author: By HORNBECK, J. WISEMAN, J.

text:
    STATE ex CLARK, Relatrix, v. ALLAMAN et, Respondents.
    Ohio Appeals, Second District, Montgomery County.
    No. 2082.
    Decided January 20, 1950.
    A. W. Schulman, Dayton, for relatrix.
    Mathias H. Heck, Pros. Atty., Herbert M. Jacobson, Asst. Pros. Atty., Dayton, for respondents.
   OPINION

By HORNBECK, J.

This is an original action in habeas corpus instituted by Betty Clark to have restored to her the custody of her child which is now in the custody of the respondent, Allantan, Superintendent, under order of the Juvenile Court of Montgomery County, Ohio.

The matter is submitted to this court on an agreed and a supplemental statement of facts which show that the child in Question was born out of wedlock on the 27th day of March, 1949; that the father of said child is unknown; that after the birth of the child the mother, Betty Clark, the relatrix herein, and said child resided in the home of Mr. and Mrs. Arthur Brendel, Dayton, Ohio; that on April 21, 1949 the Brendels filed a petition for adoption of said child in the Probate Court of Montgomery County, Ohio; that the mother gave her consent in writing to said adoption; that on August 12, 1949 a hearing was held in the Probate Court on the petition for adoption and at that time the Brendels, through their counsel, withdrew their petition for adoption and thereupon the court made the following order, which was journalized:

“The court finds that the petitioners herein desire to withdraw their petition for this adoption.

“THEREFORE, it is hereby ordered that said petition be withdrawn and that this cause be dismissed. It is further ordered that this cause be certified to the Montgomery County Juvenile Court for appropriate action and disposition as provided by §10512-21 GC.”

The facts further show that certification was made to the Juvenile Court of Montgomery County, Ohio.

On August 18, 1949 a preliminary hearing was held in the Juvenile Court and on said date the court ordered said child removed from the home of the Brendels and placed in a licensed foster home. On September 12, 1949 a second hearing was held in the Juvenile Court, at which time the court found that the child was a dependent child and that it would be for the best interests of the child that the mother be deprived of its custody temporarily. “That by journal entry, the temporary care and custody of said child was given to the Catholic Charities of Dayton, Ohio, and said child at the request of the Catholic Charities is now in the control of Richard Allaman, Superintendent of the Montgomery County Detention Home,” a respondent herein. "That all of said proceedings in the Juvenile Court was taken over the protest and without the consent of the relatrix.” “No charge as against the relatrix concerning the dependency of said child has been made in the Juvenile Court and that the Juvenile Court assumed jurisdiction over said child solely by virtue of the order of the Probate Court * * certifying said cause under the provisions of §19512-21 GC.”

There are certain salient facts that should be noted at the outset of this case.

The respondents rely entirely upon the proposition that the Juvenile Court had jurisdiction to commit the child for dependency on the certification of the Probate Court.

The Probate Judge made no interlocutory order of adoption, or otherwise, affecting the custody of the child.

The custody and right of custody was at all times prior to certification in the mother, the relatrix.

There were two hearings respecting the child. The first on August 18, 1949, the second on September 12, 1949. The commitment complained of was made at the second hearing. At no time was there any complaint filed charging the child to be a dependent child or any other form of complaint ■originating in the Juvenile Court.

The respondent holds the child upon a commitment predicated on an adjudication “That said child is a dependent child” and for that reason it is for the best interests of said child that its parent be deprived of its custody temporarily. The temporary aspect of the order does not affect the question presented because the adjudication of dependency has been made which, if proper, will support permanent as well as temporary commitment.

The court will modify its temporary order only upon change •of circumstances as to which, if the application be made by the mother, the burden will be upon her. Upon a charge of dependency, the burden is upon the state.

Did the Juvenile Court have jurisdiction to make the order upon which the commitment to respondents rests? We think not, for two reasons.

The first is that there was no proper basis for the certification from the Probate Court to the Juvenile Court under §10512-21 GC which, insofar as applicable provides, “If for any reason the petition shall be dismissed * * *, the following disposition shall be made of the child: (a) * * *. (b) Otherwise the canse shall be certified to the juvenile court * * (Emphasis ours.) The entry reads:

“The court finds that the petitioners herein desire to withdraw their petition for this adoption.

“Therefore, it is hereby ordered that said petition be withdrawn and that this cause be dismissed. * * *.”

The petition was not dismissed but it was withdrawn by the petitioners. The court did not act on the petition and at the time of the certification there was nothing pending and no “cause” upon which the certification could be based.

In the position we take, we are not relying on the technical difference between “withdrawal” and “dismissal” and realize that they may be used synonymously and that under certain situations a party has the right to dismiss a cause of action.

It is probable upon consideration of the adoption code that the dismissal of the petition mentioned in §10512-21 (b) GC is intended to be made by the court after some adjudication on the adoption proceedings. Secs. 10512-18 and 10512-20 GC each provides for a full hearing and defines the orders that may be made at its conclusion. Sec. 10512-21 GC which follows immediately should be read in the light of the preceding sections.

The petition for adoption which is brought onto the record by a supplemental stipulation of facts recites that “Said child is living in the home of the petitioners” (which was also the home of the mother) “and is in the permanent custody of Betty Marie Clark, natural mother and sole parent of the child sought to be adopted, etc.”

The withdrawal of the petition was in effect the same as if done the day after it was filed. What reason was there for a certification to the Juvenile Court? Two of the best citizens of Dayton decide to begin adoption proceedings involving a child of one of them and the parent files consent, but before any order is made respecting the adoption these parties for reasons satisfactory to themselves decide to withdraw all proceedings, to which the court consents. Is it contemplated by the adoption statutes that in such situation the child must first be certified into Juvenile Court, a hearing had affecting its custody and an adjudication made thereon before the parent may have the custody of his own child? We do not believe that certification is contemplated or proper in such situation.

Our second reason, and of more consequence than the first, assumes the regularity and validity of the certification from the Probate Court to the Juvenile Court.

The commitment is grounded upon an adjudication that the minor is a dependent child. If that is made without jurisdiction the commitment is void. The findings as to the best interest of the child is not an independent but a dependent conclusion based upon the primary and essential adjudication of the dependency. The Juvenile Court did not have jurisdiction to determine that the minor was a dependent child because its jurisdiction was not properly invoked to make such an adjudication.

The statute under which the certification was made says that if the petition be dismissed “the cause shall be certified to the Juvenile Court for appropriate action and disposition by such court.”

What then was appropriate action of the Juvenile Court as to which disposition should be made?.

The jurisdiction of the Juvenile Court is not fixed, defined, or enlarged by this certification statute but is conferred by the Juvenile Court Act. Sec. 1639-16(d) GC provides that “The court shall have jurisdiction to hear and determine the case of any child duly certified to the court according to law by any court of competent jurisdiction, and to make disposition of said child in accordance with the provisions of this chapter.” (Emphasis ours.)

The chapter referred to is the Juvenile Court Act. In the act are defined delinquent child, neglected child, dependent child and crippled or otherwise physically handicapped child and the court is given exclusive jurisdiction concerning such children.

It is stipulated that the court assumed jurisdiction over the child solely by virtue of the certification from the Probate Court and without any complaint charging that it was a dependent child.

Sec. 1639-23 GC provides that jurisdiction of the court shall be invoked by the filing of a sworn complaint that the child is dependent, etc. Sec. 1639-24 GC requires that a citation shall be given to parents, reciting the substance of the complaint, etc. The citation which was issued must have been based on the certification. No citation in compliance with this section could have been made upon the relatrix for the obvious reason that no complaint had been filed. This section further provides that after such citation if it appears “that the child is in such conditions or surroundings that his welfare requires that his custody be immediately assumed by the court,” the court may order that the child be taken into custody at once. Apparently the custody was assumed by the court on the first hearing but no complaint had then, or later, been filed.

It should be noted that the record shows no order of the Probate Court in the adoption proceedings, §10512-18 GC, affecting the custody of the child and though it had been living with those who sought to adopt it, as was its mother, this did not affect the right of the mother to its custody until some such order had been made or until the state, by some appropriate proceeding had intervened. Rarey v. Schmidt, 115 Oh St 518. No such proceeding was followed but the court without complaint filed, and over the protestations of the mother conducted a hearing, adjudicated the infant to be a dependent child and awarded custody to another than the parent. This procedure is not contemplated in any situation wherein the dependency of a child is to be adjudicated.

