author: By HORNBECK, J.

text:
    KHOURY, Plaintiff-Appellant, v. BOARD OF LIQUOR CONTROL et, Defendants-Apppellees.
    No. 5678.
    Decided October 4, 1957.
    Paul F. Ward, Charles T. Kaps, Columbus, for plaintiff-appellant.
    William Saxbe, Atty. Geni., S. Noel Melvin, Asst. Atty Geni., Columbus, for defendants-appellees.
   OPINION

By HORNBECK, J.

This is an appeal from an order of the Common Pleas Court finding that the order of the Board of Liquor Control, dismissing an appeal from an order of the Director of Liquor Control who had refused to renew D-5 permit issued to the appellant, was not supported by any evidence certified by the Board to the Common Pleas Court and remanding the proceedings to the Board of Liquor Control for further consideration.

The one assignment of error is that the Court of Common Pleas erred in remanding this cause to the Board of Liquor Control for further consideration after finding no evidence to support, the order of the Board of Liquor Control.

We have read Judge Bartlett’s decision on the appeal to the Common Pleas Court and find that it is sound in the propositions therein advanced and in his finding that the order of the Board is not supported by any evidence certified by it to the Common -Pleas Court. We hereinafter discuss the extent of the remand to the Board.

The facts in this case, as developed from the record which is before us, are that appellant was an applicant for the renewal of. his Class D-5 permit at 1018 Walnut Avenue, Cleveland 14, Ohio. The Department refused and rejected the application for seven specific reasons, which are set out at length in the order of the Director, and in it was found that the applicant made a false material statement in an answer to Question 10 in his application for renewal permit. The Director concluded that “the applicant was not a proper person to hold Class D-5 permit in view of his past record of operation both as an individual and as the President and sole stockholder of Khoury’s Hough Bar, Inc.,” as outlined herein above, “and in further view of his carefully planned and deliberate intent to violate the Liquor Control Act and the Regulations of the Board of Liquor Control.” On the appeal to the Board, no consideration was given to any of the specific causes upon which the Director based his conclusion that the applicant was an unfit person to hold a Class D-5 permit. The reason for the order of the Board affirming the refusal to issue the permit is set out in the following entry:

‘This cause coming on for hearing on an appeal of Norman Khoury, 1018 Walnut Avenue, Cleveland 14, Ohio, from an order of the Director of Liquor Control rejecting an application for a Class D-5 permit, was submitted to the Board of Liquor Control on the evidence, and on consideration thereof, said Board find that on January 20, 1955, the Court of Common Pleas of Franklin County, Ohio, in case of the' Industrial Credit Company v. Norman Khoury, et al., No. 678911 on the docket of said Court, appointed a receiver of all the property of the defendant, Norman Khoury, situated at 1018 Walnut Avenue, Cleveland 14, Ohio, and that by reason thereof, the appellant was not the owner and operator of the permit premises and therefore the application for renewal of said Class D-5 permit should be rejected.
“It is therefore ordered that the within appeal be, and the same hereby is, dismissed.”

We do not have the certificate of the Board as to the proceedings on the appeal from the order of the Department denying renewal of appellant’s permit. Our statement of facts and the basis for the rulings of the Department and the Board are taken from the brief of the appellees in this Court. We assume they are correct.

Appellee discusses at considerable length the testimony which was before the Department including lettered exhibits. None of this testimony was before "the Board. If any one of the specifications upon which the Department based its refusal to renew appellant’s permit was before the Board upon the appeal to the Board, it is not before us. Nor is there anything more to substantiate the fact upon which the Board rejected the application and dismissed the appeal than that which is set forth in its order. Manifestly, the only manner in which this evidence could have been before the Board was by its taking judicial notice of the case and the judgment which is set out in its order.

The Board was not taking judicial notice of its own records; it was taking judicial notice of the records of the Common Pleas Court of Franklin County, Ohio, in a certain case in which appellant was a party. The Board was without authority to take such notice. Weinreich v. Franklin Savings and Loan Association, 27 Abs 198; Easterday v. Easterday, 24 Abs 155.

If it could take judicial notice of the case, then that which it noted, namely, that the court “had appointed a Receiver over all the property of the defendant, Norman Khoury, situated at 1018 Walnut Avenue, Cleveland, Ohio,” was inadequate to support an order refusing to renew his permit. Nothing before us indicates what period the permit applied for covered, when it was to begin, or when it would have terminated.

None of the details of the order in the Receivership case appear in the order of the Board. The Receiver may not have qualified; he may not have taken over any property affecting the permit. The right of the appellant to continue to operate under his permit might have been recognized. The facts recited by the Board respecting the appointment of a Receiver for the permit premises are too vague and too general to support the order of the Board even if it had the right to consider the judgment in the Common Pleas Court.

The effect of the appointment of the Receiver may have had no reference whatever or application to the reason upon which the Department based its refusal to renew appellant’s permit, namely, that he was an unfit person to hold such a permit.

The sole question for consideration and determination of the Board upon the appeal from the order of the Department was whether or not its order, as of the date when entered, supported its refusal to grant the permit. East Toledo Social Club v. Board of Liquor Control. 71 Abs 193.

It clearly appears-, as Judge Bartlett found, that not only was the record before him devoid of reliable, substantial and probative evidence to support the order of the Board, it was unsupported by any evidence shown to be relevant to the issue before the Board. This development required a remand of the case to the Board to accord to the appellant the right to a hearing on his appeal from the order of the Department refusing to renew his permit. To this the applicant was entitled. At that hearing, the Board should proceed as upon any like appeal and take testimony germane to the issue as provided by statute and its rules.

With the modification herein indicated, the judgment of the Common Pleas Court will be affirmed.

PETREE, PJ, MILLER, J, concur.


source: Caselaw Access Project

author: By BRYANT, J.

license: Public Domain

text:
    TIPTON, Admrx., Plaintiff-Appellant, v. DAY, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5813.
    Decided January 28, 1958.
    Lewis F. Byers, Mac Lee Henney, Columbus, for plaintiff-appellant.
    Isadore Margulis, Columbus, for defendant-appellee.
   OPINION

By BRYANT, J.

Mary L. Tipton, herein called plaintiff, brought an action in the court below against Don Day, herein called defendant, seeking damages for the death of Norma Herren. for whom plaintiff is administratix. At the conclusion of the taking of testimony the trial court sustained a motion by defendant for directed verdict. Thereafter, plaintiff made a motion for a new trial, which on October 8, 1957 by journal entry, was overruled by the court below. On October 18, 1957 plaintiff filed her notice of appeal.

It was on November 7, 1957 that plaintiff filed her bill of exceptions with the clerk of the court below and on Monday, November 18, 1957, the court below allowed said bill of exceptions and on the same date said bill was filed with this court. On Monday, December 9, 1957, plaintiff filed her assignment of errors and brief and on December 19, 1957 defendant filed a motion in two branches seeking to dismiss the appeal or in the alternative to strike brief of plaintiff from the files. The said motion was accompanied by a memorandum and on December 27, 1957 plaintiff filed a memorandum in opposition thereto.

Counsel for plaintiff and defendant are in disagreement as to when the bill of exceptions was filed. Our examination of the document indicates the two filings thereof were made, one in the court below and the other in this court, as pointed out.

Defendant says that because the bill of exceptions was filed in the court of appeals on November 7, 1957 and the brief and assignment of errors of plaintiff was not filed until December 9, 1957, that the interval of over thirty days constitutes a violation of Rule VII, which should result in a dismissal of the appeal.

This calls for an application of Rule VII as it existed prior to the amendments to the rules of the courts of appeals effective January -1, 1958. The said Rule VII, A, (1) as then in effect provided as follows:

“If a bill of exceptions is required, it shall be filed in the cause in the trial court not later than forty (40) days after the perfecting of the appeal by the filing of the notice of appeal, within the time provided by §2505.07 R. C. Sec. 2321.05 R. C.
“Within ten (10) days after a bill of exceptions is settled and allowed by the trial judge and transmitted to the Clerk of the trial Court or authenticated in manner provided by §2321.12 R. C., and filed with the Clerk of the trial Court, appellant shall file such bill of exceptions with the Clerk of the Court of Appeals.”

As before pointed out the notice of appeal was filed on October 18, 1957 and under the above rule plaintiff had forty days to file it, not in the court of appeals but in the trial court. In other words, plaintiff had until November 27, 1957 to file the bill of exceptions with the trial court under the above rule. The above rule also provides that an additional ten days may elapse after said bill of exceptions is settled and allowed for transmission to the clerk of the court of appeals. Hence, the time for settling and allowing said bill is in addition to the forty days and the ten days, which might well extend this to Monday, December 9, 1957, for the reason that December 7, 1957 fell on Saturday, which is a half-holiday, followed by Sunday, which is a full holiday, thereby extending the time until December 9, 1957, the very day the brief was filed.

It is further provided in the said Rule VII, E, in part as follows:

“Upon failure of the appellant to file his bill of exceptions, assignments of error, briefs or trial briefs as herein required, unless good cause be shown to the contrary, the cause will.be dismissed for want of prosecution or otherwise disposed of at the discretion of the Court.”

The first branch of said motion will, therefore, be overruled.

The second branch of the motion seeks to strike from the files the brief filed by plaintiff for the reason that it contains what purports to be photostatic copies of certain maps, pictures and written matter, apparently first published in a magazine or magazines. No objection is made to the assignment of errors by this branch of the motion.

