author: By McNEILL, J.

text:
    VICTOR MORTGAGE COMPANY, Plaintiff, v. ARNOFF et, Defendants.
    Common Pleas Court, Cuyahoga County.
    No. 336325.
    Decided February 23, 1952.

      Abner H. Goldman, Sidney A. Thorman, J. J. Clossman, Cleveland, for defendant Buckeye Federal Savings & Loan Association.
    David Perris, Cleveland, for defendants Arnoff.
    (McNEILL, J., Van Wert County, sitting by assignment in Cuyahoga County.)
   OPINION

By McNEILL, J.

(By Assignment)

This case comes on the objections of defendants Arnoff to the conditional order of revivor granted to defendant Buckeye Federal Savings & Loan Association. The case turns on the entry in the sale of certain property owned by defendants Arnoff.

It is plaintiff Buckeye’s contention that by said entry they obtained a deficiency judgment in the sum of $41,586.20. Arnoffs claim that none was given by the entry. Buckeye had cross petitioned against the Arnoffs alleging two causes of action, one for foreclosure and the other for judgment on a note. The pertinent parts of the entry in question are:

<,* * * Q0Urt further finds that the allegations in the cross petition of the defendant The Buckeye State Building & Loan Company are true and that there is due to said answering defendant, upon the note set up in its cross petition, the sum of $146,731.37, with interest at 8% from the 1st day of March, 1932; that to secure the payment of said sum, said cross petitioning defendant has a first and best lien upon the hereinafter described premises by reason of the mortgage given to it as security for said notes; that the conditions of said mortgage have been broken by the defendant Arnoff’s failure to pay said note according to its terms and that said mortgage has therefore become absolute. * * * ”
“* * * js therefore ordered, adjudged and decreed that unless the defendants Morris Arnoff and Hilda F. Arnoff, within three days from the entry of a decree herein shall pay to the plaintiff and to the cross petitioners the sums found due them, their equity of redemption be foreclosed and an order of sale issue to the Sheriff of Cuyahoga County directing him to appraise, advertise and sell as upon execution the following described premises: * * *”
“* * * Out of the proceeds of such sale the Sheriff shall pay the liens on said premises in the following order of priority:
“* * * 3. to the Buckeye State Building & Loan Co., the amount of its first mortgage lien in the sum of $146,731.37 with interest at 8% from the 1st day of March, 1932 6 *

Buckeye contends that §11645 GC provides for the revival of findings as well as of judgments. Consequently, it is immaterial whether they have a finding or judgment for admittedly the entry in question at least provides for a finding.

A finding generally is not a judgment but is only an expression as to what the court considers his judgment should be. Tillman v. Tillman, 184 Pac. 2d 784 (Okla.). In equity the recital of facts in a decree is proper, but the rights of the parties are determined solely by the decreeal portion of the decree. Higley v. Kinsman, 216 N. W. 673 (Ia.). This is the same rule in Ohio. Carr v. Loan Corporation, 148 Oh St 533.

Is this what the legislature meant by the use of the word “finding” in §11645 GC? The court does not believe so. A word may have a general meaning, but at times it may be given another meaning, one in keeping with the context where used. For example, the word “judgment” as used in the Constitution and as used in the code has different meanings. Chandler v. Southern Pacific Co., 104 Oh St 188. Although the words “decision,” “opinion,” and “finding,” are usually synonomous, in certain circumstances “decision” may mean “judgment.” Industrial Commission of Ohio v. Musselli, 102 Oh St 10.

In this case, the whole statute, §11645 GC, states:

“* * * when a judgment or a finding for money in equitable proceedings remains unpaid in whole or part, under the order of the court therein made, such judgment may be revived or such finding may be subject to execution of judgment. * * *”

A finding followed by an order is a decree. The words judgment and decree are often used together by the legislature. Secs. 11656 and 11664 GC provide for a judgment lien and for execution. In both instances the words judgment and decree are used. The same words have been used throughout the amendments of these sections.

Revivor can give an entry no greater effect than it formerly had. Miller v. Taylor, 29 Oh St 247. No new judgment is created merely by the revival. Smith v. Hogg, 52 Oh St 527. A mere finding has no effect as it cannot be levied upon or give a judgment lien. Secs. 11656; 11664 GC. The most a finding might possibly be considered to be is a cause of action.

Doyle v. West, 60 Oh St 438; Brigel v. Creed, 65 Oh St 40. Consequently, the language used in §11645 GC can only possibly mean a judgment or a decree may be revived.

The next question is whether or not Buckeye had a judgment or decree. Buckeye has cited the case of Weenick v. Slutz, 98 Oh St 342. In that case an entry similar to this was entered but said entry also awarded execution. Buckeye also cites the case of Doyle v. West, supra, and Carr v. Loan Corp., supra, and others. In these cases no personal judgment was sought. This case is not controlled by either line of decisions as a personal judgment was sought in this case but no execution was awarded by the entry.

To determine what the court may have meant, we must look at all the facts and circumstances before the court at the time of rendition. A liberal interpretation should be given to a judgment but the court cannot make a new one. 49 C. J. S. P. 862, §436. If there is no judgment, what is the effect? Early Ohio cases, Doyle v. West, supra, and Brigel v. Creed, supra, hold that if a personal judgment is not sought a finding of the amount due in the foreclosure proceedings will be res ad judicata and one is limited to bringing a new action on this finding. There is a doubt, however, that this is the law today. In the case of Carr v. Loan Company, supra, the court permitted a judgment rendered on a note, after a foreclosure had been obtained, to stand, the note being sued on in a separate suit. It was held that an action for personal judgment on the note and an action for foreclosure are separate and distinct, particularly where no levy of execution was awarded. At most there is a right to bring a new action on the finding within fifteen years. Doyle v. West, supra.

However, when both causes of action are joined and the entry grants foreclosure but is silent as to the cause of action seeking judgment on the note, the right to sue on the note is lost as the action for personal judgment is considered dismissed. The rule in such cases is that when two causes of action are brought and a journal entry disposes of one but

does not dispose of or mention the other, the silence of the journal entry as to the second is considered as dismissing it, and such dismissal is res adjudicata. Edenborn v. Blacksher. 86 So. 817 (La.); Pitt v. Gilbert, 190 S. W. 1157 (Tex.); Hemperly v. Sliman & Co., 174 So. 673 (La.); Keystone Copper Mining Co. v. Miller, 164 Pac. 2d 603 (Ariz.); Fidelity & Deposit Co. of Md. v. Citizens National Bank, 120 S. W. 2d, 113 (Tex.); Pfeiffer v. Missouri State Life Ins., 8 S. W. 2d 505 (Ark.); Lacaze v. Hardee, 7 So. 2d 719 (La.); Garrett v. McAdams Lumber Co., 163 S. W. 320 (Tex.); Hunter v. Delta Realty Co., 169 S. W. 2d 936 (Mo.); Bozeman Mortuary Assoc. v. Fairchild, 68 S. W. 2d 756 (Ky.). This also seems to be the rule in Ohio as to other matters. Roberts v. Lee, 72 Oh Ap 235; Strangwood v. Bladstaat Co., 82 Oh St 121.

Consequently, Buckeye, if it does not have a judgment, it does not have a finding that can be enforced and is precluded from ever bringing an action on the note. Is this what the court intended?

The court used certain words in reference to the claim of Buckeye in its entry. However, there were other claims. The entry in regard to the claim of the plaintiff Victor Mortgage Company, who was asking for a judgment on its note and for the foreclosure of its lien, reads as follows:

“The court therefore finds there is due the plaintiffs from the defendants on said note the sum of $30,344.00 with interest at 6 per cent from the 1st day of March, 1932, for which amount judgment is herewith rendered in favor of the plaintiff and against said defendants and each of them.”

Thus, in the same entry the court did render a personal judgment and left no doubt that it so did. If the entry did not render another judgment, the claim of Buckeye would have a much greater weight, but where in the same entry the court uses language that definitely renders a personal judgment in favor of a plaintiff, but fails to use this language in favor of a cross petitioner, but -6nly uses language that is generally considered as giving a finding, it cannot be successfully argued that the court intended in the later case to also render judgment.

In factual situations similar, the courts have reached the same conclusion. In the case of Conn v. Rhoades, 26 Oh St 44, the decision of the court is as follows:

“1. Where the plaintiff, by his petition, asks a personal judgment against the defendant for the amount of a mortgage debt, and also for the sale of the mortgaged premises, and on default for answer the court renders a decree or order for the sale of the mortgaged premises, but renders no such personal judgment, the fact that * * *”
“2. Where the record in such case showed that the court, on hearing of the cause, considered that the plaintiff ought to recover a specified amount, and ordered the sale of mortgaged premises for its satisfaction — held that the record shows no personal judgment against the defendant, but a mere finding of the amount due, with an order of sale.” •

The same conclusion was reached in the case of Mills v. Murry, 7 O. N. P. 614. Actions for a personal judgment and for an equitable decree were joined. The language in the entry is very similar to this, the court holding that there was only a finding and no judgment. Affirmed, Mills v. Murray, 3 O. C. C. n. s. 671.

Buckeye does not have a finding under order of the court as contemplated by §11645 GC, and does not have a judgment for the payment of money. Consequently, there is nothing capable of being revived and the conditional order of revivor should be vacated.


source: Caselaw Access Project

author: By McLAIN, J.

license: Public Domain

text:
    NOBLE, Plaintiff, v. McALLISTER DAIRY FARMS, INC., Defendant.
    Common Pleas Court, Trumbull County.
    No. 59201.
    Decided September 18, 1952.
    J. Don Campbell, George Buchwalter, Warren, for plaintiff.
    Lewis L. Guarnieri, Warren, for defendant.
   OPINION

By McLAIN, J.

A motion for a new trial was filed in this case by the plaintiff herein setting forth, among other reasons, the claimed misconduct of the prevailing party, McAllister Dairy Farms, Inc., through its treasurer, Mrs. Temple McAllister. The motion is accompanied by affidavits. Affidavits were also filed by the defendant.