We recognize that the acts of minors, or their parents, defined in the Juvenile Court Act and of which the judges of that court are given jurisdiction are not to be classified as criminal but they are so related as that there is analogy between the procedure in both classes of cases.

“The Juvenile Court has just such jurisdiction as is conferred upon it by statute.” 24 O. Jur. 561.

They are “courts of special jurisdiction over delinquent and neglected children, their jurisdiction being limited by the terms of the constitutional or statutory provisions under which they are created.” 43 C. J. S., Infants, §6 p. 53. “And” (their) “jurisdiction must be strictly construed, and cannot be enlarged by a provision in the statute requiring the statute to be liberally construed, so that. its purposes may be carried out.” 43 C. J. S., Infants, §6, p. 54.

Jurisdiction must be determined from the charge against a defendant and until it is lodged with the court it has no jurisdiction of the person or the subject matter. 14 Am. Jur. 918; 22 C. J. S., Criminal Law, §143, p. 235. Jurisdiction of parties may be determined by consent but jurisdiction of the subject matter is always fixed by law. 12 O. Jur. 103. Jurisdiction of one charged with an offense before courts of limited jurisdiction can be acquired only by filing an affidavit or requisite complaint. 12 O. Jur. 102. In an annotation to Sinquefield v. Valentine, 76 A. L. R. 247, it is concluded: “It has been uniformly held in cases based on statute and principle, that a parent cannot be deprived of the custody of a child in a commitment proceedings without notice and an opportunity to be heard.”

Citing authorities from fifteen states, including Ohio.

That a complaint is a prerequisite to the jurisdiction of the Juvenile Court to adjudge a minor to be a dependent child is decided, inferentially, at least, in Rarey v. Schmidt, supra, 2nd syllabus. It holds that, with certain exceptions, not applicable here, a parent whose residence is known must be served with a citation of the pendency of the complaint before the Juvenile Court has jurisdiction to declare a child of the parent to be dependent. 115 Oh St 518. At page 521 of the opinion, Judge Robinson says: “While the section (§1648 GC) as a whole is inartfully drawn, it quite definitely appears that before the jurisdiction of the court to deal with the child attaches one of three'classes of persons — the parent, the guardian, or the person having custody of the child— shall have legal notice of the pendency of the complaint.”

See also Ex parte Province, 127 Oh St 333, Lewis v. Reed, 117 Oh St 152, In re Corey, 145 Oh St 413, In re Hobson, 43 Abs 216, 44 Abs 85, 86, 92.

The filing of a complaint charging the dependency of the child was the sine qua non to the jurisdiction of the Juvenile Court to adjudicate as to such dependency. Without such complaint and notice to the mother of the charge therein set forth she was denied her basic right to defend against the claim.

There is at least one other section of the Code, §1639-29 GC, providing for certification of certain criminal cases to the Juvenile Court. This section provides analogy to and requires differentiation from §10512-21 (b) GC. But where certification is made in criminal cases there has been already filed a complaint setting out in due form a charge of an offense and the statute provides that after certification the Juvenile Court shall thenceforth have exclusive jurisdiction which “shall be deemed to be upon a complaint filed in such court as fully as if the appearance of such child had been upon a complaint filed in and a citation or warrant of arrest originallly issued out of and by suph court.”

When citation is made under this section all jurisdictional steps have been taken in the originating court. This is also true as to cases certified under §8034-1 and the paragraph (c) of §1639-16 GC. In the instant case no claim was, or could have been, made in the adoption proceedings that the child was a dependent child.

It is true that in State ex rel. Sparto et al. v. Williams, 55 Abs 341, (86 Oh Ap 377, affirmed in 153 Oh St 64) 86 N. E. 2d 501, 502, we said that certain jurisdiction was conferred upon the Juvenile Court to determine custody of a child by the certification made by the Probate Court in adoption proceedings. We said too much and a close reading of the section authorizing the certification is convincing that it does not ex vi termini confer the jurisdiction exercised here. Nor was the language just adverted to necessary to the adjudication because admittedly, when the court acted, it had before it an affidavit in which it was charged that the minor was a neglected child.

We do not discuss Paddock v. Ripley, 149 Oh St 539, 80 N. E. 2d 129, because, if the syllabus is given full effect, it does not reach our question. Here there is a purported finding that the infant is a dependent child, which was not found in the cited case. The invalidity of the judgment, we consider, is further back in the proceedings in that there is no foundation upon which the adjudication can rest. We do not agree that the syllabus of Paddock v. Ripley is but a reiteration of obiter dictum in the opinion. It responds to a vital issue urged and litigated in the Supreme Court.

The Juvenile Court being without jurisdiction to make the finding and adjudication that the minor was a dependent child, the custodial order predicated on such judgment by which the child is now held is ineffective. The writ will be allowed, as prayed.

MILLER, PJ, concurs in judgment.

WISEMAN, J, dissents.

WISEMAN, J.

(dissenting).

I regret that I cannot concur with the conclusion of the majority of this court. This dissenting opinion, which is of some length, is written in the belief that a statement as to the other view of the law applicable to the issues presented may be helpful.

The sole question for determination is whether the Juvenile Court had jurisdiction to determine the question of custody of the child. If the Juvenile Court had jurisdiction habeas corpus does not lie.

I cannot agree with the majority that there was no proper basis for the certification of the cause to the Juvenile Court under §10512-21 GC. What was the legal effect of the withdrawal of the petition and the dismissal of the action for adoption? Sec. 11586 GC, controls the disposition of an .action after it is instituted. This section in part provides:

“An action may be dismissed without prejudice, to a future action:

“1. By the plaintiff, before its final submission to the jury, or to the court, when the trial is by the court;”

The Code of Civil Procedure makes no provision for voluntary withdrawal of an action by the plaintiff. Under the Code the legal effect of a voluntary withdrawal of an action is a voluntary dismissal of the action. Siegfried v. New York, L. E. & W. R. Co., 50 Oh St 294, 297, 34 N. E. 331.

We recognize the general rule that when an action is dismissed the court is without jurisdiction to make any further order. Schaffer v. Schaffer, 114 Oh St 309, 151 N. E. 186. However, the general rule, is subject to the power of the legislature to confer jurisdiction on the court to act after dismissal of the action. Certainly the legislature has the power to grant authority to the court dismissing the action to certify such cause to another court. In the instant case the Probate Court had authority after the dismissal of the petition for adoption to certify the cause to the Juvenile Court under §10512-21 GC.

In the majority opinion the point is made that there was no cause' pending upon which the certification could be based. Under §10512-21 GC, it is not intended that a pending matter be certified to the Juvenile Court. The certification of the record in the Probate Court, when filed in the Juvenile Court, effectually opens up a custody case in the Juvenile Court. However, the record in the Probate Court does show on its face that the question of the custody of the child was not determined. The situation presented is this: The record, on its face, shows that there was an illegal placement of the child in the home of the petitioners. The record fails to show a compliance with the provisions of §1352-13 GC. The mother had given her consent in writing to the adoption. For some reason the adoption proceedings were dismissed and the child continued to reside in the home of the petitioners, who obviously were not the parents of the child. The Probate Court did not have jurisdiction to determine the question of custody of the child; the question of custody had to be determined by a court of competent jurisdiction. In the opinion of the Probate and Juvenile judges of this state the situation which is presented here occurred so often and was of such seriousness that legislation providing for a procedure certifying the cause to the Juvenile Court and conferring jurisdiction on the Juvenile Court to hear and determine the matter of custody was proposed and enacted. See 1947 Supplement to Addams and Hosford, Ohio Probate Practice and Procedure, page 214.

It is immaterial whether the adoption proceedings is dismissed before or after a hearing on the merits. The provisions of §10512-21 GC, are sufficiently comprehensive to embrace actions dismissed before a hearing as well as after a hearing has been had.

In the majority opinion it is stated that the custody of the child was at all times prior to certification in the mother and that there was no reason for the certification under the facts stated. While it is true permanent custody was in the mother, the child resided in the home of the Brendels with whom it was placed by the mother for adoption. Residence of the child in the home of the petitioners is required, otherwise the petitioners cannot proceed with the adoption. See §§10512-11, 10512-12 and 10512-18 GC. It will be observed that under the first order of the Juvenile Court the child was removed from the Brendel home and placed in a licensed boarding home. The record does not show where the mother resided at the time the ease was certified to the Juvenile Court. The majority opinion infers that certification may be proper in certain cases and under certain conditions and not proper in other cases. There are no exceptions in §10512-21 GC, and its provisions are mandatory.

