and with intent to mislead the insurance company make false statements as to his health in the application for insurance?
“5. Did the defendant, The Prudential Insurance Company, rely upon the information as to his health furnished by the decedent, Edward A. Bates, in the application for an insurance policy?
“6. Did the defendant, The Prudential Insurance Company, or its agent, know that the statements regarding the health of Edward A. Bates, as contained in the application for insurance, were false?”

In explaining the specific law and definitions necessary to ■ resolve these questions the court furnished the jury with the basic law as to fraud outlined in Wood v. John Hancock Life Insurance Copmany, Franklin County Common Pleas Court, as provided in Fess on Ohio Instructions to Juries, Section 54.22, avoiding however any reference to the general law as to which party might recover and avoiding any statement as to the effect of the findings of the jury.

The jury answered all six questions in the affirmative. After the special verdict was read the following took place in the court room:

“The court: Members of the jury, as I understand your answers to these interrogatories, you have answered the first five in the affirmative and you have answered No. 6 in the affirmative indicating that the defendant, The Prudential Insurance Company, did know these statements were false.
“Foreman: Or its agent.
“The court: Either the company or its agent did know that the statements contained in the application for a policy were false. (To counsel) Any questions? (Indicating none.)”

It is apparent from the testimony that questions No. 1 and 3 were unnecessary as a matter of law. The sixth question, as indicated by the foreman, was the only one which included separate knowledge of the agent. The question was required by §3911.06 R. C., and not because of a specific allegation in the pleadings. That section provides that the insurer seeking to avoid a policy because of a false answer must “clearly” prove that the company and the agent had no knowledge of the falsity of the answer. The insurer must “clearly” establish a negative issue in order to succeed. This is a difficult burden that the legislature has placed upon the insurer, and in view of the circumstances in the evidence in this case the court cannot find that the answer of the jury is against the weight of the evidence.

The language of, §3911.06 R. C., is plain and unambiguous and is comparable in purpose to that of §4505.04 R. C. (§6290-4 GC), on certificates of title, which has been the subject of many decisions since Mielke v. Lieberson, 150 Oh St 528, 38 O. O. 352.

After the jury was briefly questioned by the court on its verdict and counsel had no further questions, the jury was discharged. Before the jury left the court house, it was observed that the sixth question did not contain a reference as to time.

It is argued that the sixth question is indefinite because of the absence of such expression and because questions No. 5 and 6 are inconsistent. That they are not inconsistent was specifically reported by the foreman, as indicated above. The sixth question was the only one which permitted the jury to express knowledge of the agent.

As the court understands the new amendments, a “determinative issue” is a material allegation of pure or qualified fact contained in the pleadings, or a similar fact not necessarily pleaded, which is controverted by the adverse party, a decision on which enables the court to apply the law and order what judgment shall be rendered. The sixth question related to an issue which, like contributory negligence or the issues in a will contest, need not be pleaded and therefore the parties were not entitled as a matter of right to a special finding on this issue. Sec. 2315.16 R. C., as amended effective October 4, 1955.

Counsel have the right under amended §2315.16 R. C., to special findings on “material allegations” with a special verdict. This feature of the amendments was discussed before submitting the verdict and was one of the reasons which prompted the court, after the verdict was read, to inquire if there were any further questions before the jury was discharged. While counsel may not as a matter of right demand submission of an interrogatory unless the allegations are contained in the pleadings, and, in any event, may not do so after the jury has commenced deliberations, nevertheless the court has the inherent authority to submit an interrogatory on a neglected issue or fact until the jury is discharged. The court may exercise that right in the interest of justice and to avoid a new trial. Simms v. The Stark Electric Railway Co., 6 Oh Ap 264. In the instant case a special finding or two would have been very useful on the sixth question. As the facts and circumstances indicate, it was the critical issue; yet it did not appear as an allegation in the pleadings.

The inclusion in the sixth question of an expression referring to the time the policy was issued would have avoided any doubt as to the verdict which is otherwise consistent and complete. The issues in the case related to the statements on the application, the circumstances and conduct of the individuals prior to the issuance of the policy. All of the questions, construed together, related to the same period of time. In addition, in explaining the issues to the jury, the court specifically instructed the jury in the general charge, as follows:

“And in the last question, you will answer the question as to whether or not the insurance company, or its agent, knew, that is had knowledge, at the time that it issued the policy that the statements made by Edward A. Bates in the application were not true.”

The jury was specifically informed that this question related to knowledge at the time the company issued the policy. It must be assumed that the jury followed those instructions.

The law favors special verdicts and will sustain them whenever it can be done consistently with the rules by which they are governed. Where findings will fairly admit of an interpretation which will harmonize them with one another that interpretation should be given, rather than one which will destroy the findings and the verdict. 53 Am. Jur., Section 1093, page 757. The general rules for the construction of special verdicts fail to include the precise question raised in the instant case as to the reliance that may be placed upon the instructions of the court in construing a special verdict. 39 O. Jur. 1145; 53 Am. Jur., Section 1078, page 747; 24 L. R. A. 1, et seq.

The first five questions submitted to the jury related to the time prior to the issuance of the policy. It may be plainly and reasonably inferred that the sixth question related to the same period of time since no other time was in issue in the case. In addition, the court expressly instructed the jury that the sixth question related to knowledge prior to the issuance of the policy. It is the duty of the court to separately outline and define the issues in a special verdict case and a construction consistent with the court’s express instructions, required by the rules governing special verdict procedure, is proper and is in conformity to the general presumption that the jury followed the instructions of the court.

Where all the questions submitted to the jury plainly and reasonably referred to a time prior to the issuance of a life insurance policy and the court in its general instructions to the jury expressly instructed the jury that the final question related to knowledge prior to the issuance of the policy, it is proper for the court, in construing the final question contained in the verdict to adopt a construction consistent with all of the other questions and consistent with instructions of the court.

The memorandum of the defendant is based almost exclusively upon the case of John Hancock Mutual Life Insurance Company v. Luzio. 123 Oh St 616, and is directed in support of defendant’s motion for judgment notwithstanding the verdict. The citation is a strong case which appears to qualify an express legislative condition and must be considered carefully. At several points in the opinion it is pointed out that “neither the application or the answers to interrogatories are contained in this record.” P. 627. The rights discussed are those of the insured and not those of the beneficiary. The reference to a conspiracy to defraud is not involved here nor is it supported by any evidence in the instant case. In view of the unqualified condition precedent in §3911.06 R. C. (§9391 GC), and the finding of the jury that the insurer failed to establish that its agent did not know the statements were false, the motion for judgment notwithstanding the verdict is overruled.

The defendant, The Prudential Insurance Company, having failed to establish that its agent did not have knowledge of the falsity of the statements, has not maintained its defense under §3911.06 R. C., and the finding and judgment is for the plaintiff for the amount of the policy with interest.


author: By THE COURT:

text:
    STATE, Plaintiff-Appellee, v. WATSON, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2243.
    Decided July 9, 1953.
    Mathias H. Heck, Pros. Atty., Dayton, by Walter A. Porter, Asst. Pros. Atty., for plaintiff-appellee.
    Canny, Stewart & Cromer, Dayton, Clarence J. Stewart, of Counsel, for defendant-appellant.
   OPINION

By THE COURT:

Submitted on motion of Plaintiff-Appellee for an order dismissing the appeal on the ground that Defendant-Appellant failed to file his assignments of error and brief with the transcript as provided in §13459-3 GC.