These affidavits differ somewhat in their contents. However, certain facts pertinent to the inquiry are not in dispute. Mrs. McAllister sat among the spectators during the progress of the trial and engaged in conversation with the wife of one of the jurors and was introduced to the juror by her. This fact is supported by both the affidavit of the wife of the juror and also that of Mrs. McAllister, although it is stated therein that the conversation was not in reference to the trial.

When the jury was recalled after several hours deliberation for the purpose of inquiry by the court as to whether or not there was possibility of an agreement, Mrs. McAllister was seated beside a juror who had been excused the previous day because of illness and Mrs. McAllister remarked that a corsage worn by a member of the panel was beautiful.

The former juror explained that the corsages were made by the member of the panel wearing the same, whereupon, Mrs. McAllister inquired about the price and stated she would like to place an order for some.

As the jury was leaving the box for an intermission, Mrs. James introduced Mrs. McAllister to the juror who made the corsages. The affidavits are conflicting as to the length of the conversation among the three women.

Exactly what was said is not clear, although the court is convinced that some conversation did take place, and that the introduction under all of the circumstances, could have been for no possible purpose other than to acquaint Mrs. McAllister with the juror who made the corsages for the evident purpose of ordering some. In any event, the conversation was interrupted by the seated juror stating that she could not talk to Mrs. McAllister at that time.

Unfortunately, the Trumbull County Court House does not provide facilities for keeping a jury separate from others during intermissions. Instructions designed to safeguard the purity of trial and insure the utmost fairness and impartiality are given constantly. Every possible effort is made to prevent any extraneous influence being exerted on jurors.

When the court declared an intermission for the jury of fifteen minutes, it was expressly stated that the jurors, being in deliberation, were not to engage in conversation with any one upon any subject whatsoever, and at the end of the intermission, return to the jury room for further consideration of the issues.

If this jury had been in the jury room and Mrs. McAllister entered for the purpose of being introduced to one of the jurors during the deliberation, it could not be argued that such an incident was not of grave consequence. This jury was entitled to the same safeguards and protection during the intermission, and the legal effect of the incident is no different.

This conduct on the part of the parties to this introduction and the conversation surrounding it, was a plain and blatant effrontery to a court of justice.

The law is well settled both elsewhere and in Ohio that misconduct of a juror must be shown to be prejudicial before a new trial is granted. However, the law is equally well settled that in the case of misconduct of the prevailing party, it is not essential that it be shown to have influenced the verdict. The reason for this rule is apparent. It would be unjust to penalize a prevailing party because of some improper conduct of a juror over which the party had no control unless it was in fact prejudicial.

However, the prevailing party itself, has control over its own actions and cannot engage in improper conduct with impunity, regardless of whether or not it in fact influenced the verdict. Railroad v. Porter, 32 Oh St 333.

That the right of litigants to have an impartial and unbiased jury is a substantial right cannot be questioned. Any attempt by a party to a law suit to tamper with or engage in conversation with a juror in direct defiance of the court, is an invasion of the other party’s rights.

Whether or not the disposition of the treasurer of the plaintiff company to fraternize with jurors had any effect on the verdict rendered in this case, this court, of course, cannot say. Likewise, whether or not her interest in the corsage worn by a seated juror and her desire to purchase .some which resulted in her introduction to the juror during deliberation sprang from improper motives or merely her aesthetic interest in flowers is immaterial under the law.

If litigants are to be permitted to contemptuously disregard the express admonitions of a court even though without malicious motive, courts would soon lose control over proceedings before it, and the faith of our people in our jury system and the administration of justice would not long be preserved.

It is, therefore, ordered, adjudged and decreed that the verdict hereinbefore rendered on the 11th day of June. 1952, is hereby set aside and held for naught and a new trial granted.


author: By THE COURT.

text:
    REISS, Plaintiff, v. COURT OF COMMON PLEAS et, Defendants.
    Ohio Appeals, Second District, Franklin County.
    No. 4659.
    Decided January 25, 1952.

      Emile Reiss, Columbus, for plaintiff.
    Richard W. Gordon, City Atty., John Robert Jones, James E. Hale, Columbus, for defendants.
   OPINION

By THE COURT.

This is submitted on demurrer to the petition and motion filed herein for the reason that the same do not allege facts sufficient to constitute a cause of action. The record reveals that this is an original action in which the plaintiff is seeking a writ of prohibition enjoining the defendant, Hon. Joseph M. Harter, a Judge of the Court of Common Pleas for Franklin County, Ohio, from hearing, adjudicating and/or proceeding to hear the petition of the City of Columbus, Ohio, which is seeking injunctive relief against the Columbus Transit Company, for the reason that this plaintiff had filed a similar case prior to that of the City of Columbus, the plaintiff’s case being No. 183,013 in the Common Pleas Court, and that of the City of Columbus being case No. 183,306. It is urged that since the plaintiff’s petition was filed first in the Common Pleas Court that the Court should have issued an injunction in his case and therefore did not have jurisdiction to issue an injunction in case No. 183,306 which was instituted by the City of Columbus. Since the plaintiff admits that the Court nad jurisdiction in his case, which seeks the same relief as that of the City of Columbus, it must follow that he admits the jurisdiction of the Court in the second case. But it appears that he is urging that it was improperly invoked. The petition alleges that the Court was advised concerning the two actions and that this plaintiff opposed the issuing of the injunction in the latter case. It would therefore appear that the trial Court passed upon its own jurisdiction in the matter When the party asking for a writ of prohibition against a court competent to pass upon its own jurisdiction has submitted to such court the question of jurisdiction, the writ should be denied, although such court has erroneously decided that it has jurisdiction, if the ordinary and usual remedies provided by law, such as appeal or proceedings in error, are adequate and available. 32 O. Jur., Sec. 20, p. 582. It is well settled that a writ of prohibition is not available as a substitute for error proceedings and does not lie to prevent an erroneous decision in a case in which the court is authorized to adjudicate. 32 O. Jur. 24, p. 586; State, ex rel Garrison v. Brough, 94 Oh St 115.

The demurrer will be sustained.

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


author: Mr. JUSTICE BURTON Mr. JUSTICE FRANKFURTER, Mr. JUSTICE MINTON,

text:
    MAY v. ANDERSON.
    United States Supreme Court.
    No. 244.
    Decided May 18, 1953.
    Ralph Atkinson, Salem, F. W. Springer, East Palestine, for appellant.
    I. Engle, Waukesha, Wis., for appellee.
   OPINION

Mr. JUSTICE BURTON

delivered the opinion of the court.

The question presented is whether, in a habeas corpus proceeding attacking the right of a mother to retain possession of her minor children, an Ohio court must give full faith and credit to a Wisconsin decree awarding custody of the children to their father when that decree is obtained by the father in an ex parte divorce action in a Wisconsin court which had no personal jurisdiction over the mother. For the reasons hereafter stated, our answer is no.

This proceeding began July 5, 1951, when Owen Anderson, here called the appellee, filed a petition for a writ of habeas corpus in the Probate Court of Columbiana county, Ohio. He alleged that his former wife, Leona Anderson May, here called the appellant, was illegally restraining the liberty of their children, Ronald, Sandra and James, aged, respectively, 12, 8 and 5, by refusing to deliver them to him in response to a decree issued by the County Court of Waukesha county, Wisconsin, February 5, 1947. With both parties and their children before it, the Probate Court ordered that, until this matter be finally determined, the children remain with their mother subject to their father’s right to visit them at reasonable times.

After a hearing “on the petition, the stipulation of counsel for the parties as to the agreed statement of facts, and the testimony,” the Probate Court decided that it was obliged by the Full Faith and Credit Clause of the Constitution of the United States to accept the Wisconsin decree as binding upon the mother. Accordingly, proceeding to the merits of the case upon the issues presented by the stipulations of counsel, it ordered the children discharged from further restraint by her. That order has been held in abeyance and the children are still with her. The Court of Appeals for Columbiana county, Ohio, affirmed. 91 Oh Ap 557, 48 O. O. 132, 107 N. E. (2d), 358. The Supreme Court of Ohio, without opinion, denied a motion directing the Court of Appeals to certify its record for review, and dismissed an appeal on the ground that no debatable constitutional question was involved. 157 Oh St 436, 47 O. O. 326, 105 N. E. (2d), 648.

On appeal to this court, we noted probable jurisdiction. Inasmuch, however, as neither the Court of Appeals nor the Supreme Court of Ohio relied upon the Ohio statute alleged to be the basis of the appeal, we have treated the appeal as a petition for a writ of certiorari, granted pursuant to 28 U. S. C. (Supp. V) §2103, 28 U. S. C. A. §2103, while continuing, for convenience, to refer to the parties as appellant and appellee.

The parties were married in Wisconsin and, until 1947, both were domiciled there. After marital troubles developed, they agreed in December, 1946, that appellant should take their children to Lisbon Columbiana county, Ohio, and there think over her future course. By New Year’s Day, she had decided not to return to Wisconsin and, by telephone, she informed her husband of that decision.

Within a few days he filed suit in Wisconsin, seeking both an absolute divorce and custody of the children. The only service of process upon appellant consisted of the delivery to her personally, in Ohio, of a copy of the Wisconsin summons and petition. Such service is authorized by a Wisconsin statute for use in an action for a divorce but that statute makes no mention of its availability in a proceeding for the custody of children. Appellant entered no appearance and took no part in this Wisconsin proceeding which produced not only a decree divorcing the parties from the bonds of matrimony but a decree purporting to award the custody of the children to their father, subject to a right of their mother to visit them at reasonable times. Appellant contests only the validity of the decree as to custody. See Estin v. Estin, 334 U. S., 541, 68 S. Ct., 1213, 92 L. Ed. 1561, and Kreiger v. Kreiger, 334 U. S., 555, 68 S. Ct. 1221, 92 L. Ed. 1572, recognizing the divisibility of decrees of divorce from those for payment of alimony.

