text:
    LEVINE, Plaintiff-Appellant, v. HART MOTORS, INC., Defendant-Appellee.
    Ohio Appeals, Seventh District, Columbiana County.
    No. 717.
    Decided December 12, 1955.
    Moore & Moore, Lisbon, for plaintiff-appellant.
    Carlyle & Carlyle, Youngstown, for defendant-appellee.
   OPINION

By PHILLIPS, PJ.

By arrangements made after the close of defendant’s place of business on Saturday between plaintiff and defendant, a corporation engaged in the sale and repair of automobiles, plaintiff left her automobile before defendant’s opening hour for business on Monday for repair by defendant at a place on defendant’s parking lot designated by it.

In the interim between defendant’s closing hour on Saturday and opening hour on Monday it snowed and the designated place of parking became rutted and frozen, which ruts were not covered with snow and were clearly visible when plaintiff parked her automobile on Monday morning.

While alighting from her automobile after parking it plaintiff fell and was injured, for which injuries she sought damages against defendant in the court of common pleas of Columbiana County.

Defendant’s motions for verdicts to be directed in its favor at the close of plaintiff’s case and at the conclusion of all the evidence was overruled, and the jury returned a verdict for $5000.00 for plaintiff.

Thereafter the trial judge sustained defendant’s motion for a verdict to be directed in its favor notwithstanding the verdict of the jury for the plaintiff, and entered final judgment for the defendant, from which judgment plaintiff appealed to this court on questions of law.

Plaintiff contends that in directing the verdict against her notwithstanding the verdict of the jury returned for her she was entitled to have all the evidence construed most favorably to her, and that defendant was entitled to rendition of such judgment in its favor only if reasonable minds “would not differ upon conclusions properly inferable from the pleadings or evidence”; that accordingly the judgment in support of such contention from which she appeals was erroneous unless there was no evidence of substantial probative value to support the essential allegations of the petition; that such judgment could not be rendered by the trial judge on the ground that it was against the manifest weight of the evidence, and supports this conclusion by citation of §2323.18 R. C.; and finally that the court was without authority to set aside the verdict of the jury, and in support thereof cites Krueger v. Schoenling Brewing Co., 82 Oh Ap 57.

Plaintiff testified on cross-examination:—

“Q. Now at the time Mrs. Levine that you and your husband went to the Hart garage on Saturday, that would have been the 7th of March of 1953?
“A. Yes, sir.
“Q. During your conversation with Mr. Brown you understood that at the time you would be passing the Hart Motors on your way to work that the company might not be open for business at that hour?
“A. Well I never knew what time they opened in the morning.
“Q. Well you were advised at that time were you not if they were not open you would just" leave your car there?
“A. Yes, sir, that’s right.
“Q. So that upon that standpoint you did understand that they might not be open for business at the time you would leave your car there on the Monday morning? That is correct, isn’t it?
“A. That is correct.
“Q. If I understood you correctly also you testified that it snowed on Saturday, about what time on Saturday did it snow, that is, from what time to what time?
“A. Well Saturday afternoon it started snowing and had stopped when I came from bingo, it wasn’t snowing then.
“Q. Well about what time Saturday afternoon did it start snowing?
“A. Well I judge half past two or three o’clock.
“Q. And it continued to fall up until about nine o’clock?
“A. Well I don’t know because when I came out of bingo it wasn’t snowing.
“Q. And you came in what time?
“A. Well I went to bingo quarter of eight.
“Q. So that it would be between those hours that the snow fell so far as you know?
“A. Yes, sir.
“Q. And what kind of snow was it that fell that Saturday afternoon and possibly in the evening?
“A. Why it was a wet snow.
“Q. And that snow then froze did it?
“A. Yes, sir.
“Q. Well now from the time the snow froze on Saturday night up until you fell Monday morning had any snow or rain fallen?
“A. No, sir.
“Q. So that about what time in the evening was it or the night did it start to freeze?
“A. Well I couldn’t tell you that, I had gone to bed.
“Q. Well now you said that it wasn’t snowing when you went home, was that about a quarter of eight?
“A. No, I went a quarter of eight to bingo and I came home a quarter after nine.
“Q. And it wasn’t snowing then?
“A. No, it wasn’t snowing then.
“Q. And had it frozen at that time?
“A. No, it was kind of sloppy and snowy out.
“Q. So that it was sometime after that that it froze?
“A. Yes, sir.
“Q. Now had any snow fallen on top of the frozen ice between the time it froze and the time you fell on Monday morning?
“A. No, sir.
“Q. Well coming then directly to this question Mrs. Levine there was no covering of snow then over the ice that had formed either on the premises of the Hart Motor Company or on the sidewalk or on the street was there?
“A. There was snow on top of the ice. I would never have gotten out of that lot.
“Q. Well now you told us there was snow, it was wet, it froze and no further snow fell?
“A. Well there was some snow Mr. Carlyle on the ground, there was some snow, there was some snow and there was some ice.
“Q. Yes, you said that snow had fallen, you said it was wet, that snow froze there?
“A. That snow had frozen.
“Q. Yes but it was the frozen snow?
“A. Yes, sir.
“Q. And no new or fresh snow had fallen over that?
“A. No, that’s right.”

There is evidence that a period of thirty hours elapsed between the time snow last fell and the time plaintiff was injured, during which plaintiff contends defendant had ample time to and should have removed the snow and ice from the specifically designated place plaintiff was to park her car, with which she was unfamiliar and which inferably had become rutted by a ear parked presumably by defendant at the place plaintiff fell.

Also there is testimony of all witnesses other than plaintiff that she fell at a place without the property of the defendant, and of plaintiff that the ruts in the ice were not covered by snow when she fell.

There is nothing to indicate to us that the trial judge sustained defendant’s motion for judgment in its favor notwithstanding the verdict of the jury returned for the plaintiff on the ground that the verdict of the jury was against the manifest weight of the evidence. Rather it is apparent to us as the result of a careful consideration of the evidence that the trial judge concluded, rightly we believe, that under plaintiff’s evidence defendant was entitled to judgment as a matter of law.

In ruling upon the motions for a directed verdict the trial judge said:—

“I am afraid that the plaintiff has a very thin case and I should direct a verdict. As Judge Hart says, under our law it is just as serious speculating with the rights of citizens where no questions by the jury are involved as to deny a trial by jury when he has the right. I probably have an intense objection to direct a verdict because I think the matter can be corrected by judgment notwithstanding the verdict if when the case is all over and I feel it should be done. Therefore, with considerable hesitation I will overrule defendant’s motion for a directed verdict and defendant may have its exceptions.”

This statement indicates that at the time of trial the trial judge recognized that defendant was not liable to plaintiff as a matter of law but that any error the jury might make could be corrected by sustaining a motion for judgment notwithstanding the verdict if made, which he did.

In our opinion the case of Turoff v. Richman, 76 Oh Ap 83, supports the judgment of the trial court. In that case, after reviewing several Ohio cases dealing with the natural accumulation of ice and snow, the court said:—

“Should there be a different rule applied to the owner of private property where such owner by operation of law or because of contractual obligations is under the legal duty to maintain his property in a reasonably safe condition for the benefit of others lawfully upon the property? We think not. In cases where there is no act on the part of the landlord creating a greater danger than was brought about by natural causes, the dangers that are created by the elements, such as forming of ice and the falling of snow, are universally known and, unless the landlord has contracted to provide against these dangers, all persons on his property must assume the burden of protecting themselves therefrom.”

See also Wise v. The Great Atlantic & Pacific Tea Co., 94 Oh Ap 320, which perhaps is more to the point. In that case it is said:—

“An operator of a store and adjoining parking lot is not liable to a customer who, after departing from such store and while walking across such parking lot, slips, falls, and sustains injuries where there is no defect in the parking lot and it is not maintained in a dangerous condition except as to such dangers as are created by natural accumulations of ice and snow.”
“Owners or lessees of stores, office building, banks, hotels, theaters, or other buildings where the public is invited to come on business or pleasure, are not insurers against all forms of accidents that may happen to any who come. Everybody knows that the hallways between the outside doors of such buildings and the elevators or business counters inside the building during a continued rainstorm are tracked all over by the wet feet of people coming from the wet sidewalks, and are thereby rendered more slippery than they otherwise would be. The same thing is true in the hallways of all post offices. It is not the duty of persons in control of such buildings to keep a large force of moppers to mop up the rain as fast as it falls or blows in, or is carried in by wet feet or clothing or umbrellas, for several very good reasons, all so obvious that it is wholly unnecessary to mention them here in detail.” S. S. Kresge Co. v. Fader, 116 Oh St 718 at 723.

As suggested by counsel for defendant “applying the law of the instant case, it follows:—

“1. Defendant, Hart Motors, Inc., was not an insurer of the safety of plaintiff.
“2. Defendant, Hart Motors, Inc., owed to plaintiff only the duty of ordinary care.
“3. Defendant, Hart Motors, Inc., cannot be charged with negligence by reason of the natural accumulation of ice and snow on its premises.”

The judgment of the court of common pleas is affirmed.

GRIFFITH, J, concurs.

NICHOLS, J, dissents.


source: Caselaw Access Project

author: By BIRRELL, J.

license: Public Domain

text:
    CARROLL, Plaintiff, v. JONES, Defendant.
    Common Pleas Court, Trumbull County.
    No. 63221.
    Decided February 3, 1956.

      Griffith, Griffith & Moore, for plaintiff.
    Joseph A. Luarde, for defendant.
   OPINION

By BIRRELL, J.