We feel this branch of the motion is well taken for the reason that to permit evidence to be inserted into the record by means of a brief amounts to a denial of the right to the adverse party to confront witnesses, to cross-examine such witnesses and to object to the relevancy, competency or materiality of such evidence before the trial court. There are other objections to this practice which need not be detailed here Suffice it to say the second branch of the motion should be sustained and the plaintiff should be permitted to refile his brief with the objectionable matter deleted.

pETREE, PJ, MILLER, J, concur.


author: By MILLER, J.

text:
    DAVIS, Plaintiff-Appellee, v. TUNISON, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5657.
    Decided December 17, 1957.
    Chamblin, Morgan & Hunsinger, David E. Morgan, Paul O. Hun-singer, of Counsel, Columbus, for plaintiff-appellee.
    Smith, Clark & Holzapfel, John E. Holzapfel, John R. Welch, of Counsel, Columbus, for defendant-appellant.
   OPINION

By MILLER, J.

This is a law appeal from a judgment of the Common Pleas Court rendered upon the verdict of a jury in favor of the plaintiff-appellee for the sum of $2500.00. The action was one for damages for malicious prosecution, the amended petition alleging that “the defendant on the 14th day of March 1952, did falsely and maliciously and without reasonable or probable cause charge the plaintiff before C. E. Wyker, Justice of the Peace of Prairie Township, Franklin County. Ohio, with having unlawfully obtained money from the defendant by false pretenses and with intent to defraud in said township and county.”

The petition further alleges the arrest of the plaintiff on said charge, his imprisonment and release on bond; that upon preliminary hearing he was ordered held for action by the .grand jury which returned a no bill against him; that he was humiliated and disgraced by reason thereof and incurred expense of $600.00 in the employment of counsel in defending himself and additional costs necessary and appurtenant to the defense of the case; that by reason thereof he has been damaged in the sum of $10,000.00 for which judgment is sought to be recovered.

The answer of the defendant admits the filing of the affidavit as alleged. It avers further that he had good cause to believe that the plaintiff had committed the offense as charged, that the justice of the peace so found and ordered the plaintiff bound over to the grand jury He further denied every allegation of the petition not specifically admitted to be true.

Upon the issues joined a jury trial was had and a verdict returned in favor of the plaintiff upon which judgment was duly entered.

The record reveals that during the months of July and August, 1951, the plaintiff was employed as a mail carrier for the United States Government and was also engaged in part time work for Borden & Company; that it was the custom of Borden’s to pay their employees by checks which were made out at the office and presented to the employees when called for; that when the plaintiff called for his check for July 31, 1951, it could not be found: so he was issued a duplicate which was in the same amount, for $34.05, and payment was ordered stopped at the bank on the original. In November, 1951, this lost check was cashed at the defendant’s place of business, a filling station on West Broad Street, and payment was refused at the bank in accordance with Borden’s stop payment order. This check appeared regular with the name of the plaintiff Robert V. Davis endorsed thereon. The defendant thereupon had the plaintiff contacted for reimbursement on the check but the plaintiff denied the signature and after so doing he signed an affidavit in which he swore that his signature thereon was a forgery; that he had not received the proceeds of the check nor any part thereof.

The defendant made several efforts to have the plaintiff come to his place of business for the purpose of identification by his several employees, one of whom might have cashed the check, but this the plaintiff failed to do. The check and forgery affidavit were submitted to a Mr. Hugh Leggett, a handwriting expert, for the purpose of examining and comparing signatures. Mr. Leggett was called as a witness by the defense and testified that it was probable and possible that the signatures were the same. The false pretense affidavit was filed on March 14, 1952, which was some time after Mr. Leggett’s report and upon which it appears the defendant relied, as the defendant had no proof at this time that the plaintiff had ever been at his station and cashed the said check.

We find no proof in the record of any actual malice toward this plaintiff; hence any found to exist must be inferred because of the lack of probable cause for the filing of the affidavit. It is first urged that the court erred in its general charge to the jury'on the issue of damages. In its general charge on this issue the court said:

“Now, if you find that the plaintiff has proven by a preponderance of the evidence that the defendant acted without probable cause, and maliciously, the plaintiff is entitled to recover at your hand a verdict in such an amount as would compensate him for the damages which the evidence shows by its preponderance he has sustained. He would be entitled to recover for the expense he wás put to in defending himself against the charge preferred in the Justice of the Peace Court. He would be entitled to, and included in that would be the attorney fees and other expenses, and he would also be entitled to recover a reasonable attorney fee for the prosecution of this action. And if you find further that the defendant acted with actual malice, that is, with ill-will and vengeance, then you have a right to add to the compensatory damages what we call exemplary damages or punitive damages, as a punishment for a wrongful deed done maliciously, actually maliciously and without probable cause.”

The part of the charge objected to is that pertaining to the inclusion of “reasonable attorney fee for the prosecution of this action” as a part of the compensatory damages should the jury find that the defendant acted without probable cause. It is urged that the general rule is that the expense of counsel fees in such a case is no part of the damage caused to the plaintiff by the defendant and no recovery for such an outlay may be had. Citing 34 Amer. Jur. 762; Stewart v. Sonneborn, 98 U. S. 187; 15 Amer. Jur. Damages, Section 143. Our examination of the Ohio authorities reveals that there has been a modification of this rule to the extent that such counsel fees may be recovered when the wrong that has been perpetrated involves the elements of fraud, malice or wilful misconduct. The award appears to be made on the theory that in such cases punitive or exemplary damages may be allowed if the jury sees fit to do so. Empire Finance Co. v. Elliott, 6 Abs 497.

In 25 O. Jur. 95G, Section 81, the following statement seems to be appropriate to our factual situation:

“* * * It is held in other jurisdictions that the expense of counsel fees in the action for malicious prosecution itself is no part of the damage caused by the defendant, and the plaintiff cannot recover for such outlay. In Ohio, however, under the rule that in an action for a tort involving fraud, malice, or insult, proper for the recovery of exemplary damages, but in no other, the jury may, in their estimate of compensatory damages, take into consideration, and include, reasonable fees of counsel employed by the plaintiff in the prosecution of his action, the jury may include reasonable counsel fees for the prosecution of the plaintiff’s action for damages for the malicious prosecution in its estimate of compensatory damages in all cases where punitive damages may be awarded, that is, where actual malice is present.”

In Warth v. Hyman, 70 Oh Ap 461, the court held that punitive damages may always be incidental or ancillary to a suit for malicious prosecution. The very gist of the action is malice, either legal or actual

In Curls v. Lenox Garage Co., 68 Oh Ap 285, the court held that in a malicious prosecution action if the jury believed that there was insufficient investigation and that the arrest of the plaintiff for larceny was to accomplish a private end and not connected with the public good, that would be sufficient to indicate “malice” in the larceny prosecution and to entitle plaintiff to punitive damages.

In Smithhisler v. Butter, 157 Oh St 454, the court approved of the following charge which is quite similar to the one in our case, to wit:

“Punitive or exemplary damages are damages given by way of punishment of the defendant for a wrongful act, and are given when the act complained of which results in injury, was prompted by malice, and this includes a reasonable attorney fee for conducting the prosecution.
“Hatred, ill will, or actual malice toward the injured party is not a necessary ingredient of legal malice as applied to torts, nor is it necessary that the act complained of proceed from a spiteful, malignant, or revengeful disposition. If it be wrongful, unlawful and intentional, and the natural and probable result of the act is to accomplish the injury complained of, malice is implied.”

In the cited case the court discusses the various cases in which the rule has been developed in this state and announces the same to be as follows:

“There is a division in the authorities as to whether there must be actual malice upon the part of a defendant or merely legal malice in order to justify punitive damages. 15 American Jurisprudence, 718, 719, 720, Section 280; 16 A. L. R„ 808; 123 A. L. R., 1122.
“The rule in Ohio seems to be that ordinarily, in tort actions, punitive damages are allowable in cases in which fraud, malice or insult appears, that such damages may be allowed even though the defendant may have been punished criminally for the same wrong, and that reasonable counsel fees for the prosecution of the action may be included therein. Roberts v. Mason, 10 Oh St 277; Saberton v. Greenwald, 146 Oh St 414, 66 N. E. (2d), 224, 165 A. L. R., 599.”

It is therefore our conclusion that the trial court did not err in its charge to the jury and this assignment of error is not well taken.

It is next urged that the court erred in overruling the defendant’s motion for a judgment after the verdict, and that the same is hot supported by sufficient evidence, is excessive and contrary to law. We are of the opinion that the record supports the finding of the jury and that the same was made in accordance with law.

Finding no error in the record, the judgment will be affirmed.

PETREE, PJ, BRYANT, J, concur.


author: By THE COURT.

text:
    DAVIS, Plaintiff-Appellee, v. TUNISON, Defendant-Appellant.
    No. 5657.
    Decided February 25, 1958.
   OPINION

By THE COURT.

Submitted on motion of the appellant for an order to certify the record in this case for the reason that our decision is in conflict with the case of Popke v. Hoffman, 21 Oh Ap 457. Since the decision in the cited case our Supreme Court pronounced the rule to be that reasonable counsel fees may be allowed in tort cases in which fraud, malice or insult appears. See Smithhisler v. Dutter, 157 Oh St 454. Under such circumstances we are not required to certify.

The motion will be overruled.

PETREE. PJ, BRYANT and MILLER, JJ, concur.


author: Per CURIAM.

text:
    TROUT, Plaintiff-Appellee, v. TIPTON, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5850.
    Decided April 29, 1958.
    Russell H. Volkema, Columbus, for plaintiff-appellee.
    George W. Gross, Columbus, for defendant-appellant.
   OPINION

Per CURIAM.

This is an appeal on questions of law brought by defendant, appellant herein, and a cross-appeal on questions of law on behalf of the plaintiff, appellee herein.

The case was tried originally on August 18, 1955, in the Municipal Court by Judge Shea without the intervention of a jury, and it resulted in a judgment for appellee for $600.00.

