author: By ROSS, PJ.:

text:
    CHANCE, Estate of, In re.
    Ohio Appeals, First District, Hamilton County.
    No. 7333.
    Decided January 29, 1951.
    Roy L. Struble, Regina B. Closs, Cincinnati, for appellant.
    Kunkel & Kunkel, Dinsmore, Shohl, Sawyer & Dinsmore, Cincinnati, for appellees.
   OPINION

By ROSS, PJ.:

This Court would be content in affirming the judgment of the Probate Court of Hamilton County, Ohio, and to adopt the opinion of the Hon. Chase M. Davies (appearing among the papers filed in the trial court) as the opinion of this Court, were it not that it is believed that there are additional considerations justifying the conclusions reached by the trial court in its opinion, and with which this Court fully concurs.

It appears that a citation was issued by the Probate Court of Hamilton County upon a complaint filed under the provisions of §10506-67 GC. This citation was served upon certain residents of Franklin County, in Franklin County, Ohio. These residents of Franklin County, so served, appeared in the Probate Court of Hamilton County solely and only for the purpose of filing a motion to quash said service.

As is pointed out in the opinion of Judge Davies, the Probate Court of Hamilton County has sole and exclusive jurisdiction to administer the estate of the incompetent involved.

Sec. 10501-55 GC; State, ex rel. Black, et al, Exrs., v. White, Judge, 132 Oh St, 58, and (that §10501-22 GC, provides:

“In the exercise of jurisdiction the probate judge shall have the powers, perform the duties, and be governed by the rules and regulations provided by law lor the courts of common pleas and the judges thereof in vacation, so far as they are consistent with laws in force. The provisions of law governing civil proceedings in the court of common pleas, so far as applicable, shall govern like proceedings in the probate court when there is no provision on the subject of this act.
“Unless it is expressly otherwise provided by law, in all actions or proceedings had in the probate court, whether ex parte or adverse in character, the court may award and tax costs, and apportion them between the parties, on the same or adverse sides, as it adjudges to be right and equitable.”

And that §10501-24 GC, requires that the provisions of law applicable to the common pleas court involving summons shall be applicable to the Probate Court.

It is noted that the provisions of §10506-67 GC, gives the common pleas court concurrent jurisdiction with the Probate Court to issue a citation when complaint is made that assets are being sequestered by any person. Obviously, this section has nothing to do with venue or process. The execution of the powers conferred upon the Probate Court are subject to other appropriate legislation. The first paragraph of §10501-22 GC, provides; as previously noted that the provisions of law applicable to “civil proceedings” in the common pleas court shall, as far as practicable, govern like proceedings in the Probate Court.

The term “civil proceedings” used in this section is a general term, sufficiently extensive in its scope, to include “civil actions,” “provisional remedies,” “special actions,” “special proceedings,” all divisions mentioned and considered in Part Third of the Code and under general Title IV, — “Procedure in the Common Pleas Court.”

There being no provision of law applying to process involving a citation issued either by the Probate Court or common pleas court in a proceeding under §10605-67 GC, reference must be made to the only other “civil proceeding” in the common pleas court, where matters of process and extra county jurisdiction are considered. This will be found under Division II, Title IV; such division being entitled “Civil Actions.” Under this division is placed Chapter 3 (§§11268 to 11278 GC). “Where action to be brought” and Chapter 4, “Commencement of the Action” (§§11279 to 11301 GC). These two chapters are those in which the jurisdiction of the common pleas court over persons sought to be made amenable to its conferred powers is considered.

An examination of Chapter 3 shows that the only sections pertinent to the instant question are: §11277 GC, which provides:

“Every other action must be brought in the county in which a defendant resides or may be summoned, except actions against an executor, administrator, guardian, or trustee, which may be brought in the county wherein he was appointed or resides, in which cases summons may issue to any county.”

And §11279 GC, which provides:

“A civil action must be commenced by filing in the office of the clerk of the proper court a petition, and causing a summons to be issued thereon.”