This Court has consistently ruled that the provision in §13459-3 GC, requiring the briefs and assignments of error to be filed with the transcript is mandatory, and a motion to dismiss the appeal will be sustained for failure to comply with this requirement. See State of Ohio v. Moore, 84 Oh Ap 91; City of Dayton v. Swartzel, 88 Oh Ap 512, 517, and cases therein cited.

The motion to dismiss will be sustained. Motion of appellant for extension of time is overruled.

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


author: By TOBIN, J.

text:
    VODREY, Admr., Plaintiff, v. QUIGLEY et, Defendants.
    Probate Court, Columbiana County.
    No. 51712.
    Decided April 25, 1956.

      William H. Vodrey, Jr., East Liverpool, for J. Norman Vodrey, Administrator, plaintiff, and defendant, J. Norman Vodrey.
    Metzger, McCorkhill & Metzger, Guy J. Mauro, Salem, for defendant, Helene C. Quigley.
    Clark & Clark, East Liverpool, Hunston, Atkinson & Lower. Salem, for defendant, James R. Vodrey et al.
    John R. Milligan, Canton, for defendant, Kathryn Vodrey Milligan.
   OPINION

By TOBIN, J.

This cause came on to be heard on the Petition to determine heir-ship filed by J. Norman Vodrey, Administrator, and on the answers of the various parties. The Court finds as facts, that Pauline Ann Vodrey died at the age of 19 years. That she was the natural child of William N. Vodrey and Pauline Campbell Vodrey both of whom predeceased her. That there was a valid adoption on May 15, 1951 by her Aunt, Sarah Vodrey Gardner, sister of her father, William N. Vodrey. That Helene C. Quigley, is her nearest relative by blood, and that J. Norman Vodrey is her nearest relative on the side of her adopted parent.

The first question to be disposed of is whether or not the nearest blood relative, Helene C. Quigley, would inherit despite the valid adoption of May 15, 1951. The Court finds and decides that under §3107.13 R. C., the language of which is as follows: “For the purpose of inheritance to, through and from a legally adopted child, such child shall be treated the same as if he were the natural child of his adopting parents, and shall cease to be treated as the child of his natural parents for the purpose of intestate succession.” This clearly eliminates any and all rights of the natural blood relatives of the child in favor of the adopting parents or their relations for the purpose of intestate succession. Therefore, any and all rights of Helene C. Quigley as the nearest blood relative and sister of the natural mother of the decedent were cut off by the adoption and subsequent death of Pauline Ann Vodrey by operation of this statute. The reasoning of Helene C. Quigley that this did not take effect because the natural parents were dead at the time of the adoption, is not accepted by this Court. The reference had in the first part under §3107.13 R. C., which reads in part, “The natural parents, if living, shall be divested of all legal rights and obligations due from them to the child or from the child to them, and the child shall be free from all legal obligations of obedience or otherwise to such parents” refers to the duties of the child and its obligation to the natural parents. The matter of inheritance is entirely controlled by Sub-section A and B of this same Code Section. The Court further states that the child is very much a party to the adoption action and therefore is bound by the statute, in effect at the time of her death relating to adoption and matters of inheritance. The argument placed before this Court that the adoption may be binding upon the adopting parents or natural parents but is not binding upon the blood relatives of the adopted child is not persuasive in this case. This is not an instance where an adopted child is trying to claim throught natural blood relatives, but is a case of the natural blood relatives trying to claim through the adopted child. Since the child was very much a party to the adoption and in the instant case had filed an answer and consent, under any manner of reasoning the adoption and all the implications as to matters of inheritance were binding upon the child, and if so, on all those who claim through the child.

The Court finds under 129 Oh St 625, Ostrander v. Preece, and other cases quoted in plaintiff’s brief that the legislature was perfectly within its Constitutional rights to change the matter of inheritance. Therefore the claim of Helene C. Quigley is rejected.

Coming now to the second question: Who are the heir or heirs of Pauline Ann Vodrey? The mother by adoption of Pauline Ann Vodrey at the time of her death was Sarah Vodrey Gardner, deceased. Both the parents of Sarah Vodrey Gardner are deceased and neither grandparent left any lineal descendants. Their only children were William N. Vodrey, natural father of Pauline Ann Vodrey and Sarah Vodrey Gardner, his sister and Pauline’s aunt, and the sole issue of both William N. Vodrey and Sarah Vodrey Gardner was Pauline Ann Vodrey, herself. Since Pauline Ann Vodrey could not have left a will, she being a minor, the property must be disposed of in accordance with the statute on descent and distribution, and also in accordance with §2105.06 E. C., Sub-section H. Since there were no grandparents surviving or any lineal descendants of the grandparents surviving, then the next of kin of the intestate inherits under the express provision of this section, which in part reads: “there shall be no representation among such next of kin.” The claim has been advanced that by virtue of Section H of §2105.06 R. C., former §10503-4 GC, that the estate must be divided into two portions and each portion administered as if there were two estates. The cases of Snodgrass v. Bedell, 134 Oh St 311 and In re Estate of Dennis Raymond Kelly, case No. 5075, Court of Appeals, Franklin County (reversed, 165 Oh St 259), are cited on behalf of this proposition. A careful reading of such cases discloses that they decided only this one principle of law namely:—that each half of the estate is to vest in one of the grandparents by virtue of said grandparent surviving or the lineal descendants of such grandparents surviving and then the other half of the estate may descend to those farther removed than lineal descendants of grandparents, and each half is inherited as if each were a separate estate being separately administered. Both of the above cases make it clear and plain that a condition precedent to its reasoning is that at least one half of the estate must vest in either a grandparent or said grandparent’s lineal descendants before the principles in these cases apply. In the instant case, neither grandparent survived and neither left any lineal descendants. Therefore the principle and reasoning in the above cases do not apply. The plain provision quoted in §2105.06 R. C., Sub-section H, which reads in part, “If there are no surviving grandparents or lineal descendants then to the next of kin of the intestate providing there shall be no representation among such next of kin,” leaves no doubt that in such a case the nearest of kin inherits all the estate. The Legislature decided in the enactment of this statute that it would not be necessary to seek all the heirs on both sides of the family beyond the grandparents or their lineal descendants. After that only the nearest of kin on either side need be found. It is perfectly reasonable for the Legislature to establish such a point beyond which one need not seek to find all the possible branches of a family tree. It is just as logical to use this as a breaking off point or any other stopping place the Legislature may have decided. This Court thus decides that before it is required that an estate be divided into equal halves and descend to the heirs of both branches of the family at least one grandparent must survive, or not surviving must leave lineal descendants. Where both do not survive and both do not leave lineal descendants there is no division of the estate and the entire estate goes to the next of kin without representation.