That case was determined by the Franklin County Court of Appeals, then known as the Second District Court of Appeals, in Case No. 5386, the opinion for which was rendered on September 26, 1956, 76 Abs 19. There were three errors assigned and noted in the opinions as follows:

“1. Was plaintiff’s interest or ownership in the property sufficient to enable her to prosecute an action for conversion?
“2. Was there a wrongful taking or unlawful detention of plaintiff’s property by the defendant?
“3. Does the evidence justify a judgment of Six Hundred ($600.00) dollars and costs in favor of the plaintiff?”

The court held with the appellee, Trout, on the first two errors, thus establishing that she had such an ownership as would enable her to prosecute the action for conversion and, also, that there was an unlawful detention of her property. In deciding the case, the court used the following language with reference to the unlawful detention:

“So her recovery must be limited to the interest she had in the property at that time. Counsel for the appellant urges that there was not a tortious taking and therefore there can be no wrongful conversion. We cannot concur in such a conclusion. The taking became wrongful when the plaintiff was denied the right to exercise dominion over the property.”

The court went on to hold that no lien was established on behalf of appellant, Tipton, for there was no showing that the appellant was a licensed rooming-house operator in the city of Columbus, such a showing being required before a lien on chattels other than personal clothing could be created for unpaid room rent.

On the final point at issue, the court held against the appellee, Trout, and held that the judgment for $600.00 was against the manifest weight of the evidence.

Turning now to the mandate of the Court of Appeals pursuant to the opinion above referred to, the following language is contained therein, being the last two paragraphs in the mandate:

“Upon consideration thereof, the Court, being fully advised in the premises, finds (1) that the plaintiff had interest or ownership in the' property sufficient to enable her to prosecute an action for conversion and (2) that there was a wrongful taking or unlawful detention of plaintiff’s property by the defendant which constituted a conversion, and (3) that the judgment of Six Hundred ($600.00) Dollars is against the manifest weignt of the evidence.
“It is. therefore, ordered, adjudged and decreed that the judgment be, and the same hereby is, reversed and that the case be remanded to the Court below for further proceedings according to law. To all of which appellee excepts.”

From the argument of counsel and what appears from the records herein, the case was retried de novo by Judge Schwarzwalder in the Municipal Court. Mr. Volkema, on behalf of appellee herein, objected to the trial de novo. His objections were overruled. The second trial in the Municipal Court was upon the same pleadings as the first. We feel that Counsel Volkema was correct and that the court erred in hearing the case de novo inasmuch as the only matter before it under the mandate above quoted in Case No. 5386 was to determine the proper amount for the judgment. However, in view of our determination of the other questions presented by the assignments of error of the appellant, we are of the opinion that the rights of the appellee have not been prejudiced.

We hold, therefore, that all three assignments of error of appellee in her cross-appeal are not well taken and will state our reasons in the opinion which follows.

On assignment of error No. 1 by the appellant, that the judgment of the lower court, entered on May 9, 1957, is not supported by sufficient evidence and is contrary to law, we conclude that the same is not well taken. The court has adjudicated this matter adversely to the appellant in Case No. 5386 in the entry which was contained in the mandate above quoted. The court, in speaking through the entry, found, first, that the appellee had sufficient interest to enable her to prosecute the action for conversion and, secondly, that there was a wrongful or unlawful detention of appellant’s property. As to these points, the case is res judicata.

In view of the findings set forth in the opinion in Case No. 5386, there might be some question as to whether the $500.00 verdict is sufficiently low if we bear in mind that the former judgment of $600.00 was held to be against the manifest weight of the evidence. However, we must hold against the appellant upon the principle of law that we cannot twice reverse the trial court upon the manifest weight of the evidence. We will refer to §2321.18 R. C., which is as follows:

“The same trial court shall not grant more than one new trial on the weight of the evidence against the same party in the same case, nor shall the same court grant more than one judgment of reversal on the weight of the evidence against the same party in the same case.”

The reasons for holding against the appellant in her first assignment of error are appropriate as to the second assignment of error, which claims that the court erred in overruling appellant’s motion for a new trial on November 1,1957. We hold, therefore, that the second assignment of error is not well taken. The judgment of the trial court for the appellee in the amount of $500.00 will, therefore, be affirmed.

Judgment affirmed.

PETREE, PJ, BRYANT and MILLER, JJ, concur.


author: By FORD, J.

text:
    BRASTEIN v. SEDIVY.
    Probate Court, Geauga County.
    No. 5583.
    Decided January 11, 1957.
   OPINION

By FORD, J.

This matter came before the Court upon the Application for Declaratory Judgment of Charles Brastein and the Answers of Miles Sedivy as an individual and as Executor of the Estate of Rose Sedivy, deceased. The Application stated in effect that Charles Brastein was the common law husband of Rose and asked the Court to so find and to direct the executor of the estate of Rose Sedivy, deceased, to correct the proceedings in said estate.

The testimony of the many witnesses on behalf of Charles Brastein indicaiec that Rose Sedivy and said Charles Brastein lived together and he contributed to her support most of the time during a period from some time in 1926 to the date of Rose’s death in 1955. There was testimony to the effect that Rose and Charles shared the same bedroom; that terms of endearment were used between the parties in public or in the presence of others in the home; that Charles made repairs on the house in which they lived and although many of said witnesses could not be called close acquaintances or neighbors, they were allowed to testify generally as to the reputation of Charles and Rose as husband and wife in the community if there was the least chance said witnesses had said knowledge. Further, there was testimony and to use the expression of the plaintiff’s attorney, “silent proof,” to the effect that Rose Sedivy used the name Brastein or Brushtine or Brastine on greeting caras, money orders and upon her second admission to the hospital and that Charles had listed Rose as wife upon his employment and pension applications and his hospitalization contract and that a deed was executed by Rose Sedivy Brastine with Charles Brastine releasing dower as her husband.

There was also testimony that Rose Sedivy had her doctor change the record of her name in his records from Rose Sedivy to Rose Brastein in the year 1948; that there were two, not one, sets of wedding and engagement rings; that on occasion, Rose denied she was married and that frequently, her business transactions and purchases were in the name of Rose Sedivy. There was evidence that Rose Sedivy was married and divorced before she knew Charles Brastine; that Rose Sedivy, widow and unmarried conveyed a lot acquired in 1941, to Charles Brastein, in 1945, and executed an oil lease as a single woman in 1943; that in 1952 she purchased a headstone and earlier, a cemetery lot in the name of Rose Sedivy; that Rose was 19 years older than Charles; and that Charles came to live with Rose on her place in 1926 and on her father’s farm in 1939.

In order to establish a common law marriage, all essential elements to such a relationship must be shown by clear and convincing evidence. One must show an agreement of marriage in praesenti made by parties competent to contract, accompanied and followed by cohabitation as husband and wife, with the result that they are treated and reputed as husband and wife in the community in which they reside.

Clear and convincing proof has been variously defined as that degree of proof, though not necessarily conclusive, which will produce in the mind of the Court a firm belief or conviction or, as that degree of proof which is more than a preponderance but less than beyond a reasonable doubt. Preponderance in turn, is not determined by the number of witnesses but by the weight of the evidence which weight is determined by the witnesses’ opportunity for knowledge, the information actually possessed and related, and the manner in which the testimony is given.

This Court and many others have been troubled by the second syllabus found in Markley et al v. Hudson et al, Appellants, 143 Oh St 163, wherein we find the Supreme Court of Ohio held:

2. While such agreement to marry in praesenti must be proved by clear and convincing 'evidence, it may be established by proof of acts, declarations and conduct of the parties and their recognized status in the community in which they reside.

It is the opinion of this Court that the Supreme Court did not hold in the Markley case that if the last two elements, i. e. cohabitation and community reputation, were proven that the first element, the mutual agreement in praesenti, must be inferred. It is the opinion of this Court that the Supreme Court held that the first element, the agreement, could be implied from testimony of witnesses as to acts, declarations, 'admissions and cohabitation of the parties if said testimony was in fact uncontroverted in more than a preponderance of instances. The law in Ohio on common law marriage is not changed by the Markley case but only restated to allow the agreement to be implied from clear and convincing proof of the surrounding circumstances.

The evidence of marriage here is not such as would enable the Court .to say firmly and with conviction that these people were, or considered themselves to be married. There is entirely too much conflict in the evidence. Too many questions remain unanswered.

The plaintiff must prove a meeting of the minds resulting in a mutual contract.of marriage. Is this shown where there is 19 years difference in age and tlie woman is the elder and the property owner? Is this shown where there are two sets of rings instead of one and no testimony or evidence as to the circumstances surrounding the giving and acceptance of said rings? Were the rings given or offered as an inducement to marriage? Is mutuality shown where the younger man comes to live on the older woman’s property and is this conduct the accepted conduct for a husband in our society? Is mutual agreement shown where the wife continues many if not a majority of her business transactions, has a will, a deed and a lease drawn and makes burial arrangements in her maiden name? Can we assume a woman who has had the protection and dignity of a ceremonial and statutory marriage would now accept something less in the form of a common law marriage? This Court thinks not. Rose Sedivy’s continued acts during the entire period negate any inference which might be drawn by proof of cohabitation or reputation in the community.

There was no mutual agreement, in the present, to assume the obligations as well as the privileges, of marriage. The law recognizing common law marriage is provided primarily to protect the innocent There are no innocent here. Said law should never be used to establish the survivor of such a relationship as a spouse and' this Court cannot so use it in this case. It is therefore the finding of this Court that the relationship between Charles Brastein and Rose Sedivy was not that of common law marriage and Charles Brastein is not the surviving spouse of the decedent, Rose Sedivy.


text:
    COBB, Plaintiff-Appellee, v. COBB, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5729.
    Decided December 2, 1957.
    King & Gross, Columbus, for plaintiff-appellee.
    Henry A. Reinhard, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is an appeal on questions of law from the decree of the Franklin County Common Pleas Court, Division of Domestic Relations, entered June 6, 1957, and in which the motion for a new trial was overruled June 25, 1957.