The majority opinion states that, assuming the legality and validity of the certification from the Probate Court the commitment by the Juvenile Court was grounded upon an adjudication that the minor was a dependent child and that the Juvenile Court was without jurisdiction to make said order. The point is made that before a minor can be found to be a dependent child, a complaint of dependency must first be filed. With this abstract principle, I agree. However, the proceeding instituted in the Juvenile Court was not a-dependency proceeding. The recital in the order of commitment that the child was dependent did not convert the proceeding into a dependency proceeding and the record need not show a compliance with the legal requirements of a dependency proceeding. The child cannot be said to be a dependent child within the meaning of the Juvenile Court Code. The order of the Juvenile Court, in depriving the mother of the custody of her child, is not given validity by reason of the recital in the order that the minor was a dependent child. This statement neither adds to nor detracts from the legal effect of the order which, in my opinion, was a valid order based upon other grounds.

Did the Juvenile Court have jurisdiction to make the order? The jurisdiction to determine'the question of custody of a child in a matter certified under §10512-21 GC is clearly conferred on the Juvenile Court under §1639-16 GC, paragraph (d), which provides: “The court shall have jurisdiction to hear and determine the case of any child duly certified to the court according to law by any court of competent jurisdiction, etc.”

This provision was proposed by the Probate and Juvenile judges of the state and enacted by the legislature for the purpose of conferring jurisdiction on the Juvenile Court to determine the custody of a child after the matter had been certified by a court of competent jurisdiction. It was meant to cover a situation such as is presented in the instant case. Unquestionably the legislature has the power to confer jurisdiction on the Juvenile Court .in a custody case which is instituted by the filing of a certification from the Probate Court when a petition for adoption is dismissed as provided in §10512-21 GC. The moment the certification of the record is filed in the Juvenile Court, that court is immediately aware that it has a custody case before it. Upon a certification duly made by the Probate Court what further jurisdictional step was required to authorize the Juvenile Court to hear and determine the question of custody? Jurisdiction having already been acquired under paragraph (d) of §1639-16 GC, no further jurisdictional step was required. Furthermore, the legislature did not provide that any other jurisdictional step should be taken. After service of citation on the mother the court had the authority to proceed and determine the issue.

Paragraph (d) of §1639-16 GC, confers jurisdiction on the Juvenile, Court to hear and determine the case of any child certified to it and “to make disposition of said child in accordance with the provisions of this chapter.” This last provision does not refer to the jurisdiction of the court, but rather to the procedure to be followed in the exercise of the jurisdiction conferred. We need not look beyond the provisions of §1639-16 GC, to find complete authority to determine the question of custody. The applicable part of that section is as follows:

“(a) The court shall have exclusive original jurisdiction under this chapter or under other provisions of the General Code: * * *

“2. To determine the custody of any child not a ward of another court.”

The power to hear and determine the question of custody of a child includes the power to deprive one person of the custody and award it to another. The best interests of the child must always be the guide to be used by the Juvenile Court in determining questions of custody. In the instant case the Juvenile Court made a finding that it was for the best interests of the child that the mother be deprived of its custody, temporarily. In making the order the court used a blank form which required certain inapplicable provisions to be stricken; some inapplicable provisions were not stricken. While the order is not artfully drawn, it is nevertheless a valid order.

In the majority opinion great stress is laid on the fact that the court found the minor to be dependent. However, these words could have been omitted without affecting the validity of the order. When the court found that it was for the best interests of the child that its parent be deprived of its care and custody, temporarily, the court had made an order which was legally sufficient and valid. This was the determinative and controlling finding on the issue presented. The reason assigned by the court for the finding and order is immaterial. Vol. 23 O. Jur. p. 817. The court may have assigned any one of a number of reasons for its finding, to wit: That the child was neglected, delinquent, crippled or otherwise physically handicapped, that the mother was incompetent or any other good and valid reason. A “dependent child” is defined in §1639-4 GC, which provides that a dependent child includes any child who is homeless or destitute or without proper care or support, through no fault of its parents; who lacks proper care or support by reason of the mental or physical condition of its parents; or whose condition or environment is such as to warrant the state, in the interest of the child, to assume its guardianship. Let us assume that the evidence presented to the Juvenile Court in the instant case would have justified a finding that the child lacked proper care or support by reason of the mental or physical condition of its parents, could it be successfully contended that such recital in the order of the court would vitiate the whole proceeding, oust the jurisdiction of the court, and render null and void an otherwise valid judgment? The only order which the Juvenile Court could make in the instant case was whether the best interest of the child required the court to deprive the mother of its care and custody. The court made this finding and incorporated it in its order. The judgment of the court can be sustained on this ground. A judgment of a court having jurisdiction of the subject matter and the parties is not null and void by reason of the fact that the court which rendered it based it on erroneous grounds, if it can be supported on some valid ground. Vol. 23 O. Jur. pp. 814, 816 (cases cited).

Assuming the Juvenile Court had jurisdiction and conceding that in the exercise of such jurisdiction the Juvenile Court made an unwarranted or erroneous order, which I do not concede, the jurisdiction of the court would not be ousted and such error could be taken advantage of only on appeal. Habeas corpus would not lie. In re Burson, 152 Oh St 375, 383.

The relatrix cites the case of Paddock v. Ripley, 149 Oh St 539, 80 N. E. 2d 129, in support of the contention that the Juvenile Court lacks jurisdiction to proceed to determine the custody of the child or make any order, temporary or permanent, until and unless an affidavit is filed charging the child to be a delinquent, neglected, or dependent child. The statement in the Paddock case, which appears in the opinion of the court 149 Oh St on page 541, 80 N. E. 2d on page 131 that “Under the Juvenile Court Code, such courts have jurisdiction only of delinquent, neglected or dependent children”, is purely obiter dictum. In so holding did the Supreme Court intend to exclude from the jurisdiction of the Juvenile Court hearings in all matters involving children other than delinquent, neglected, or dependent children? We do not think so. While it is true the Supreme Court, in its opinion did refer to §1639-16 GC, which is the general section conferring jurisdiction on the Juvenile Court, it. mentioned only delinquent, neglected or dependent children. It failed to take into consideration that under §1639-16 GC, jurisdiction is also conferred respecting crippled or otherwise physically handicapped children: also, “to determine the custody of any child not a ward of another court,” and “to determine the paternity of any child alleged to have been born out of wedlock.” If the Juvenile Court has jurisdiction only over delinquent, neglected or dependent children, then the Juvenile Court may not exercise jurisdiction over children in matters in which jurisdiction is conferred specifically by other sections of the code. Reference is made to §§1352-8, 1639-29, 8034-1, 11181-1 and 10512-16 GC.

The factual situation presented in the case at bar was not presented to the Supreme Court in the Paddock case. In that case the Juvenile Court had not intervened by making an order respecting the custody of the child; the jurisdiction of the Juvenile Court was not directly involved. Since the announcement of the opinion in the Paddock case the Juvenile Courts of this state have continued to exercise jurisdiction, and rightly so, in many matters involving children who are neither delinquent, neglected or dependent. If a complaint charging a child to be delinquent, neglected or dependent is a prerequisite to the exercise of jurisdiction by the Juvenile Court in such cases, then the provisions for certification under §10512-21 GC, and paragraph (d) of §1639-16 GC, are meaningless for the reason that such complaint in the proper case could have been filed before the enactment of these provisions. It was to avoid the necessity of filing such complaints in the proper cases, and the impropriety of doing so in others, in case the adoption was not granted, that these provisions were enacted. It is a source of satisfaction to know that not all children sought to be adopted are delinquent, neglected or dependent. Such complaints could not be properly filed in all cases where adoption petitions are dismissed. The legislature recognized this situation in the enactment of §10512-21 GC, and paragraph (d) of §1639-16 GC.