Since it is admitted that the sole next of kin and closest relative of Pauline Ann Vodrey through her adopted mother, Sarah Vodrey Gardner was J. Norman Vodrey, the Court finds that J. Norman Vodrey is such next of kin and the sole heir of Pauline Ann Vodrey, deceased.

The Court further finds that the matter of the constitutionality of establishing a succession inheritance generally, in this case particularly, have been determined by previous decisions of the Supreme Court in the case of Gilpin v. Williams, 25 Oh St 283; Pollock v. Speidel, 27 Oh St 86; Ostrander v. Preece, 129 Oh St 625.

Therefore the legislature may, and in the present case has, determined the manner in which intestate property shall descend and in doing so was perfectly within its legal and constitutional rights.

The said argument has been advanced by the claimant Helene C. Quigley, that the adopted mother perpetrated a fraud by adopting the child, Pauline Ann Vodrey and using the child’s estate for its support, thus neglecting the principal duty of a parent to support such child. Even if such facts were established to be true, nevertheless such action is not enough to invalidate an otherwise legal adoption or to change the plan provided under the laws of descent and distribution.

To recapitulate the Court’s finding, the Court finds that by virtue of the adoption Case No. 325 of May 15, 1951, and by virtue of §3107.13 R. C., which was in effect at the time of the death of Pauline Ann Vodrey in March, 1954, that the natural blood relative Helene C. Quigley is legally no longer an heir of Pauline Ann Vodrey; that Pauline Ann Vodrey’s adopted mother, Sarah Vodrey Gardner and her two grandparents, William E. and Laura G. Vodrey did not survive her, that neither her adopted mother nor either of her grandparents, William E. and Laura G. Vodrey left any lineal descendants and that J. Norman Vodrey is the next of kin and that by virtue of Section H of §2105.06 R. C., is the sole heir of Pauline Ann Vodrey.

Exceptions permitted to all parties.

See Journal.


author: By MERRICK, J.

text:
    SMITH, Gdn., Plaintiff, v. MERKLE et, Defendants.
    Probate Court, Cuyahoga County.
    No. 459085.
    Decided September 10, 1956.
    Clarence J. Oviatt, Robert E. Sweeney, for petitioners.
    Miller, Davis & Folk, for defendants.
   OPINION

By MERRICK, J.

This matter comes before the Court on a Petition to Vacate an Order for Allowance of Attorney Fees for services alleged to have been performed for the benefit of the estates of three minor wards of the plaintiff herein and an allowance for maintenance and support.

Though it may burden the body of this opinion, a recitation of some of the history and facts prior and incident to entry of the order of December 18, 1952, becomes necessary. This is the order sought to be vacated.

Mary E. Howard died in 1949. By the terms of her will, after certain specific bequests, a life estate was left to her mother with remainder to nine persons, three of whom were the children of the plaintifi, all three of whom were minors at the time of the probate of the will. The life-tenant died in 1952 and distribution was attempted.

In one of the specific bequests there was devised to Harry J. Smith for life with remainder to his four children a residence in Lakewood, Ohio. He is the husband of the plaintiff herein. The devise contained language which subjected the taking to a mortgage executed by the testatrix during her lifetime.

Shortly after the probate of the will, Harry and Jennie Smith contacted Edward J. Burke and Robert Merkle. They will be referred to as the attorneys in the balance of this opinion. A contract of employment was drawn by the attorneys and executed mutually. Among other things, it provided that the Smiths were engaging the attorneys to contest the will and were to receive as fees, one-half of what might be recovered by a will contest action over and above what the will provided for them. The contract further provided that if the attorneys would succeed in securing payment of part or all of the mortgage from the estate they would be entitled to payment of one-half that sum. There was a further provision that if the attorneys were unsuccessful in securing any additional amount they were to be paid a fair and reasonable compensation for their services. There was a further proviso that Anna G. Smith was to make a will, giving to the minor children the same share which they were obtaining under the will which was to be contested in the event of a successful outcome of such contest.

The will was not contested and no part of the mortgage was paid by the estate.

The estate was administered with some slight delays. In May of 1950 a Petition for Declaratory Judgment was filed seeking a determination of the rights and liabilities of the estate and all others concerned as to the mortgage. The minors were parties and a guardian ad litem was named to represent them and an Answer was filed on their behalf. This action was later dismissed when the bank secured from the life-tenant an assumption agreement and a commitment to make payments on the mortgage.

The attorneys represented the parents of the minors in the negotiations for this assumption, which, of course, ended up with no gain to themselves. There was also an adoption proceedings in which the attorneys performed valuable services for the parents.

In February, 1952, the parents were appointed legal guardians for the children. The attorneys handled the details of the application and acted as attorneys for the fiduciary in securing and posting bond.

Previous to the transfer of the stocks referred to herein, the parents had paid to the attorneys the sum of $520.00, in cash, as fees and expenses. Throughout this trial, the parents have contended that this was in full payment for all services rendered, contending that the negotiation and settlement of the mortgage question was paid to other counsel out of the estate and trust.

At the closing of the Howard trust, there was launched a plan by the attorneys to secure for themselves a substantial fee. They had been unsuccessful in securing anything for the Smiths out of the Howard estate. There was a distribution in kind to be made to the minor children under the Howard will and trust and the Smiths had obtained possession of the real estate.

In addition to a personal injury settlement and some small income from the estate, there was distributed to the minors out of the Howard trust on December 18, 1952, the following corporate shares in kind:

567 shares W. T. Grant Co. valued at that date at $33.00 per share according to the inventory prepared by the attorneys, or a total value of $18,711.00.

Simultaneously, there was distributed to Harry Smith, one of the parents, 70 shares of the same corporate stock of the value of $2,310.00.

The stock certificates were distributed to the attorneys who called a meeting in the office of one of them on December 16, 1956, to consummate the distribution. The testimony varies and is in some instances in direct opposition as to what was said at this meeting which lasted several hours. The parents contend that when the question of fees was discussed, they objected to paying anything further. The attorneys testified that all was explained fully and fairly and agreed to by the parents. The parents were vehement in their denials that there ever was any mention of a claim to be made by the guardians for the support and maintenance of the wards. The parents contend that they had confidence in the attorneys and trusted them to the extent that they signed all papers submitted.

A perusal of the record and exhibits discloses that the following course was pursued:

Seventy shares of the stock was endorsed by one parent to the attorneys in payment of fees. This was his own property and is not involved in this litigation. This represented a value of $2,310.00.

An amended inventory was prepared and filed in the guardianship representing that 567 shares of the stock had been received by the guardian into the wards’ estate.

An application was prepared by the attorneys on behalf of the guardian which represented that the guardian and her husband had not been able to maintain and support their minor children for a period of three years and that a reasonable allowance for such support would be 120 shares of the stock. No explanation is contained in the application as to whether the children were maintained by others or on borrowed money or by any other method.

The same application further states that legal services had been rendered to the minors for three years in connection with the estate of Howard and the interests of the wards therein and in connection with the guardianship and other matters. A purported exhibit to set forth an itemization is merely a general claim for 300 hours of legal services. It is interesting to note that most of the claim is for services to the minors in the Howard estate. It might be well to pause here and observe that if the purpose of the original contract for legal services had been fulfilled and the Howard will found not to be a last will and testament, that the minors would have received nothing. The application asked for 60 shares as attorney fees.