This matter comes before the Court on a Motion by the Defendant (who originally filed no answer in this case and permitted default judgment to be taken) to dismiss an Aid of Execution proceedings on the ground that the judgment secured by Plaintiff had been discharged in Defendant’s bankruptcy proceedings. Plaintiff opposes the Motion on the ground that the automobile accident wherein Plaintiff’s injuries and damage occurred was alleged in the Petition to have been the result of “willful and malicious misconduct of the Defendant,” and therefore, discharge of this particular debt was not effective because Section 17 of the Bankruptcy Act, 11 U. S. C. A. paragraph 35 provides “a discharge in bankruptcy shall release a bankrupt from all his proveable debts except such as * * * are liabilities * * * for wilful and malicious injuries to the person or property of another * * *”

Defendant’s brief refers to four cases from outside the State of Ohio which appear to be directly in point in this respect:

Fitzgerald v. Herzer (Cal), 177 Pac. 2d, 364; Tharp v. Breitowich (Ill), 55 N. E. 2d, 392; Reell v. Electric & Gas Co., 45 N. E. 2d, 500; In re Greene, 87 F. 2d, 951: 109 A. L. R. 1188.

The facts in the first three of these cases are directly in point in that the Court decides that bankruptcy has not discharged a default judgment secured by reason of an automobile accident wherein the petition contained allegations to the effect that the injury was caused by “willful and malicious” actions of the Defendant.

In the Fitzgerald case with reference to the default judgment the Court states (p. 366).

“By permitting his default to be entered he (the Defendant) confessed the truth of all the material allegations in the complaint * * * including the allegations of wantoness, recklessness and gross carelesness. * * * A judgment by default is as conclusive as to the issues tendered by the complaint as if it had been rendered after answer filed and trial had on allegations denied by the Answer. * * * Such a judgment is res judicata as to all issues aptly pleaded in the complaint and defendant is estopped from denying in a subsequent action any allegations contained in the former complaint.” * * *

The omitted portions of the foregoing quotation contain references to California cases on these matters.

The Tharp case and the Reell case from the State of Illinois are practically similar and support their decisions by reference to the Fitzgerald case, supra, to other Illinois cases, and to the Greene case above cited.

The Greene case is a Federal case from the northern district of Illinois, wherein an answer had been filed and trial was had to a Jury, which, in addition to determining a verdict in favor of the Plaintiff, answered an Interrogatory, to-wit:

“Was the Defendant, James E. Greene, guilty of willful and wanton conduct, as charged in the third count of Plaintiff’s declaration?”

To which Interrogatory the Jury answered: “Yes.” It will be noticed that in this case there was a Jury trial, and a definite determination by the Jury that the accident was caused by willful and wanton conduct on the part of the Defendant.

At 109 A. L. R. page 1192, following the report of the Greene case, is an Annotation on this question which is supplementary to a previous Annotation on the same subject at 57 A. L. R. 153, and is followed later by another Annotation at 145 A. L. R. 1238. The trend of the decisions therein is that a Court is not concluded by the allegations of the complaint, and resort may be had to the entire record to determine whether the action is one for willful and malicious injuries to the person or property of another. There are also cases like Fleshman v. Trolinger (Tenn.), 74 S. W. 2d, 1069, which hold that averments that the Defendant is guilty of gross, willful, wanton, maliciousness, carelessness, or recklessness in driving at an unlawful and illegal rate of speed are merely statements of the pleader’s conclusion.

The basis of this prevailing trend rests on an early decision of the United States Supreme Court in the case of Tinker v. Colwell, 193 U. S. 473, which arose over the question of whether the judgment against a Defendant in that case constituted a willful and malicious injury such as to prevent discharge in bankruptcy. In the course of the opinion Justice Peckham, at page 489, states:

“It is not necessary in the construction we give to the language of the exception in the Statute to hold that every willful act which is wrong implies malice. One who negligently drives through a crowded thoroughfare and negligently runs over an individual would, as we suppose, be within the exception. True, he drives negligently, and that is a wrongful act, but he does not intentionally drive over the individual. If he intentionally did drive over him it would certainly be malicious.”

Defendant cites two articles appearing in the Journal of the National Association of Referees in Bankruptcy on the subject of “Discharge of Judgments arising out of Automobile Accident Suits.” One appears in the Journal for April, 1953. Naturally the Bankruptcy Courts themselves are interested in the present status of the law and both articles are comprehensive reviews of this subject.

The April 1953 Article cites numerous authorities supporting the following statement:

“It is universally held that liability for simple negligence in the operation of a motor vehicle which results in an injury to another is not excepted from a discharge in bankruptcy as a ‘willful and malicious’ injury. Moreover, it is also well settled that liability arising out of clearly intentional injury is not discharged.”

The 1955 Article criticises the recent case of In re Carncross, 114 F. Supp. 119 (W. D. N. W. 1953), which hold that an “intentional” injury is not necessarily a “malicious” one. This article opens with the statement:

“Under the changing philosophy of American bankruptcy legislation over a period of a century and a half, the bankrupt has been elevated from the status of a presumptive fraudulent defaulter, largely at the mercy of his creditors, to the position of an honorable unfortunate entitled to an economic rebirth.”

This Court makes reference to the above cases and Annotations and the prevailing rule outside of Ohio in assessing the weight of the California and Illinois cases cited by Plaintiff. Naturally Ohio Courts are governed by Ohio law and precedents.

The early case of Howland v. Carson, 28 Oh St 625, determines at 3 Syl:

“Where it is claimed that such discharge (in bankduptcy) does not bar the collection of a judgment on the ground that it is a debt created by fraud, within the meaning * * * of the bankruptcy act, the Court will look back of the judgment to the root and origin of the cause of action on which it is founded, in order to determine whether the discharge is a bar to the collection of such judgment.”

This case is the basis for the decisions of the Ohio cases wherein such claim has been made.

In defining the extent to which the Court “will look back of the judgment,” a very definite rule has been established to the effect that the Court may consider only the record of the case in which the judgment was obtained including the evidence therein offered, but may not receive evidence outside of this record. Our own Court of Appeals (7th District) has applied this rule in the cases of Goodrich v. Eck, 25 Abs 548, later approved in Ohio Finance Company v. Greathouse, 64 Abs 1. The rule has likewise been approved in the cases of: United Mercantile Agency v. Williams, 87 Oh Ap 273;. 58 Abs 289; 42 O. O. 482; Pass v. Webster, 85 Oh Ap 403; Bannon v. Knauss, 57 Oh Ap 288; 26 Abs 218, and West v. Bixler, 11 Abs 203. No Ohio eases have been found contra.

That the record includes the evidence, where necessary to examine the evidence received in the original case, is held in the Goodrich case wherein the first paragraph of the Syllabus states:

“The lower Court in a proceeding in aid of execution has no right to go further into the original case than to examine the pleadings, files and records of the evidence therein.”

The 2nd Syllabus of the Bannon case states that evidence is admissible

“only where record of the case in which the judgment was obtained is ambiguous and does not disclose the nature of the cause of action on which the judgment was founded.”

The Bixler case is similar and is discussed later.

The Petition in our present case includes a paragraph alleging that

“The cause of the injuries * * * was the willful and malicious misconduct of the Defendant.”

Plaintiff claims that this allegation is sufficient to show the nature of this judgment, and determine that it could not have been discharged in the bankruptcy proceedings. The Defendant however produces the evidence which was offered at the date of the procuring of the judgment for the purpose of showing that there was no willful or malicious conduct on Defendant’s part. The only evidence presented at that date of the manner in which the accident occurred is as follows:

“Q. Tell the Court what happened?
“A. Well I was just coming home from work, a friend of mine and I were going to stop at the Belvedere Club, going toward Youngstown on Rt. 422, and I got in the middle lane to turn in to the club and somebody hit me from the back and caused me, pushed me over to the left side going toward Youngstown almost on the greens.
“Q. There was a car in front of you turning?
“A. A ton pick-up is what it was.
“Q. Did you hit that truck?
“A. I did, that’s why the front of my ear on the left side was damaged too.”

There is nothing in this evidence which can be construed as showing a willful and malicious action on the part of the Defendant, nor is this evidence sufficient to prove the allegation of willful and malicious misconduct as stated in the Petition.

We are confronted now with the question of how may we determine the manner in which this collision occurred. Plaintiff claims that the failure of the Defendant to appear, answer or testify when the original judgment was taken must be construed as an admission of all the allegations in the Petition. Sec. 2309.27 R. C., states that

“every material allegation of a petition not controverted by the answer * * * shall be taken as true.”

The term “material allegation” is defined by §2309.28 R. C.? as follows;

“A material allegation in a pleading is one which cannot be stricken out without leaving it insufficient.”

Can the averment of “willful and malicious” action be stricken out in this case without leaving the petition insufficient?

The allegation of “willful and malicious misconduct” is not a material allegation in this case for two reasons. In the first place the allegation.

“Plaintiff further says the direct and proximate cause of the injuries and damages herein referred to was the willful and malicious misconduct of the Defendant,”

is merely a statement of a conclusion of law. No description of actions which should constitute willful and malicious misconduct is set forth. The only allegation in the petition of the manner in which the accident occurred is the following:

“The Plaintiff was operating her automobile in the center lane of U. S. Route 422 in a southeasterly direction thereon when suddenly without warning an automobile driven by the Defendant collided with the rear end of the Plaintiff’s automobile causing the injuries and damage hereinafter referred to.”

This does not describe any “willful and malicious misconduct,” and the allegation of the pleader’s conclusion would have been stricken from this petition had Defendant appeared and made such a Motion. Such striking would not have rendered the petition insufficient. Uccello v. Interstate Truck Service, 57 O. O. 334; 70 Abs 211.