Armed with a copy of the decree and accompanied by a local police officer, appellee, in Lisbon, Ohio, demanded and obtained the children from their mother. The record does not disclose what took place between 1947 and 1951, except that the children remained with their father in Wisconsin until July 1, 1951. He then brought them back to Lisbon and permitted them to visit their mother. This time, when he demanded their return, she refused to surrender them.

Relying upon the Wisconsin decree, he promptly filed in the Probate Court of Columbiana county, Ohio, the petition for a writ of habeas corpus now before us. Under Ohio procedure that writ tests only the immediate right to possession of the children. It does not open the door for the modification of any prior award of custody on a showing of changed circumstances Nor is it available as a procedure for settling the future custody of children in the first instance.

“It is well settled that habeas corpus is not the proper or appropriate action' to determine, as between parents, who is entitled to the custody of their minor children.

“The agreed statement of facts disclosed to the Court oi Appeals that the children were in the custody of their mother. There being no evidence that the appellant had a superior right to their custody, that court was fully warranted in concluding that the children were not illegally restrained of their liberty.” In re Corey, 145 Oh St, 413, 418, 31 O. O. 35, 61 N. E. (2d), 892, 894-895.

The narrow issue thus presented was noted but not decided in People of State of New York ex rel. Halvey v. Halvey, 330 U. S., 610, 615-616, 67 S. Ct. 903, 906, 907, 91 L. Ed. 1133. There a mother instituted a suit for divorce in Florida. She obtained service on her absent husband by publication and he entered no appearance. The Florida court granted her a divorce and also awarded her the custody of their child. There was, therefore, inherent in that decree the question “whether in absence of personal service in the Florida decree of custody had any binding effect on the husband; * * Id., 330 U. S., at page 615, 67 S. Ct. at page 906. We were not compelled to answer it there and a decision on it was expressly reserved.

Separated as our issue is from that of the future interests of the children, we have before us the elemental question whether a court of a state, where a mother is neither domiciled, resident nor present, may cut off her immediate right to the care, custody, management and companionship of her minor children without having jurisdiction over her in personam. Rights far more precious to appellant than property rights will be cut off if she is to be bound by the Wisconsin award of custody.

“[It] is now too well settled to be open to further dispute that the ‘full faith and credit’ clause and the act of Congress passed pursuant to it do not entitle a judgment in personam to extraterritorial effect if it be made to appear that it was rendered without jurisdiction over the person sought to be bound.” Baker v. Baker, Eccles & Co., 242 U. S., 394, 401, and see 403, 37 S. Ct. 152, 155, 61 L. Ed. 386; Thompson v. Whitman, 18 Wall., 457, 21 L. Ed. 897; D’Arcy v. Ketchum, 11 How., 165, 13 L. Ed. 648.

In Estin, v. Estin, supra, and Kreiger v. Kreiger, supra, this court upheld the validity of a Nevada divorce obtained ex parte by a husband, resident in Nevada, insofar as it dissolved the bonds of matrimony. At the same time, we held Nevada powerless to cut off, in that proeeeding, a spouse’s right to financial support under the prior decree of another state. In the instant case, we recognize that a mother’s right to custody of her children is a personal right entitled to at least as much protection as her right to alimony.

In the instant case, the Ohio courts gave weight to appellee’s contention that the Wisconsin award of custody binds appellant because, at the time it was issued, her children had a technical domicile in Wisconsin, although they were neither resident nor present there. We find it unnecessary to determine the children’s legal domicile because, even if it be with their father, that does not give Wisconsin, certainly as against Ohio, the personal jurisdiction that it must have in order to deprive their mother of her personal right to their immediate possession.

The judgment of the Supreme Court of Ohio, accordingly, is reversed and the cause is remanded to it for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Mr. JUSTICE CLARK not having heard oral argument, took no part in the consideration or decision of this case.

Mr. JUSTICE FRANKFURTER,

concurring.

The views expressed by my brother Jackson make it important that I state, in joining the court’s opinion, what I understand the court to be deciding and what it is not deciding in this case.

What is decided — the only thing the court decides — is that the full faith and credit clause does not require Ohio, in disposing of the custody of children in Ohio, to accept, in the circumstances before us, the disposition made by Wisconsin. The Ohio Supreme Court felt itself so bound. This court does not decide that Ohio would be precluded from recognizing, as a matter of local law, the disposition made by the Wisconsin court. For Ohio to give respect to the Wisconsin decree would not offend the due process clause. Ohio is no more precluded from doing so than a court of Ontario or Manitoba would be, were the mother to bring the children into one of these provinces.

Property, personal claims, and even the marriage status, see, e. g., Sherrer v. Sherrer, 334 U. S., 343, 68 S. Ct. 1087, 92 L. Ed. 1429, generally give rise to interests different from those relevant to the discharge of a state’s continuing responsibility to children within her borders. Children have a very special place in life which law should reflect. Legal theories and their phrasing in other cases readily, lead to fallacious reasoning if uncritically transferred to determination of a state’s duty towards children. There are, of course, adjudications other than those pertaining to children, as for instance decrees of alimony, which may not be definitive even in the decreeing state, let alone binding under the full faith and credit clause. Interests of a state other than its duty towards children may also prevail over the interest of national unity that underlies the full faith and credit clause. But the child’s welfare in a custody case has such a claim upon the state that its responsibility is obviously not to be foreclosed by a prior adjudication reflecting another state’s discharge of its responsibility at another time. Reliance on opinions regarding out-of-state adjudications of property rights, personal claims or the marital status is bound to confuse analysis when a claim to the custody of children before the courts of one state is based on an award previously made by another state. Whatever light may be had from such opinions, they cannot give conclusive answers.

Mr. JUSTICE JACKSON, whom Mr. JUSTICE REED joins, dissenting.

The court apparently is holding that the Federal Constitution prohibits Ohio from recognizing the validity of this Wisconsin divorce decree insofar as it settles custody of the couple’s children. In the light of "settled and unchallenged precedents of this court, such a decision can only rest upon the proposition that Wisconsin’s courts had no jurisdiction to make such a decree binding upon appellant. Baker v. Baker, Eccles & Co., 242 U. S., 394, 401, 37 S. Ct. 152, 154, 61 L. Ed. 386; Esenwein v. Commonwealth of Pennsylvania ex rel. Esenwein, 325 U. S., 279, 281, 65 S. Ct. 1118, 1119, 89 L. Ed. 1608.

A conclusion that a state must not recognize a judgment of a sister commonwealth involves very different considerations than a conclusion that it must do so. If Wisconsin has rendered a valid judgment, the Constitution not only requires every state to give it full faith and credit, but 28 U. S. C. §1738, 28 U. S. C. A. §1738, referring to such judicial proceedings, commands that they “shall have the same full faith and credit in every court within the United States and its territories and possessions as they have by law or usage in the courts of such state, territory or possession from which they are taken." The only escape from obedience lies in a holding that the judgment rendered in Wisconsin, at least as to custody, is void and entitled to no standing even in Wisconsin. It is void only if it denies due process of law.

The Ohio courts reasoned that although personal jurisdiction over the wife was lacking, domicile of the children in Wisconsin was a sufficient jurisdictional basis to enable Wisconsin to bind all parties interested in their custody. This determination that the children were domiciled in Wisconsin has not been contested either at our bar or below. Therefore, under our precedents, it is conclusive. Williams v. State of North Carolina, 317 U. S., 287, 302, 63 S. Ct. 207, 215, 87 L. Ed. 279. The husband, plaintiff in the case, was at all times domiciled in Wisconsin; the defendant-wife was a Wisconsin Native, was married there and both were domiciled in that state until her move in December 1946, when the parties stipulate that she acquired an Ohio domicile. The children were born in Wisconsin, always domiciled there, and were physically resident in Wisconsin at all times until December 1946, when their mother took them to Ohio with her. But the Ohio court specifically found that she brought the children to Ohio with the understanding that if she decided not to go back to Wisconsin the children were to be returned to that state. In spite of the fact that she did decide not to return, she kept the children in Ohio. It was under these circumstances that the Wisconsin decree was rendered in February 1947, less than two months after the wife had given up her physical residence in Wisconsin and held the children out of the state in breach of her agreement.

The husband subsequently went to Ohio, retrieved the children and took them back to Wisconsin, where they remained with him for four years. Then he voluntarily brought them to Ohio for a visit with their mother, whereupon she refused to surrender them, and he sought habeas corpus in the Ohio courts. In this situation Wisconsin was no meddler reaching out to draw to its courts controversies that arose in and concerned other legal communities. If ever domicile of the children plus that of one spouse is sufficient to support a custody decree binding all interested parties, it should be in this case. Cf. Yarborough v. Yarborough, 290 U. S., 202, 210, 54 S. Ct. 181, 184, 78 L. Ed. 269.

I am quite aware that in recent times this' court has been chipping away at the concept of domicile as a connecting factor between the state and the individual to determine rights and obligations. We are a mobile people, historically on the move, and perhaps the rigid concept of domicile derived by common law from feudal attachment to the land is too rigid for a society so restless as ours. But if our federal system is to maintain separate legal communities, as the full faith and credit clause evidently contemplates, there must be some test for determining to which of these a person belongs. If, for this purpose, there is a better concept than domicile, we have not yet hit upon it. Abandonment of this ancient doctrine would leave partial vacuums in many branches of the law. It seems to be abandoned here.

The court’s decision holds that the state in which a child and one parent are domiciled and which is primarily concerned about his welfare cannot constitutionally adjudicate controversies as to his guardianship. The state’s power here is defeated by two-months absence of the other parent. The convenience of a leave-taking parent is placed above the welfare of the child, but neither party is greatly aided in obtaining a decision. The Wisconsin courts cannot bind the mother, and the Ohio courts cannot bind the father. A state of the law such as this, where possession apparently is not merely nine points of the law but all of them and self-help the ultimate authority, has little to commend it in legal logic or as a principle of order in a federal system.