The application further states that consents of the parents and the three minors have been received and that they waive notice. Their signatures are attached to such waiver and consent.

There was no formal hearing on the matter and the Probate Court approved the application and a journal entry which had been prepared by the attorneys was approved by the Court.

The certificates were split by the corporation and the plan carried into execution. All in all, the attorneys received 70 shares from one parent and the following shares from the guardianship:

by direct tranfer from the guardian to the attorneys by way of fees for services alleged to have been rendered to the wards—60 shares

by transfer from the guardian to the parents to the attorneys for maintenance and support of the wards allowed the parents and then endorsed over to the attorneys for fees for services rendered to the parents —120 shares

To recapitulate, the attorneys received 70 shares from one parent for services rendered, or the equivalent of $2,310.00; direct from the guardianship for services rendered, 60 shares, or the equivalent of $1,980.00; from the guardianship to the parents for maintenance and support of the wards and then by endorsement to the attorneys for services rendered the parents, 120 shares, or the equivalent of $3,960.00, or a grand total of $8,250.00 in addition to cash payments of $520.00, which are referred to in the brief of the attorneys as “token payments.”

There was no guardian ad litem appointed for the wards in the face of the adverse claim for maintenance and support and fees to be diverted to the attorneys. Stock of the value of $5,940.00, the property of the wards, was diverted to the attorneys in this application and order.

A long trial was had and the testimony of all concerned was taken. This Court can come to but one conclusion and that is that this unusual device of transfers and allowances was resorted to in a plan to take out of the guardianship funds sufficient to pay the fees claimed by the attorneys against the parents. In the opinion of this Court they rendered very little by way of services in the guardianship and should have looked to the parents directly for whatever fees were owed by them.

The subterfuge of the allowance for maintenance to secure a transfer of stock out of the guardianship was done under such circumstances as to constitute a fraud upon the wards. The entire plan was conceived by the attorneys and carried out swiftly with the passive consent of the parents who maintain that such was not their intent and purpose. Perhaps the parents might be open to some criticism by this Court for carelessly lending aid to the plan whether they knew of its full import or otherwise.

However, the decision in this matter must revolve around the failure of the attorneys, or the guardian, to secure the appointment of a guardian ad litem when the plan was presented to the Court. The children are now objecting through the medium of this petition by their guardian to void the entire transaction.

Equity looks with extreme jealousy on transactions between parties who stand in a confidential relationship. Between such parties, a transfer of property will be set aside, unless the person who benefited can show that utmost good faith was exercised, and that the benefit was conferred with a full knowledge of all the circumstances. Peterson v. Mitchener, 79 Oh Ap 125. If a party having an infant under his influence and control, against whom he is prosecuting a suit in which no defense is made for the infant, intends to insist on the rights of an ordinary adversary, he ought first to surrender the advantages arising from his fiduciary or quasi-fiduciary character, Long v. Mulford, 17 Oh St 485.

In a suit or proceeding in which the guardian has an adverse interest, the Court shall appoint a guardian ad litem to represent such minor. Sec. 2111.23 R. C. In all suits in which infants are parties defendant, it is the duty of the Court to carefully safeguard the rights and interests of such infants and it is also the duty of a guardian ad litem to ascertain the legal and equitable rights of his ward and to bring those rights to the attention of the Court for consideration and decision. Bennet v. Fleming, 105 Oh St 352.

Failure to appoint a guardian ad litem for a minor defendant renders the judgment erroneous as against the minor. Robinson v. Gatch, 85 Oh Ap 484.

Consolidating the theories advanced in this opinion, this Court determines that the entire proceeding which transferred the stock in question out of the guardianship, by whatever device, was a fraud upon the wards herein and was done without proper notice to them and was further done without the appointment of a guardian ad litem.

There is no doubt but what the attorneys planned this entire procedure for their own gain as against the minors, that the claim for maintenance and support was a fabrication, made to implement the ultimate accomplishment and that the claim for attorney fees was improperly presented and so closely tied into the balance of the transaction as to become a part thereof and be placed in the same category.

It is the conclusion of this Court that the attorneys secured an undue advantage of the wards herein and did so by their own devices which were contrary to law and the principles of equity and should be required to make the estate of the wards whole by one of two processes:

1. By returning to the guardianship 180 shares of the same W. T. Grant Co. stock, together with all dividends, cash or stock paid on such stock since December 18, 1952, or

2. By returning to the guardianship cash in the amount of $5,940.00 with interest at 6% from December 18, 1952.

It is the further order of this Court that the guardian may elect to accept which ever of these two orders will net the greater advantage to the estate. A journal may be prepared according to this finding.


author: By SKEEL, J:

text:
    FIORELLI, Estate of, In re.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23767..
    Decided May 23, 1956.
    Nicola & Horn, for appellee.
    Harold Weinstein, for appellant.
   OPINION

By SKEEL, J:

This appeal comes to this court on questions of law from a final order approving the fifth partial account of the testamentary trustee (filed October 14, 1955) and overruling the objections of the beneficiary of the trust filed by her guardian ad litem appointed for the purpose of presenting objections to the account.

Lucia Fiorelli died early in 1938, leaving an estate consisting of some personal property, personal claims of doubtful value and a four-family house located at 15802 Halliday Avenue in the City of Cleveland. Her will was admitted to Probate and one of her daughters, Clara Fiorelli was appointed executrix as requested by the will. After providing for certain specific bequests of the household furnishings, other chattels and money, the will provides in Items 6 and 7 as follows:

“ITEM 6. I hereby give, devise and bequeath one-half of all the rest and residue of my property to my daughter, Clara Fiorelli, she to have and to hold the same unto herself and her heirs forever.
“ITEM 7. I hereby give, devise, and bequeath the remaining one-half of my property unto Clara Fiorelli, as Trustee for my granddaughter, Joan Fiorelli, until Joan Fiorelli arrives at the age of twenty-one years. Thereafter, said property shall become the property of my said granddaughter and shall be turned over to her, and my said granddaughter shall have and hold the same unto herself and her heirs forever.
“My said daughter, Clara Fiorelli, as such trustee, is hereby given full power and authority to sell any part or all of the property herewith left to her as such trustee and is hereby authorized and empowered to execute any bill of sale or deed of conveyance and to take back any note and/or mortgage that she may deem proper to take for a part of the purchase price of any or all of said property, and that she may invest and reinvest the same in any manner she deems proper.
“I hereby empower my said trustee and authorize her to make any payments for and on behalf of the education of said Joan that she may deem for the best interest of said Joan, and to pay for any medical attention that may be needed for the proper care and maintenance of said Joan, and is hereby also empowered and authorized to pay for the care and maintenance of said Joan in the event Joan’s father, my son Nicholas, is unable to properly keep and maintain her.”