In my opinion jurisdiction is clearly conferred on the Juvenile Court to determine the custody of the child in question and the filing of a complaint charging the child to be a delinquent, neglected or dependent child was not a necessary prerequisite to the exercise of such jurisdiction.


source: Caselaw Access Project

author: By DOYLE, J:

license: Public Domain

text:
    DANNER, Plaintiff-Appellee, v. DANNER, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21691.
    Decided February 13, 1950.
    Clifford E. Bruce, Cleveland, for plaintiff-appellee.
    Beach & Warner, Cleveland, for defendant-appellant.
    (GUERNSEY, PJ, of Third District: HUNSICKER, J, DOYLE-J, of Ninth District sitting by designation in Eighth District.)
   OPINION

By DOYLE, J:

This is an appeal from a money judgment entered in the Municipal Court of the City of Cleveland against Raymond B. Danner and in favor of his former wife, Clarabelle M. Danner.

It appears in the record that on the 15th day of October-1940, Clarabelle M. Danner and Raymond B. Danner, husband and wife, entered into a separation agreement in writing in which, after providing for the support and custody of their minor children prescribes:

“It is further mutually agreed that the property now held jointly between parties hereto in the City of Erie, State of Pennsylvania is to be sold at the highest possible price obtainable; that out of the proceeds thereof all encumbrances are to be paid first out of the net proceeds and the balance to be divided equally between the party of the first part and the party of the second part.”

On the 20th of November, 1940, real property standing in the name of the husband in Erie, Pa., was sold and a deed •delivered. In this transaction the wife signed the instrument .and conveyed all rights which she had in the premises. Neither party owned nor had any interest in any other property in the City of Erie.

At a later time, during the January term of the Common ■Pleas Court of Mahoning County, in an uncontested divorce ■action the husband, Raymond, was granted a divorce from his wife, Clarabelle, and in the entry of judgment the fol-' .lowing language appears:

“The court being advised that there is a mutual agreement 'between the parties hereto regarding the support and custody of the children mentioned herein, the court therefore makes no disposition of the matter at the filing of this entry.”

The judgment from which this appeal is taken was rendered on the claim of the wife for a one-half interest in the net proceeds of the sale of the Erie property; claimed under the terms of the separation agreement hereinbefore quoted.

Attention is first directed to the following claimed error:

“It is our view that when the parties were shifted from the •status of being legally separated, but still husband and wife, to being divorced, the separation agreement came to an end in the absence of the divorce court having approved, ratified or incorporated same into the divorce decree. This especially is so where the divorce decree, as in the instant case, clearly shows that the separation agreement was taken cognizance of * * •*.”

And further:

“The separation agreement ceased to exist when the divorce-decree was entered and therefore the separation agreement upon which suit was brought would be unenforcible. This, action would amount to an effort to have a belated appeal from the divorce decree entered in Mahoning County. The-Municipal Court of Cleveland would have no jurisdiction as. an appellate court to review the decision of the Common Pleas Court of Mahoning County, even if the attempted appeal had been initiated within the time required by law

It seems to the members of this Court that a decree of divorce which makes no reference to a property settlement, previously made between a husband and wife in a separation agreement and which speaks of the contents of the separation agreement only by saying that because of the “mutual agreement between the parties for the support of the children, no provision for them will be made by judicial order” does not of its own force terminate a separation agreement previously entered into by the parties; and that under the circumstances here shown the contract designated “Separation Agreement” remains in full force and effect and may be enforced in a court of law.

Mendelson v. Mendelson, 123 Oh St 11; Tefft v. Tefft, 73 Oh Ap 399.

The claim is further made- that the parties “held jointly” at no time any property in Erie, Pa., and as a result thereof the agreement in the separation instrument could not be enforced against the property, the legal title to which was in the husband alone.

In this connection we must follow the principle so well grounded in the law of contracts — what was in the minds of the contracting parties? The parties owned no property in Erie, Pennsylvania, excepting only the real estate in question, which stood in the name of the husband. Of course this was the subject matter concerning which they were contracting and we are of the opinion that the trial court did not err in finding that this was the property “in the minds of the contracting parties.”

We have examined all of the other errors claimed and we find none to be of a prejudicial character.

Judgment affirmed. Exceptions. Order see journal.

GUERNSEY, PJ, HUNSICKER, J, concur.


author: By HURD, J:

text:
    MARTIN, Plaintiff-Appellee, v. MARTIN, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21491.
    Decided December 19, 1949.

      H. W. Kiser, for plaintiff-appellee.
    Beach & Warner, Cleveland, for defendant-appellant.
   OPINION

By HURD, J:

This is an appeal on questions of law from the Court of Common Pleas of Cuyahoga County from a judgment rendered in favor of plaintiff on a motion filed by the defendant November 10, 1948, approximately five years after the final decree of divorce and alimony had been entered in favor of the plaintiff.

By the motion, the defendant made the following request:

“(1) For an order clarifying, construing and enforcing the prior orders of this court herein as relates to alimony and support of minor child, said prior orders having been entered on or about October 27, 1943, and on or about December 3, 1946, and to declare and determine what, if any, obligations this defendant may have thereunder for the present and future, and (2) For appropriate order or orders relative to funds deposited by him with the Clerk of this Court incident to appeal to the Court of Appeals, No. 21234 therein, wherein said Court of Appeals on or about October 25, 1948, affirmed the order of this court.”

Acting on this motion the Common Pleas Court on March 31, 1949, found in part as follows:

“The funds deposited with the Clerk of this Court in lieu of appeal bond under a prior order is equal to the balance of payments due plaintiff as alimony to November 1, 1948, and said appeal having been fully determined in favor of the plaintiff she is entitled to said funds.”

Included in the same order is the following:

“Defendant agreed to pay to the plaintiff for alimony and division of property, a lump sum out of which plaintiff agreed to support the minor children of the parties. Payments on the lump sum must, be made monthly by the defendant to the plaintiff in aggregate amounts equal to 28.095 percent of his annual income as shown by certified copy of his income tax return as filed, submitted to plaintiff’s attorney, but in no event greater than $150.00 per month, nor less than the amount specified by the last order of the court or subsequent agreement of the parties, unless defendant shows reduced income through no fault of his own to a point where 28.095 percent thereof would be less than the amount of such order or agreed monthly payment. Such adjustment as may be further necessary in compliance with the above formula shall be made concurrently with the submission to plaintiff’s attorney of the income tax return for the next preceding year as a self-regulating rule, jurisdiction being reserved by the agreement for determination by the court of any dispute. relating to the cause of such reduced income which may reflect upon the right to further reduction of monthly payments by the defendant.

The court further finds that the income of the defendant has been reduced through no fault of his own below $4,700.00 per year, and that from and after November 1, 1948, he is entitled to some reduction of the amount of his monthly payments.

IT IS THEREFORE HEREBY ORDERED,' ADJUDGED AND DECREED, that the remaining balance of funds deposited with the Clerk of Court in lieu of appeal bond under prior proceedings herein, be released and paid over to the plaintiff; that the portion of the agreement of the parties on which issue has been joined in this proceeding, be and hereby is construed in accordance with the findings of this court; that from and after the first day of November, 1948, monthly payments of the defendant shall be reduced to $80,00 per month subject to adjustment in accordance with the construction of the contract herein determined with reference thereto; that the defendant shall pay the costs of this proceeding for which judgment shall be entered and execution may issue.”

A motion for new trial having been overruled April 4, 1949, the defendant appealed to this Court, the following being the assignments of error:

1. The judgment of the trial court is contrary to law.

2. The trial court was without jurisdiction to enter said judgment.

3. The judgment of the trial court is contrary to the undisputed evidence.

4. Said trial court erred in holding that the approved agreement provided for a lump sum award for alimony and support of minor child.

5. Said trial court erred in overruling defendant’s motion for new trial.

6. Said trial court erred in failing to find specifically as to defendant’s income as requested.

To insure a clear understanding of the issues presented on this appeal, we deem it advisable to detail in chronological sequence some - of the entries heretofore made in this case.

The parties will be designated herein as plaintiff and defendant respectively, as they appeared in the trial court.

On the 27th day of October, 1943, Mary L. Martin, the plaintiff, was granted a decree of divorce from Ray C. Martin, on the grounds of gross neglect of duty. At that time provisions were made for alimony and the support of Lois Ann, then aged 16 years, and Mary Lou, then aged 11 years, the issue of said marriage — the custody of whom was granted exclusively to plaintiff, with right of visitation by the defendant.

While service was made by publication upon defendant, then and now residing in the vicinity of Washington, D. C., the court found that the parties had entered into an agreement for permanent alimony for the plaintiff, out of which she was to provide for the necessary support, care, education and maintenance of the minor children.