The second reason is that the petition also contains an allegation as follows:

“The direct and proximate cause of the collision and damages was the negligence of the Defendant in the following respects, to-wit * * *”

In one paragraph Plaintiff pleads negligence of the defendant, and in another paragraph she pleads willful and malicious misconduct. Negligence and willful misconduct are the direct opposite of each other. One who performs a negligent act is not performing a willful act. One who performs a willful act is not negligent. Tige v. Diamond, 149 Oh St 520. It is impossible to determine on which the Court relied in rendering judgment for the Plaintiff. In fact either or both of these allegations could have been stricken entirely from the petition without rendering it insufficient. The mere allegation that Defendant’s automobile “collided with the rear end of Plaintiff’s automobile” is sufficient to uphold the judgment on the part of the Defendant. Consequently as was said in the Bannon case above referred to “the record of the case in which the judgment was obtained is ambiguous,” and it becomes necessary to investigate the evidence on which such judgment was obtained.

More than this, the case of West v. Bixler, supra, decided by the 9th District Court of Appeals, is very closely in point. It even determines that where “the Journal Entry itself recites that it was ‘the wrongful and intentional acts of the defendant’ that caused he injury” the Court has the right to investigate the evidence offered at the time of the Defendant’s judgment to determine whether the action was actually based on wrongful acts or whether it resulted merely “from the negligent operation pf an automobile,”

Following the expressed rulings of these Ohio Courts, and according to the general rule in the United States, this Court finds that the Defendant is entitled to show by the evidence taken at the default judgment, that such judgment was not granted by reason of any willful or malicious act. The debt was, therefore, discharged by the Bankruptcy Proceedings. As a consequence the Aid of Execution must be dismissed at the Plaintiff’s costs.


author: By SKEEL, J.

text:
    STATE, Plaintiff-Appellee, v. CROSS, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23985.
    Decided October 31, 1956.

      Frank T. Cullitan, Pros. Atty., for plaintiff-appellee.
    George J. McMonagle, for defendant-appellant.
   OPINION

By SKEEL, J.

This appeal on questions of law from a judgment entered on the verdict of guilty on a charge of manslaughter in the second degree returned by a jury comes to this Court claiming the following errors:

“1. Misconduct of the prosecuting attorney of such a nature as to deprive the defendant of a fair trial in that:
“A. Portions of his argument to the jury were of an inflammatory and prejudicial nature in that he accused the defendant of butchering people in the street; that the decedent’s life was crushed out of him by a sleeping truck driver and other equally inflammatory and prejudicial statements which, upon motion, the court neither directed the jury to disregard nor granted the motion for withdrawal of a juror.
“B. By suggesting in his examination of the defendant that defendant had been arrested and convicted of crimes involving moral turpitude and which constituted violations of the laws of the United States of America and of the State of Ohio without any foundation in truth or in fact therefor.
“2. Error of law occurred at the trial in the following respects:
“A. The court refused the request of counsel for the defendant to instruct the jury in respects requested by the jury for further instructions, specifically, in that the court refused to instruct the jury that:
“1. The decedent was not in the lawful use of the highway if he was crossing the street other than on the marked crosswalk.
“2. That if the jury finds that the decedent was riding a bicycle at the time and place in question, then that §4511.46 R. C., would not apply herein.
“B. Failure and refusal of the court to withdraw a juror and declare a mistrial because of the inflammatory and prejudicial argument of the prosecuting attorney.
“C. Failure of the court to grant the motions of the defendant made at the close of the plaintiff’s testimony and renewed at the conclusion of all the testimony, as follows:
“1. That consideration of §§4511.46, 4511.38, 4511.20 R. C., be stricken from the indictment and withdrawn from the consideration of the jury, and
“2. That the court enter its order discharging the defendant.
“D. Error in the charge in chief.
“3. Error of law on the admission and rejection of evidence prejudicial to the defendant.
“4. That the verdict is not sustained by sufficient evidence.
“5. That the verdict is contrary to law.”

The record shows that the defendant was driving a truck east on Detroit Avenue in the City of Lakewood, and had come to a stop at the intersection of Detroit Avenue and Andrews Avenue. The traffic light controlling traffic at the intersection was then showing red or stop for Detroit Avenue traffic and green or go for north and southbound traffic over Andrews Avenue and Elmwood Avenue which latter street intersects Detroit Avenue immediately east of the east line of Andrews Avenue. The traffic light at this intersection is in the center of Detroit Avenue and approximately opposite the west sidewalk line of Elmwood Avenue and the east sidewalk line of Andrews Avenue. There is a marked crosswalk running diagonally to the southeast from the west side of Andrews Avenue to the west side of Elmwood Avenue. There is also a double line painted on the pavement indicating the place to stop upon the red signal, the same beginning about twenty feet west of the original crosswalk at the south curb of Detroit Avenue and ending in the middle of said Avenue just west of the west line of the diagonal crosswalk. The place where the defendant stopped his truck was over this double line and close to the crosswalk in the middle lane for eastbound traffic with the left side of his truck near the center of Detroit Avenue. There is no question but that the traffic light was red for east and west traffic at the time the defendant stopped his truck.

The deceased, a boy nine years of age, had been in a store on the south side of Detroit Avenue, the entrance to which was a few feet west of where the double stop line is located (above described) just west of the intersection of Elmwood Avenue. He had his bicycle with him. While the traffic light was in his favor for north and southbound traffic crossing Detroit Avenue from either Elmwood Avenue going north or Andrews Avenue going south, he started northerly over Detroit Avenue. One witness testified he was walking in the crosswalk, pushing his bicycle, which was to his left, while another witness said he was riding his bicycle on or just west of the crosswalk. The first witness referred to testified that just as the boy reached a point directly in front of the truck, the traffic light changed from red to green or go for Detroit Avenue traffic and defendant’s truck started up, knocking the boy and bicycle to the pavement and running over him. The second witness referred to said that as the boy was riding north across Detroit Avenue and had reached a place at about the right front corner of the truck, the light changed to green for Detroit Avenue. The truck then started knocking the boy from his bicycle by contact with the right of the front bumper and in some way some part of the bicycle caught on the truck “spinning the bike around, bringing the boy back under the truck. The truck proceeded on and the rear dual wheels went over the boy and the bike and kept on going. * * *” These are the only witnesses who testified to actually seeing the collision. There is no doubt but that the boy came to his death as a proximate result of being run over by the truck then being operated by the defendant. The defendant testified he did not look to the right or left when he started up or that he saw the boy at any time and did not know he had run over him until he was so notified by another after proceeding almost across the intersection of Elmwood Avenue with Detroit Avenue to the east.

The indictment charges that the defendant unintentionally caused the death of the decedent as a proximate result of the unlawful operation of his truck on a public street in the violation of §§4511.38, 4511.20 and 4511.46 R. C., which sections provide insofar as applicable:

“Sec. 4511.38 R. C. (§6307-37 GC). No person shall start a vehicle, streetcar, or trackless trolley which is stopped, standing, or parked until such movement can be made with reasonable safety. . .”
“Sec. 4511.30 R. C. (§6307-20 GC). No person shall operate a vehicle, trackless trolley, or streetcar without due regard for the safety and rights of pedestrians and drivers and occupants of all other vehicles, trackless trolleys, and streetcars, so as to endanger the life, limb, or property of any person while in the lawful use of the streets or highways.
“Sec. 4511.46 R. C. (§6307-45 GC). The operator of any vehicle, streetcar, or trackless trolley shall yield the right of way to a pedestrian lawfully crossing the roadway within any crosswalk.”

The first claim of error has to do with alleged improper argument by the prosecutor claimed to be of such character as to inflame the jury to the defendant’s prejudice. The prosecutor said in part in his closing argument to the jury:

“Now, I hope, and I believe in your listening to Judge Mahon’s charge, his instructions, T had the green light’ doesn’t give everybody, all the drivers, a license to butcher people in the street. T had the green light. I can do anything with that green light. It’s all I care about. I had the green light.’ That’s the whole crux of this case.
“He seems to distinguish between a person getting crushed to death by a car going 80 to 100 miles an hour. That type of manslaughter, that’s a different type than a boy who has had the life crushed out of him by a sleeping truck driver.
“MB. McMONAGLE: Objection, your Honor. There’s no evidence that he was sleeping.
“THE COURT: Yes, sustained. There is no evidence to that effect.
“MR. McMONAGLE: Your Honor, I also, I didn’t want to interrupt him before, but he talked about butchering. I ask the court to instruct the jury to disregard that, in the alternative to withdraw a juror.
“THE COURT: Yes, the jury will be guided solely by the evidence in this case.”

The context in which the word “butchering” was used was general and not against the defendant alone, as claimed by the defendant in his assignment of error No. 1, (A). In any event, no objection was entered until at a later part of the prosecutor’s argument when, upon objection, the court in effect granted defendant’s request and informed the jury to disregard the suggestion that the defendant was asleep and that the jury should look to the evidence in the defendant’s late protest to the use of he word “butcher.” We find no prejudice to the defendant on this assignment of error.

When the defendant was cross-examined by the prosecutor after his examination in chief, the prosecutor asked the defendant:

“Sir, have you ever been arrested and convicted for any violation of a state statute or federal statute?
“MR. McMONAGLE: Objection.
“THE COURT: He may answer that.
“A. No, sir.”

We hold that this question was proper and that the defendant could, therefore, not be prejudiced thereby.

The last of the errors presented in the defendant’s brief deals with the general charge and with instructions given upon request of the jury after they had been deliberating on their verdict.