Clara Fiorelli was appointed testamentary trustee May 13, 1938, and on May 23, 1938, a bond in the sum of $1,000 (as ordered by the court in granting the application) was filed and approved and letters of trusteeship issued. On the same day the trustee applied for authority to pay out of funds received as rent and held in part in the trust estate an amount necessary to discharge certain of the then unpaid “legacies” (bequests) to avoid a land sale proceeding. This motion was granted and the first partial account shows that on October 14, 1938, the trustee charged the trustee’s account $614.80 on such authority and the administration of the estate was then closed.

The house, one-half of the ownership being in Clara Fiorelli and the other one-half in Clara Fiorelli, Trustee for Joan Fiorelli, a minor, until Joan became of age, as shown by the provisions of the will above quoted, was built sometime prior to 1916 as a two-family house. In 1917, two more suites were added to the rear. There are two separate basements, one for the front suites and one for the rear suites.

The trustee has lived in the front downstairs since the house was built, at first with her family, which included her sister, Elizabeth. Elizabeth married Andrew Marfongella in 1937 and they took up their residence there. After her mother’s death, the trustee continued to live in this suite with her sister and brother-in-law, Mr. and Mrs. Marfongella, and since the death of Mr. Marfongella, the two sisters occupied this suite together. When the Marfongellas were married in 1937 and came to live in Suite No. 1 at 15802 Halliday Avenue, they paid Mrs. Marfongella’s mother $25.00 per month for only partial occupancy with the rest of the family. After the death of Lucia Fiorelli, the mother, the Marfongellas then paid Clara Fiorelli, trustee, $25.00 per month for like occupancy until the death of Mr. Marfongella. Since then Elizabeth Marfongella has continued to pay $25.00 rent per month to her sister, which amount has been returned by the testamentary trustee, Clara Fiorelli, as the income from Suite No. 1. Clara Fiorelli has paid no rent as compensation for occupying Suit No. 1, after her mother’s death other than the payments ($25.00 per month) received from her brother-in-law, Andrew Marfongella, and after his death, from her sister. The right of Clara Fiorelli to reside in the family home without compensation by family agreement must end upon the death of the head of the household and owner of the property. The use of one-half the two-car garage by the Marfongellas was permitted by the trustee at no extra cost. Suite No. 1, occupied by the trustee and her sister, consists of five rooms in the front on the first floor of 15802 Halliday Avenue. In 1942, the Trustee installed two new coal furnaces, each to service two suites, at an expense of $825.00. In August of 1947, the account shows an expenditure of $150.00 for paper hanging. Since all of the other tenants deny that any decorating was done in their suites after they moved in, this work must have been done in the trustee’s suite. In 1948, the trustee had the coal furnace, installed in 1942, servicing her suite and the suite directly above, removed and two new gas furnaces (one for each suite) installed at a cost of $1,000.00. The same thing was done for the two rear suites in 1950 at a cost of $974.00 so that in a little over seven years about $2800.00 was spent for furnaces.

In 1953, the trustee employed The Cleveland Tile and Cabinet Company to remodel the kitchen and bathroom in her suite at a total expense of $2027.00. This work included tiling the wall of the kitchen up about five and one-half feet from the floor, putting in a new stainless steel kitchen sink with cabinets below, marble window sills, sliding towel bar, sanitas wall coverings in place of paper and wall register. She also had an incinerator installed in the basement under her suite at an expense of $147.62. She also installed certain plumbing to provide for an automatic washing machine, including new laundry trays for her exclusive use, and repairs to the kitchen sink installed two years before at a cost of about $190.00 and a new overhead door for the garage, used by her sister, Mrs. Marfongella, at a cost of $190.40. At the time of the remodeling of the kitchen, the trustee expended considerable money to redecorate the suite. The total amount of money expended in the suite occupied by the trustee and the garage used in connection therewith for the period of the fifth partial account would equal more than ten years rent received for its use without considering payment for water rent, trustee’s fees, taxes and insurance paid by this trustee out of income and is the only suite in the building where the rent has not been increased since fixed in 1938 for only partial occupancy.

The suite on the second floor above that which is occupied by the trustee was vacated by the DeMarcos on April 15, 1946, who were then paying rent at the rate of $30.00 per month. The suite was vacant until November 1, 1946, when it was rented to F. Mistichelli at a rental of $40.00 per month. The rent for this suite has not since been changed. While vacant, a new kitchen sink at a cost of $160.14 was installed, and this suite was competely redecorated and the floors sanded and varnished. Since that time, no painting or paper hanging has been done in this suite. There is some claim that the trustee’s sisters helped do this work as a supporting reason for low rent. The account shows that at least some part of the work was done by others because while this suite was vacant the trustee paid $21.50 for paper hanging and the bill indicated the work was done in the kitchen. Except as to Suite No. 2, which was redecorated before being rented to the Mistichellis, and the work done in the trustee’s suite, no money has been expended for decorating purposes on any of the suites other than that done by the tenants, themselves.

The suite on the first floor in the rear is occupied by a sister of the trustee (Susie Petrecca) and her husband. Mr. Petrecca uses one-half of the garage which has been built into a storeroom. He now uses it to store a tractor recently purchased. He is engaged part time as a landscape gardener and keeps his tools in the storeroom for which no extra charge is made. The Petreccas paid rent at the rate of $20.00 per month, beginning in 1938, for this four-room suite, including one-half of the garage. In 1950, when the new gas furnace was put in, the rent was increased to $30.00 per month.

The four-room suite on the second floor in the rear has been occupied by Mr. and Mrs. Bellini since 1943. The rent at the beginning of their tenancy was $25.00 per month. It continued at that rate until 1950, at which time the new gas furnace was put in, and the rent increased to $35.00 per month. August Bellini testified that aside from the repair or rebuilding of the back porch, which had rotted out, and a replacing of a toilet bowl, no repairs have been expended by the trustee in his suite and that he has taken care of his own painting and paper hanging. He said: “My wife and I, we Kemptoned.” It should be observed that if the back porch disintegrated into such a dangerous condition as to require extensive repairs or rebuilding, it must have been at the neglect of the trustee who was in complete charge for eleven years before the work was done.

Elizabeth Marfongella, sister of the trustee, who lives with her, in explaining the low rent she was called upon to pay, claimed to be the plumber, electrician, janitor and jack-of-all-trades in the maintenance of the building. She testified:

“Q. Are you doing janitor work at this place?
“A. Yes, sir.
“Q,. Do you expect to be paid for that?
“A. My sister gave me a break and I am giving her a fair break.
“Q. What kind of a break did your sister give you?
“A. Living with her at low rent * * *.
“Q. Do you ever cut the grass?
“A. We don’t have any grass. * * *
“Q. When was the last time you ever made any plumbing repairs in a suite other than your own?
“A. I can’t remember.”

One expert witness was called to testify as to what tenants occupying property like the suites at 15802 Halliday Avenue were required to pay in the vicinity. He said that since rent control was removed, thirteen to fourteen dollars a room would be a reasonable charge. This would make the suite occupied by the trustee worth $65.00 per month and the back suites $52.00 per month. This evidence is not challenged by any other competent testimony. There is no evidence as to what the rent levels were as filed with the Office of Rent Control. In fact such control seems not to have been complied with or given consideration at any time after the law became effective in 1943.