The Court incorporated the agreement of the parties into the decree, the part which is germane to the present discussion being in language as follows:

“The husband shall and will pay to the Wife a sum equal to One Hundred and Fifty Dollars ($150.00) per month for a period from date hereof to the date when the said younger child would reach the age of twenty-one years, payable at the rate of One Hundred Fifty Dollars ($150.00) per month so long as the husband’s income reasonably permits such payments. In the event that the husband’s income shall be so reduced that,the said monthly payments shall be an unreasonable proportion of the husband’s annual income, through no fault of his own, then the amount of said monthly payments shall be reduced to a sum to be determined by agreement of the parties hereto, or, if no such agreement can be reached between the parties, then by decree of the court having the original jurisdiction of the subject matter hereof. The wife shall and will provide out of said sum for the necessary support, care, education and maintenance of the said two minor children of the parties during minority and consequent dependency.”

It was specifically provided by the agreement embodied into the decree that all rights or claims for settlement of property, right of dower, alimony, both temporary and permanent, the care and support of the minor children, and all rights or claims arising out of or in any wise incident to the marriage contract of the parties which either of them might have or claim to have against each other, or in and to the property of each other, were thereby settled, adjusted, released and forever discharged.

Thereafter, on October 29, 1946, the defendant having failed to make payments in accordance with the decree, plaintiff filed a motion for an order against the defendant to show cause why he should not be adjudged in contempt of court for failure to comply with the court order for the support, maintenance and care of herself and her two minor children, and on November 29, 1946, the defendant filed a motion to modify the original decree. Thereafter on March 1, 1947, the court made an entry effective as of December 1, 1946, approving an agreement to amend the original agreement in part. The journal entry in respect thereof provides in part as follows:

“The court further finds that the parties herein have agreed to change the original ‘Agreement’ of the parties as reflected in the journal entry herein, in the following respects: that the defendant is entitled, by reason of his reduced income, to have his monthly payments reduced from One Hundred and Fifty Dollars ($150.00) per month to One Hundred and Ten Dollars ($110.00) per month, commencing as of December 1, 1946 and continuing until further order of court, or the agreement of the parties herein; that the defendant shall submit to the counsel for the plaintiff a certified copy of his income tax return as filed by him from year to year during the period of time this. agreement is in effect; that in the event defendant’s income increases or decreases from his present income of Four Thousand Seven Hundred Dollars ($4,700.00) then said allowance of One Hundred Ten Dollars ($110.00) shall be increased or decreased proportionately, provided, however, that said total amount of monthly payments to be made by the defendant shall at no time exceed One Hundred and Fifty Dollars ($150.00) per month and provided further, that all other terms and conditions of the original Agreement and Journal Entry shall remain in full force and effect.” (Emphasis ours.)

In June, 1947, the defendant having stopped all payments under the original and amended decrees, the plaintiff filed a complaint under the provisions of §13008 GC and the defendant was indicted by the Grand Jury of Cuyahoga County for neglect of and failure to support a minor child of the parties. Thereafter, he was arraigned in the criminal division of said court on May 13, 1948, and entered a plea of “not guilty.”

Contemporaneously with his arraignment, and while the charge of neglect was pending in the criminal division the defendant filed a motion in the civil branch of common pleas court to modify the decree entered on March 1, 1947 (which was effective as of Dec. 1, 1946) to reduce the amount of payments because of alleged changed conditions. Thereupon the motion came on to be heard by the court on June 16, 1948 and an order was entered in part as follows:

“The court further finds that, on motion of the defendant said installments were reduced by agreement incorporated into an order of the court from $150.00 to $110.00 per month on December 3, 1946; that all installments were duly made in accordance with the order of the court to and including the month of June, 1947; that defendant has paid nothing thereon since that date and one child, still a minor at the time of this hearing, has been without any support from the defendant for approximately one year last past; that there has accrued in unpaid installments to and including the installment for the month of June, 1948, an aggregate sum of $1320.00 under the modification order of Dec. 3, 1946, and by reason thereof defendant is not entitled to any further modification by way of reduction of installments during the continuance of said default. It is therefore ordered, adjudged and decreed that defendant’s motion be and hereby is dismissed.”

Whereupon a motion for new trial having been overruled, an appeal was perfected to this court which affirmed the judgment of the common pleas court in all respects, on October 25, 1948.

Considering first that part of the order above quoted, holding that the plaintiff is entitled to the funds on deposit with the Clerk of Courts, it is the judgment of this Court that the judgment of the Common Pleas Court having been affirmed by this court on a prior appeal from a motion to modify and to show cause, by our entry of October 25, 1948, the balance of payments due plaintiff as alimony to plaintiff on November 1, 1948, now on deposit with the Clerk of Courts shall be forthwith paid to plaintiff in accordance with the prior order of the court of common pleas as previously affirmed by this court, and that this matter cannot properly be the subject of appeal in this proceeding.

Our prior affirmance in October, 1948, of this part of the judgment of the trial court makes it “res adjudicata.” There is no point in, or reason for affirming our prior affirmance. The debt is fixed, the money is on deposit for its payment under order of court. It should be paid without further delay. As to this part of the court order this appeal should be and is dismissed.

We shall next consider the claim that the court erred in finding that the defendant agreed to pay to plaintiff for alimony and division of property “a lump sum” out of which plaintiff agreed to support the minor children of the parties. It is clear that the original agreement provided for the payment by the husband of a sum equal to $150.00 per month for a period from date of the agreement (March 9, 1943) to the date when the younger child would reach the age of twenty-one years. There seems to be no ambiguity contained in this provision. In express terms, it fixes the amount for which the husband shall ultimately be liable. In other words, the parties by their own agreement, measured or fixed the extent of the defendant’s liability. The husband was thereby released from all claims of any kind or nature arising or growing out of the marriage contract. True, the amount of the monthly payments was subject to variance, contingent upon conditions, but the total • obligation is certain. In such cases, where the court has formally approved the agreement of the parties as part of its decree, the court is without jurisdiction to alter or change the terms at the instance of one party over the objection of the other. Therefore, we find no error prejudicial to the rights of the defendant in respect of this finding and decree of the trial court.

We now come to a consideration of the finding that payments “must be made by defendant in aggregate amount equal to 28.095 percent of his annual income.” While there appears to be no specific assignment of error relating to this provision, we find no support for the fixing of an arbitrary ratio or mathematical formula in either the original agreement or the amendment thereto. While the entry of March 1, 1947, effective as of Dec. 1, 1946, uses the term “proportionately” placing a limitation of a maximum monthly payment at $150.00, it does not fix an exact ratio or formula and contains the provision “that all other terms and conditions of the original agreement and journal entry shall remain in full force and effect.” From this we conclude that the following provision of the original agreement is still in full force and effect:

“In the event that the husband’s income shall be so reduced that the said monthly payments shall be an unreasonable proportion of the husband’s annual income, through no fault of his own, then the amount of said monthly payments shall be reduced to a sum to be determined by agreement of the parties hereto, or, if no such agreement can be reached between the parties, then, by decree of the court having the original jurisdiction of the subject matter hereof.”

Indeed the record indicates the parties placed this same construction upon their agreement. This is indicated both by their conduct and likewise by their testimony.

The next question for consideration is the finding of the court to the effect that “the income of the defendant has been reduced through no fault of his own, from $4700.00 per year, and that from and after November 1, 1948, he is entitled to some reduction of the amount of his monthly payment” and the consequent reduction by the court of the payments to $80.00 per month.

From an examination of the record, the various decrees and modifications thereof, we are of the opinion that in any application for modification the burden is upon the defendant to show that he is unable to make monthly payments in the original sum of $150.00 per month, or the reduced sum of $110.00 per month, through no fault of his own. If this is .shown by the defendant, and if the parties are unable to agree upon the reduced amount of the monthly payments, then the court having original jurisdiction of the subject matter shall determine the amount.

Our examination of the record in this case confirms us in the view indicated by the trial court to the effect that the defendant, having remarried, has acquired “a' new interest and is trying as much as he can, as far as the law will let him, to forget his past obligations.” The record is ■quite clear that while the defendant was claiming ill health, he was unwilling to have a doctor examine him and testify in the case and was also unwilling to permit the court to .select a doctor to examine him and report to the court and at one point in the record, under questioning by the ■court, the defendant admitted that his health was good.