The part of the general charge complained of was as follows:

“The State alleges that the defendant violated three Sections of what is known as the Uniform Traffic Act of Ohio.
“The first Section which the State claims the defendant violated is £4511.20 R. C., and that Section reads as follows:
“ ‘No person shall operate a vehicle, trackless trolley or street car without due regard for the safety and rights of pedestrians or drivers and occupants of all other vehicles, trackless trolleys and street cars so as to endanger the life, limb or property of any person while in the lawful use of those streets or highways.’
“This statute imposes upon every driver of a motor vehicle upon the highways the duty to exercise due regard for the safety and rights of pedestrians and drivers and occupants of all other vehicles while in the lawful use of the streets or highways.
“Was the decedent, that is, Myron E. Ramey, in the lawful use of the highway?
“It imposes upon the defendant in this case the duty to use ordinary care in keeping a lookout ahead and to make observations so that fie might in the exercise of ordinary care observe the presence and position of other users of the street and take whatever steps an ordinary, prudent person would take under similar circumstances to avoid injury to others.
“The Court instructs you that under this law the standard of conduct required of the defendant as a driver of a vehicle is that of ordinary care, namely, such care as an ordinarily prudent and careful person would use under the same or similar circumstances having due regard for the rights of others.
“Now, the second section which the State claims the defendant violated is §4511.38 R. C., which reads as follows:
“ ‘No person shall start a vehicle, street car or trackless trolley which is stopped, standing or parked until such movement can be made with reasonable safety.’
“Now, this Section imposes upon the defendant the duty to use ordinary care as that term has been defined to you in the operation of a vehicle.
“The third Section which the State claims the defendant violated is §4511.46 R. C., and which reads as follows:
“ ‘The operator of any vehicle, street car or trackless trolley shall yield the right-of-way to a pedestrian lawfully crossing the roadway within any crosswalk.’
“Now, this Section imposes upon the operator of a vehicle the duty to yield the right-of-way to a pedestrian lawfully crossing the roadway within any crosswalk.
“Under this Section, Ladies and Gentlemen, it will be your duty to determine whether or not the deceased, Myron Ramey, was crossing in a crosswalk. It will also be your duty to determine whether or not he was a pedestrian.
“Now, a pedestrian has been defined in §4511.01, subsection V, R. C., as follows:
“ ‘Pedestrian means any natural person afoot.’
“It will be your duty to determine, as I said before, whether or not the deceased was a pedestrian.”

It has been held that §4511.20 and §4511.38 R. C., do not define a specific course of conduct but rather prescribe general rules, and that their violation does not constitute negligence per se. Rather negligence must be shown to establish that the act was unlawfully committed. In the case of Koppelman v. Springer, 157 Oh St 117, the Supreme Court said, in dealing with §4511.20 R. C., in a civil case:

“1. Under the provisions of §6307-20 GC, no person shall operate a vehicle, trackless trolley or streetcar without due regard for the safety and rights of pedestrians and drivers and occupants of all other vehicles, trackless trolleys and streetcars, and so as to endanger the life, limb or property of any person while in the lawful use of the streets or highways.
“2. This statute prescribes merely a general rule of conduct and not a specific requirement to do or not to do a particular act.
“3. A violation of the provisions of this statute does not constitute negligence per se.”

And in the case of Morrin v, Bond, 87 Oh Ap 357, the court held, in dealing with §4511.20 R. C., that a motorist was bound to exercise ordinary care in entering and crossing an intersection, having due' regard to the safety and rights of a bicyclist. Under the theory of these cases, the duty imposed under these sections is that of ordinary care in relation to the specific circumstances to which the section refers. This same rule would be applicable to §4511.38 R. C. The court, therefore, correctly charged the jury as to the defendant’s duty, as directed by these statutes, being based on the exercise of ordinary care. We find no error in the general charge prejudicial to the rights of the defendant.

Some requests to charge on specific questions of law were made by the defendant when the jury had returned to the jury box after submission of the case seeking further instructions or a restatement of statutory provisions or a rereading of instructions previously given. It was at this time that the defendant requested the court to instruct the jury as to what was meant by a person being in the lawful use of the street and further requested the court to state to the jury that one who starts across a street, other than a crosswalk, is not in the lawful use of the street. At the conclusion of the court’s general charge, both parties were given the opportunity to suggest omissions or additions at which time the defendant (as well as the state), stated he had nothing to suggest. Any request to charge thereafter made that is made when the jury of its own motion was returned to the jury box for further instructions comes too late. The record also shows that the subject of such requests, at least in part, had been included in the general charge, or was unnecessary under the facts of the case. It also appears that the court’s additional instructions requested by the jury during their deliberations were sufficiently answered by the court. No error prejudicial to the rights of the defendant is here shown by the record and such claims are overruled.

From a complete examination of this record, which, without any question tends to establish and is uncontroverted that the defendant, starting his truck from a standing position at a street intersection in the business section of a city, controlled by a traffic light, when the green light turned in his favor, and the decedent was then directly in front of him or just to his right and either the center of the front of his truck or the bumper on the right front of the truck struck the decedent, all of which took place in front of the driver, he then failing to see what was there to see, continued on, running over the decedent with the back wheels of the truck, causing his death, makes out a clear case of manslaughter, the evidence clearly showing the death was the proximate result of a violation of §4511.38 R. C. There is no doubt but that a fair trial has been afforded the defendant and substantial justice has been done. His appeal for reversed must, therefore, be overruled and the judgment of guilty affirmed upon the authority of §2945.83 R. C.

Judgment affirmed. Exceptions. Order see journal.

KOVACHY, PJ, HURD, J, concur.


author: By THE COURT:

text:
    BROWN, Estate of, In re: RESER, Appellant, v. MADDOX Exr., Appellee.
    Ohio Appeals, Second District, Fayette County.
    No. 290.
    Decided August 8, 1956.
    Richard P. Rankin, Phil D. Butler, Washington C. H., for appellant.
    Ray R. Maddox, Charles S. Hire, Washington C. H., for appellee.
   OPINION

By THE COURT:

Submitted on motions of appellee to dismiss the appeal on questions of law and fact and to dismiss the appeal on questions of law. The basis for the first motion is that the proceedings to which the appeal is directed is not a chancery case and therefore not appealable on questions of law and fact. The reason supporting the second motion is that no evidence was offered in the court below and therefore there is no bill of exceptions filed in the cause.

The first branch of the motion is well taken and must be sustained. This is true if the statute §2501.02 R. C. specifying judgments from which appeals may be taken on law' and fact or if the constitutional test is applied, namely, that such appeals may obtain only where the suit below is one that was cognizable in courts of chancery at common law.

The second branch of the motion will be overruled at this time because it cannot be said upon the transcript of docket and journal entries that no assignment of error may be asserted independent of a bill of exceptions. The order was made upon the theory that the trial judge had authority to pass upon some, if not all of the questions presented by the exceptions to the inventory and appraisement, but had the right to exercise his discretion as to such action and elected not to act and dismissed the exceptions without prejudice. It may be that some or all of the assignments of error to be presented on the appeal will be exemplified upon the record of the proceedings below as they come to this court.

The appeal on questions of law and fact will be dismissed but the appeal will be retained on questions of law, §2505.21 R. C., and appellant given 30 days after the entry journalizing this opinion within which to prepare and file assignments of error and briefs.

At the time that the files were forwarded to this court the brief of appellant was not included and the foregoing opinion was written before it was received. However, we have given full consideration to the subject matter of appellant’s brief and believe that the foregoing opinion correctly resolves the motions.

Appellant suggests that two of the grounds of §2501.02 R. C. have application to support the right of appeal on questions of law and fact. We do not agree. The principal relief sought here is the sustaining of exceptions to the inventory and appraisement in the estate of decedent and appellant elected to pursue this proceeding which is statutory. The fact that equitable principles would be applied in deciding the issues does not shape nor control the character of the appeal.

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


author: By BARTLETT, J.

text:
    STEWART, Petitioner, v. ALVIS, Warden, Respondent.
    Common Pleas Court, Franklin County.
    No. 196604.
    Decided February 13, 1957.

      Walter Stewart, Columbus, per se.
    William B. Saxbe, Atty. Geni., Columbus.
   OPINION

By BARTLETT, J.

This is a proceeding in habeas corpus, wherein the petitioner seeks his release from the Ohio Penitentiary to which he was sentenced by the Common Pleas Court of Mahoning County in 1949, after the jury had returned a verdict finding him guilty of uttering and publishing a forged instrument.

The Respondent’s return stated that he had custody of the said Walter Stewart since the 2nd day of June, 1949, “by virtue of a certain mittimus issued by the Court of Common Pleas of Mahoning County, Ohio, copies of which are hereto attached and made a part of this return.” Attached to said return is a certified copy of the indictment of said Walter Stewart and a certified copy of the Journal Entry showing the Court pronounced the judgment and sentence of said Stewart, “to be imprisoned and confined under §13083 GC, * * * for a term of not less than one year nor more than twenty years * * *.”

At the trial in the instant case, certified photostat copies were admitted in evidence of the indictment, journal entry of the judgment and sentence, verdict of the jury, the docket entries of the clerk and the Court’s docket with the judge’s recital in his own handwriting of the full proceedings in the trial of said Walter Stewart, including the pronouncement sentence ordering said Stewart to be confined in the penitentiary, etc.

The petitioner charged in his petition that since June 2, 1949, he had been “held as a prisoner in the custody of the respondent warden herein by virtue of an invalid mittimus which is in the form of a certified sentence, and a certified Journal Entry, * * * certified and signed by two Deputy Clerks of the Court of Common Pleas of Mahoning County, Ohio,” * * * who had no power to so certify or sign “any order, judgment, entry or sentence of the court, except when such process had been duly signed by the Judge who rendered such process.”

Thereupon the petition charges that the court or judge never signed any sentence or journal entry so certified aforesaid.

It is conceded that the Court never signed any written sentence or journal entry in the petitioner’s case. The Court orally pronounced sentence and judgment, and the Clerk entered such judgment and sentence in the journal as certified.

Sec. 2949.12 R. C. (§13455-1 GC), provides:

“A convicted felon shall be conveyed to the place of imprisonment by the sheriff, * * * and delivered into the custody of the head of such institution, with a copy of such sentence which shall clearly describe the offense and designate the sections of the Revised Code under which the conviction was had, together with a copy of the indictment. The clerk of the court of common pleas shall furnish said copies of the sentence and indictment.”