Chapter 4, §11282 GC, permits extra county service under certain conditions, none of which has application here.

The net result of this examination of the sections of the Code is that — neither the Probate Court nor common pleas court are given specific power to issue an extra county citation in the proceeding herein involved.

In addition to these conclusions of the trial court it is to be noted that in Art. IV, Section 8 of the Constitution of Ohio, it is provided:

“The Probate Court shall have jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, the settlement of the accounts of executors, administrators and guardians, and such jurisdiction in habeas corpus, the issuing of marriage licenses, and for the sale of land by executors, administrators and guardians, and such other jurisdiction, in any county, or counties, as may be provided by law.”

It is claimed by appellants that §10501-23 GC, is inferentially an exercise of the legislative power created by Art. IV, Section 8, supra. This section provides:

"The probate judge shall issue warrants, attachments and other process, and all notices, commissions, rules and orders, not contrary to law, that are necessary and proper to carry into effect the powers granted to him.”

It will be noted that this section became effective January 1, 1932, and was in force at the time the preceding Section (§10501-22 GC), as now in the Code, was amended August 22, 1941 (119 V. 394). However, such amendment was an addition which in no way affects the instant question, and that the first paragraph (hereinbefore quoted) pertinent here, was originally a part of the 1932 Probate Code.

Reference to 114 V. 320 shows that these sections (§§10501-22 and §10501-23 GC) as well as 10504-10 GC and 10504-11 GC, hereinafter considered were a part of the “Probate Code” effective January 1, 1932, and were then, (except as noted) identical in language used with the present sections of the Code.

Sec. 10501-22 GC and.§10501-23 GC, supra, must, therefore, be considered together as relevant sections of the same act of the legislature. If anything were needed further to assure the conclusion that the general provisions of §10501-23 GC, applying to process, do not modify the limitations and powers mentioned in §10501-22 GC, it will be found in the provisions of §10504-10 and §10504-11 GC; both sections also a part of the Probate Code of 1932.

Sec. 10504-10 GC, provides:

“If real or personal estate be devised, or bequeathed, by a last will, the executor, or any person interested therein, may cause it to be brought before the Probate Court of the county in which the decedent was domiciled. By citation, attachment or warrant, or, if circumstances require it by warrant or attachment in the first instance, such court may compel the person having the custody or control of such will, to produce it before the court for the purpose of being proved.”

Sec. 10504-11 GC, provides:

“The process mentioned in the next preceding section may be issued into any county in the state, and shall be served and returned by the sheriff, or other officer to whom it is delivered.”

If §10501-23 GC, is inferentially effective to give the probate court power to issue process in the instant proceeding, then it would be effective to give the Probate Court power to “compel the person having the custody or control of such will to produce it before the court” by extra-county process, 'both in both cases extra-county process would be necessary 'in some instances to effect the powers granted the Probate Court, at least if other remedy was not available, yet, then why did the legislature in the same act as a part of the same “Probate Code” enact §10504-11 GC, specifically authorizing extra-county process in the case of the citation of wills?

Another consideration also reinforces the conclusions herein reached. Sec. 10506-67 GC, as previously noted, gives the common pleas court concurrent jurisdiction upon complaints of concealment of assets. The provisions of §10501-55 GC, would prevent a Probate Court in Franklin County from exercising jurisdiction, but it would not prevent a common pleas court in Franklin County issuing a necessary citation upon complaint filed therein, charging concealment or sequestration of assets by residents of Franklin County. So, therefore, complainants are not without remedy. It is apparent that if the legislature had deemed it expedient to permit extra-county process, where there was complaint of concealment of assets, it would have enacted a specific process section, as it did in the case of custodians of wills.

It must be considered that the legislature in enacting the many sections of the 1932 Probate Code was fully aware of the several provisions of such Code and that it advisedly conferred jurisdiction on the common pleas court in §10506-67 • GC, and refrained from so doing in §10504-10 GC.

The findings, reasoning and conclusions of the trial court are adopted and approved, and its judgment affirmed.