The record is clear that no progress was made after the ■defendant ceased making payments until an indictment was returned by the grand jury for failure to support a minor ■child at which time it appears that in order to escape the ■consequences of criminal prosecution, he deposited with the court a sum sufficient to provide for support for a limited time, pending hearing on his motion to modify and there.after when the criminal proceedings were dismissed, sought by another application to be relieved of the burdens of the prior orders entered by agreement.

Neither is the record of his conduct convincing in respect ■of his efforts to obtain employment. There is an apparent •effort, as disclosed by the record, to avoid and if possible be exonerated from his obligations. On this phase of the matter we find no error on the part of the trial court in fixing a reduced sum in the amount of $80.00 per month, until further order of the court.

We cannot say we are entirely in accord with the finding of the trial court that his income has been reduced from the ■sum of $4700.00 per year through no fault of his own, based upon our examination of this record, but we are of the •opinion that this finding is not prejudicial to the rights of the defendant and we conclude that a reduction in payments from the original sum agreed upon of $150.00 per month to a sum agreed upon of $110.00 a month, and then to a sum ■of $80.00 per month as fixed by the court, when the parties were unable to agree, is not unreasonable or prejudicial in the light of the evidence shown by the record.

In this hearing the trial court was required to weigh the ■evidence for and against the defendant’s claims, and it was entirely within the discretion of the court to believe or not to believe all or any part of the testimony of the parties and their witnesses in reaching a conclusion and judgment upon the issues. The court likewise was free to consider all of the facts and circumstances, together with the conduct of the parties as indicated by the history of the case. In so doing it was not within the province of the trial court to make a new agreement for the parties. It is our conclusion that with the one exception herein noted, there was ample evidence to support the findings and judgment of the trial court.

The defendant assigns as a ground of error that upon his oral request the trial court failed to make a specific finding as to the amount of his income. There is no warrant or authority in law to require the court to make such a finding of fact which is peculiarly within the knowledge of the defendant himself. Further the evasiveness and equivocation of the defendant as shown by the record would justify the trial court in disregarding his entire testimony on this subject. Furthermore, we find no authority, statutory or otherwise, for an application for an order “clarifying, construing and enforcing prior orders” particularly where the application is made some five years after the term in which the decree is rendered.

Therefore we find no error in the failure of the trial court to make a specific finding in respect of defendant’s income in the particular hearing now under review.

In conclusion, therefore, we dismiss the appeal insofar as it relates to the order requiring the Clerk of Courts to deliver to plaintiff the sum now on deposit under the earlier order of the court, later affirmed by this court, on the ground that this issue was decided favorably to plaintiff by our entry of affirmance of October 25, 1948.

The judgment is modified insofar as it fixes an arbitrary formula of monthly payments at 28.095 percent of defendant’s income, as we hold that the parties are relegated to their original agreement in respect of monthly payments. In all other respects the judgment is affirmed. Exceptions noted. Order see journal.

SKEEL, PJ, McNAMEE, J, concur.


author: By HILDEBRANT, J.:

text:
    READNOUR, Plaintiff-Appellee, v. CINCINNATI STREET RAILWAY COMPANY, Defendant-Appellant.
    Ohio Appeals, First District, Hamilton County.
    No. 7181.
    Decided January 10, 1950.
    Peterman, Calhoun & McPherson, Cincinnati, for plaintiffappellee.
    Leo J. Brumleve, Jr., Cincinnati, for defendant-appellant.
   OPINION

By HILDEBRANT, J.:

This law appeal is taken by the defendant herein from an adverse verdict and judgment for damages for personal injuries received in a collision between plaintiff’s automobile and a street car of the defendant.

The first error assigned is as to the general charge.

One of the specifications of negligence in the petition is that defendant operated its street car at a rate of speed greater than was reasonable and proper under the circumstances and in violation of the State law and of Section 560-8 of the Ordinances of the City of Cincinnati, which ordinance was pleaded and proven.

One of the questions for the jury was whether the collision occurred in a business district, where the prima facie lawful speed limit contained in the Ordinance was 25 miles per hour, or in a residential district, where the prima facie lawful limitation was 35 miles per hour.

It, therefore, appears that the duty of the jury was to determine what was a reasonable and proper speed under the circumstances under complete instructions of the court, including instructions as to what speeds were prima facie lawful or unlawful in both the business and residential zones, as fixed by the ordinance.

Pertinent parts of the general charge of the court are:

“No person shall operate a motor vehicle, trackless trolley or street car in and upon the streets and highways at a speed greater or less than is reasonable and proper, having due regard to the traffic, surface and width of the street or highway and of any other conditions then existing;”

“Now then, with respect to speed, the statute continues: it shall be prima facie lawful for the operator of such an instrumentality to operate the same at a speed not exceeding the following: 35 miles per hour on highways within municipalities outside of business districts; 25 miles per hour in other portions of a municipal corporation. It shall be prima facie unlawful for any person to exceed any of the speed limitations in this or other sections of this act.

“Now you are going to have to determine ladies and gentlemen of the jury as another issue— and incidentally too, a necessary issue in this case — the question of whether or not this particular section of Erie Avenue in the City of Cincinnati within those two blocks as shown by the evidence, is a business district or' whether it is a residence district because if it is a residence district, then the prima facie limitation in this section is 35 miles per hour and if it is a business district, the prima facie speed limitation is 25 miles per hour as set forth in this section. The question of whether this is a business or residence district is in dispute in this case. You must decide from the evidence under the rules which I have given you what district these particular blocks are in determining whether or not there was a violation of this statute with respect to the speed at which motor vehicles or street cars should be operated upon the highways.”

“Now in determining whether he was or was not operating at a speed which was greater than was reasonable and proper under the circumstances in the case as set forth in the statute, you are to be guided by this provision, the prima facie rule. If it was a residence district, you would find that it was a residence district, then if he was going over 35 miles per hour or more, then that would be prima facie evidence, but only prima facie evidence of a speed that was greater than was reasonable and proper. IF IT WAS A BUSINESS DISTRICT AND HE WAS GOING 25 MILES AN HOUR OR MORE, then that would be prima facie evidence of the fact, but only prima facie evidence of a speed that was greater than was reasonable and proper.

“Prima facie evidence of a fact is such as, standing alone, proves the fact and is conclusive of that fact unless rebutted and explained by other evidence. Therefore if you find that the automobile, or that the street car — where I said several times I may have said automobile, I am referring to the street car operated by the motorman of the defendant company — THEREFORE IF YOU FIND THAT THE STREET CAR OF THE DEFENDANT COMPANY WAS BEING OPERATED AS I HAVE STATED TO YOU 35 MILES AN HOUR OR MORE, IF THAT IS A RESIDENCE DISTRICT OR 25 MILES AN HOUR OR MORE IF THAT IS A BUSINESS DISTRICT, such fact affords only prima facie evidence of a rate of speed that is greater than is reasonable and proper under the circumstances; such fact becomes conclusive unless met by evidence of equal or countervailing force.”

It will be noted on reading the above otherwise excellent charge the court has included a correct charge on the subject of prima facie lawful and unlawful speeds, as set forth in the ordinance and also included in the capitalized portions of the charge an incorrect statement of the principle of law involved on the same subject matter. A correct statement also appears further on in the charge.

Where the court states both a correct rule and also an incorrect rule with reference to the same subject matter in a charge, our Supreme Court has said in Bosjnak v. Superior Sheet Steel Co., 145 Oh St, 538, in the fifth paragraph of the syllabus:

“Generally, where, in instructing the jury, the court states a correct rule or principle of law and also states an incorrect rule or principle of law with reference to the same subject matter, no presumption arises that the correct rule was applied by the jury in the consideration of the issues presented, and the error in giving the incorrect rule will be deemed prejudicial.”

And at page 550 it is stated:

“The charge of the court in other respects was complete and commendable, and the correct rule as to conduct and liability was stated elsewhere in the general charge. However, it is well settled in this state that where the trial court in one part of the instructions stated a correct principle of law and in another part with reference to the same subject matter stated an incorrect rule, or in different parts of its charge stated rules and principles contradictory of or inconsistent with each other, or gave more than one rule for determining the rights of a party, it cannot be presumed that the jurors were able to determine which of the conflicting declarations of the law by the court was the correct one, or the one that they should have followed, or that they ignored or disregarded the erroneous instructions given, and selected and applied the correct rule. 39 O. Jur., 929, Section 254; Montanari v. Haworth, 108 Oh St, 8, 140 N. E. 319; Marcoquiseppe v. State, 114 Oh St, 299, 151 N. E., 182; and Industrial Commission v. Ripke, 129 Oh St, 649, 196 N. E., 640.”