This statute, in other words, sets out the essential requirements of the mittimus issued by the Clerk of Court, to accompany the prisoner to the institution; and the petitioner says his mittimus is invalid. The things required under this statute constitute no part of the judicial acts of the Court. State v. Peters, 43 Oh St 629.

“If it appears that a person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or magistrate, or by virtue of the judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the process, render the judgment, or make the order, the writ of habeas corpus shall not be allowed. If the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order.” (Emphasis ours.) Sec. 2725.05 R. C. (§12165 GC).

“The remedy as to errors or irregularities in the conduct of a criminal trial or in the sentence of an accused is by appeal and not by an action in habeas corpus, where the court has jurisdiction of the crime and the person. In re Whitmore, 137 Oh St 313, * * *; Ex parte Van Hagan, 25 Oh St 426; Sec. 2725.05 R. C.” Per curiam opinion, In re Kramer, 163 Oh St 510, 511.

“Counsel for defendant claim that some time after sentence and judgment were pronounced, the exact date not being stated, the assistant prosecuting attorney prepared an entry and submitted it to counsel for defendant for approval, and that, because the entry was submitted, counsel for defendant were misled into believing that the time within which to prosecute an appeal was not running. No showing is made that counsel for defendant were not present or aware that sentence and judgment had been pronounced on October 30, 1948.” (Emphasis ours.) Wiseman, J., in his opinion on behalf of the Court of Appeals of Franklin County (1949), in the case of State v. McGahan, 86 Oh Ap 283, 284.

This branch of the court allowed the Writ of Habeas Corpus to issue in the instant case, with the feeling that Mr. Stewart was entitled to a hearing in open court, based upon the apparent decision in the Dean case by the Court of Appeals of this District, even though we were inclined to view that decision as erroneous, in the light of the Supreme Court decision, In re Kramer, supra, and the limitations presented by §2725.05 R. C., supra, upon a proceeding in habeas corpus, as a remedy to correct errors or irregularities in the conduct of a criminal case or in the sentence of the accused.

In the meantime, Leach, J., a colleague in this court, rendered an able and well considered decision in the case of Foglio v. Alvis, Warden, etc., No. 196,808, dockets of this court. In that case. Leach, J., declined to consider the action of the Court of Appeals in the Dean case as a binding legal precedent on this court, since “the attorney for the respondent conceded that Dean was entitled to his release from the penitentiary. Because of such fact, that court had no occasion to examine carefully into the law or to render any considered decision as to the questions which could have been raised but were not.” Leach, J., found in the Foglio case, supra, that the respondent Warden did not receive any papers with reference to the prisoner, signed by the judge who pronounced sentence.

“Instead in literal compliance with §2949.12 R. C., the Clerk of Courts furnished to the Sheriff, who delivered into the custody of the respondent ‘a copy of such sentence which shall clearly describe the offense and designate the sections of the Revised Code under which the conviction was had, together with a copy of the indictment.’ The clerk certified the same to be ‘a true copy of said judgment and sentence’ and further certified that such was taken from the Journal of the Court, referring to the specific volume and page number of such Journal.”

Thereupon, Leach, J., held:

“Neither this statute nor any other statute nor any principle of law required the signature of the sentencing judge.”

The petitioner Foglio was remanded to the custody of the respondent Warden, by Leach, J„ and his petition dismissed.

Just a few days ago, the Court of Appeals of Franklin County rendered a decision in the habeas corpus case of Reiter v. Alvis as Warden, Case No. 5630, in which that court refused to recognize the Dean case in its own court as a precedent. Miller, PJ„ in the Reiter case, speaking for the court, said:

“The record reveals that the petitioner is being held in said prison upon a certain mittimus from the Common Pleas Court of Seneca County, consisting of (1) a copy of the indictment; and (2) a copy of the judgment and sentence to the Ohio Penitentiary. These were filed in compliance with §2949.12 R. C. and constitute the authority for the prisoner’s detention by the respondent warden. The one and only ground upon which the prisoner relies is that no signed entry was issued to the Clerk ordering that the sentence pronounced in court be journalized. The judgment has, however, been journalized and when this act is completed it constituted the judgment of the court, * * * Such a judgment is not open to collateral attack when the record discloses that the court had jurisdiction of the parties and the subject of the action * * *.”

Miller, PJ., continued:

“Even if the plaintiff were correct in his contentions and the judgment was improperly entered, which we do not concede, the only remedy available to him would be by motion to correct the sentence.” * * *
“The petitioner cites the case of Dean v. Alvis, No. 5590, by this court and unreported, in which a writ was allowed and the prisoner was remanded to the Sheriff of Franklin County for further proceedings according to law. This case was presented to the court while it was in session, upon representation that no sentence had been pronounced. The facts and the entry were agreed upon by counsel. The Court did not have the opportunity to analyze the facts and prepared no opinion. However, in the cited case the prisoner was not ordered discharged. We therefore decline to follow this case as a precedent.”

In the case of State, ex rel. Moore, v. Alvis, our Court of Appeals held in Syl. 2, 94 Oh Ap 464, as follows:

“Where, in a prosecution for murder in the first degree, the record of the proceeding discloses clearly that the accused and his counsel appeared in open court and with the consent of the prosecuting attorney and the approval of the court withdrew pleas of ‘not guilty,’ and ‘not guilty, by reason of insanity’ and entered a plea of guilty of murder in the second degree under which such accused was sentenced, and where the journal entry effecting such substitution of pleas recites that the accused withdrew the plea of ‘not guilty’ and omits to recite that the accused withdrew the plea of ‘not guilty, by reason of insanity,’ such omission may be supplied nunc pro tunc.”

See also Benedict v. State, 44 Oh St 679, and State v. Montavon, 26 Abs 682.

In the Moore case, supra, on p. 466, the Court of Appeals of this county in its Per Curam opinion, says:

“The judgment entry does not completely recite the action of the trial court, and should be modified by a nunc pro tunc order.
“Since we find that the court had jurisdiction in the criminal prosecution, the petitioner is not entitled to be released from custody. Petitioner remanded to custody.”

In other words, the second tragic mistake of the Court of Appeals occurred when the prisoner Dean was remanded to the sheriff for further proceedings according to law, since under the Moore case, where the Court of Appeals ordered the record of the lower court completed by a nunc pro tunc order, it properly remanded the prisoner back to the penitentiary. Certainly the presence of the prisoner is not essential where the lower court is required to merely correct or complete its record.

In any event, the only thing required in the Dean case after it was remanded to the trial court, was a nunc pro tunc order to supply any omission from the journal entry, as the Dean case falls squarely within the doctrine of the case of Benedict v. State, supra, wherein it was held that any such omission from the journal entry may be supplied by a nunc pro tunc order at a subsequent term, where the order actually made appeared upon the trial docket. In the Dean case the entire proceeding was recited on the trial docket in the handwriting of the late Judge Clifford, including the overruling of the motion for a new trial and the sentence of the prisoner to the Ohio Penitentiary for life, on the verdict of guilty of first degree murder returned by a jury of this county.

“2. The rendition of judgment is an oral or written pronouncement by the court of its conclusions and decision upon the matter submitted to it for adjudication.
“3. Rendition and entry are separate acts and different in their nature. The rendition of a judgment is a judicial act; its entry upon the record is merely ministerial.
“4. The ministerial act of entering a judgment previously rendered is not prevented by the death of the judge.
“5. Where the evidence justifies the same, and the facts are such as to require the recognition of the pronouncement of a judgment by the court in the interest of justice, the court has the unquestioned power to make the entry and to require it to reflect the actual fact.” Boyle et al. v. Glidden Co., et al., 23 O. O. 3.

“And so far as the ministerial act of entering a judgment previously rendered is concerned, it is not prevented or affected by the mere fact that in the meantime the judge’s term of office has expired. In case of the death of a judge the situation is substantially identical with that arising when his term of office expires and the same rules are applicable.” Freeman on Judgments, 5th Edition, Section 58, pages 103 and 104.

So held in 1857 in the case of Hollister et al. v. The Judges etc., 8 Oh St 202, where the term of office of two of the judges of the court had expired, the Supreme Court of Ohio ruled:

“2. To make such correction, the court may hear evidence and act on the proof; and it is not essential to the action of the court that the judges act on their personal knowledge of the error.”; and thereupon awarded a peremptory writ of mandamus.
“7. A decision made by one judge becomes the law of the case which the succeeding judge must follow in the same court between the same parties, in the same or similar proceedings.” In re Howell, 74 Abs 217, wherein the court ordered an omitted order journalized nunc pro tunc.

If the warden of our penitentiary and the superintendents of our reformatories permitted the same carelessness and stupidity shown in the Dean case, the inmates of such institutions would hardly need habeas corpus as a means of release.

This Court finds that the judge of this court is not required to sign a written journal entry in sentencing a prisoner; but that the judgment is complete when the judge orally pronounces sentence in open court, and the clerk enters such sentence in the journal.

Moreover, this Court finds that where the journal record needs to be completed or corrected, so as to show the actual sentence pronounced previously, it is not essential that the prisoner be present, so he should be remanded to the custody of the institution to which he was sentenced.

The petitioner herein is remanded to the custody of the respondent warden and the petition is dismissed.


author: By DAVIES, J.:

text:
    GOULD, Estate of, In re.
    Probate Court, Hamilton County.
    No. 195226.
    Decided June 19, 1956.

      Bradley, Foiles & Saeman, for Frederic John Gould, surviving spouse of Helen F. Gould, deceased.
    Graydon, Head & Ritchey, John W. Warrington, for The Fifth Third Union Trust Company, Executor and Trustee of the Estate of Helen F. Gould, deceased.
   OPINION

By DAVIES, J.:

The Fifth Third Union Trust Company, executor and trustee of the estate of Helen F. Gould, deceased, has filed a motion to have the election of Frederic John Gould, the decedent’s surviving spouse, declared null and void, held for naught, and stricken from the record. The surviving spouse, in turn, has presented a motion to strike the executor’s said motion from the record.