It is suggested that the trustee is the owner of one-half of the property and has a right to live in the property without charge. Such fact is without significance when it is shown by the record that in her accounting, she retains one-half of the total income as belonging to her as of right, including the $25.00 paid to her by her sister after deducting a five per cent trustee’s commission for collecting the rent and other management services.

The court, in its memorandum opinion, seems to have ■ based the overruling of the exceptions on the ground that the low rent is justified because of janitor service. The court said: “On the other hand, there is testimony to the effect that the rentals charged and collected by the trustee were adequate, having in mind the kind and type of property involved and the fact that the tenants, who were relatives of the trustee, furnished janitor service and other work and labor incident to the matter of maintenance for which no charge was made.” There is not a word of admissible testimony that the rentals charged were adequate for the type of property nor is there anything in the record to justify the conclusion that janitor service was a service due the tenants. The evidence is just to the contrary. Separate furnaces are provided for each suite and the tenants who testified indicated that each took care of his own needs. It would indeed be unusual to consider that janitor service could be considered as a provided service under the undisputed circumstances surrounding this property and the amount of rent paid by each tenant. The question could be logically asked—who was the janitor and who was entitled to the service?

The argument is made that the trustee carried on, in the management of the property, as did the settlor (her mother) during her lifetime. Whatever the settlor did in dealing with her property, no one has a right to question, particularly where most of the tenants were her children. One has a right to deal with his property as he may desire. A trustee, however, cannot seek shelter from improvident or overly generous conduct toward herself and other tenants, some of whom are relatives of the settlor because that was the way the settlor dealt with those in possession of her property during her lifetime. A trustee is charged with the absolute necessity of protecting the trust estate with the utmost fidelity in the interest of the beneficiary. In this case that means collecting a reasonable rent under the economic conditions of today and not to continue rents or a slight variation of them as charged in the depths of the depression. Here the undisputed evidence discloses a conflict of interest between the trustee and the beneficiary which the trustee has resolved and continues to resolve in her own favor. For nine years, during rapidly changing economic conditions, including marked advances in rents charged for every class of residence property (a fact which is known to everyone), the trustee has neglected to report her stewardship of the property to the court or do anything except to add to the comfort of the suite occupied by her in part at the expense of the trust estate and enjoy rents at a level far below those charged for like property in the immediate vicinity.

We must conclude that the order of the Probate Court, overruling the exceptions to the fifth partial account of the trustee, is against the manifest weight of the evidence and is, therefore, reversed and the cause remanded for further proceedings.

Exceptions. Order see journal.

KOVACHY, PJ, HURD, J, concur.


author: Per CURIAM:

text:
    STATE, Plaintiff-Appellee, v. MAYS, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2367.
    Decided March 30, 1956.
    Mathias H. Heck, Pros. Atty., By Francis C. Canny, Asst. Pros. Atty., Dayton, for plaintiff-appellee.
    Herman D. Arnovitz, Dayton, for defendant-appellant.

      (FESS and DEEDS, JJ, of the Sixth District, sitting by designation in the Second District.)
   OPINION

Per CURIAM:

Appeal on questions of law from a judgment and sentence of the Common Pleas Court of Montgomery County for violation of the Ohio Narcotics Act.

Prior to voir dire examination of prospective jurors, defendant moved to dismiss the jurors summoned and for the impaneling of a new jury on the ground that among the panel were persons who had participated in the trial of another defendant (but not a co-defendant), involving a similar charge and the same witnesses, the previous day. The motion was overruled. In view of the consistent practice that, excepting the trial of a first degree murder case, a venire continues to serve during the term for which it is called in a series of criminal and civil cases, the motion was properly overruled.

Four jurors who served at the previous trial, wherein the defendant had been convicted, were called and on voir dire counsel for defendant referred to the elements of the crime charged and inquired as to whether such jurors would require the State to prove such elements. There was no audible response. Counsel then inquired as to whether the jurors would follow the presumption of innocence, to which there was no audible response. No request was made to the court to require an audible answer to counsel’s questions. No challenge for cause was interposed, but one of such jurors was excused upon peremptory challenge by the State, and two upon peremptory challenge by the accused, resulting in the substitution of three other jurors who participated in the previous trial.

Broad discretion is conferred upon the court in the performance of his duties incident to the impaneling of a jury, and an abuse of discretion must clearly appear, to justify reversal. State v. Ellis, 98 Oh St 21. Had a challenge for cause been made and overruled, a predicate for assignment of prejudicial error might have been afforded. Helber v. State, 37 Oh Ap 333; 3 O. Jur. 2nd, 763.

Defendant further contends that under the circumstances it was incumbent upon the court, under §2945.27 R. C., to examine the jurors as to their qualifications. Examination of jurors by the court is also a matter of discretion, and in the absence of a request therefor, the failure to do so does not constitute error prejudicial to the accused.

Defendant further asserts that the evidence did not reach the required degree of proof beyond a reasonable doubt because the testimony of the narcotic agent who purchased the drug was not corroborated by that of another agent who participated in the investigation, and also because the testimony of the chemist who analyzed the drug and stated positively that it was heroin, was somewhat weakened with respect to his method of analysis, upon cross-examination. In our opinion, the positive and uncontroverted testimony of these two witnesses was sufficient to support the verdict.

Other assignments of error are likewise overruled.

Judgment affirmed, and cause remanded to the Court of Common Pleas for execution of sentence.

HORNBECK, PJ, PESS and DEEDS, JJ, concur.


author: By McLAIN, J.

text:
    LAKEVILLE (Village) et, Plaintiffs, v. PALMER, Aud. of the City of Conneaut et, Defendants.
    Common Pleas Court, Ashtabula County.
    No. 43637.
    Decided September 20, 1955.

      Ray Bolinger, Conneaut, Howard M. Nazor, Ashtabula, for plaintiffs.
    Calvin W. Hutchins, Pros. Atty., Jefferson, Jack Stolson, City Solicitor, Lynn E. Richards, Conneaut, for defendants.
   OPINION

By McLAIN, J.

An amended petition was filed by the plaintiffs, the Village of Lake-ville and Stuart C. Blood, a resident thereof, seeking a permanent injunction against the completion of annexation proceedings for transfer of a portion of the Village of Lakeville to the City of Conneaut. Defendants include the City of Conneaut, its Auditor, Clerk of Council, and the Ashtabula County Commissioners.

The plaintiffs’ amended petition sets forth certain claimed errors in the proceedings by the Commissioners in approving the annexation. A temporary injunction was heretofore granted pending a hearing on the merits.

The question now before this Court is whether or not the temporary injunction should be dissolved or made permanent.

The case was submitted to the Court upon certain agreed stipulations and evidence introduced by both sides at the hearing.

The original annexation petition was filed with the Board of County Commissioners of Ashtabula County on October 28, 1954. Notices of hearing were published and posted, as provided by law, and on January 10, 1955, the hearing was commenced by the Commissioners, but no final action taken at that time.

The hearing having been continued on several occasions for further-evidence and study, the County Commissioners did, on February 10, 1955, approve the annexation by resolution.