By the divorce decree, James J. Cobb, defendant-appellant, herein called defendant, was found guilty of gross neglect of duty and extreme cruelty, and that Ruth P. Cobb, plaintiff-appellee, herein called plaintiff, was not guilty either of gross neglect of duty or extreme cruelty. The Divorce Court granted Mrs. Cobb’s petition for divorce and dismissed Cobb’s cross-petition, awarded custody of the four minor children to the mother and ordered the father to pay Sixty-five ($65) Dollars a week as support money.

Cobb, on June 25, 1957, the day his motion for a new trial was journalized, filed his notice of appeal to this court. The appeal then was on “questions of law and also on questions of law and fact.” As of July 2, 1957, this court approved orders fixing bond in the amount of One Hundred ($100) Dollars, each, for an appeal bond and also supersedeas bond and the court also at the same time stayed the order of the Divorce Court pending the appeal.,

On June 29, 1957, Mrs. Cobb filed two motions, one for an allowance to her of Four Hundred ($400) Dollars for expense for counsel fees and the other to increase the bond to Two Thousand ($2,000) Dollars to stay execution of the orders of the Divorce Court. This court in a per curiam decision dated August 12, 1957 allowed Mrs. Cobb One Hundred Fifty ($150) Dollars as expense money for counsel fees with the right to ask for more later, if needed, and in the same decision, concurred in by all three members of the court, ordered that the bond given to stay execution of the decree of the Divorce Court be increased to Fifteen Hundred ($1500) Dollars, “which order is to be complied with within five (5) days after the filing of this entry.” This order which should have been complied with by or before September 1, 1957, has not been complied with and evidence has been presented showing that Cobb, though holding a well-paid job, is many weeks in arrears in his payments.

On August 6, 1957, Cobb filed a motion to reduce the payments from Sixty-five ($65) Dollars per week to Forty-five ($45) Dollars per week which motion was overruled in an opinion rendered September 6,1957 and entered on the journal September 10, 1957. Mrs. Cobb on August 9, 1957 moved to dismiss the appeal on law and fact and retain it on law only, which motion was sustained in an opinion rendered August 28, 1957, and entered on the journal September 10, 1957. 78 Abs 229.

We come now to Mrs. Cobb’s motion filed October 2, 1957 for an order dismissing the appeal for the reason that Cobb had failed to pay the expense allowance of One Hundred Fifty ($150) Dollars and also had failed to furnish the increased bond of Fifteen Hundred ($1500) previously ordered by this court. Five days after the above motion was filed, on October 7, 1957, counsel for Cobb filed a memorandum saying the expense money will be forthcoming in thirty days and saying nothing about the Fifteen Hundred ($1500) Dollar bond ordered to be posted within five days from August 26, 1957.

Approximately two months have elapsed without compliance and without any explanation or excuse. The motion to dismiss is sustained and judgment of the court below is affirmed and the cause remanded there for enforcement of the terms of the divorce decree.

PETREE, PJ, BRYANT and MILLER, JJ, concur.


author: By SKEEL, PJ.

text:
    HACKETT, Plaintiff-Appellee, v. HACKETT, Jr., Defendant-Appellant.
    Ohio Appeals, Sixth District, Lucas County.
    No. 5073.
    Decided May 19, 1958.

      Holloway, Peppers & Romanoff, for plaintiff-appellee.
    William A. Finn, for defendant-appellant.
    (SKEEL, PJ, HURD and KOVACHY, JJ, of the Eighth District, sitting by designation in the Sixth District.)
   OPINION

By SKEEL, PJ.

This appeal comes to this court from a judgment of the Court of Common Pleas of Lucas County denying the motion of the defendant seeking an order to hold this plaintiff in contempt of court. The action, as originally filed by the plaintiff, was one seeking a divorce from the defendant.

The parties, as is disclosed by the plaintiff’s petition, were married September 16, 1949. A child (Marcia Hackett) was born of said marriage on August 15, 1950. The action in divorce was filed January 10, 1956, and the decree of divorce was entered June 8, 1956. The defendant did not contest the action.

The decree of the court, in addition to granting a dissolution of the marriage of the parties based on the defendant’s aggressions, awarded custody of the child to plaintiff. The court then provided for the support of said child, granted alimony to the plaintiff, and made a division of property. The decree of the court adopted the provisions of a Separation Agreement entered into between the parties on January 7, 1956, by providing that : “ * * * the custody, control, education, religious training and supervision of said minor child, division of property, the provision for support of said child and the plaintiff, be and the same is hereby adopted * *

Paragraphs 10, 11 and 12 of the Separation Agreement referred to provide in substance that the daughter of the parties shall be reared in the Roman Catholic Faith exclusively and that she will make her first communion, be confirmed therein, and attend all services as prescribed by the Church. The wife agreed to attend to the daughter’s observing of Friday regulations of abstinence and Lent regulations as provided by the Church. It was also provided that said daughter, Marcia Hackett, attend Ladyfield School for her elementary grade school education or some other comparable private school operated by Roman Catholics or a Roman Catholic Order.

The trial court overruled the defendant’s motion for a citation in contempt and dismissed the motion and entered final judgment, against the defendant.

The appellant claims the following errors:

1) Tne judgment of the Common Pleas Court is contrary to law.

2) The Common Pleas Court abused its discretion in adjudging plaintiff appellee not guilty of contempt.

The motion to show cause was filed with a motion seeking a change of custody of the child to the father. Hearing of the motion last mentioned was postponed by agreement until the final determination of the contempt proceeding. It is, therefore, still pending.

The contempt proceeding was presented on a stipulation of facts. The motion, as filed, stated that the order in contempt was requested because the plaintiff had violated the order of the court in not continuing the education of Marcia Hackett in Ladyfield School, and at the time of the filing of the motion, she had, in fact, been entered by the plaintiff .as a student in a public school in Toledo. The plaintiff is a member of the Protestant Faith.

The stipulation admitted the facts alleged in the motion. The plaintiff’s claim is that that part of the Separation Agreement adopted by the decree of the court dealing with the duty of the plaintiff to cause her daughter to be educated in a Catholic School and to be brought up in the Catholic Faith is void and unenforceable.

The Ohio Constitution, Art. 1, Sec. 7, in part, provides:

“All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience. No person shall be compelled to attend, erect, or support any place of worship, or maintain any form of worship, against his consent; and no preference shall be given, by law, to any religious society; nor shall any interference with the rights of conscience be permitted. * *

The force of this provision is to make observance of religious doctrine a matter of personal choice uncontrolled by la^y or decree of a court. Nor can the free choice of. religious practices be circumscribed or controlled by contract. With these principles, the weight of the case law of this state, of our sister states and of the United States, is in almost unanimous accord and with these principles, the parties here contending, are not in dispute. It is the claim of the defendant that insofar as the plaintiff is concerned, she may follow any religious doctrine that satisfies her conscience, but that by her agreement, adopted by the court as a part of its decree in this case, the court is vested with the power to force specific performance of her agreement to send the daughter of the parties to a Catholic School and to educate her in the Catholic Faith by judgment in contempt.

Certainly it cannot be contended that there was any consideration or benefit flowing to the plaintiff from such promise insofar as the wife’s ability to secure a decree in the divorce action was concerned as contended by the defendant. A husband or wife is not entitled to a divorce without judicial proof of some breach of the marital duty as provided by law on the part of a party to such relationship. Nor are any of the obligations of support and the right of custody to be considered by the court on any basis except with such as the court has the legal right to deal. It is also true that the court could not, by its own motion, enter a decree directing the religious upbringing of Marcia in a particular faith. So that the defendant’s claim, that the plaintiff was “able to obtain a divorce and custody without contest by virtue of the Separation Agrément,” has no foundation in fact or law.

It must be evident that the agreement which the defendant seeks to enforce was between the parents of the child whose religious upbringing is' the basis of this action. Such promise was made in an antenuptial agreement and again when the relationship between them was still man and wife but pending separation. Could it be asserted that as long as the relationship of husband and wife continued that the courts would have jurisdiction of an alleged breach of such a promise by either husband or wife? The religious training of children is a family matter, subject to change in response to the wishes of the parents or either of them and a disagreement between them on this subject, while living together as husband and wife, is not a justiciable matter.

In the case of People ex rel. Sisson v. Sisson, 271 N. Y. 285, 287 N. E. 2d 660, 661, the court said:

“The court cannot regulate by its processes the internal affairs of the home. Dispute .between parents when it does not involve anything immoral or harmful to the welfare of the child is beyond the reach of the law. The vast majority of matters concerning the upbringing of children must be left to the conscience, patience, and self-restraint of father and mother. No end of difficulties would arise should judges try to tell parents how to bring up their children. Only when moral, mental, and physical conditions are so bad as seriously to affect the health or morals of children should the courts be called upon to act.”

Certainly if an agreement is unenforceable at the time it is made, it does not gain in stature with respect to its unenforceable provisions because of the subsequent divorce of the parties. There is no place in this record where there is the slightest suggestion that the plaintiff is not a proper person to have custody of Marcia. The only controversy here is over her religious training as dictated by the Separation Agreement. This is the only question presented.