Nor can I agree on principle with the court’s treatment of the question of personal jurisdiction of the wife. I agree with its conclusion and that of the Ohio courts that Wisconsin never obtained jurisdiction of the person of the appellant in this action and therefore the jurisdiction must be rested on domicile of the husband and children. Cf. Milliken v. Meyer, 311 U. S., 457, 61 S. Ct. 339, 85 L. Ed. 278. And I have heretofore expressed the view that such personal jurisdiction is necessary in cases where the domicile is obviously a contrived one or the claim of it a sham. Williams v. State of North Carolina, supra, 317 U. S., at page 311, 63 S. Ct. at page 219; Rice v. Rice, 336 U. S., 674, 676, 69 S. Ct. 751, 752, 93 L. Ed. 957. But here the court requires personal service upon a spouse who decamps before the state of good-faith domicile can make provision for custody and support of the children still legally domiciled within it. Wisconsin had a far more real concern with the transactions here litigated than have many of the divorce-mill forums whose judgments we have commanded their sister states to recognize.

In spite of the fact that judges and law writers long have recognized the similarity between the jurisdictional requirements for divorce and for custody, this decision appears to, .equate the jurisdictional requirements for a custody decree to those for an in personam money judgment. One reads the opinion in vain to discover reasons for this choice, unless it is found in the remark that for the wife “rights far more precious than property may be cut off” in the custody proceeding. The force of this cardiac consideration is self-evident, but it seems to me to reflect a misapprehension as to the nature of a custody proceeding or a revision of the views that have heretofore prevailed. When courts deal with inanimate property by the conventional in rem proceeding, their principal concern is the distribution of rights in that property, rather than with the welfare of the property apart from its ownership claims. But even where dealing solely with property rights, where concern with the “res” is minimal and concern with the claimants is paramount, courts may exercise jurisdiction in rem over the property without having personal jurisdiction over all of the claimants. Only when they seek to render a party liable to some personal performance must they acquire personal jurisdiction.

The difference between a proceeding involving the status, custody and support of children and one involving adjudication of property rights is too apparent to require elaboration. In the former, courts are no longer concerned primarily with the proprietary claims of the contestants for the “res” before the court, but with the welfare of the “res” itself. Custody is viewed not with the idea of adjudicating rights in the children, as if they were chattels, but rather with the idea of making the best disposition possible for the welfare of the children. To speak of a court’s “cutting off” a mother’s rights to custody of her children, as if it raised problems similar to those involved in “cutting off’,’ her rights in a plot of ground, is to obliterate these obvious distinctions. Personal jurisdiction of all parties to be affected by a proceeding is highly desirable, to make certain that they have had valid notice and opportunity to be heard. But the assumption that it overrides all other considerations and in its absence a state is constitutionally impotent to resolve questions of custody flies in the face of our own cases. The wife’s marital ties may be dissolved without personal jurisdiction over her by a state where the husband has a genuine domicile because the concern of that state with the welfare and marital status of its domiciliary is felt to be sufficiently urgent. Certainly the claim of the domiciled parent to relief for himself from the leave-taking parent does not exhaust the power of the state. The claim of children as well as the home-keeping parent to have their status determined with reasonable certainty, and to be free from an incessant tug of war between squabbling parents, is equally urgent.

The mother in this case would in all probability not be permanently precluded from attempting to redetermine the custody of the children. If the Wisconsin courts would allow modification of the decree upon a showing of changed circumstances, such modification could be accompanied by another state which acquired jurisdiction over the parties. People of State of New York ex rel. Halvey v. Halvey, 330 U. S., 610, 67 S. Ct. 903, 91 L. Ed. 1133; cf. Lynde v. Lynde, 181 U. S., 183, 21 S. Ct. 555, 45 L. Ed. 810. And, of course, no judgment settling custody rights as between the parents would itself prevent any state which may find itself responsible for the welfare of the children from taking action adverse to either parent. No such case is before us.

I fear this decision will author new confusions. The interpretative concurrence, if it be a true interpretation, seems to reduce the law of custody to a rule of seize-and-run. I would affirm the decision of the Ohio courts that they should respect the judgment of the Wisconsin court, until it or some other court with equal or better claims to jurisdiction shall modify it.

Mr. JUSTICE MINTON,

dissenting.

The opinion of the court and the dissent of Mr. Justice Jackson deal with a jurisdictional question not raised on the record.

As I understand the law of Ohio, “parents are the legal and natural custodians of their minor children and each parent has an equal right to their custody in the absence of an order, judgment, or decree of a court of competent jurisdiction fixing their custody. Sec. 8032 GC (§3109.03 R. C.). It is well settled that habeas corpus is not the proper or appropriate action to determine, as between parents, who is entitled to the custody of their minor children.” In re Corey, 145 Oh St 413, 418, 31 O. O. 35, 61 N. E. (2d), 892, 894-895.

The instant case was a proceeding in Ohio by habeas corpus brought by the father against the mother for the possession of the minor children. The father could not succeed in this habeas corpus action unless he could show that he had an order of a court of competent jurisdiction awarding him the custody of the children. He produced an authenticated copy of a decree of the County Court of Waukesha county, Wisconsin, valid on its face and unappealed from, which awarded him the custody of the children. It is not contended that this decree is void upon its face, nor did appellant, the mother, challenge its validity in Ohio by any responsive pleading to the petition for habeas corpus.

The only question before the Ohio court was whether that court should give full faith and credit to the Wisconsin decree. That unappealed decree was valid on its face, and its validity was not attacked by any pleading. The validity of the decree is not affected by any admission in this case, on or off the record. As far as this record is concerned, the decree of the Wisconsin court was what it purported to be on its face. Since appellant failed to challenge its validity by any pleading, the decree was entitled to full faith and credit in Ohio under Art. IV, §1 of the United States Constitution. The Ohio court properly accorded the decree full faith and credit, and it was evidence, together with parenthood, which proved the father’s right to possession of the children and entitled him to succeed in the proceeding.

I would therefore affirm.

      . “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.” Art. IV, Section 1.

      . The state statute alleged to have been drawn in question by appellant as repugnant to the due process clause of the Fourteenth Amendment to the Constitution of the United States was Section 7996 GC of 1910 providing that “The husband is the head of the family. He may choose any reasonable place or mode of living, and the wife must conform thereto.” The Probate Court was said to have upheld that section as establishing the legal domicile of the children with their father and on that basis, to have upheld the Wisconsin decree as validly depriving their mother of her custody over her children, although the Wisconsin court never obtained personal jurisdiction over her.

      . “262.12 Publication or service outside state; when permitted. When the summons cannot with due diligence be served within the state, the service of the summons may be made without the state or by publication upon a defendant when it appears from the verified complaint that he is a necessary or proper party to an action or special proceeding as provided in Rule 262.13, in any of the following cases:
      “(5) When the action is for a divorce or for annulment of marriage.
      “626.13 Publication or service outside state; * * * mode of service.
      “(4) In the cases specified in Rule 262.12 the plaintiff may, at his option and in lieu of service by publication, cause to be delivered to any defendant personally without the state a copy of the summons and verified complaint or notice of object of action as the case may require, which delivery shall have the same effect as a completed publication and mailing. * * * Wis. Stat., 1949.

      . This limitation contrasts with the procedure in states where a court, upon securing the presence before it of the parents and children in response to a writ of habeas corpus, may proceed to determine the future custody of the children. See e. g., People of State of New York ex rel. Halvey v. Halvey, 330 U. S. 610, 67 S. Ct. 903, 91 L. Ed. 113 (New York procedure); Boor v. Boor, 241 Iowa 973, 43 N. W. 2d 155; Helton v. Crawley, 241 Iowa 296, 41 N. W. 2d 60.

      . See 28 U. S. C. (Supp. V) Section 1738, 28 U. S. C. A. Section 1738, as developed from the Act of May 26, 1790, 1 Stat. 122.

      . “* * * The fact that the requirements of full faith and credit, so far as judgments are concerned, are exacting, if not inexorable (Sherrer v. Sherrer, supra [334 U. S. 343, 68 S. Ct. 1087, 92 L. Ed. 1429]), does not mean, however, that the state of the domicile of one spouse may, through the use of constructive service, enter a decree that changes every legal incidence of the marriage relationship.
      “The result in this situation is to make the divorce divisible — to give effect to the Nevada decree insofar as its affects marital status and to make it ineffective on the issue on alimony.” 334 U. S. at page 546, 549, 68 S. Ct. at page 1217.

      . By stipulation, the parties recognized her domicile in Ohio. See also, Estin v. Estin, supra; Kreiger v. Kreiger, supra, Williams v. State of North Carolina, 317 U. S. 287, 63 S. Ct. 207, 87 L. Ed. 279.
      For the general rule that in cases of the separation of parents, apart from any award of custody of the children, the domicile of the children is that of the parent with whom they live and that only the state of that domicile may award their custody, see Restatement, Conflict of Laws (1934), Sections 32 and 146, Illustrations 1 and 2.

      . “* * * the weight of authority is in favor of confining the jurisdiction of the court in an action for divorce, where the defendant is a nonresident and does not appear, and process upon the defendant is by substituted service only, to a determination of the status of the parties. * * * This rule of law extends to children who are not within the jurisdiction of the court when the decree is rendered, where the defendant is not a resident of the state of the seat of the court, and has neither been personally served with process nor appeared to the action [Citing cases],
      “By the authority of the cases supra, a decree of the custody of a minor child, under the circumstances stated, is void.” Weber v. Redding, 200 Ind. 448, 454-455, 163 N. E. 269, 271. See also, Sanders v. Sanders, 223 Mo. App. 834, 837-838, 14 S. W. 2d 458, 459-460; Carter v. Carter, 201 Ga. 850. 41 S. E. 2d 532.
      The instant case does not present the special considerations that arise where a parent, with or without minor children, leaves a jurisdiction for the purpose of escaping process or otherwise evading jurisdiction, and we do not have here the considerations that arise when children are unlawfully or surreptitiously taken by one parent from the other.