Prior to this final action, it is agreed that withdrawals were filed in sufficient number by those who signed the original petition to reduce the number thereon to less than the statutory requirement to wit, a majority of the qualified electors residing in the territory to be annexed.

It is likewise agreed that thereafter, the proponents of the annexation filed additional signatures in sufficient number that if added to those remaining on the original petition for annexation, it would constitute a majority of the electors in the territory.

On February 18, 1955, the transcript of the proceeding was filed with the City Auditor of Conneaut, Ohio; on February 24, 1955, the petition; and on April 18, 1955, the amended petition of the plaintiffs herein was filed in the Court of Common Pleas of Ashtabula County.

The first question to be determined is the legal effect of the filing of withdrawals and additions before final action by the Board of County Commissioners.

Courts in the various states are not in accord as to when the right to withdraw a signature from a petition terminates. There are courts holding that the right expires at the time of the filing of the petition; others when the sufficiency of the petition has been determined; some that it expires when jurisdiction attaches, and still others that the right continues until final action is taken upon the petition. See 11 L. R. A. (N. S.) 372; 126 A. L. R. 1032, and the cases therein collected.

Ohio is listed as a state following the rule that the right to withdraw continues until final action is taken upon the petition. 126 A. L. R. 1045, 1046.

That this rule of law is firmly imbedded in the jurisprudence of this state and has had long standing and repeated confirmations by the Supreme Court of Ohio, there can be no doubt. In the case of Willis Hays et al, v. William H. Jones et al, decided in 1875, 27 Oh St 218, the Supreme Court held, in the matter of a petition for road improvement, as follows:

“The jurisdiction of the board of county commissioners to make the final order for the improvement, under these statutes, is special, and conditioned upon the consent, at the time the final order is to be made, of a majority of the resident land-holders, who are to be charged with the costs of the improvement.
“Resident land-holders, who have subscribed a petition praying for such road improvement, may, at any time before such improvement is finally ordered to be made by the board of county commissioners, withdraw their assent by remonstrance, or having their names stricken from the petition, and after withdrawal of consent, such persons can no longer be counted as petitioning for the improvement.”

The Court, in its opinion, at page 231, said:

“* * * The right to remonstrate is not questioned, but the effect of remonstrance, as viewed by defendants, is certainly ingenious. If a petitioner for the improvement can have his name erased from the petition, as to him it has no vitality. If he signs the petition, and he afterward subscribes a remonstrance against the affirmative action of the commissioners upon the petition, it is claimed he is still petitioning for the improvement in the attitude of one trying to convince the commissioners that it would not be advisable to grant their prayer as petitioners, but rather to grant their prayer as remonstrants. This view of the case is not sound. They are for the improvement as prayed for, or against it, and cannot be allowed to occupy any middle ground. The statute cannot mean that, if there is a majority of qualified persons at some time between the commencement of the proceedings and the time the final order is to be made, whether there be such majority at that time or not, the improvement may be ordered. As held on the first-proposition, this jurisdictional majority must be found in the attitude of asking for the improvement at the time the proposed final order is to be made; and one who has subscribed the petition may, at any time before the board makes the final order, by remonstrance or other unmistakable sign, signify his change or purpose. His assent is within his own control up to the time the commissioners move to make the final order. * *

The Supreme Court again, in the case of State, ex rel., Kahle v. Rupert, Auditor, 99 Oh St 18, held:

“In the absence of statutory provisions to the contrary an elector signing a petition authorized by the statutes of this state, invoking either official or judicial action, has a right to withdraw his name from such petition, or, if he be the sole petitioner, to dismiss the same at any time before judgment has been pronounced, or before official action has been taken thereon. Dutten v. Village of Hanover, 42 Oh St 215; Hays et al v. Jones et al, 27 Oh St 218, and McGonnigle et al v. Arthur et al, 27 Oh St 251, 256.

Again in 1936, in the case of State ex rel., McLain v. Bailey, Jr. et al, Council of Village of Newton Falls, 132 Oh St 1, the Supreme Court reaffirmed its view as announced in State, ex rel. Kahle v. Rupert, supra, and re-asserted at page 4, as follows:

“* * * That an elector signing a petition invoking either official or judicial action has a right to withdraw his name before action has been taken thereon. * * *”

The position taken by the defendants in this case is clearly contrary to this rule of law for if, as they contend, the commissioners’ duty is to determine whether or not a statutory majority existed at the time the petition was filed, it would deprive the petitioners of their right to withdraw between the date of filing and the date upon which the petition is finally acted upon by the Board of County Commissioners.

The Court is not unmindful of the case of Schulte et al, appellants, v. Flick, Auditor et al, appellees, 89 Oh Ap 252. This case was an annexation proceedings and Syllabus 2 is as follows:

“In such proceeding, so far as the sufficiency of the signatures to the petition is concerned, the only finding necessary is that such petition when filed was signed by a majority of the free-holders residing in the territory.”

Taken alone, the syllabus might be considered as sustaining the defendants’ contention. However, the Appellate Court of the First District could not and, we believe, did not attempt to abrogate the rule heretofore promulgated by the Supreme Court of Ohio.

In the Schulte case, no withdrawals were presented, and the only petition on file with the commissioners was the one which was filed in instituting the proceedings. However, subsequent to the filing of the petition, certain persons, constituting a minority of the free-holders in such territory, so shifted their titles as to constitute themselves the majority at the time of a hearing on the petition. This was plain subterfuge which the Court in that case refused to recognize as invalidating the proceeding.

The Ohio rule is supported by the Courts of many other jurisdictions. Kinsloe v. Pogue, 115 Illinois Appellate, 391, affirmed 213 Illinois 302; 72 N. E. 906. Town of Blooming Grove v. City of Madison, 253 Wis. 215; 33 N. W. (2d) 312.

In the foregoing case, the Court made the interesting observation . that at the time the statute for annexation was passed, it was the law of the State that petitioners could withdraw their names before final action was taken and that the Legislature did not see fit to make provision to the contrary. Likewise, in Ohio, the rule we have been discussing has been of long standing and, in the meantime, the Legislature of Ohio has had the opportunity to amend and recodify legislation respecting annexation and, notwithstanding the long established rule in Ohio that withdrawals are permitted, that body has made no provision to the contrary.

As to what constitutes final action, it was held in Malcomson v. Strong, 245 Ill. 166; 91 N. E. 1036, that:

“Merely meeting and noting that a petition had been filed, fixing a date for its consideration and ordering the clerk to give notice, was not such final action upon the petition as deprives the subscribers of their right to withdraw from the petition.”

The State of New York has also followed this rule. People ex rel. Irwin v. Sawyer, 52 N. Y. 296.

Since the rule in Ohio seems so firmly established giving the right of withdrawal at any time before final action on a petition, it would seem hardly necessary to discuss the basis for this rule save and except that counsel has put forth a claim that to permit withdrawals after the petition is filed creates a number of practical difficulties. Basically, of course, this objection should be addressed to the Legislature rather than to the Courts.