Some point is made by the defendant appellant that the statutes of Ohio, dealing with religious requirements in adoption and guardianship matters, express a public policy of the state that supports the appellant’s claims in this case, that is, that provisions providing for religious training in a separation agreement adopted by the court in its decree of divorce are a subject which the courts have power to enforce in a civil proceeding. No doubt the Legislature, in dealing with these questions in the statutes (§§3107.05 and 2151,32 R. C.), has directed that religious background is a fact to be considered in adoption and guardianship cases. Such provisions certainly provide for considerations that are fundamental in the proper upbringing of every child who, through no fault of its own, can no longer live in the family circle. No influence could be a more comforting aid to the peace of mind of a child in adapting himself to new surroundings than the continued practice of the religious faith to which the child has been accustomed. But these considerations are not here present. The husband seeks to continue a practice, not compatible with the mother’s wishes, which he could not harmoniously resolve while yet a member of the household. The child is now under the mother’s custody. The promise was one dealing with a service which she is now not willing or completely able to satisfactorily perform. The child is as much her child as that of the defendant appellant with the additional fact that she has been awarded custody in an action in which a decree was entered because of his aggressions. She is now the head of the household of which he is no longer a member. There is no analogy between the statutes cited by the defendant appellant and the theory upon which this case must be decided.

Coming directly to the point to be decided, it is our conclusion that the provisions of the Separation Agreement, dealing with the promise of the mother to see to it that the daughter, placed in her custody, be reared in the Catholic Faith and attend a school affiliated with the Catholic Church, cannot be enforced by judicial decree. The question as thus stated has been exhaustively researched by. counsel for both parties and the leading cases cited. They are to be commended for their diligence. One of the cases cited, Boerger v. Boerger, 26 N. J. Super, 90, 97 A. 2d 419, is clearly in point. Here the plaintiff of Protestant Faith married the defendant who was a Catholic. The plaintiff agreed that the marital rites be performed in the Catholic Church and that any children' born of the marriage be brought up in that faith. The plaintiff wife filed a petition for divorce, which was met by a cross-petition for divorce by the husband. The husband was granted a divorce for the wife’s aggressions. Upon trial, the wife was granted custody of the children. The plaintiff (wife) then returned to the Protestant Faith and entered the children in a Lutheran Church. The plaintiff in this action asked a restraining order against the defendant from interfering with the religious education of the children. There was an ante-nuptial agreement between the parties providing that children of the marriage be brought up in the father’s faith. ’ It is suggested by the defendant in the case now before us that the opinion in the Boerger case is not in point, first because the father, with knowledge that the children were attending a Lutheran School, made no attempt to object, and second, for the further reason that no question of religious training was raised when custody was granted to the mother. The opinion, however, deals directly with the defendant’s claim of estoppel because of the .ante-nuptial agreement. The court, in part, said, beginning on page 101:

“To invoke the principle of estoppel against the plaintiff because of her antenuptial agreement, as defendant urges, would be to disregard the overriding consideration of what is best for the children and to determine — arbitrarily—their future welfare by an act with which they had nothing to do. In addition, it would deprive the mother of her right to change her mind — to choose a religion which apparently gives her greater spiritual comfort — and to inculcate in the children entrusted to her custody the religious principles which, for the time being, seem to her best. For like reasons, the court will not adopt defendant’s contention that there has been an abandonment or waiver by plaintiff of her right, as custodian, to give other than Catholic training to her daughters.
“The view has been expressed that as between father and mother, any question respecting the child’s religion should be settled by the custody award. Friedman, op. cit., 29 Harv. L. Rev. 485, 499 (1916). There is much to be said for the view that all other things being equal, the determining factor should be custody. There is a suggestion of this in In re Flynn, 87 N. J. Eq. 413 (Ch. 1917). The parent to whom custody is awarded must logically and naturally be the one who lawfully exercises the greater control and influence over the child. The mother, who lives with the child more than six days a week, as contrasted with the father’s limited visitation of a few hours on Sunday, is the one who actually rears the child and shapes moral, mental, emotional and physical nature. To create a basic religious conflict in the mind of the child, and between it and its custodian would be detrimental to its welfare.
“In our view, the happiness and welfare of the children will best be served by committing their religious training to their mother, legally designated as their custodian, without interference by the father, until such time as they are of an' age to exercise their own discretion in religious matters.”

Paragraphs four and eight of the headnotes provide:

“4. Ante-nuptial agreement between husband and wife that children would be brought up in father’s religion was not controlling in determining whether minor children of divorced parents should be reared in father’s or mother’s religion, nor would such agreement estop mother from rearing children in religion of her choice.
“8. Where custody of minor children was awarded to mother following divorce, and mother determined to rear children in accordance with her religion, notwithstanding ante-nuptial agreement to rear children in husband’s religion, predilection of children was for mother’s religion, and training of children in father’s religion had not progressed so far that definite religious ideas were impressed upon children’s minds, permitting mother to rear children in her religion was in best interests of children, and court would not interfere on application of father.”

The case of McLaughlin v. McLaughlin, 20 Conn. Sup. 278, 132 A. 2d 420, involves, in the final analysis, an action seeking to enforce an ante-nuptial agreement (action in Habeas Corpus) basing the right of custody of three children on the provisions of the agreement whereby they were to be reared in the religious faith of the relator father.

The court said, in part, in denying either change of custody or to attempt to specifically enforce the provisions of the ante-nuptial agreement:

“• * * A court will not take a child’s religious education into its own hands short of circumstances amounting to unfitness of the custodian, and in a dispute relating to custody, religious views afford no ground for removing children from the custody of a parent otherwise qualified.”

See also Denton v. James, 107 Kan. 729, 193 P. 307.

In the case of Lynch v. Uhlinhoff, — Iowa —, 78 N. W. 2d 491, the facts are similar to those now before this court. In reversing the trial court whose order attempted to enforce by contempt a decree directing a wife as custodian of a child of the parties to rear the child in a particular religious faith, the court said on page 499:

“While, probably not decisive of the case, it may be well to point out the unfortunate effect upon the child of an attempt to enforce the vague and uncertain provisions of any decree ordering religious training. The able trial court was disturbed by this aspect of the case: It said: ‘There is the matter of separating church and state; the possibility of in-harmony with the mother going to one church and the child to another; the difficulty of policing this part of the decree; the cumbersome nature of court processes compared with the sensitive nature of this subject; and so on. Surely these are good reasons for parties not placing a provision on religion in a default decree * * *.’ Our court is committed to the rule that the welfare of the child is generally the governing purpose in all proceedings involving custody, care and training. Chiefly for this reason, the courts have generally refused to enforce agreements between the father and mother concerning the religious training of children, but have held that the parent having custody is not bound by a previous contract. 29 Harvard Law Review, 485, 492; Zollman, American Church Law, 46-49; Andrews v. Salt, L. R. 8 Ch. App. 622; Brewer v. Cary, 148 Mo. App. 193, 127 S. W. 685-692, inclusive; Boerger v. Boerger, 26 N. J. Super. 90, 97 A. 2d. 419, 425, 427.”

In the case of Jackson v. Jackson, 181 Kan. 1, 309 P 2d 705 (1957), although not completely in point, the court overruled a change of custody ordered by the trial court. The court stated (concerning a basic principle here involved) that one of the reasons for so ruling that the religious practices of the defendant wife, who was originally given custody, was, in part, the basis of the trial court’s order changing custody. Both the majority and dissenting opinion reaffirm Denton v. James, 107 Kan. 729, syllabus five and six, 193 P. 307, heretofore cited, and in syllabus five and six, the court said:

“5. The courts have no authority over that part of a child’s training which consists in religious discipline, and in a dispute relating to custody, religious views afford no ground for depriving a parent of custody who is otherwise qualified.
“6. Religious freedom, as guaranteed by our Constitution, should be faithfully upheld, and religious teaching to the children by a parent or parents, regardless of how obnoxious the same might be to the Court, the other parent or the general public should not and must not be considered as the basis’of making child custody orders.”

In the case of Stanton v. Stanton, 213 Ga. 545, 100 S. E. 2d 289, a petition was filed for divorce by a wife on the ground of cruelty. The trial court granted the divorce. The plaintiff moved before trial to strike from the answer as surplusage allegations concerning an ante-nuptial agreement as to the religious upbringing of the children, which motion was granted. This ruling was assigned as error in the Supreme Court. The court found the trial court acted correctly. Paragraphs eight, ten, eleven and twelve of the headnotes provide:

“8. Generally, welfare of child is controlling fact in determining right to custody, and contracts between parents concerning religious training of children will not be enforced and parent to whom custody is awarded is not bound by previous contract relating to religious training.
“10. Parents cannot by contract relating to religious training of their children restrict discretion of court in awarding custody and court may disregard entirely any such contract.
“11. Although legislature has recognized value and importance of religious training with respect to placement of children under jurisdiction of juvenile courts, code provision relating to religious aspects of placing such children does not restrict discretion of judge in placement of children in divorce proceeding.
. “12. In action by wife for divorce wherein custody of children was involved, trial court properly struck from defendant’s answer, ante-nuptial contract relating to religious upbringing of children and allegations which sought to enforce provisions of contract.” and on page 283, after citing most of the cases and Law Review articles herein referred to, the court said:
“In In re Nevin, 2 Ch. L. R. (1891) 299, it was held that an ante-nuptial contract that the children of the marriage should be brought up in a particular religious faith has been decided over and over again not to be in any legal sense a binding contract. In Agar-Ellis v. Lascelles, 27 W. R. 117 (1878), where it was sought to enforce a ‘treaty for marriage’ wherein a husband gave the wife and her friends an unconditional promise that the children of the marriage should be brought up in the religious faith of the woman, it was held that on principle and authority, it is settled ‘so as to be beyond question or argument, that the ante-nuptial promise is in point of law absolutely void.’ The Supreme Court of Missouri, in Brewer v. Cary, supra, after citing the above English cases, ruled against the enforceability of a prenuptial contract as is here involved, and stated: ‘Nor can we, in determining what is for the welfare of the infant, determine that on considerations of religion. That would involve our determination between religions — and that we are not permitted to do * * * That, when the question of its (the child’s) welfare turns on the direction of its training and upbringing in one belief or another, our courts, save as controlled by statute, have no power; that to do so would be a determination by the courts as to differences in religious belief, which is incompatible with religious freedom.’ ”

Also, in the case of Gluckstern v. Gluckstern, 158 N. Y. S. 2d 504, which deals with the questions of whether a wife otherwise a suitable person to be granted custody, shall be denied such custody because she was a member of the Christian Science Church. Many of the cases herein cited are considered and in paragraphs five and six of the head-notes. it is said:

“5. Mere fact that religion of wife, who brought action for separation, was Christian Science did not ipso facto disqualify her from right to custody of six year old son.
“6. Fact that awarding custody of six year old son to wife in separation action by her might result in education of son according to the tenets of the Christian Science Church, would not affect right which she would otherwise have to custody of son.”