Helen F. Gould died testate on March 8, 1954, on which date she was domiciled, and resided, in Pembroke, Bermuda, a crown colony of the United Kingdom. Her will was admitted to probate in the Probate Court of Hamilton County, Ohio, on April 29, 1954, under the provisions of §2107.11 R. C., which provides that “a will shall be admitted to probate— (A) In the county in which the testator was domiciled if, at the time of his death, he was domiciled in this state; (B) In any county of this state where any real or personal property of such testator is located if, at the time of his death, he was not domiciled in this state, and provided that such will has not previously been admitted to probate in this state or in the state of such testator’s domicile.”

The decedent left personal property (valued at $126,723.08) located in Hamilton County, and her will has not been admitted to probate in any other jurisdiction. Both Mr. and Mrs. Gould were citizens of the United States.

On May 5, 1954, the surviving spouse made an election to take under his wife’s will, and on September 26, 1955, this election was set aside for technical reasons and the surviving spouse was given sixty additional days within which to make an election. On October 11, 1955, the said widower personally appeared in open court and elected not to take under the will of his deceased wife.

It is toward this latter election that the executor has directed its present motion to strike, contending that Mr. Gould, as the surviving spouse of a decedent who was domiciled in Bermuda, has no right of election under Ohio law. Mr. Gould, in his motion, contends that this motion of the executor should be stricken from the files on the two following grounds, to-wit: (1) on September 26, 1955, on motion of Frederic John Gould, filed January 28, 1955, this court entered its order granting him sixty days additional time to make his election whether to take under the will or under the laws of descent and distribution of Ohio, and to which order the executor reserved its exceptions (arguing that the entry allowing Mr. Gould additional time to make his election was a formal finding that such right of election existed); (2) that the executor is not a proper party in interest to question the legal right of the surviving spouse to make his election.

Under the law of Bermuda, a surviving spouse has no right to elect whether to take under the law or under his deceased spouse’s will.

The surviving spouse, in questioning the authority of a fiduciary to object to a relict making an election, contends that the right or lack of a right of a surviving spouse to make his election does not come within the purview of the duty, responsibility, nor concern of the personal representative. We cannot agree with this position. It is the duty of an executor to inventory, administer, and distribute the estate of his testator in accordance with the terms of the will and with established legislative and judicial law and procedure. When doubtful as to the law or procedure in the administration of an estate, it is the right and duty of the executor to present for determination, by suitable motion or pleading, such doubtful question before the appointing court or other tribunal having jurisdiction in the matter. For the purpose of determining if distribution should be made under the terms of a will or under the provisions of law when a surviving spouse has elected to take against a will, an executor has the right to object to the making of an election by such spouse.

In the instant case, the executor is also testamentary trustee of the decedent’s estate, and in this latter capacity it is the trustee’s paramount duty to preserve and protect the trust estate in compliance with the terms of the trust. 90 C. J. S. 231, 40 O. Jur. 375. The trustee also owes a duty to the cestui on taking over property from the executor to examine the property tendered and see if it is that which he ought to receive. Trust and Trustees, Bogart, Vol. 3, Sec. 583, P. 15.

The Fifth Third Union Trust Company, both as executor of the estate of Helen F. Gould, deceased, and as trustee under her will, for the reasons stated, has the right to object to the widower’s election to take against said decedent’s will.

The surviving spouse further contends that the fiduciary’s motion to strike the election from the record should be overruled because the granting by the court, on September 26, 1955, of sixty days additional time in which the spouse could make his election “was a formal finding that such right of electing existed,” and the matter is now res judicata. Briefly stated, the doctrine of res judicata is that an existing final judgment or decree, rendered upon the merits, and without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions, and facts in issue, as to the parties or their privies, in all other actions or suits in the same or any other judicial tribunal of concurrent jurisdiction. 23 O. Jur., 961.

The entry of the court granting the spouse sixty additional days in which to make his election was not expected to be, and was not, a judgment rendered upon the merits of the question of the spouse’s right, or lack of right, to make an election to take against his wife’s will.

It is not disputed that the succession to real property is determined by the law of the situs of the property unless the statute of the situs provides otherwise. Eliza Jennings v. Wm. Jennings, 21 Oh St 56; Restatement of the Law, Conflict of Laws, Sec. 245 if; 11 Am. Jur., 342.

In the Jennings case, William Jennings died testate while domiciled in West Virginia and his will was admitted to probate in West Virginia and also admitted to record in Mahoning County, Ohio. Eliza, the surviving spouse, filed a suit for partition and dower in Mahoning County (Ohio). The widow elected in the West Virginia court to take under the law. The law of Ohio provided that when duly executed and proved according to the law of the testator’s domicile, authenticated copies of such wills and probate, when admitted to record in this state, and duly recorded “shall have the same validity as wills made in this state, in conformity with the laws thereof, are declared to have.” The court (p. 79) reasoned that both foreign and domestic wills are subject to the same general laws of construction, unless the statute provided otherwise. The court concluded that the laws of Ohio govern in the construction of wills disposing of lands situated in Ohio. See also Bailey v. Bailey, et al., 8 Ohio 239.

In Swearingen, Adm. v. Morris, 14 Oh St 424, a domiciliary fiduciary was appointed in Pennsylvania, an ancillary administrator was appointed in Ohio, and a controversy developed concerning the distribution of property found in Ohio. The court approved the general principle that personal property has no fixed situs and adheres, in contemplation of law, to the person of the owner and is disposed of according to the jus domicilii.

The court (p. 429), however, stated that “while this is the general rule, - - - a limitation, as well settled as the rule itself, makes an exception in respect to debts; and no state is under obligation to permit the personal estate of a deceased debtor to be withdrawn until the claims of his creditors, resident in the state where the property is found, have been first satisfied.” The court further stated: “from this limitation, and to give it effect, results the established doctrine, that a grant of administration in the state where the deceased resided, does not, as a matter of right, extend beyond the territorial limits of such state, nor confer title to movable property situated in other states;---. Whatever relaxation of this doctrine obtains, arises ex comitate, and, of course, is subject to be controlled or modified as each state may think proper, with reference to its own institutions, and its own policy, and the rights and interests of its own citizens.”

In the absence of statutory provisions to the contrary, it is generally held that the right or other interest of a widow, child, or other person to a share of the movables of a decedent in preference to a legatee, is determined by the state in which the decedent died domiciled. Sec. 301, Restatement of the Law — Conflict of Laws; 11 Am. Jur., 379; 9 O. Jur. (2d), 814; In re: Sahadi’s Estate, 125 N. Y. S. (2d), 204; In re: Slade’s Estate, 276 N. Y. S. 956.

In the case of In re: Estate of McCombs, 52 Abs 353, the court, while pointing out that the rights of a relict in the state of her deceased consort in an estate consisting of personalty are determined by the law of the decedent’s domicile, held that “the dominion of a state over personal property within its border is complete, and its right to regulate its transfer and subject it to process and execution in its own way and by its own laws is unquestioned; and only so far as the comity of that state allows can such property be affected by the law of any other state.”

In a case originating in Minnesota, Marie M. Owsley died testate on December 10, 1910, domiciled in Virginia. Her will was admitted to probate in Virginia, and ancillary letters were issued by the Probate Court of St. Louis County, Minnesota (where she owned personal and real property) on February 11, 1911. Her surviving spouse petitioned the Minnesota court to take against the will and under the law of Minnesota. He also filed a similar motion in the Virginia court. The court held that, under the statutes of Minnesota, “no reason is to be found, either in our statutes or our public policies, why the general rule that no presumption of exclusion of non-residence will be indulged where the terms of the statute are general; and hence, the surviving spouse of a nonresident testator may, though also a non-resident, renounce the will and claim as statutory heir.” In re. Owsley’s Estate, 122 Minn. Rep., 190, 142 N. W. 129.

In a Vermont case, George H. Holden died testate on June 17, 1937, domiciled in Florida. His estate, consisting of personal property, was located in Burlington, Vermont. Letters testamentary were taken out in Vermont.

The court pointed out that, generally speaking, a will should be submitted, in the first instance, to the forum of the domicile of the testator, but that this general rule is subject to legislative and judicial ascertainment of the forum where property of a decedent is located. The law of Vermont provided that “if a person resided out of the state at the time of his death, his will shall be allowed and recorded and letters testamentary or of administration shall be granted in the Probate Court of any district in which he had estate.” The court held that “every state has plenary power with respect to the administration and disposition of estates of deceased persons as to all property of such persons found within its jurisdiction.” The court concluded that letters were properly issued in Vermont under the aforementioned section of Vermont law. In re: Holden’s Estate, 110 Vt. Rep. 60, 1 Atl. Rep. (2d), 721.

In the case of Bolton et al. v. Barnett et al., 131 Miss., 802, 95 So. 721, the court considered a case in which the facts were very similar to those in the instant case. The testatrix, Bertha Bolton, was domiciled in Tennesse at the time of her death. She died possessed of both personal and real estate located in Prentiss County, Mississippi, where her will was admitted to probate. There was no administration of decedent’s estate in Tennessee.

The Mississippi code provided that “authenticated copies of wills, proven according to the laws of any of the states---, may be admitted to probate in the proper court, or the original will may be proven and admitted to record here;---.”