Nevertheless, an examination of the theory underlying this rule may be of some interest. Ordinary experience teaches that many persons sign petitions with little or no consideration and inquiry, whereas afterward, if the subject becomes a matter of public discussion, their attention becomes carefully drawn thereto, and the conclusion is often reached that they have been hasty or were in error in signing the petition.

There is no reason whatsoever when a person has changed his mind, after signing a petition which was purely voluntary and without consideration, and has concluded that either his own interest or the public interest is not in accordance with the prayer of the petition, that he could not remove his signature before action was taken.

Such a rule most certainly is more likely to reflect the real and mature judgment of those affected as well as it would be calculated to discourage a hasty presentation of a petition for signatures without a full disclosure of the real merits of the matter.

Political subdivisions are creatures of the Legislature, and that body unquestionably has a right to provide a statutory plan or procedure for the annexation of territory to municipalities. However, the right to live in a particular municipal unit is an important right and should be protected by all the safeguards that the law provides. People purchase or construct homes or places of business in particular towns, cities, and villages, because of the advantages which they believe are offered. Indebtedness is incurred by these subdivisions and improvements are made in accordance with the demands of those living within the boundaries of the particular municipal unit. It is apparent that changes, therefore, should be only made when there is compliance with the enabling statutes as enacted by the Legislature.

A leading case on this subject is that of LaLonde v. Carron County, 80 Wis. 380; 49 N. W. 960. In quoting from that case in State, ex rel., Andrews v. Boyden, 108 N. W. 897, the Court said:

“The learned circuit judge held that the board had the right to allow persons who had signed the petition to withdraw their names therefrom or to strike their names from the petition when requested so to do by the signers before the petition was finally acted upon by the board. Was that a correct view of the matter? We think it was and it was in accord with reason and common sense. For what valid objection is there either in law or on grounds of public policy, against allowing a person who has signed a petition asking for the removal of the county seat from withdrawing his name from the petition before it is acted upon by the board? As the learned counsel for the defendants say, a person may have been deceived or entrapped, or through inadvertance or thoughtlessness may have signed such a petition, and, on reflection, and before action is taken on it may desire to correct his action, and withdraw his name. Why should he not have the right and privilege of doing so? An intelligent man acting deliberately and understandingly, may change his mind on such a question, and conclude he has made a mistake in asking for a change of the county seat, and that the public interest will be promoted by having the county seat remain where it is. $ $ *J>

Are the complaints of the defendants as real as they feel them to be? Could not sufficient signatures be obtained in annexation proceedings so that it would withstand withdrawals or at the time the petitions were signed, could not the advantages of annexation be sufficiently explained to the signers and a full disclosure made of the entire matter so that the signers themselves would not want to withdraw from the petition later, and could not the petitioners, if the withdrawal depleted the number to the extent that the Board of County Commissioners no longer had jurisdiction, circulate a new petition containing the adequate number of signatures? Surely all this could be accomplished if there existed the necessary majority of those who, upon full consideration of the advantages and disadvantages of annexation, desired to make a change.

It has been strenuously urged that if the right to withdraw is recognized, it is no more than fair and just that the right to add names to the petition, after the withdrawals, should likewise be authorized.

This position is untenable. The proceedings for annexation are purely statutory. Jurisdiction is not conferred by the statutes upon the Board of County Commissioners but can merely be invoked by filing a petition containing the names of the majority of the qualified electors.

If this petition is deficient in number on the day of the filing, no jurisdiction can be invoked. Likewise, if it later becomes deficient in that respect, the jurisdiction already invoked is lost. There just is no provision in our statutes, as presently enacted, authorizing additional signatures in annexation proceedings.

There is no provision for reinstating the petition by the process of reviving the petition by means of new signatures. It would, in effect, be instituting a new annexation proceeding in a manner contrary to law.

It is the clearly evinced intention of the Legislature, in proyiding a sixty day waiting period, to guard against hasty and ill considered changes in municipal boundaries. The addition of new signatures at a later date would plainly defeat the operation of this mandatory statutory requirement.

Regardless of the exigencies of the situation, the Court cannot, by judicial pronouncement, approve an improvised procedure for annexation in direct defiance of the manifest provisions of the statutes relating thereto.

The case of County Board of Education of Putnam County et al v. Board of Education of Hartsburg Rural Special School District of Putnam County, 112 Oh St 108, has been offered as indicating that the Supreme Court has, at least by indirection, given approval to addition of names on a petition as well as withdrawals.

The case, however, is clearly not in point. The Court recognized the rule in Hays v. Jones, supra, but went on to say:

“The filing of a remonstrance under §4376 GC, on the contrary, does not invoke the jurisdiction of the county board of education. The board of education in the first instance has power to create a school district from one or more school districts or parts thereof without the filing of a petition by the electors, but the remonstrance when duly filed makes ineffectual the action of the board. * * *”

In view of that fact, the Court did say, at page 113:

“* * * we have no doubt that in the given case the signers to the remonstrance could have withdrawn their names before and upon to the end of the 30-day period. It is only when the 30-day period had elapsed that the number of names upon the remonstrance is definitely fixed. * * * Names could no doubt be added to the remonstrance within that time by qualified electors, and names could also be cancelled upon the remonstrance, * * *”

It is, therefore, apparent that this case, instead of supporting the defendants’ contention, on the contrary, re-affirms Hays v. Jones, hereinbefore considered and distinguishes the case being passed upon for the reason that the statute itself, §4376 GC, gives, in the first instance, continuing jurisdiction to the Board of Education, and that the number of names on the remonstrance is definitely fixed as of the end of the thirty day period.

By reason of the fact that the conclusion herein reached in respect to the legal effect of the withdrawals and additions warrant the relief prayed for in the petition, other alleged errors in the proceedings before the Board of County Commissioners are not considered and passed upon for the reason that they are chiefly germaine to this particular annexation proceeding.

For the foregoing reasons, the Court has concluded as follows:

1. That in proceedings for annexation of a village to a municipal corporation, the petition must contain a majority of the qualified electors at the time it is filed.

2. That if, before final action by the Board of County Commissioners, sufficient withdrawals are filed by the original petitioners to reduce the number of petitioners to less than a majority as required by the statutes, the Commissioners have no jurisdiction to proceed, their invoked jurisdiction having been lost by virtue of the withdrawals.

3. That the annexation laws of the State of Ohio make no provision for reviewing or restoring jurisdiction to a Board of County Commissioners by the addition of new signatures after jurisdiction over the matter has been lost by virtue of withdrawals before' final action on the petition.

It is, therefore, ORDERED, ADJUDGED, and DECREED that a permanent injunction issue without bond enjoining the defendant, B. L. Palmer, as Auditor of the City of Conneaut, Ohio, from making a record of the proceedings before the Board of County Commissioners held on February 10, 1955, in respect to the annexation of a portion of Lakeville Village to the City of Conneaut, Ohio; that the defendant, George Kitinoja, as Clerk of the Council of the City of Conneaut, Ohio, be and enjoined from accepting or making any record of any proceedings or presenting any legislation to the City Council of the City of Conneaut, Ohio, relative to the foregoing proceeding, and the action of the Board of County Commissioners approving the annexation in this proceeding, is hereby set aside and held for naught.

Counsel may prepare a journal entry.