      . None of the cases involving exceptions to this rule are in point here. See, e. g., Fall v. Eastin, 215 U. S. 1, 30 S. Ct. 3, 54 L. Ed. 65.

      . American Law Institute, Restatement of the Law, Tentative Drafts No. 1, Conflict of Laws, Section 117: “A state has judicial jurisdiction to determine the custody, or to appoint a guardian of the person, of a child or adult if the domicil of the person placed under custody or guardianship is within the state.”

      . Cf. Curry v. McCanless, 307 U. S. 357, 59 S. Ct. 900, 83 L. Ed. 1339; State Tax Commission of Utah v. Aldrich, 316 U. S. 174, 62 S. Ct. 1008, 86 L. Ed. 1358; the Dorrance litigation: Dorrance v. Martin, 298 U. S. 678, 56 S. Ct. 949, 80 L. Ed. 1399; In re Dorrance’s Estate, 115 N. J. Eq. 268, 170 A. 601; Id., 309 Pa. 151, 163 A. 303.

      . See Goodrich, “Custody of Children,” 7 Corn. L. Q. 1.

      . Harris v. Balk, 198 U. S. 215, 25 S. Ct. 625, 49 L. Ed. 1023; Thompson v. Whitman, 18 Wall. 457, 21 L. Ed. 897.

      . Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565.


author: Per CURIAM:

text:
    SANDRENE, Appellant, v. SANDRENE, Appellee.
    Ohio Appeals, Ninth District, Summit County.
    No. 4246.
    Decided May 7, 1952.
    Myers, Myers & Myers, for appellant.
    Hargreaves & Fanelly, for appellee.
   OPINION

Per CURIAM:

This is an appeal by the plaintiff from a judgment of the Court of Common Pleas of Summit County (Division of Domestic Relations) denying her a divorce and an award of alimony. The trial court found, in its judgment entry upon the plaintiff’s petition for divorce and the defendant’s cross-petition for the same relief, that each party “has failed to maintain the issues claimed,” and, as a consequence thereof, dismissed both the petition and the cross-petition.

It is here principally asserted by the appellant (the plaintiff in the court below) that the judgment of the court in its denial of a divorce to her is manifestly against the weight of the evidence and is contrary to law. To these claims, we now direct attention.

There is a quantity of evidence indicating odious and indecent conduct by each toward the other, not only while they were alone, but also in the presence of others. A recital of specific instances is not, we think, here necessary. We have determined, however, that the conduct of each party is shown by the evidence to be such, as to furnish grounds for divorce under the statutes of this state, and, therefore, neither should receive a decree. As heretofore said by this court, “3. The so-called ‘doctrine of comparative rectitude’ does not prevail in this state, and where each of the spouses has been guilty of misconduct which is cause for divorce, neither is entitled to a divorce.”

Keath v. Keath, 78 Oh Ap 517.

See also: Veler v. Veler, 57 Oh Ap 155.

There are cases which recognize the doctrine of recrimination as a defense which must be pleaded. In the case before us, the respective answers filed to the petition of the plaintiff and the cross-petition of the defendant do not plead facts sufficient to charge the doctrine as an affirmative defense. (They plead in effect a general deniál.) We determine, however, that if both a petition and a cross-petition filed respectively by a wife and husband do plead sufficient facts to state a cause of action for divorce under the statutes, and such facts are established upon trial, the trial court may apply the rule of recrimination and dismiss both the petition and the cross-petition.

We find, among the errors claimed, none prejudicial to the rights of the appellant.

Judgment affirmed.

HUNSICKER, PJ, DOYLE, J, and STEVENS, J, concur.


author: By BARTLETT, J.

text:
    MALLETT et, Appellant, v. BOARD OF LIQUOR CONTROL et, Appellees.
    Common Pleas Court, Franklin County.
    No. 186158.
    Decided April 9, 1953.

      C. William O’Neill, Atty. Genl., Ralph N. Mahaffey, Asst. Atty. Genl., Columbus, for appellees.
    George A. Hurley, Cleveland, for appellant.
   OPINION

By BARTLETT, J.

BOARD OP LIQUOR CONTROL ORDER (REVOKING PERMITS C-2, D-l and D-2), IS REVERSED.

This is an appeal under §154-73 GC, seeking reversal of the order of the Board of Liquor Control, revoking the C-2, D-l and D-2 permits of the appellant.

The permit premises are located at 1645 Libby Road, Maple Heights, near Cleveland; and the permit holder operates under the name of “Mike’s Tavern.”

The permit holder appeared without counsel.

The evidence disclosed that two inspectors ordered beer and about ten minutes later two other inspectors entered and searched the premises. One of the inspectors testified while consuming beer that they observed a couple of mixed drinks being served but they had no knowledge of what they were. (R. 3.)

The owner of the tavern testified she served the mixed drinks, being two glasses of wine mixed with ginger ale. She had the right to serve the wine under her permits.

One of the inspectors who searched the premises, testified they found a fifth of Corby’s whiskey and a glass of,whiskey. He stated the glass of whiskey was found under the bar. He testified his associate found the bottle of whiskey, but he didn’t know where he found it. He did not state who found the glass of whiskey. (R. 4.)

The bottle was offered in evidence as Exhibit A and the glass as Exhibit B. Exhibit C was offered but the record does not identify it, except the index as “chemist’s report.” The only exhibits that reached the Court were a chemist’s report without any exhibit marking and a bottle containing about one inch of a brown liquid, without any exhibit marking, but stamped on the bottle permanently, were the words: “Bireley’s pasteurized non-carbonated.”

The other two inspectors did not testify. One inspector testified they entered the premises around 5:30 P. M. and the other inspector testified they arrived in the afternoon between three and four, The Board fixed the time at 7 P. M.

With four inspectors on the premises, the evidence offered in support of the charge is about as unreliable as can be imagined.

The evidence produced, upon a consideration of the entire record, does not warrant a finding by the Court that the order of the Board is supported by reliable, probative and substantial evidence; and, therefore, the order of the Board is reversed. Entry accordingly with exceptions by counsel for the Board.


author: By LAMB, J.

text:
    BUTLER AND MAYFLOWER INSURANCE COMPANY, Plaintiffs, v. RAMSEY, Defendant.
    Municipal Court, Middletown.
    No. 15083.
    Decided February 1954.
   OPINION

By LAMB, J.

The above styled case was heard by the Court without the intervention of a jury upon the petition of the plaintiffs, the answer of the defendant, and the evidence, all of the parties being present in Court and represented by Counsel.

In this action, plaintiffs seek to recover for damages to an automobile owned and operated by the plaintiff. Goodioe Butler, as the result of a collision between his motor vehicle and a 1951 Ford State Highway Patrol vehicle driven by the defendant.

By agreement of counsel, plaintiff, Goodioe Butler, was dismissed as a party plaintiff herein, for the reason that his damages had been paid by plaintiff, the Mayflower Insurance Company, a corporation, and said plaintiff, the Mayflower Insurance Company has been subrogated to the property damage claim of the aforesaid Goodioe Butler. In consequence, the word “plaintiff” as hereinafter used, shall refer solely to the Mayflower Insurance Company.

It is the claim of the plaintiff that the defendant, in the operation of his State Highway Patrol vehicle, was negligent in that he failed to operate, first: a flashing red light and give some audible signal by siren, whistle or bell; in that he operated his emergency vehicle without due regard for the safety of all persons on the highway in that he failed to yield the right of way to lawful users of the highway readily passing through an intersection; in that he failed to stop and remain stopped before entering into said intersection when the traffic control signal exhibited red to all vehicles traveling south on Main Street; that he failed to keep a proper look out for all vehicles lawfully passing through the intersection on the green light before proceeding through said intersection.

Second: Defendant’s answer alleges only that the collision was the result of the sole negligence of the plaintiff.

FINDING OF FACTS

In the present case, the facts of the case are almost beyond dispute and could easily have been submitted to the Court upon an agreed statement. However, it appears from the evidence, that on or about the 18th day of October 1952, at 4:29 P. M., Goodioe Butler was driving his said motor vehicle in a westerly direction on Columbia Avenue in the City of Middletown, Butler County, Ohio. At or about the same time, the defendant was driving a State Highway Patrol vehicle in a southerly direction along North Main Street in the City of Middletown, Butler County, Ohio.

It appears from the evidence, beyond question, that Goodloe Butler entered the intersection of Columbia and North Main Streets at a speed of from ten to fifteen miles an hour and thar the traffic light at said intersection was green to traffic driving west on Columbia. It appears with equal certainty that the defendant passed two motor vehicles (stopped at the intersection in response to the red light signal) upon the right hand side thereof, at a speed approximately twenty-five miles per hour, entered said intersection with his red light flashing and struck the front of plaintiff’s vehicle with the left side of the patrol car.

All of the above facts were testified to, consistently, by both Goodloe Butler and defendant, Roger Ramsey. It was stipulated by Counsel that the damages, if any, due the plaintiff from the defendant, amounted to $502.00.

If it can, indeed, be said that there is any conflict in the evidence whatsoever, it concerns the operation by the defendant of his siren. According to the testimony of the defendant he sounded his siren when rounding the curve from Tytus Avenue on to North Main Street some 500 feet from the intersection of Columbia and North Main Street, and that by the time he had approached the intersection his siren was probably still rotating but not emitting audible sound.

The testimony of Goodloe Butler was to the effect that no audible sound was made by the siren immediately prior to the time he entered the intersection nor at any time during which he proceeded into and through the intersection.

The Court, therefore, can reach no other conclusion than that the siren of the defendant was not emitting any audible sound for some 50 feet from the intersection to the point of impact.

FINDINGS OF LAW

The sole question for the determination of the Court, is therefore, did the emergency vehicle of the defendant lose the privileges and immunities the law grants to him in the use thereof by failing to make an audible signal upon the siren prior to, and after entering, said intersection.