The surviving spouse elected to take against the will and under the law. A surviving spouse had no such right under the laws of Tennessee. It was contended that the husband had the right of election as to the real estate where the lex rei sitae governed, but not as to the personal property because the law of the domicile of the testatrix governed, and under the law of Tennessee, the husband, upon renouncing the will, took no part of the personal estate. The court pointed out that the right of renunciation is an incident to the jurisdiction of the tribunal which has the exclusive right to admit a will to probate, and proceeds from the jurisdiction over the matter of probate, and recognized the general rule that, when there is an original administration where the testator was domiciled, and an ancillary administration in another state where personal property is found, there cannot, and should not, be a right of election in the latter jurisdiction. The foundation stone of this rule, the court pointed out, is that this is but an ancillary administration, and that the court, with reference to the personal property, will enforce by comity the law of the domicile of the testator. The court further pointed out, however, that, because of the Mississippi law which permits the original probate of a foreign will in Mississippi, such a probate and administration is original and in no way ancillary to the probate at the domicile of the testatrix.

The court concluded that, under Mississippi law, the Mississippi court had jurisdiction not only to admit the will to probate in the first instance, but also the right of renunciation pertained to that tribunal. The court, on page 726, stated that “we neither look to the state of the domicile of the testator for the power to renounce nor to the share to be taken upon the renouncing of the will either of the real estate or the personal estate situated here, but look to our own laws for both because of the original probate of the will here. Under our law, the husband has the right to renounce the will. This statute does not give the right of renunciation to only citizens of this state, but gives it to any husband or wife upon the probate of the will of the deceased.”

The court, in conclusion, laid down the following principles of law:

“Where a testator living in a sister state owns real and personal property situated in Mississippi, the original will devising and bequeathing this property may be probated in the first instance in the county in this state where the property is situated.
“In this state the administration of the estate of a deceased person, no matter where his domicile was, is independent of all other administrations, and is to be conducted in all respects as if the decedent had been a citizen of this state when he died.
“Under §3374, Hemingway’s Code (§5086, Code 1906), a husband has the right to renounce the will of his wife and take a child’s part of the estate, both real and personal, though the domicile of the testatrix was in a foreign state, under which law the right of renunciation is not given the husband.
“Since all administrations in Mississippi are now original, and not ancillary, the right of the husband, upon renouncing the will of the wife, to take a child’s part of both the real and personal property is governed solely by the law of this state, and not by the law of the domicile of the testatrix at the time of her death---.”

The contra was held in Slaughter et al. v. Garland, 40 Miss. Rep. 172, before the legislature passed legislation permitting an original administration of a testator’s estate when the testator died domiciled in another state possessed of property in Mississippi.

In In re: Estate of Mitchell v. Carter, Adm, 97 Oh Ap 443, Roland Mitchell, a resident of Florida, died in that state, possessed of personal and real property located in Lorain County, Ohio. Gladys Mitchell, the surviving spouse, also resided in Florida. Ancillary administration of decedent’s estate was conducted in Ohio, while domiciliary administration was being conducted in Florida.

The question arose as to whether or not an allowance for property exempt from administration, as provided for under §10509-54 GC (§2115.13 R. C.) must be set off to a non-resident surviving spouse in the local estate of a non-resident decedent.

Said section provides that “when a person dies leaving a surviving spouse, or a minor child or children” certain property (the value of which does not exceed $2500) shall not be deemed assets of the estate and set off for the benefit of the surviving spouse and children.

The court held that the allowance for property exempt from administration, as provided in said §10509-54 GC (now §2115.13 R. C.), must be set off to a non-resident surviving spouse in the local estate of a nonresident decedent because the statute does not read that “when a resident of the state of Ohio dies leaving a surviving spouse residing in the state of Ohio” but reads “when a person dies leaving a surviving spouse” —any person dies leaving any surviving spouse, the property exempt from administration shall be given to such surviving spouse.

The court reasoned that, as held in State v. Stevens, 161 Oh St 432, 119 N. E. (2d) 616, “in the construction of a legislative enactment, the question is not what did the General Assembly intend to enact but what was the meaning of that which it did enact.”

Ohio, like its sister states, has adopted various procedures for the administration of estates of non-resident decedents who die possessed of property located in Ohio. These procedures are designed to cover situations in which non-residents die testate and intestate and when domiciliary proceedings have and have not been instituted. When letters of administration or letters testamentary have been granted in another state, or in any foreign country, and when no ancillary administration proceedings have been had in Ohio; a non-resident executor or administrator may prosecute proceedings in Ohio to bar creditors’ claims. Sec. 2129.02 R. C.

When a non-resident decedent leaves property in Ohio, ancillary proceedings may be had upon application of any interested person in any county of Ohio in which is located property of the decedent, or in which a debtor of such decedent resides. Sec. 2129.04 R. C.

Authenticated copies of wills, executed and proved according to the laws of any state or territory of the United States, relative to property in Ohio, may be admitted to record in the probate court of a county where a part of such property is situated. Sec. 2129.05 R. C.

Under §2129.07 R. C., an authenticated copy of a will executed, proved, and allowed in a country other than the United States and territories thereof can be allowed, filed, and recorded in the county in Ohio in which there is any estate upon which the will may operate, and such will and the probate and record thereof then shall have the same effect as if the will originally had been proved and allowed in this state. When such copy has been filed and recorded, and when no ancillary proceedings have been had or are being had in Ohio, the Ohio law relating to election shall be the same as in the case of resident decedents, except that such election shall be made not later than six months after the record of such copy.

The foregoing proceedings are dependent upon original domiciliary proceedings in another state or country and are ancillary to said original proceedings. The Ohio law provides that if no domiciliary administration has been commenced, the ancillary administrator shall proceed with the administration in Ohio as though the decedent had been a resident of Ohio at the time of his death. See. 2129.11 R. C.

As hereinbefore mentioned, §2107.11 R. C., provides that a will can be admitted to probate not only in the county in which the testator was domiciled at the time of his death, but also in any county of this state where any real or personal property of such testator is located if, at the time of his death, he was not domiciled in this state, and provided that such will has not previously been admitted to probate in this state or in the state of such testator’s domicile.

By the terms of §2113.01 R. C., “if the will of any person is admitted to probate in this state, letters testamentary---shall be granted by the probate court in which such will was admitted to probate.”

Sec. 2107.39 R. C., provides that “after the probate of a will and filing of the inventory, appraisement, and schedule of debts, the probate court on the motion of the executor or administrator, or on its own motion, forthwith shall issue a citation to the surviving spouse - - - to elect whether to take under the will or under §2105.06 R. C.,” the statute of Descent and Distribution.

The legislature has not established any different procedure for the administration of the real or personal property of a testator located in Ohio when the testator at the time of his death was not domiciled in Ohio and his will has not previously been admitted to probate in this state or in the state of such testator’s domicile, under the provisions of §2107.11 R. C., than it has established for the administration of an estate of a testator who was domiciled in Ohio at the time of his death.

Under the provisions of §2107.39 R. C., the surviving spouse — not only the surviving spouse of a testator who was domiciled in Ohio at the time of his death, but also the surviving spouse of a testator who was not domiciled in, but owned property in, Ohio, and whose will has not previously been admitted to probate in any other county of Ohio or elsewhere — has the right, under §2107.39 R. C., to elect whether to take under his deceased spouse’s will or under the statute of descent and distribution.

A review of the aforementioned Ohio statutes and a study of the cited authorities lead us to the conclusion that the legislature of Ohio intends to extend to a surviving spouse, wherever domiciled, the right to elect whether to take under the will of his deceased spouse or to take under the Ohio statute of descent and distribution that portion of the decedent’s real or personal property located in Ohio when (Ohio) letters testamentary have been issued under the will of a deceased spouse who at the time of her death was not domiciled in Ohio and when such will has not previously been admitted to probate in any other county of Ohio or in the state of such testatrix’s domicile.

The testatrix (Helen F. Gould), at the time of her death, was not domiciled in Ohio; her will has not been admitted to probate in any other county in Ohio, or elsewhere; she died possessed of personal property located in Hamilton County, Ohio; her will has been originally admitted to probate in Hamilton County; and, under these circumstances, §2107.39 R. C., gives her surviving spouse the right to elect whether to take under her will or under the law. Accordingly, the executor’s and trustee’s motion to have the surviving spouse’s election stricken from the record will be overruled.


author: Per CURIAM.

text:
    GOULD, Estate of, In re: FIFTH-THIRD UNION TRUST COMPANY, Appellant, v. GOULD, Appellee.
    Ohio Appeals, First District, Hamilton County.
    No. 8191.
    Decided November 5, 1956.
    John W. Warrington, Graydon, Head & Ritchey, Cincinnati, for appellant.
    Lester G. Saeman, Bradley, Foiles & Saeman, Cincinnati, for appellee.
   OPINION

Per CURIAM.

The sole question presented by this record is whether the surviving spouse of a testatrix, both of whom were American citizens, domiciled in a foreign country at the time of her death, at which time she owned personal property ' located in Hamilton County, Ohio, where the sole original administration of her estate was being administered in the Probate Court, is entitled to elect to take under the law rather than under her will.

The Probate Court held that the surviving spouse had the right to elect under the statutes of Ohio, notwithstanding that under the laws of the foreign country, the surviving spouse had no such right.

We have considered the opinion of Judge Davies and are satisfied to rest our affirmance of his judgment upon the reasoning and authorities contained in his opinion.

ROSS, PJ, HILDEBRANT and MATTHEWS, JJ, concur.


author: By PHILLIPS, PJ.

text:
    SPAGNOLA, Plaintiff-Appellant, v. RAYBURN, County Auditor et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Mahoning County,
    No. 3799.
    Decided October 6, 1955.

      William B. Spagnola, Youngstown, for plaintiff-appellant.
    W. P. Barnum, Youngstown, for defendants-appellees.
   OPINION

By PHILLIPS, PJ.

Plaintiff in the court of common pleas, and appellant here, an owner of land situated in Youngstown, sought to enjoin the levy of an assessment made by the Court of Jurisdiction, which is so identified here, upon all the real property situated in that city to pay for the cost of constructing a new Berlin Meander pipe line of the Mahoning Valley Sanitary District. It is not an action complaining of the allowance of compensation or damages for any specific land taken from him for the improvement.