The sixth paragraph of the syllabus in Westropp v. E. W. Scripps Co., 148 Oh St, 365, holds:

“Where in instructing the jury the court stated a correct rule or principle of law and also stated a prejudicially incorrect rule or principle of law with reference to the. same subject matter, no presumption arises that the correct rule was applied by the jury in the consideration of the issue presented, and the error in giving the incorrect rule will be deemed prejudicial. (Paragraph five of the syllabus in the case of Bosjnak v. Superior Sheet Steel Co., 145 Oh St, 538, approved and followed.)”

This court recently applied the rule in Cohen v. Goodman, 85 Oh Ap, 85. The rule on conflicting and contradictory instructions is further stated in the text of 39 O. Jur., p. 928, section 254.

Apparently, conceding error in the criticized portions of the general charge — plaintiff-appellee contends it is so slight as to be only a trifle, hence, not to be noticed by this court as being within the maxim “de minimis non curat lex.” We deem that maxim that the law does not concern itself with trifles refers to the subject matter of causes which the courts will notice and has no application in attempting to measure the degree or quantity of error in a charge to a jury.

By charging the prima facie lawful speeds as being unlawful, if those words may be considered to be diametrically opposed in meaning — the charge may be said to be completely wrong. Further, plaintiff-appellee, at page 3 of his answering brief, quotes the motorman as testifying the street car was going 25 miles per hour. If the jury considered the point of collision as being in other than a residential area of the city, it might well consider that evidence as an admission of a violation of the ordinance, in which case the error would clearly appear prejudicial.

Plaintiff-appellee further contends that the two issue rule applies to the several specifications of negligence so as to relieve against the error in the charge if it exists. They cite Schmidt v. Kinney, 19 Abs 52, decided May 6, 1935, and the recent case of Knaff v. N. Y. Central R. R. Co., 55 Abs, 193, Vol. XXII Ohio Bar of Nov. 21, 1949, No. 33, decided May 9, 1949, both by the Second District Court of Appeals, wherein that court applied the two issue rule to different specifications of negligence. In neither case, however, does that Court make any reference to the case of H. E. Culbertson Co. v. Warden, 123 Oh St, 297, wherein the second paragraph of the syllabus is:

“The rule declared in Sites v. Haverstick, 23 Oh St, 626, has no application to specifications of negligence, separately stated and numbered, but which in fact constitute a single negligent act resulting in a single loss and damage.”

And, at page 302, the Court said:

“It is true that the petition alleged five specifications of negligence, which were separately stated and numbered: (1) Failure to place lights upon the plank; (2) permitting and suffering the plank to be placed where it was dangerous to travel; (3) negligence in failing to remove the plank; (4) failing to construct the poles, gates, and guards so that persons using the highway would be informed of its dangerous condition; (5) failing to employ a watchman to warn the public of the existence of the obstruction.

“The majority of the Court of Appeals - therefore adopted and applied the well-known rule which originated in Sites v. Haverstick, 23 Oh St, 626, and which has been followed in numerous subsequent cases. This rule as generally applied is that, where there are two causes of action or two defenses, thereby raising separate and distinct issues, and a general verdict has been returned, and the mental processes of the jury have not been tested by special interrogatories to indicate which of the issues was resolved in favor of the successful party, it will be presumed that all issues were so determined; and that, where a single determinative issue has been tried free from error, error in presenting another issue will be disregarded.

“This rule has prevailed for approximately sixty years in all the courts of review of this state, and, while it has not met with universal favor, it has nevertheless been a settled rule, and in proper cases universally applied. It is not deemed expedient to further extend the operation of the rule, and the majority of this court are not willing to apply the rule where only a single cause of action for negligence is pleaded, involving a single damage, and therefore ;a single recovery, though there may be more than one specification of negligence.

“In the instant case, a careful examination of the five specifications of negligence discloses that, though they are separately stated and numbered, they constitute but a single .-specification of negligence. They might all have been stated In a single sentence by reciting that the defendants constructed poles and attached thereto an unlighted and unguarded plank which obstructed a portion of the traveled highway. It was evidently the theory of the majority of the Court of Appeals that the failure to guard by lights ■or watchman was an act of negligence separate and distinct from the existence of the plank. In this view we do not concur. There was but a single issue of negligence, and the error in the court’s charge upon §§7472 and 13421 GC, was prejudicial.”

The petition herein alleges defendant was negligent in the manner in which it operated its street car and then specifies six derelictions of duty. Our view is that but a single cause of action for negligence is stated, involving .a single damage, for which there can be but one recovery, ,and, therefore, the two issue rule cannot apply, as held in the Culbertson case. In so holding, we seem to be in direct conflict with the cited holdings of the Second District Court of Appeals, and this case is, therefore, certified to the Supreme Court of Ohio, for decision of that conflict.

This court is aware of the protracted history of litigation in this case and of its duty in according a presumption of validity to all judgments under review, so that litigation may not be unduly extended without substantial reason, but for the reasons stated above we feel bound to decide in conformity with the Supreme Court cases cited that the apparently inadvertent erroneous language in the charge constitutes prejudicial error.

We find no other error, prejudicial to the defendant-appellant in the record.

The instant judgment is therefore reversed and the cause remanded for further proceedings.

ROSS, PJ, HILDEBRANT & MATTHEWS, JJ, concur in syllabus, opinion & judgment.


author: By CROSSLAND, J:—

text:
    MERRICK et al., Plaintiffs, v. MERRICK et al., Defendants.
    Common Pleas Court, Muskingum County.
    No. 36023.
    Decided December 12, 1949.
    John Allen, Marvin Lewis, Zanesville, for plaintiff.
    Jones, Goldcamp & Funk, Zanesville, for defendant.
   OPINION

By CROSSLAND, J:—

Action by plaintiffs to quiet title to real estate acquired by plaintiff Sarah H. Merrick December 28, 1888, who conveyed remainders of the two parcels thereof to two of her children, plaintiffs Alfred N. Merrick and Mary Olive McElroy, subsequent to the death of William N. Merrick, husband of the said Sarah H. Merrick, who died testate December 30, 1938, is resisted by defendant Eugene B. Merrick as to the parcel claimed by him under will of decedent William N. Merrick, father of defendants," and uncontested by defendant William A. Merrick. The last named is purported to be devisee under will of said testate William N. Merrick of a part of the parcel whose remainder was conveyed by the said Sarah H. Merrick to Alfred N. Merrick, to-wit, 1028 Mays-ville Avenue; while Eugene B. Merrick is purportedly devisee under the same will of the parcel conveyed by said Sarah H. Merrick to said Mary Olive McElroy, who also later received deed of her said mother to the formerly reserved life estate. William N. Merrick, the testator, did not at any time own any of the said real estate and none of it was inventoried or appraised as any part of his estate at the time of his death. Sarah H. Merrick duly elected to take under her deceased husband’s will, whose will is identical with that made by his widow, who still survives, such will naming the surviving spouse as life tenant in all property owned by either.

The question at issue is as to whether or not the sole contestee, Eugene B. Merrick, owns the remainder conveyed by Sarah H. Merrick to Mary Olive McElroy, of the parcel known as the store room and flat.

Obviously, the answer stems from the ownership of Sarah H. Merrick and whether or not she in any way lost the right to convey her separately owned property after the death of her said husband.

In the statutory election by Sarah H. Merrick to take under the will of decedent William N. Merrick, pursuant to the inventory and appraisement of his separate estate, his widow simply elected to take the life estate therein he willed her rather than a widow’s interest therein under the law. Her choice concerned only his estate and her resulting election could be no broader than its intended concern. There could be no conceivable waiver of right, title or interest as to property regarding which she was not called upon to and did not act. Her own property was not involved in her ■election under and pursuant to her choice of rights in regard to his estate. It was his estate, not hers, that was being •administered and his property, not hers, that was the subject matter of her election. To ascribe to her election an implied acceptance by her thereafter of any less than she already previously owned of and in her own separate property would, in effect, be to attempt to accord her substantially less than she was otherwise entitled to receive from her deceased husband’s estate by virtue of her election; or, in •other words, substantially less than the equivalent of a life ■estate in his property. For a court to so find and order, in the judgment of this court, would be unconscionable and the ■antithesis of equity.