A consideration of the statutes regulating emergency vehicles divulges that the following sections of the Ohio General Code are applicable thereto:—

Sec. 6307-4(a) GC

“The driver of any emergency vehicle when responding to an emergency call upon approaching a red or stop signal or any stop sign shall slow down as necessary for safety to traffic, but may proceed cautiously past such red or stop sign or signal with due regard for the safety of all persons using the street or highway.”

Sec. 6307-24 GC

“The prima facie speed limitations set forth in (§6307-21 GC) shall not apply to emergency vehicles when responding to emergency calls and the drivers thereof sound audible signals by bell, siren or exhaust whistle. This provision shall not relieve the driver of an emergency vehicle from the duty to drive with due regard for the safety of all persons using the street or highway.”

Sec. 6307-44(a) GC

“Upon the approach of an emergency vehicle when the driver is giving audible signal by siren, exhaust whistle or bell, the driver of every other vehicle shall yield the right of way and shall immediately drive to a position parallel to and as close as possible to the edge or curb of the highway clear of any intersection and shall stop and remain in such position until the emergency vehicle has passed, except when otherwise directed by a police officer.”
“(c) This section shall not operate to relieve the driver of an emergency vehicle from the duty to drive with due regard for the safety of all persons and property upon the highway.”

Sec. 6307-93 (b) GC

“Every emergency vehicle, shall be equipped with a siren, whistle or bell, capable of emitting sound audible under normal conditions from a distance of not less than five hundred feet and of a type approved by the director, but such equipment shall not be used except when such vehicle is operated in response to an emergency call.” etc.

It is uncontested that the defendant at the time of said collision was operating an emergency vehicle under §6307-4(a) GC, in that he was upon an official emergency call from the State Highway Patrol headquarters. It necessarily follows, that he was privileged to pass through the red light at the intersection of North Main Street and Columbia Avenue, providing he slow down and pass such light cautiously. Likewise, and by virtue of §6307-24 GC, the prima facie speed limitation set forth in the Code, did not apply to the defendant in the operation on the highway of a patrol vehicle, if the defendant sounded an audible signal by siren. Under both Sections, however, he was not relieved from operating his vehicle with due regard for the safety of all persons in lawful use of said street.

The case of the City of Dayton v. Brennan, 112 N. E. 2nd, 837, sheds a measure of light upon the question to be determined here. In that case defendant was prosecuted under an ordinance of the City of Dayton for going through a red light, and his defense was, that due to the fact that he was a constable on official business, he was exempt from the enforcement of this ordinance, because he was driving an emergency vehicle. The evidence disclosed that the defendant was flashing a red light when he entered said intersection, but his automobile was not equipped with a siren, exhaust whistle or bell.

The Court, hearing the case without a jury, found the defendant guilty, saying “It is clear that because, of the absence of a siren, exhaust whistle or bell, the automobile operated by the defendant was not an emergency vehicle and therefore he was not entitled to the right of way granted by §6307-44 GC, nor was he entitled to proceed cautiously past such red or stop sign as provided in §6307-4 (a) GC.”

Now, it is true, that the above case differs from our own case in that the defendant’s vehicle therein was not equipped with any siren at all. However, the principle involved remains the same, to-wit: an emergency vehicle loses its privileges and immunities under the applicable statutes, when it proceeds against a red light signal or through a stop sign without making an audible sound upon its siren, exhaust whistle or bell.

It appears to the Court that the provisions of §6307-4(a) GC, permitting a driver of an emergency vehicle to pass through a red light or stop signal, are called into operation only when the driver thereof is giving an audible signal on a siren, exhaust whistle or bell. In this respect the provisions of the statute are mandatory and not directive. It appears to this Court that this conforms with the obvious intent of the legislature and that any person should be entitled to proceed through an intersection on a green light unless he is first warned of the approach of an emergency vehicle by an audible sound of a siren, exhaust whistle or bell. And particularly is this so in the present case, in which defendant elected to proceed on the right hand side of two halted automobiles proceeding in the same direction as himself and thereby blocking his flashing red signal from the view of Goodloe Butler.

It is the necessary sequitur that when the defendant failed to make an audible signal by the siren when entering the intersection of North Main Street from Columbia Avenue in the City of Middletown, he forfeited his status as an emergency vehicle and therefore was not permitted to proceed through the intersection against the red signal light, under §6307-4 (a) GC, even assuming he conducted himself with due regard for the safety of all persons using the street.

It is also clear to the Court that the defendant in the present case, did not proceed through the intersection at a rate of speed compatible with his duty to drive with due regard for the safety of all persons using the street, as provided in §6307-24 GC, even assuming the defendant was making an audible signal upon his siren.

We also find that Gpodloe Butler was not guilty of any negligence at the time and place aforesaid, that he proceeded at a reasonable speed through the intersection in response to a green signal and that he did not violate the provisions of §6307-44(a) GC requiring him to yield the right of way clear of any intersection and to stop and remain in such position until the emergency vehicle has passed, all because the defendant failed to sound his siren.

It is our conclusion therefore, that the plaintiff, the Mayflower Insurance Company should recover from the defendant the sum of Five Hundred and Two Dollars ($502.00) together with its costs, and Counsel may prepare an entry in conformance with this opinion.


author: By KIRK, J.

text:
    SMITH, Plaintiff, v. SMITH, etc. et, Defendants.
    Common Pleas Court, Clermont County.
    No. 24562.

      Ralph Becker, Robert Harris, Cincinnati, for plaintiff.
    Sol Goodman, Cincinnati, for defendant.
   OPINION

By KIRK, J.

Plaintiff’s petition avers that she has a legal estate in fee simple of the undivided one-half interest in six parcels of real property described separately by metes and bounds; that two of said parcels were acquired by plaintiff by purchase priur to July 16, 1952, on which date “a property settlement agreement was entered into between the plaintiff and the defendant, Hall C. Smith, a copy of which is hereto attached and made a part hereof, whereby it was agreed that the property” theretofore acquired by plaintiff “shall be considered as joint property of the plaintiff and the defendant, Hall C. Smith, acquired during the marriage of said parties; that this plaintiff and said defendant, Hall C. Smith, each has a legal right to and is seized in fee simple of an undivided one-half (%) part of said premises”; that four of the parcels were acquired by the defendant, Hall C. Smith prior to the execution of said contract and that the plaintiff claims an undivided one-half interest therein by virtue of said contract and that plaintiff is entitled to partition of each of said six parcels. The petition makes several lienholders parties defendant, contains allegations as to waste and breaches of the agreement referred to and other agreements between the principal parties, concludes with an allegation that the principal parties cannot agree as to the operation and management of the properties and cannot agree as to the disposition of assets owned jointly by said parties; that the appointment of a receiver of said properties would be to the beneficial interest of the parties and their creditors and prays for partition of the premises, for an accounting, for the appointment of a receiver and for any other appropriate relief.

A photostatic copy of the agreement referred to is attached to the petition. This agreement, bearing date of July 16, 1952, between Marianne G. Smith and Hall C. Smith, recites the marriage of the parties on August 24, 1937, that no children were born of said marriage and continues as follows;

“Whereas, certain marital difficulties have arisen between the parties, and said parties are now living separate and apart, and
“Whereas, Hall C. Smith has filed an action for divorce in the Court of Common Pleas, Clermont County, Ohio, against the said Marianne G. Smith and the said Marianne G. Smith has filed an answer and cross petition for alimony in said cause, and
“Whereas, the said Marianne G. Smith intends to file a cross petition for divorce in said cause, and
“Whereas the parties hereto are desirqus of settling and adjusting all rights which either may have in the property of the other of any kind whatsoever.”

Then follows a representation of each party as to the real and personal property then owned by each, including the real property mentioned in the petition, automobiles, farming equipment, livestock and other chattels and certain credits.

The agreement then continues in the following language;

“It is hereby agreed that for the purposes of this settlement the above described property, both real and personal, shall be considered as joint property acquired during the marriage of the parties hereto.
“It is further agreed that values shall be placed upon said property, both real and personal, either by mutual agreement by the parties hereto or by disinterested appraisers; that the property known as 3237 Gilbert Avenue, Cincinnati, Ohio and 2786 Observatory Road, Cincinnati, Ohio” (described by metes and bounds in the petition) “shall be placed in the hands of a qualified realtor selected by the parties hereto, who shall sell same at the best price obtainable, and the proceeds shall be applied as follows: the payment of realtor’s commission, existing mortgages and payment of income tax liens or the placing in escrow of an amount sufficient to secure same. Any balance remaining shall be applied to the payment of the debts hereinafter set forth. Should any balance remain after the payment of said debts then said balance shall be equally divided between the parties hereto. The proceeds from each of said sales to be disbursed by counsel for both parties hereto.
“The parties hereto, by mutual agreement, shall place values upon the farm real estate described above” (described by metes and bounds as parcels in the petition) “together with all live stock, farm equipment, crops and other chattel property located thereon, or if the parties are unable to agree on values then said property shall be appraised by disinterested appraisers. The three tracts of farm real estate, together with said crops, equipment and livestock located thereon, shall be considered as a unit for farming purposes and each party hereto shall have the right to bid upon said property as a unit and it shall be sold to the highest bidder. If neither party elects to purchase said property at its appraised value, then it shall be sold at private sale, if the parties agree upon said private sale, or in the event of disagreement it shall be sold at public auction. The proceeds of said sale, whether sold at private or public sale, or whether purchased by one of the parties hereto, shall be divided equally between said parties.”

The contract also contains a provision for the payment of debts listed therein before division of the proceeds between the parties. Apparently some of these debts are not secured by lien on the premises of which partition is sought.

The contract concludes with provisions that either party may sell or dispose of his property by gift, deed or will and barring the other from rights by way of dower, inheritance, descent, distribution, allowance, administration, etc., and an agreement to execute and acknowledge instruments of conveyance to enable the other party to convey and to execute any and all instruments to carry out the agreement.