The unenforceability of that part of an ante-nuptial agreement or a separation agreement imposing upon one party or the other the duty to direct the religious education of children before reaching the age of free choice, in the doctrine of a particular religious faith has been supported, as here indicated, not only by the great weight of case authority but also by well considered Law Review articles.

In an article by Leo M. Friedman in 29 Harvard Law 485 (1916), “The Parental Right to Control the Religious Education of a child,” it is stated on page 492:

“* * * no mere agreement as to the religious education of children between father and mother before or after marriage is binding and is always open to either parent to change his mind, as it is his privilege to inculcate upon his children those religious principles which for the time being seem to him best. * * *
“It is further pointed out that for breach of a contract of a parent concerning the religious education of a child no damages can be recovered and it cannot be enforced by a suit for specific performance.”

Likewise, in 50 Yale Law Journal, 1286, a note entitled “Enforceability of Antenuptial Contracts in Mixed Marriages,” it is said on page 1289:

“As a matter of practice, however, it is difficult to see how the agreement could be enforced in’ a direct action between the contracting parties, where the issues would be most squarely raised. Since neither diminution of church status nor mental anguish to the Catholic spouse is susceptible to pecuniary valuation,- only nominal damages would be available in such an action. And even granting a liberal interpretation of the rule that equity only intervenes to protect property rights, there would appear to be no basis for Chancery jurisdiction here. * * * American governmental aloofness from ecclesiastical disputes would seem to foreclose judicial .consideration of this argument for preferential treatment. But even if this jurisdictional objection were overlooked and the original equality of religious interest considered subject to destruction by estoppel relating back to the time the contract was signed, a decree of specific performance would still be barred by the impossibility of enforcement. Recalcitrant obligors might conceivably be compelled to have children baptized or enrolled in Sunday or parochial schools. But the non-Catholic parent could scarcely be presented from expressing his personal views in family conversations or from nullifying formal church and school training by contrary private instructions.”

Continuing at page 1292:

“By invoking jurisdictional limitations, many American courts have raised the tacit presumption that ante-nuptial contracts possess an enforceable legal status. As a matter of general policy, however, it would seem preferable for courts unequivocally to refuse enforcement. For. the American doctrine of religious freedom necessarily subsumes a corollary privilege to change religious affiliations at will. This principle, coupled with the individual parent’s duty to preserve his independent judgment with reference to the child’s religious training would seem to negate the prior contract. Moreover, the court’s inclination to overlook policy objections and to enforce otherwise valid contracts in the absence of express or implied legislative declarations would seem to be overcome in many jurisdictions by the terms of the religious freedom clauses of their state constitutions. In addition to the denial df power to establish an official religion, contained also in the First Amendment to the Federal Constitution, many state Bills of Rights affirm the individual’s right to worship according to his own untrammelled volition. This affirmative grant would seem to place the privilege freely to change religious affiliations— whether one’s own or those of minor natural children — among those inalienable liberties of speech and conscience which are not subject to restriction by private agreement.”

And in a review of the unenforceability of contracts between parents on the future religious education of their children in the Boston University Law Review, Vol. 35, page 333, it is said on page 363:

“There are many reasons why such agreements should not be judicially enforceable. Aside from the unprovability of money damages and the impracticability of specific enforcement — the grounds most frequently stated — are the more cogent reasons set forth above for judicial non-intervention in the religious upbringing of children except where necessary to protect their temporal welfare. Whether the agreement is specifically enforced against one who has custody or is effectuated by awarding custody to someone who is of the faith specified in the agreement and who would otherwise not be given custody, the child’s temporal welfare is sacrificed. To suggest that the agreement will only be enforced if the child’s temporal welfare is not thereby prejudiced is meaningless; it is inevitable that, if an unwilling parent is forced by a court of law to rear his child in a religion which he disbelieves, the child will suffer. There is often no way to avoid visiting upon children the sins of their parents, but the courts, at least, should not be party to the injustice by enforcing the contract against a third party maleficiary. Besides, there is a strong policy in a democracy in allowing persons to worship God as their conscience now dictates, a policy that is equally applicable to teaching their children how to worship God. It would be contrary to this policy judicially to enforce a contract not to change one’s own religious beliefs or practices; and it is equally contrary to this policy judicially to enforce a contract not to change the religious upbringing of one’s children.”

See also, annotation 12 A. L. R. 1153 with supporting authorities, where it is stated “An agreement at or before marriage between husband and wife, as to the. religion in .which their children should be educated, is not a legal contract.”

Tire defendant seeks to find support for his position in the recent case of Robrock v. Robrock, 167 Oh St 479. In that case, the Supreme Court held enforceable a contractual obligation in a separation agreement adopted by the court’s decree, some of the provisions of which would otherwise have been beyond its power to impose without the separation agreement, the obligation to continue insurance and cost of education of the children beyond their twenty-first birthday.

The syllabus of the case provides:

“1. The full equity powers and jurisdiction lodged in the Court of Common Pleas by the provisions of §3105.21 R. C., extend to orders made for the disposition, care, maintenance and support of minor children.
“2. In a divorce action, the Court of Common Pleas, in making an order for the disposition, care, maintenance and support of minor children of the parties, may incorporate in its decree the terms of an agreement entered into between such parties.
“3. Where an agreement of the parties is incorporated in the decree of a court in a divorce case, such agreement is superseded by the decree, and the obligations imposed by such agreement are thereafter imposed by decree and may be enforced as such.
“4. In a divorce case, the court, to give effect to a separation agreement, has the power to incorporate it in the divorce decree or base the decree on its provisions, even though the court, in the absence of an agreement of the parties, would not have the power to make the resultant decree.
“5. Where, as part of a valid agreement, a husband agrees to provide a college education for his children and further agrees to keep in effect insurance policies on his life in which such children are beneficiaries, and where such agreement is incorporated in a decree divorcing the husband from his wife, such decree becomes binding upon the husband even though the performance required by the decree may extend beyond the minority of the children.”

It is also noted that the provisions related to the payment of money which could be enforced by court action. On page 489, the Court said:

“* * * Inasmuch, however, as there has been no refusal to pay for the expenses of education beyond the minority of the children or no attempt to cancel the insurance policies or change the beneficiaries therein, the question of whether such refusal or attempt would be a contempt is not presently before us.”

It must be noted that this is an action seeking an order in contempt based on a promise that is not legally enforceable and, therefore, in that respect, is to be distinguished from the Robrock case. It is also to be distinguished from that case by the fact that the order here sought is in contempt for failure to perform a promise which involves personal services, and is, therefore, not enforceable in a legal proceeding. An action in specific performance will not lie nor is the violation of such a promise the subject of an action in damages.

We emphasize the fact that in the Robrock case the court had fpr its determination a valid agreement concerning matters of a secular nature only, viz., to provide a college education for his children and to keep in effect insurance policies on his life with his children as beneficiaries. Such benefits were to continue after the children had reached their majority. Also, that case must be distinguished from the instant case because here we are dealing with matters of a religious nature only, which in our opinion, are beyond the jurisdiction of the court to enforce by contempt proceedings or otherwise.

For the foregoing reasons, the judgment is affirmed. Exceptions noted. Order see journal.

HURD and KOVACHY. JJ, concur.


author: By PETREE, PJ.

text:
    AYERS, Appellant, v. STATE CIVIL SERVICE COMMISSION OF OHIO et, Appellees.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5876.
    Decided May 20, 1958.
    Ralph Shapiro, Columbus, for appellant.
    William Saxbe, Atty. Geni., Robert E. Boyd, Walter M. Shea, Thomas L, Startzman, Asst. Attys. Geni., Columbus, for appellees.
   OPINION

By PETREE, PJ.

This is a law appeal from a judgment of the Court of Common Pleas, which sustained an order of the State Civil Service Commission, which had affirmed the order of removal of the appellant, Dow B. Ayers, by the Director of the Department of Liquor Control.

The charges set forth in the order of removal by the Director of the Department of Liquor Control carry as a reason for appellant’s discharge that he had been guilty of drunkenness and failure of good behavior in the following particulars:

“On April 5, 1957, while an employee with this Department, you were convicted in the Municipal Court of Mt. Vernon, Ohio of driving while intoxicated, and as a result of this conviction, were sentenced to pay a fine of two hundred (200) dollars and three (3) days in jail and one (1) year suspension of your vehicle driving rights; and on or about September 17, 1956, while an employee with this Department, you were convicted in the Municipal Court of Mt. Vernon, Ohio of driving while intoxicated and were sentenced to pay a fine of one hundred fifty (150) dollars and five (5) days in jail; and on September 1, 1953, you were convicted in the Municipal Court in Painesville, Ohio of driving while intoxicated and sentenced to pay a fine of one hundred fifty (150) dollars and ten (10) days in jail.”

The portion of the charge pertaining to the conviction last mentioned therein, to wit, on September 1, 1953, was omitted in the stipulation of facts upon which the Department’s case was based. The stipulation found at the last page of the record contained the following:

“It is stipulated that on September 17, 1956 the appellant, Dow B. Ayres, while an employee of the Department of Liquor Control, was convicted in the Municipal Court of Mount Vernon, Ohio of driving a motor vehicle while under the influence of intoxicating liquor and was sentenced to three days in jail and fined $150.00; that on April 5, 1957 the appellant, while an employee of the Department, was convicted in the Municipal Court of Mount Vernon, Ohio of driving a motor vehicle while under the influence of intoxicating liquor and was sentenced to three days in jail and fined $200.00.”