If the widow in this case had elected to take under the law, then admittedly her own separate property was wholly unaffected thereby, because her possible election to take under the law pertained only to the property of his estate, the law already according her the right to dispose of her ■own property as she desired. Since her election to take is occasioned only by the fact that her husband left a will, how ■does the fact that he undertook to dispose of her property in his will become effectual as to her property merely because she accepts a lesser provision out of his property under will than would have been hers under law? To put the question another way, how does the election statute, which •deals with the subject matter of the decedent’s estate, operate over two entirely different areas of property ownership at one and the same time? And how can a widow, whose choice is limited to her husband’s property under the law properly foe considered to have contemplated or intended inclusion ■of her own property, in electing less of his property under will than would have been hers under law? Actually and technically William N. Merrick made no gift, as such, to his widow, Sarah H. Merrick. He did no more than to recognize, .as he was required to do, her right as his widow, in lieu of dower, and by provision of will alternative to her otherwise unqualified right under the statutes of descent and distribution. The evidence is completely devoid of any declared or •expressed purpose or intention on his part to ensnare her in any peril or pitfall.

It would do violence to the purpose and meaning of the •election statute, intended for the protection and benefit •of a surviving spouse, as well as contrary to sound public policy and an abridgment of recognized principles of equity, to consider that a surviving spouse who elects to take in her husband’s estate thereby elects to forsake a substantial part •of her own, especially when, as in this case, the widow did not so contemplate or intend, having subsequently conveyed parcels of her own real estate, and her deceased husband did not so contemplate or intend, at least in law, as it was not the declared or expressed purpose of either to diminish or lessen the estate or independence of the other at the death of the one.

The election statute, however little or slight may be the result of the choice made, is a statute of accretion, not one of diminution. It was not. enacted as a vehicle for entrapping and denuding the estate of any unwary or unwitting surviving spouse but as an affirmative procedure of making provisión for the surviving spouse in the manner of the latter’s choice in regard to the decedent’s property. Regardless of what the decedent may have sought to accomplish with respect to the succession of the separate property of his surviving widow, she is clearly entitled to the full value of her election in his property, wholly unaffected by any claimed surrender of her own property. Her election was, as the words imply and the plain language of the statute states, an election to take, not to forsake.

"A statute which regulates election by a widow between her rights under the law and a gift by the will of her husband, has no application to a devise by the husband of property, the title to which is in the wife.”

Page on Wills, Life-time Election, Vol. 4, Sec. 1358, page 29.

Furthermore, there is a distinction, if need be in this case, between the widow’s right to elect to take either under or against her husband’s will, without any separate and distinct benefit to her apart from the effect of her election with respect to his separate property, and a possible case in which a surviving spouse derives a substantial benefit in excess of her statutory right of election, which enhances the amount and value of her estate thereafter. In short, Sarah H. Merrick was not so benefited under her husband’s will, as he did not confer any such benefit upon her, being only what was already her right by statute, i.e., either to take what was hers by law anyway and without his willingness or consent or to accept what he was willing to accord her under his will, which was probably less than her right under the law, and, in any event, insufficient to support any claimed purpose of his or claim herein of defendant Eugene B. Merrick to try to take from her more of her property than she could possibly acquire of his. In brief, the widow’s election concerned the manner of her choice rather than the subject matter involved in it.

There being no conceivable or possible benefit to Sarah H. Merrick under the theory contended for by defendant, independently of what was already previously hers, she was in no way obligated to her deceased husband’s estate in regard to her own property after his death, and, a priori, defendant herein has no interest whatever and no valid claim against her conveyance to another.

The opinion and decision of the court in this case is further sustained by application of the doctrine of stare decisis. While it is true, as defendant contends in the-brief of his able counsel, that there are no facts either pled or in evidence on the issue of estoppel regarding prior-positions of defendant in other earlier eases between the parties, the law of those cases may be invoked by the court as to the decisions therein in principle, if and as applicable-herein.

“It has been said to be a general rule and practice for a judge of the common pleas court to follow the former decisions of that court that are unreversed, even though made-in a different case.”

11 O. Jur., 774, sec. 128.

In Merrick v. Merrick, No. 32160, Muskingum County Common Pleas Court, this court on August 27, 1942, sustained a demurrer of defendants, Sarah H. Merrick, Mary Olive McElroy and Joseph E. McElroy, to the petition of E. B. Merrick, which raised the same question regarding the same property on identical facts, raised and in issue in this case, this court determining in said former case that E. B. Merrick, plaintiff therein, defendant herein, was not entitled to any interest in and had no proper claim to “the store room and flat at the junction of Putnam and Maysville Avenue, Zanesville, Ohio,” under the will of William N. Merrick, as against the ownership of Sarah H. Merrick and her right to convey to and subsequent ownership by Mary Olive McElroy. The court in this case further concurs in the decision in said former case number 32160, which is directly in point with the facts and issue of the instant case, in fact this case being in effect a retrial of said former case, and concludes accordingly, with like decision.

Plaintiffs are entitled to the relief prayed for and an entry incorporating the findings herein and ordering the quieting of title in the described real estate may be prepared accordingly by counsel for the prevailing parties and submitted to opposite counsel and then to this court for approval and filing. Exceptions are given defendant Eugene B. Merrick.


author: By MILLER, PJ.

text:
    P. B. REALTY COMPANY, Plaintiff-Appellee, v. WALLACE, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4341.
    Decided January 26, 1950.
    John Schickler, John M. Scott, Columbus, for plaintiff-appellee.
    James M. Hengst, Columbus, for defendant-appellant.
   OPINION

By MILLER, PJ.

This is a law appeal from the Court of Common Pleas which affirmed the judgment of the Municipal Court granting a writ of restitution to the plaintiff. The action was one in forcible entry and detention wherein the plaintiff seeks to repossess certain real estate occupied by the defendant as a rooming house. The basis of the action is that plaintiff desires to withdraw the housing accommodation from the rental market as provided by the regulations of the Board of Rent Control. The assignments of error are based upon two premises:

(1) The judgment is against the manifest weight of the evidence in that it does not show by the proper degree of proof that the plaintiff was acting in good faith in removing the property from the rental market.

(2) That the Court lacked jurisdiction for the reason that the Office of Rent Control had not authorized the action to be instituted.

Whether or not the plaintiff was seeking in good faith to remove the property from the rental market was a factual question for the determination of the trial court and which we cannot pass upon unless the evidence was insufficient as a matter of law to support the judgment, or unless the judgment was against the manifest weight of the evidence.

The record discloses that sufficient evidence was offered to support the judgment and to which the trial court must have given credence. The credibility of the various witnesses rests solely with the trial court or jury. We therefore cannot say that the judgment is against the weight of the evidence.

Next considering the jurisdictional question, it is admitted by counsel that when the action was instituted and also when the judgment was entered in the Municipal Court the Federal rental regulation did not require permission to be first obtained from the Office of Rent Control. The record discloses that the action was filed on February 7, 1949, judgment entered on March 25, 1949, and motion for new trial overruled on March 28, 1949. The amended Rent Control Act of 1949, which was not effective until several months after the judgment, requires approval of the Office of Rent Control before bringing such an action. The appellant cites the case of Woods v. Derr, 170 Fed. (2d) 976, as authority for his contention that the amended Act deprived the Court of jurisdiction in all pending actions which had not complied with the Act. Conceding that plaintiff is correct in his argument it has no application to the case at bar for this action was not pending when the amendment became effective. The appellant is contending that the action is still pending while in a reviewing court. We cannot concur in this conclusion. We are of the opinion that the action was pending until final judgment was rendered in the trial court. According to Webster’s New International Dictionary, Second Edition, “pending” means “not yet decided; in continuance; in suspense; as a pending suit.” Sec. 11582 GC defines a judgment as “the final determination of the rights of the parties in action.”

Since the judgment was rendered on March 25, 1949, the final determination of the rights of the parties was then made. Since the amendment to the Rent Control Act was not effective on this date it cannot affect the jurisdiction of the trial court.

The judgment will be affirmed.

HORNBECK and WISEMAN, JJ, concur.