However, the contract contains no agreement by the parties to separate or to live separate and apart in the future.

The divorce action referred to in the petition is still pending-in this court.

The defendant Smith has filed a demurrer to the petition on the ground that it does not state a cause of action. His contention is that the agreement is no more than a property settlement in connection with the pending divorce and alimony action between the parties and as such is not effective until approved by the court in an award of alimony.

The plaintiff contends that the contract is a separation agreement giving rise to existing rights including an interest in the property of which she seeks partition.

In view of the fact that the contract contains no provision or agreement on the part of the parties to live separate and apart, yet radically alters the legal relation of the parties, it comes within the direct prohibition of §8002-6 GC (formerly §8000 GC), which is as follows:

“A husband and wife cannot by any contract with each other alter their legal relations, except that they may agree to an immediate separation, and make provisions for the support of either of them and their children during the separation.”

The recitations of the agreement referring to the filing of the petition for divorce, the cross-petition for alimony, the intention of the wife to file a cross-petition for divorce and the purpose of the parties to settle and adjust their respective rights in the property of the other and the provision that the property both real and personal theretofore listed as the separate property of the parties shall be considered as joint property acquired during the marriage, all lead to the conclusion that this was a mere settlement by agreement of the matter of alimony and as such subject to the approval of the court in the event of an award of alimony.

The provision “that for the purposes of this settlement, the above described property, both real and personal, shall be considered as joint property acquired during the marriage of the parties hereto” would have little if any meaning in a contract of separation in which the parties had previously listed their separate property but would be pertinent in the matter of alimony under §8003-17 GC, providing that “The court may allow such alimony as it deems reasonable to either party, having due regard to property which came to either by their marriage, the earning capacity of either and the value of real and personal estate of either at the time of the decree. Such alimony may be allowed in real or personal property or both * * (Emphasis added.)

Moreover, to permit the plaintiff wife to maintain even an action in equitable partition on the basis of this contract would be to defeat the terms of the agreement itself since the agreement provides for a specific method of disposing of the real property and its proceeds among creditors of the parties and the parties themselves.

The demurrer is sustained.


author: Per CURIAM.

text:
    ELLIS, Plaintiff-Appellant, v. HORN, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3558.
    Decided March 18, 1953.

      Sieman, Sieman & Sieman, Warren, for plaintiff-appellant.
    Howard A. Mills, Niles, John D. Ray, Beaver Falls, Pennsylvania, for defendant-appellee.
   OPINION

Per CURIAM.

Lake Milton is an elongated shaped artificial body of water situated in Milton Township, Mahoning county, Ohio, where it was built and is maintained by the city of Youngstown, a municipal corporation, which by duly enacted ordinances regulates traffic moving thereon.

Ohio State Route No. 18, which extends in an easterly and westerly direction in Mahoning county, crosses Lake Milton by a bridge supported by concrete piers.

On the afternoon of July 14, 1951, plaintiff was operating a motor driven fishing boat and defendant was operating an inboard motor boat carrying three passengers, and hauling his son who was riding on water skis, in a general southerly direction on Lake Milton in the vicinity of the bridge, to which reference has been made, when they collided.

As the result of that collision plaintiff sued defendant in the court of common pleas to recover for damages to his person and property. The jury returned a verdict for defendant, upon which the trial judge duly entered judgment, from which plaintiff appealed to this court on questions of law.

Plaintiff’s evidence is that at the time of collision he was operating his motor boat in line with the most easterly supporting pier of the bridge (which was situated 142 feet west of the easterly shore of Lake Milton) at a place 150 to 200 feet west and 175 to 200 feet north thereof, at a speed of three to five miles an hour, preparatory to entering trolling speed, at which speed such boat would barely move; that defendant’s watercraft was following his boat to the right thereof at a speed of 30 to 35 miles an hour, which speed it maintained until it made a sharp left turn and struck plaintiff’s motor boat, damaging it and injuring him; that during all of the time prior to collision defendant was not keeping a lookout ahead, although his vision in the direction he was proceeding was unobstructed.

Defendant’s evidence is that as he approached the scene of the collision at a speed from twelve to fifteen miles an hour at a place about 462 feet from the easterly shore line of Lake Milton, he observed plaintiff and his companion, about 300 feet ahead, untangling fishing lines, while plaintiff was operating his motor boat without keeping a lookout ahead; that as he came closer to plaintiff’s boat plaintiff suddenly and without keeping a lookout ahead, or giving warning, changed the course of the craft he was operating from south to due west into the path of the motor boat defendant was operating; that he saw that change of course, swerved his boat to avoid the collision, and did everything he could to avoid the collision but struck the side of plaintiff’s craft, at an angle, when about 200 feet north of the bridge spanning Ohio State Route 18, and about 462 feet west of the easterly shore line of the lake, where, in accordance with an ordinance of the city of Youngstown, he had a legal right to be; and that plaintiff’s breath smelled strongly of alcohol.

We find no ground for plaintiff’s contention that “the court committed reversible error in permitting the introduction of improper evidence and excluding proper evidence offered by plaintiff.”

Counsel for plaintiff charges “misconduct on the part of defendant’s counsel and irregularity in the proceedings of defendant and his counsel by improper interrogation of plaintiff as to how and when he employed his counsel, and why he filed his lawsuit within ten days of the collision”; and complains of defense counsel’s argument to the jury:—

“I said this is one of the most claim-conscious plaintiffs I have ever come in contact with in some 23 years’ experience in courts and it is very rare that a plaintiff files and swears to a completed complaint within ten days after the accident and before he is discharged from the hospital.”

We find nothing so prejudicial in this statement as to warrant reversal.

In cross-examining one of defendant’s witnesses counsel for plaintiff stated by way of interrogation: “So you personally don’t know what direction either of the boats were going from that point on — .” The court sustained an objection to the question on the grounds that “it is an utterly unfair conclusion from the man’s testimony. Further it is argumentative.”

The testimony of defendant’s witness, the Superintendent of Parks of the City of Youngstown, was taken in the absence of the jury. Counsel for the respective parties had reviewed the investigation files of that witness, and of the Law Department of the city of Youngstown; and counsel for plaintiff had removed, secreted, and refused to produce for the perusal of defendant’s counsel statements of the Superintendent of Parks.

Without detailing the evidence further we conclude that the trial judge in handling the situation presented to him can not be charged with “abuse of discretion in the conduct of the trial and the assumption by the trial court of the right to comment upon the evidence in a manner prejudicial to the plaintiff’s rights.”

In his general charge to the jury the trial judge, so counsel for plaintiff maintains, “erroneously stated that the petition claimed that plaintiff’s boat had reached a point three hundred feet from the shore when it was struck by defendant’s speedboat. Such was not the fact as the petition stated that it occurred within three hundred feet of the shoreline. This error was a very important one, for under the City Ordinance boats running between one hundred feet to three hundred feet of the shore are not permitted to exceed the speed of fifteen miles per hour, whereas boats operating at a greater speed are not permitted closer than three hundred feet to the shoreline, must yield the right-of-way to other boats and shall pass such boats at a distance not less than twenty-five feet and at a reduced rate of speed to ensure the safety of the passengers therein.”

The answer to this complaint is that the trial judge did not erroneously state “that the petition claimed plaintiff’s boat had reached a point 300 feet from the shore when it was struck by defendant’s speed boat.” The trial court stated that in his petition the plaintiff “was riding in a row boat propelled by an outboard motor in a southerly direction toward the bridge over the lake, and when he had reached a point about 100 feet from the bridge and 300 feet from the shore * * *.” Following this the court specifically told the jury that in the ordinance of the city of Youngstown there was a specific requirement that “between 100 and 300 feet of the shore line the speed of a motor boat shall not exceed 15 miles per hour”; and if the jury find that defendant violated this specific requirement “then to that extent you would find the defendant was negligent.” This language of the trial judge sufficiently stated that a violation of the specific requirement would constitute negligence per se. We find no merit in the contention of plaintiff in the respect referred to.

By his general charge the trial judge withdrew from the consideration of the jury plaintiff’s fifth specification of negligence “with reference to assured clear distance ahead.” The trial judge did not err to plaintiff’s prejudice in so doing. The assured clear distance ahead statute, §12603 GC, is not applicable to watercraft. The section applies only to vehicles as defined in §6290-1 GC.

Defendant’s answer raised the issue of plaintiff’s contributory negligence. The trial judge did not err to plaintiff’s prejudice in charging on the issue of plaintiff’s contributory negligence.

Counsel for plaintiff now contends that the trial judge committed prejudicial and reversible error in withdrawing from the consideration of the jury certain portions of the City Ordinance. There was no error in this respect since the court charged the applicable provisions of the ordinance.

When asked by the trial judge for suggestions on the charge counsel for plaintiff finally said “that is all,” and after the jury had retired noted an exception with the court reporter. Error, if any, of omission in the charge was waived by counsel’s approval of the charge as submitted.