Provision for such assessment was made in Amendment Number I, and was based upon an appraisal of benefits approved by an order of the Court of Common Pleas sitting on March 19, 1953, as a Sanitary District Court. The order of March 19, 1953, followed a report of a Board of Appraisers on allocation of benefits as between the cities of Youngstown and Niles, Ohio.

Plaintiff based his appeal to this court on questions of law upon the following assigned grounds of error:—

“1. The court of common pleas erred in finding that the appellant failed to sustain his claims as made by the proper degree of proof, and in rendering judgment in favor of the appellees and dismissing plaintiff-appellant’s case.

“2. The court of common pleas erred in holding that the Court of Jurisdiction having entered a final order and decree on September 29, 1952, approving the Report of the Board of Appraisers in connection with Amendment No. 1 of the Official Plan of The Mahoning Valley Sanitary District, could thereafter vacate this final order and decree and enter a second final order and decree on March 19, 1953, approving the revised report in connection with said Amendment No. 1.

“3. The court of common pleas erred in ruling that the Court of Jurisdiction of The Mahoning Valley Sanitary District could enter its second final order and decree of March 19, 1953, without legal publication of the Amended Report of the Board of Appraisers approved in said order and decree of March 19, 1953.”

By brief appellees state:—

“Since the above case was tried in the Court of Common Pleas of Mahoning County, Ohio, and the appeal therefrom on questions of law by the plaintiff-appellant, former defendant D. L. Evans of Niles, Ohio, has died, and W. F. MacQueen of Niles, Ohio, has been appointed in his place and to serve out his unexpired term. Defendants-appellees, therefore, respectfully suggest the death of defendant D. L. Evans and request the substitution of W. F. MacQueen in his place.”

This court grants such request and W. F. MacQueen is substituted as party defendant in this appeal in the stead of D. L. Evans, deceased.

plaintiff based his suit in the trial court on the grounds first that the order of March 19, 1953, was invalid because no notice of hearing upon the report of the Board of Appraisers was published as required by §6115.34 R. C., requiring the Clerk of the Court of Common Pleas to publish notice of the filing of the appraiser’s report.

The original report of the Board of Appraisers on the allocation of benefits between the two cities was filed on December 7, 1951, and it was conceded that proper publication of notice of hearing was made in connection therewith and was approved by the court on September 29, 1952.

The Court of Jurisdiction acted under the provisions of §6115.35 R. C., which provides:—

“The court may, if it deems necessary, return the report to the board for its further consideration and amendment, and enter its order to that effect. If the appraisal roll as a whole is referred back to the board, the court shall not resume the hearing thereof without new notice, as for an original hearing thereon. The court may, without losing jurisdiction over the roll, order the board to recast the roll when the order of the court specifies the precise character of the changes thereof.”

On December 10, 1952, the court of jurisdiction vacated the order of September 29, 1952, and returned the report to the Board of Appraisers for further consideration and report. The Board of Appraisers filed an amended report on December 15, 1952, which changed the allocation of benefits between the cities of Youngstown and Niles. The invalidity claimed by plaintiff here, as in the trial court, is that no notice of hearing on the amended report was published.

In his opinion the trial judge said:—

“The court, in its order of December 10, 1952 (Exhibit 37) in returning the report for further consideration and amendment, stated its purpose that the Board reconsider the allocation of benefits between Youngstown and Niles in order to avoid as far as possible any variable or fluctuating factors in determining said apportionment. The court (1) ordered a further recast to apportion the total benefits of the construction of amendment No. 1 between said member cities in such a way as will avoid as far as possible any variable and fluctuating factors during the life of the bonds to be issued to pay for the improvements in said amendment No. 1, a period of approximately 20 years. (2) Recommended that in considering the various factors bearing upon the allocation of benefits between the member cities the appraisers give consideration to a former determination of the court that tax values be weighted at 36% and water consumption at 64% and (3) directed the Board to allocate total benefits as between the member cities as deemed just and equitable under the facts as they find them to exist.”

In disposing of the first ground of plaintiff’s action the trial judge said in his opinion, in which statement we concur:—

“The purpose of the above quoted language in §6115.35 R. C. is to state the circumstances under which there need be no further publication of notice of hearing when the report is returned to the Board for further consideration and amendment. There need be no such further notice when the court’s order specifies the precise character of the changes. In my judgment, the order of December 12 specified the precise character of the changes i. e. to avoid variable and fluctuating factors and to weight tax values at 36% and water consumption at 64%. The statute does not say that the precise changes be specified but that the precise character of the changes be specified. The Board’s direction to allocate factors justly and equitably on the facts is no more than a direction to the Board to do its work as specified justly and equitably. It is not the equivalent of returning the roll as a whole for further consideration without specifying the precise character of the changes to be made. It is therefore my conclusion that the first ground for an injunction relied on by plaintiff is without merit.”

In the second ground of his action filed in the trial court plaintiff charged that court with being without power to make the order of March 19, 1953, approving the report of the board of appraisers upon which the assessment levy would be based.

Plaintiff claimed in the court of common pleas, and claims here, that the order of September 29, 1952, approving a prior report of the board exhausted the jurisdiction of the court of jurisdiction with respect to the approval of benefits under Amendment No. I of the plans of the district, and that such court was without power to vacate that order, as it purported to do on December 10, 1952, the court being one of special and limited jurisdiction, and the act creating it not having given it power to vacate.

Plaintiff argues that the court of jurisdiction being a special statutory court may not exceed the powers specifically conferred upon it by statute; that it does not sit regularly; observes no terms of court and takes cognizance of a few specified matters only and has no power beyond the performance of such specified duties; and that accordingly such court cannot vacate or change its own final judgment.

Plaintiff supported his argument in the court of common pleas, as he supports it here, by the decision of this court in the case of Ohio Water Service Company v. Mahoning Valley Sanitary District, Mahoning Appeals No. 3329, in which this court affirmed a decision of the court of jurisdiction maintaining that it was a court of special and limited jurisdiction.

In disposing of that argument the trial judge said in his opinion, in which statement we likewise concur:—

“But there is a clear distinction between the issue there involved and the one before me. In that case the subject matter of the petition i. e. a declaration of rights, is not within the powers conferred upon the court by the Sanitary District Act. Here the court was acting within powers specifically conferred by the act, namely, the approval of a report of the Board of Appraisers under §6115.35 and .36 R. C. The question here is not one of jurisdiction at all; jurisdiction means the legal right to hear and determine a cause. The question here is one of the court’s power when it is acting within its jurisdiction.
“A court of common pleas under the Ohio Constitution has its jurisdiction fixed by law i. e. by legislative act. It has general jurisdiction in civil cases involving money, §2305.01 R. C. It has beyond that additional jurisdiction in particular cases not involving money, e. g. mandamus §2731.02 R. C. So here the Sanitary District Act §6115.01 R. .C. confers jurisdiction upon the local Common Pleas Court or courts to establish Sanitary Districts and to determine other matters in connection therewith. Thus this additional jurisdiction is conferred by law under the Constitution upon a court of general jurisdiction which sits during terms of court. It continues to be a Court of Common Pleas, a court of general jurisdiction exercising a particular additional jurisdiction under the Sanitary District Act.
“In doing so, the court retains all of the procedural powers ordinarily exercised by it except as they may be modified by the act conferring the additional jurisdiction upon it. There being no limitation thereof in the Sanitary District Act, it retains its inherent common law power in its discretion to vacate its judgment within the term that they were rendered, when, as here, it is exercising a specific jurisdiction conferred upon it.
“Therefore, it is my conclusion that the court had power in its discretion to vacate its order of September 29, 1952, on December 10th of the same term of Court and there can be no question of the validity of the order of March 19, 1953, upon which the levy of assessment will be based.
i<* * *
“Judgment will be entered for defendants dismissing plaintiff’s petition at plaintiff’s costs.”

Arguing the question of res judicata counsel for defendants states by brief, in which statement we concur:—

“It seems to the writer that the principles and rules of res judicata as set forth in the authorities apply in full to the instant case. We have the same parties. The cause of action is the same even though the case at bar is dressed up as an equitable action. The same legal questions are involved — the legality and validity of the recommendations as contained in the appraisers’ report and as set forth in the judgment, order and decree of the Court of Jurisdiction.
“The appellant is bound beyond any doubt by the determination as made by the Court of Jurisdiction. There is no claimed fraud or collusion on the part of any member or members of the Court of Jurisdiction. There is no question about their jurisdiction of the subject matter upon which they made their determination because it is subject matter set forth in the Sanitary District Act.
“Judgment as rendered by the Court of Jurisdiction is a complete bar to the present action.
“Appellant in the instant case is using a so-called equitable remedy to accomplish nothing more or less than an appeal or an overruling of the judgment of the Court of Jurisdiction whose judgment is conclusive.
“In conclusion, defendants-appellees respectfully contend that plaintiff-appellant has failed to offer any substantial evidence to support his claimed cause of action; that the rule of equity must follow the law necessarily defeats the plaintiff-appellant; that the Court of Jurisdiction is but a Court of Common Pleas having jurisdiction of the Sanitary District; and that such court has original and exclusive jurisdiction thereof; that no publication was required by law of the amendments of the so-called recasts having to do with the apportionment of costs as between the two cities; and that by all rules under the doctrine of res judicata judgment herein must be in favor of defendants-appellees.”

For the reasons stated it is obvious that we find no error prejudicial to the plaintiff in any of the respects urged in his assigned grounds of error, nor arguments orally, nor by brief.

Accordingly, the judgment of the trial court must be and hereby is affirmed for the reasons stated and on the reasoning set forth in the opinion of the trial judge quoted herein.

NICHOLS and GRIFFITH, JJ, concurs.