While the facts stipulated in this particular paragraph just quoted would fall short of proof of drunkenness on the part of the appellant, yet facts which show that a person was sentenced to two terms of three days each in jail upon a charge, in each case, of driving while under the influence of intoxicating liquor and which resulted in appellant’s paying substantial fines, would, in our opinion, be ample grounds for finding a failure of good behavior on the part of the appellant. We do not believe the principle of ejusdem generis argued by appellant in referring to §143.27 R. C., applies in this case. In other words, it is not necessary that any other failure of good behavior be limited to the same type of behavior mentioned earlier in the statute for which one may be removed from the Civil Service, such as drunkenness.

In our opinion the record, taken as a whole, is such as to sustain the authority of the State Civil Service Commission to remove the appellant as a State Liquor Inspector. The conviction of a law-enforcement officer of an offense of driving a motor vehicle while under the influence of intoxicating liquor would seem to us to constitute a failure of good behavior, whether committed while said officer was off duty or while he was on the job.

In its decision the Court of Common Pleas found as follows:

“Upon consideration of the entire record, the Court finds that the order of the Commission. is supported by reliable, probative and'substantial evidence and is in accordance with law; and, therefore, affirms said order and dismisses said appeal therefrom.”

With this we agree, and we conclude that neither of the two assignments of error is well taken. We hold, therefore, that the judgment of the Court of Common Pleas should be affirmed.

Judgment affirmed.

MILLER, J, concurs.

BRYANT, J, not participating.


author: By KOVACHY, J:

text:
    DURSA, Plaintiff-Appellee, v. DURSA, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24393.
    Decided May 14, 1958.

      James F. Black, Coleman Kiss & Albert H. Kiss, for plaintiff-appellee.
    Morton B. Icove, for defendant-appellant.
   OPINION

By KOVACHY, J:

This is an appeal on questions of law from a judgment entered in the Common Pleas Court of Cuyahoga County wherein a decree of divorce and alimony was granted the plaintiff on the grounds of gross neglect of duty and extreme cruelty.

Defendant-appellant’s assignments of error are:

1. that the court conducted the “trial in a partial, biased, and hostile-to-the-defendant manner”;

2. that the court refused “to confine evidence to issues raised in the pleadings”;

3. that the plaintiff presented no corroborative evidence; and

4. that the decree was manifestly against the weight of the evidence.

We have read the record with care. The trial, judge saw and heard the witnesses and, as the trier of the facts, determined the credibility of each witness and the weight to be given his testimony. The proof required in a divorce case is “. . . to the satisfaction of the court . . .” (§3105.10 E. C.), from which it follows that the sufficiency of evidence to justify a decree of divorce lies very largely in the discretion of the trial court: A reviewing court in passing on as assignment of error that a decree of divorce is against the manifest weight of the evidence must keep these considerations in mind and is warranted in setting aside the decree only when the record does not disclose some evidence of a substantial nature which reasonably supports the judgment. We are unanimously of the opinion that this record presents such evidence and that it is ample to sustain the decree of divorce. Mollencamp v. Mollencamp, 18 Abs 90, 17 O. Jur. (2d) 724, Section 65.

On the question of corroboration, the record shows that the plaintiff presented five witnesses whose testimony in one way or another was corroborative of plaintiff’s testimony, and in addition, that the defendant himself corroborated plaintiff’s testimony when he admitted to have been drunk “half a dozen times,” and conceded that his wife was an honest woman and that her testimony was merely not “100% the truth.” We consequently overrule assignments of error 3 and 4.

The record discloses verbal clashes between the trial judge and counsel for the defendant of an acrimonious character. It seems that defendant’s counsel was displeased with the trial judge’s insistence that the trial be conducted on Saturday afternoon prior to Labor Day. Under §5.30 R. €., Saturday afternoon is designated a legal holiday by the legislature of Ohio. The legislature, however, has not passed any laws prohibiting court proceedings on legal holidays. The weight of authority is that court action on a holiday is not invalid unless made so by legislative enactment. Whether court shall or shall not be held on holidays in Ohio, consequently, is within the sound discretion of the trial judge. State of Ohio v. Thomas, 61 Oh St 444, 56 N. E. 276; Norman v. State of Ohio, 109 Oh St 213, 142 N. E. 234; 39 O. Jur. 581, Section 13; 38 O. Jur. 379, Section 47.

Defendant also complains that the trial judge insisted “that the case be tried only on Saturday, mornings and afternoons.” It is regrettable that this case was tried on three separate Saturdays — one full day and two half days. Trials, if possible, should be conducted in continuous sequence from day to day. However, such matters, under the law, are distinctly within the sound discretion of the judge presiding, and unless the record discloses that the party complaining was prejudiced thereby, a reviewing court will not disturb the judgment. Brace, Admr. v. Hoffman Co., 29 O. L. R. 205, 208. The trial judge in this case took voluminous notes during the progress of the trial and delivered an oral opinion summing up his findings at the conclusion of the trial. He then later, upon request, filed conclusions of facts and law in writing. We can find no prejudice accruing to the defendant from this record by reason of the manner in which this case was tried, and therefore conclude that the charges in that regard are not well-founded.

The defendant further charges the trial judge with harassing defendant and defendant’s counsel, interrupting and insisting upon continuances despite objections, and of examining “defendant’s witnesses in a belligerent, biased and argumentative manner.” The record fails to support these charges and we overrule them as being wholly without merit.

The record does show that counsel for the defendant on occasion was sternly admonished by the trial judge. Much of this we believe was invited through counsel’s obvious display of displeasure at the rulings made. It is not the function of a reviewing court to pass upon an interchange of acrimonious remarks between counsel and the judge unless the record affirmatively shows that the party complaining had been prejudiced thereby. Our sole concern in this situation, therefore, is to determine whether this defendant had been given a fair trial. This the record shows. The defendant was permitted to present twelve witnesses to testify in his behalf, and the trial judge exhibited a genuine zeal to determine the truth of the facts in issue and to render a fair and impartial decision.

Counsel for the defendant made the following remark to the trial judge during the trial of the case:

“I would like to take the Court’s statement against mine under oath with lie detectors as to what was said, your Honor.”

We regard this to be a highly improper statement by an officer of the court during the trial of a case.

A lawyer has the right to present his client’s case fully and forcefully but never to the point of creating a personal issue between himself and the judge. He must at all times be respectful to the court even when its rulings are displeasing. He has the right to speak and remonstrate when he believes the court unfair or wrong in its rulings but he, as an officer of the court, should never return criticism with criticism nor ever cast reflections upon the integrity of the court. Syllabus 3 in the case of Washington Township Mutual Fire and Ins. Assn. v. Sherrer, 32 Oh Ap 465, 168 N. E. 234, reads:

“Conduct of counsel during trial is subject to the direction of trial judge, and his discretion will not be controlled by reviewing court unless abused to prejudice of one of the parties to action.”

See also, 6 O. Jur. (2d) 31, Section 5.

The second amended petition under the heading “Gross Neglect of Duty” avers:

“That the defendant habitually spent his money on intoxicating liquors.”

The trial court nevertheless permitted evidence to be introduced over the objection of the defendant on the matter of his drunkenness. It is manifest that such evidence in the consideration of a divorce case is material and relevant. When not pled, however, it should not be admissible unless the petition be amended to include such averment. The court at the very outset of the trial permitted this evidence to be introduced. The defendant, upon learning of the same, should have pressed for a continuance of the cause, if he was taken by surprise and was not prepared to meet such complaint. This he did not do. The fact, further remains that the case was passed for a week on two separate occasions, which gave the appellant an opportunity to prepare to meet such charge. Under these circumstances, we can see no prejudice to him with respect to this matter.

Defendant also complains that matters occurring after the filing of the petition were permitted in evidence by the trial court over objection. The law is well-established in this state that a trial court is given greater liberality in the admission of evidence in a divorce case than in the ordinary civil action. We do not believe that the matters permitted in evidence had any real bearing on the finding made by the trial judge. In the case of Piatt v. Piatt, 10 Abs 390, 391, the court stated:

“. . . greater liberality should be extended to the admission of testimony in divorce cases than in litigation generally.”

Also, see Pettigrew v. Pettigrew, 128 N. E. (2d) 841, headnote 5; 17 O. Jur. (2d) 722, Section 64.

Judgment affirmed. Exceptions. Order see journal.

SKEEL, PJ, HURD, J, concur.


text:
    KELLOGG et, Plaintiffs-Appellants, v. BOARD OF COUNTY COMMISSIONERS et, Defendants-Appellees.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5821.
    Decided May 13, 1958.
    Wiles, Doucher, Tressler & Koons, Columbus, for plaintiffs-appellants.
    Samuel L. Devine, Pros. Atty., Earl W. Allison, Chief Counsel, Columbus, for Board of County Commissioners, Defendant-Appellee.
    C. Emory Glander, Rudolph Janata, Jr., Columbus, for Mack Stewart Corporation, Defendant-Appellee.
   OPINION

Per CURIAM.

This opinion will supplant an opinion in this case rendered on April 22, 1958 and the latter opinion is hereby withdrawn.

Jay C. Kellogg and others, plaintiffs-appellants herein, began this action on April 8, 1957 by the filing of a petition in the Franklin County Common Pleas Court naming as defendants the Board of County Commissioners of Franklin County and the Mack Stewart Corporation, an Ohio corporation, defendants-appellees, herein.

The parties will be referred to herein as plaintiffs or defendants as in the court below. There were approximately ninety-six plaintiffs who described themselves as the owners of homes on each side of Dublin Road between Fishinger Road and Hayden Falls Road, said residences having a claimed value ranging from $25,000 to $100,000 each.