During deliberation the jury sent the following note to the trial judge: “May we have the court re-read the three specific charges.” The jury returned to the court room and the following colloquy between the foreman of the jury and the trial judge ensued:—

“The Court: Do you refer to a portion of the ordinance of the city of Youngstown which I read to you?
“Mr. Foreman: No, sir.
“The Court: That is not it?
“Mr. Foreman: No, sir.
“The Court: Well, I just don’t know what you want. Now, do counsel consent I question him a little as to what he does want?
“Mr. Sieman: Yes, sir.
“Mr. Mills: Yes, sir.
“The Court: Can you explain a little further?
“Mr. Foreman: What type of verdict, — you made specific charges and what type of verdict we can rend-er, and it isn’t entirely clear to the jury as to what that is. I thought by having it repeated * * *.
“The Court: I dislike, sir, to repeat any part of my charge but I am trying to find out just what you want.
“Mr. Foreman: What type of verdict can we render?
“The Court: only two types of verdict, one reads in favor of the plaintiff and one reads in favor of the defendant, and I told you this in my charge; that if under my instructions and on the evidence you found in favor of the plaintiff you would use the one so entitled, and if you use that you would put in the appropriate place in the form the amount of damages you award; and that the other type of verdict you would use in the event under my instructions and on the evidence you found in favor of the defendant, and you would use this type. Of course that would not involve the question of damages. Does that straighten it out or is there something else you want? Apparently I don’t quite get what you want, and this is the first time I couldn’t understand what is wanted of me.
“Mr. Foreman: I am afraid * * *.
“The Court: Please, you understand I don’t want you to say anything that would involve the state of your negotiations, that would not be proper. Do you think if you go back into the jury room a few minutes you could draft another note to make it a little clearer?
“Mr. Foreman: I believe so. I thought by saying three specific charges * * s.
“The Court: I will try something else again. I said there were four issues in the case.
“Mr. Foreman: That is it.
“The Court: Is that what you are interested in?
“Mr. Foreman: To a certain extent.
“The Court: This is a delicate situation and I want to handle it right.
“Mr. Foreman: May I write another note?
‘The Court: You can write me all the notes you want to. You go back and talk to your fellow jurors and draft another note and see if you can enlighten my, — I shall not call it stupidity but enlighten my failure to apprehend. You may retire.”

The jury did not send any further note to the judge.

Plaintiff charges the trial judge with:—

“II. Irregularity and errors of law in the proceedings of the court and abuse of discretion and orders of the court by which the plaintiff was prevented from having a fair trial.
“A. Reversible error in refusing to comply with the written request of the jury, submitted during the course of their deliberation, that the court further charge them on the law and explain the court’s general charge.”

Plaintiff further charges that the trial judge “committed prejudicial and reversible error since a mandatory duty was imposed upon the court under §11420-6 GC” in not rereading the three specific charges nor explaining the four issues to the jury again.

In our opinion the trial judge neither abused his discretion nor committed prejudicial error in the respects charged by plaintiff in the assignment of error under discussion.

The case was submitted to the jury at 3:00 P. M. on May 29th. At 6:15 the trial judge inquired as to the possibility of an agreement, and sent the jury to dinner. The jury resumed deliberation at 7:15 and at 7:32 asked the court to reread a portion of his charge, which was refused. Counsel for plaintiff, being present at the time of such refusal, failed to object or except thereto. Any irregularity was waived. See Sprung v. Du Pont, 16 O. O. 352, 136 Oh St 94. The jury deliberated until 10:00 P. M., and returned a verdict in favor of defendant.

Plaintiff charges the trial judge with:—

“Reversible error of the court in refusing the request of plaintiff’s counsel to ascertain from the jury whether they could agree upon a verdict when the jury appeared hopelessly deadlocked and in requiring the jury to remain out until it rendered its verdict.”

There is nothing in the record of the case we review remotely supporting plaintiff’s contention. Accordingly we find no error chargeable to the trial court in the respects urged.

We cannot conclude, as we are urged by the plaintiff, that the verdict of the jury and judgment of the trial court entered thereon are against the manifest weight of the evidence.

The trial judge did not err to plaintiff’s prejudice in overruling his motion for a new trial.

We cannot conclude that the verdict of the jury was rendered under the influence of passion or prejudice, or was contrary to law.

We do not find error prejudicial to the plaintiff, and the judgment must be and is affirmed.

GRIFFITH, PJ, PHILLIPS and NICHOLS, JJ, concur.


author: By JONES, CJ.

text:
    UNITED STATES v. ACRI et.
    United States District Court N. D. Ohio, E. D.
    No. 25807.
    Decided October 10, 1952.

      Don C. Miller, Cleveland, for plaintiff.
    W. P. Barnum, G. F. Hammond, Hugh W. Manchester, John A. Willo, John F. Elsaesser, Youngstown, for defendants.
   OPINION

By JONES, CJ.

This action arises under the revenue laws of the United States. It is brought by the United States to recover taxes from defendant, Michael P. Acri, and to establish priority of the government’s lien upon property of Acri in a safety deposit box at The Dollar Savings and Trust Company of Youngstown, Ohio. Defendant Edward Oravitz, a judgment creditor of Acri, by cross-petition claims a prior lien. The government and Oravitz each move for summary judgment.

The facts controlling disposition of the motions for summary judgment have been stipulated by the parties and briefly may be stated as follows:

On August 6, 1947, defendant Oravitz as administrator of the estate of John Oravec, deceased, filed a suit in the Common Pleas Court of Mahoning County against defendant Acri for wrongful death by murder. On the same day moneys, securities, and property of Acri in the safety deposit box at The Dollar Savings and Trust Company were attached. This suit proceeded to trial and a judgment for Oravitz in the amount of $18,500 was entered on January 19, 1949.

The Commissioner of Internal Revenue, meanwhile, had assessed taxes against Acri for the years 1942 to 1946. The assessment list covering these taxes was received by the collector on November 19, 1947, and demand for payment was mailed to Acri on November 19, 1947. Thereafter, on November 21, 1947, a notice of tax lien was filed in the office of the recorder of Mahoning county. On the same date notice of tax lien and notice of levy were served upon The Dollar Savings and Trust Company.

On June 14, 1948, The Dollar Savings and Trust Company was appointed guardian of the estate of Michael P. Acri who had been incarcerated on his conviction for the murder of Oravec. The bank inventoried the contents of Acri’s safety deposit box on September 11, 1948, Currency in the sum of $35,821 and bonds having a total maturity value of $8,675 were found. No one had been allowed access to the box from the time of the attachment until the inventory was taken.

Considering first the question of defendant Acri’s alleged tax liability in the sum of $71,543.82, summary judgment on the issue must be denied.

There is no admission by either defendant Oravitz, Acri, or the guardian of his estate that the taxes are owing, although they had been assessed. The Dollar Savings and Trust Company as guardian of Acri’s estate denies any tax liability in paragraph three of its answer. While it stipulates that the only issue in this action is the question of priority of liens, an intent to admit the tax liability legally can not be attributed to it in the face of its denial in its answer. Acri, though presently incarcerated, is not “non compos mentis,” and is capable of advising his counsel respecting his tax liability.

The jurisdiction of the court to determine the question of the priority of the liens is challenged. Controlling authorities make it clear, however, that the court has jurisdiction. Markham v. Allen, 326 U. S. 490, 66 S. Ct. 296, 90 L. Ed. 256; Commonwealth Trust Co. v. Bradford, 297 U. S. 613, 56 S. Ct. 600, 80 L. Ed. 920; Wilhoit v. Federal Deposit Insurance Corp., 6 Cir., 143 F. 2d 14.

The property subject to the present liens is constructively in the custody of the state court by reason of the attachment. While a federal court may not disturb or affect the possession of property in the custody of a state court, Markham v. Allen, supra; U. S. v. Bank of New York, 296 U. S. 463, 56 S. Ct. 343, 80 L. Ed. 331, it may nevertheless “adjudicate rights in such property where the final judgment does not undertake to interfere with the state court’s possession save to the extent that the state court is bound by the judgment to recognize the right adjudicated by the federal court.” Markham v. Allen, supra [326 U. S. 490, 66 S. Ct. 298],

Respecting the priority of the several liens, the Supreme Court has held that the effect and operation of a state lien in relation to a claim of priority by the United States is a federal question. State of Illinois, ex rel. Gordon v. Campbell, 329 U. S. 362, 67 S. Ct. 340, 91 L. Ed. 348; U. S. v. Security Trust & Savings Bank, 340 U. S. 47, 71 S. Ct. 111, 95 L. Ed. 53. The federal court must determine whether the lien under state law is sufficiently specific and perfected to defeat the government’s priority, and in making such determination it should give weight to the state court’s characterization of the lien, although such characterization is not conclusive. Illinois v. Campbell, supra; U. S. v. Security Trust and Savings Bank, supra.

Here the Ohio law allowed, and the Ohio court awarded, on January 19, 1949, a lien by virtue of defendant Oravitz’ attachment levied upon the specific property of the defendant Acri, to-wit: Moneys, and bonds of Acri contained in a certain safety deposit box No. 710 of the defendant The Dollar Savings and Trust Company, guardian of Acri’s estate. Secs. 11819 and 11837 GC (§§2715.01, 2715.19 R. C.); Journal Entry, Court of Common Pleas of Mahoning County, defendant’s exhibit A attached to his answer and cross-petition.

Under Ohio law, Oravitz acquired a valid lien of the requisite specificity on Acri’s property as of the date of the commencement of the attachment proceeding. Sec. 11837 GC (§2715.19 R. C.) Illinois v. Campbell, supra.

The subsequent receipt of the assessment list by the collector and the filing of an income tax lien by him accords the government’s lien only second place. 26 U. S. C. A. §3671.

The case of U. S. v. Security Trust and Savings Bank, supra, relied upon by the government, dealt with a California statute giving no such effectiveness to attachment proceedings and liens as does the Ohio statute.

The Ohio courts have characterized the attachment lien under Ohio law as an “execution in advance,” Rempe & Son v. Ravens, 68 Oh St 113, 67 N. E. 282; Green v. Coit, 81 Oh St 280, 90 N. E. 794, and accord it equal standing with an execution lien. Shorten v. Drake, 38 Oh St 76. Thus they treat the attachment lien as perfected at the time the attachment is made.

In the interest of orderly administration of justice in matters of concurrent jurisdiction, this court should respect the state court’s characterization of the attachment lien under Ohio law.

Accordingly, it is the judgment of the court that the attachment lien of defendant Oravitz is superior to the tax lien of the United States. Consequently, the motion for summary judgment in respect of priority of the lien of the government must be denied, and summary judgment in that respect on the cross-petition of defendant Oravitz is granted.

Even if the court were of the opinion that there was priority in the tax lien on the government as against the attachment lien, full summary judgment could not be granted in view of the undetermined issue of the validity and the amount of the assessment.