The petition alleges the corporate capacity of the defendants, the Board of County Commissioners and the Mack Stewart Corporation; alleges that the Mack Stewart Corporation held an option on and subsequently became the owner of sixty acres of unimproved real estate on the west side of Dublin Road in the same general neighborhood as the homes of the plaintiffs herein; alleges the taking of various steps by the said corporation and the said Board whereby the said sixty acres were made into a sanitary district; alleges that plans were approved for the erection of a sewage treatment plant within said district and that the contract for construction thereof was let to the said corporation.

The petitioners further claim that said corporation has an option for an additional one hundred acres adjoining the sixty acre tract, that the sewage treatment plant eventually will be required to serve both said tracts and that at the present time there is no need, either due to population or otherwise, for the building of such sewage treatment plant, followed by numerous allegations that untreated sewage or that which is only partially treated, will be carried from said treatment plant through certain ditches and streams onto and across the residence properties of all or some of the plaintiffs, creating cesspools of noxious and unwholesome matter, which will constitute a menace to the health and welfare of plaintiffs and generally will be a menace to the public health. There are various allegations as to taking property without due process, and abuse of discretion by the said Board of County Commissioners together with claims that §6117.01 et seq, R. C., contravene Sections 16 and 19 of Article I, Constitution of Ohio, and the Fourteenth Amendment to/ the United States Constitution. The petition concludes with the following prayer:

“WHEREFORE, plaintiffs pray that said defendants, and each of them, be temporarily enjoined from proceeding with the erection of or from erecting said sewage treatment and disposal plant; that upon the final hearing of this cause, said injunction may be made permanent and that said plaintiffs may have all other and further relief to which they may be entitled in the premises.”

On the same day that the petition was filed, plaintiffs filed a motion for a temporary injunction which motion referred .to and adopted the allegations in the petition. We note that the said petition was positively verified and hence served also the purpose of an affidavit supporting the motion for a temporary injunction.

We are unable to find in the file any written evidence as to whether or not there was any application for or allowance of a temporary restraining order. The immediate response of the two defendants was that each of them filed separate motions seeking to advance for immediate hearing the suit for permanent injunction. It was pointed out in support of the said two motions that prior to the filing of the aforesaid petition, the two defendants had entered into a contract for the erection of a sewage treatment and disposal plant for the payment of which public money had been committed.

Answers were filed separately on May 10, 1957 by the two defendants. The answer of the said Board of County Commissioners consisted of four defenses spread over ten pages, legal size. In the second defense of said Board of County Commissioners, spread over six and one-half pages, legal size, there is a detailed recital in some twenty-two numbered paragraphs of the various steps taken by the said Board, and on page eight thereof, the allegation that on February 26, 1957 said Board awarded the contract to said defendant corporation as the lowest bidder for erecting said plant and that it was required that said erection thereof be completed within one hundred eighty calendar days following the execution of the contract within the two week period, following February 26, 1957.

Stated another way, it was alleged that all of the steps required to be taken toward erecting and building the said sewage treatment plant and otherwise complying with the contract would be required to be taken before, on or about September 25, 1957.

On May 13, 1957, an entry was filed sustaining the motions of the two defendants “to advance this suit for temporary and permanent injunctions for immediate hearing.” The court fixed Monday, June 3, 1957, as the time for the special assignment above referred to. The record does not show any disposition of the plaintiffs’ motion of April 8. 1957 seeking a temporary injunction except in so far as, by inference, it would appear that the entry of May 13, 1957, aforesaid, disposed of the matter.

The matter came on for hearing on the merits and appears to have consumed several court days after which briefs were filed and a decision was handed down by Gessaman, J.

In that opinion Judge Gessaman, after referring to the letting of a contract for $57,889.60 by the Board of County Commissioners and the said corporation, makes the following statement:

“Up to April 8, 1957, the defendant corporation had spent money and incurred obligations on the contract in the sum of $44,316.00.”
“In view of the delay of plaintiffs in filing this action and considering all that had taken place between May 4, 1956 and April 8, 1957, it is our opinion that plaintiffs are guilty of laches and for that reason, alone, the relief prayed for may be denied.”

As heretofore noted, February 26, 1957 was the date of the award of the contract to erect the treatment plant to the defendant corporation, and April 8, 1957 was the date on which the petition in this case was filed. The court then proceeded to discuss the other issues raised by the pleadings, the exhibits, the evidence and the briefs and arguments of counsel.

With reference to the allegation in the petition that the sewage treatment plant in question, if put into operation, would “discharge ‘raw sewage, effluent, water and filth’ into the stream that runs through the property of some of the plaintiffs,” the trial court made the following-statement:

“There is no evidence that raw sewage or filth will be discharged into the stream. There is evidence that in ease of a prolonged break down of the plant, raw sewage might get into the stream. There is evidence, also, that some effluent, not offensive, and water will be discharged into the stream. The above allegation forms one basis for the prayer that we enjoin the erection of the plant; — not that we enjoin the discharge of water or effluent from the plant in the stream.”
“We should observe, at this point, that we are not, in this case, called upon to pass upon, nor are we passing upon the rights of any of the plaintiffs, if actually, raw sewage and filth is discharged into the stream.”

On October 9, 1957, a journal entry was filed pursuant to the decision made by Judge Gessaman, which, among other things, found that plaintiffs failed to establish the claimed gross abuse of discretion by the said Board or that said plant will constitute a nuisance, the court finding “that plaintiffs have been guilty of laches.” It was ordered that the injunction prayed for should be denied and the petition dismissed.

Thereafter on October 25, 1957 a notice of appeal “on questions of law and fact” was filed, followed by the filing in this court of a transcript of docket and journal entries on October 28, 1957; the Bill of Exceptions filed November 25, 1957; leave granted appellants for an additional thirty days to file a trial brief on December 20, 1957, and brief of appellant and proof of service filed January 2, 1958.

We note also that on February 11, 1958 defendant-appellant, the said Board of County Commissioners, filed a motion to dismiss the appeal on questions of law and fact because of the alleged failure to file an appeal bond within the time provided by law; because the case was not entitled to be appealed on questions of law and fact and because plaintiffs-appellants allegedly treated the appeal as one on questions of law only.

Thereafter on February 20, 1958, an entry was placed on file in this court approved by counsel for plaintiffs-appellants and counsel for the said Board of County Commissioners sustaining, without reservation or exceptions, the motion to dismiss the appeal as one of law and fact and retaining it as an appeal on questions of law alone. Said entry concluded with the following language:

“* * * and the bill of exceptions and briefs already filed herein shall be refiled as of the date of this entry in accordance with Rule V (D) of this Court.”

Thereafter, on February 20, 1958 an assignment of error containing se.'t-n numbered paragraphs was filed by plaintiffs-appellants claiming mat ihe judgment of the court below is against the evidence and the law, mat it is contrary to law and that it is against the manifest weight of the evidence.

It was further claimed that the statutes relied upon by the defendant Board are unconstitutional; that the proceeding amounted to a (.asmg oi the property of the plaintiffs without compensation, contrary ¡o the Federal and State Constitutions; that the erection of the plant amounted to gross abuse of discretion and that there were other errors apparent on the face of the record.

We have set forth the rather detailed foregoing statement to bring into proper focus the situation presently existing in this case. Under date of April 22, 1958 this court rendered an opinion, per curiam, which, as we have said, we are withdrawing in favor of the present opinion for the reason that in the earlier opinion it was said we were unable to find an assignment of error. While that was the fact, the assignment had been filed and the record clearly shows there is no question in the court’s mind that the said assignment of error was filed February 20, 1958. While it is true that the entry, also of February 20, 1958, permitted the refiling of briefs of plaintiffs-appellants filed January 2, 1958, it is inescapable that the said January 2, 1958 brief was planned as it was labelled, as a “TRIAL BRIEF OF THE PLAINTIFFS AND APPELLANTS.” This was no doubt on the assumption that the matter would be considered as a trial de novo. The mere refiling of the brief did not change or add anything to it. Said brief did not contain a breakdown or organization of the authorities or arguments under the seven headings set forth in the assignment of errors.

The matter having been brought to the court’s attention by counsel for plaintiffs-appellants, the court has again considered,the matter in light of the several assignments of errors. The court feels that from the record it clearly appears that the contract for the erection of the sewage treatment plant (according to the pleadings filed by the defendant Board!, was to have been completed prior to the date of the filing of the journal entry incorporating the decision by Judge Gessaman. The effect of this was that every bit of construction work was to be done nearly one month before the notice of appeal was filed.

It was stated in argument and not denied, that the work in fact was finished and completed considerably prior to the argument of the case in this court. Earlier in this opinion we have quoted and set forth the entire prayer of plaintiffs’ petition. Only two things are sought: (a) a temporary injunction and (b) a permanent injunction against “proceeding with the erection of or from erecting said sewage treatment and disposal plant.”

We are compelled, therefore, to reaffirm our previous decision and judgment that the question has become moot, and that it appears that no effective order could possibly be made to halt or enjoin that which in fact already has been fully accomplished. This court adopts the decision of Judge Gessaman and for the reasons above set forth is of the opinion (1! that the judgment of the court below is not against the evidence and the law; (2! that the judgment of said court is not contrary to law; (3) that the judgment of said court is not against the manifest weight of the evidence; (4) that the statutes in question are not unconstitutional and the proceedings are not illegal; (5) that the erection and operation of said plant does not constitute the taking of property of plaintiffs without compensation; (6) that the erection of said plant does not constitute a gross abuse of discretion and (7) that there are no other errors apparent upon the face of the record prejudicial to the rights of plaintiffs-appellants herein.

PETREE, PJ, BRYANT and MILLER, JJ, concur.