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


source: Caselaw Access Project

author: By HOOVER, J:

license: Public Domain

text:
    YANCY et, Plaintiffs, v. ERMAN etc., Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 568173.

      Woodle & Wachtel, Edwin F. Woodle, Cleveland, for plaintiffs.
    Richard O. Horn, Cleveland, for defendant’s guardian.
   OPINION

By HOOVER, J:

This presents two matters of first impression. One, probably a first in the United States, is whether, in an action in which an incompetent is a party, the duly appointed guardian of his person and estate can waive a privileged communication between the incompetent a,nd his former lawyer. The second, a first in Ohio, is whether the unsound mental condition of a defendant is ground under Par. 7 of §11631 GC, for vacating a default judgment taken against him if such judgment, though rendered when he was not under any court — declared incompetency, was nevertheless taken at a “trial” at which he was not represented by any one — i. e. — neither by himself, nor by guardian ad litem, nor by counsel.

In its much amended form, this is an action by realty buyers against a seller to recover damages for failure to convey, arising out of an alleged written sale contract dated April 2, 1946. The action was filed August 23, 1946.

On March 3, 1948, the Probate Court appointed one, Jay Ñamen, as guardian of the estate of the defendant, an incompetent. On August 16, 1948, such guardian filed an answer and cross-petition in the instant action. On January 5, 1949, the Probate Court terminated such guardianship. However, before the default judgment v/as taken, no further pleading was filed for the defendant in the instant action, and therefore, at that time, the latest pleading on behalf of defendant was the one filed by a person who had ceased to be guardian.

A number of pleadings had been filed by the defendant before such guardian entered this case. They, as well as the pleading filed by the guardian, carried the name of Apple and Apple, as attorneys.

In the file are two letters signed by defendant addressed to the Clerk of Courts, dated January 5 and January 19, 1949, respectively, and typewritten on the letterhead of Greenfield, Malitz and Greenfield, instructing that A. E. Greenfield and David Weaver be substituted in place of Apple and Apple as defendant’s attorneys.

On October 10, 1949, plaintiffs’ motion to place this case on the active trial list for November 7, 1949, was granted. On November 3, 1949, the Clerk received a letter on the stationery of A. E. Greenfield, dated November 3, 1949, stating that “we no longer represent Herman Erman in any matter” and specifically the instant case. On November 15, 1949, the Court’s Assignment Commissioner wrote to defendant saying that since he had no attorney representing him, please be advised that this case would be assigned to a court room for trial on November 22, 1949 and that it would be necessary for him to be present prepared for trial without further notice. When the case came on for trial, defendant was not present and no guardian ad litem or attorney represented him. Default judgment was taken for plaintiffs for $1500.00, and judgment was rendered against defendant on his cross petition.

On August 19, 1950, the Probate Court appointed Richard Horn guardian of defendant’s person and estate, on ground of mental incapacity. That day, the guardian filed a petition herein to vacate the judgment after term. The petition stated that from January 5, 1949 to August 19, 1950 (the period between the two guardianships and within which the default judgment was taken) the defendant was without the representation of a guardian, and was in fact incompetent to handle his own affairs; that he was not represented and did not appear at the trial; and that the judgment should be vacated for the following reasons (we set forth, because we deem it necessary to consider, only reasons 5 and 6):

5. Erroneous proceedings were had against a person of unsound mind where the condition of such person would not appear in the record.

6. Due to unavoidable casualty or misfortune, a party in interest was prevented from defending the subject action.

The petition to vacate avers that defendant has a valid defense. Three defenses are then set forth — the same three that are set forth in earlier pleadings for defendant — which essentially are (1) a general denial, (2) fraud of plaintiffs’ agent and (3) plaintiffs’ breach of conditions. Included is a cross petition for cancellation.

Later, the guardian filed an Amended Answer and Cross Petition. This answer admits the signing of the paper dated April 2, 1946, but alleges that defendant’s signature was procured by willful and fraudulent representations at a time when, due to advanced age, mental incapacity and incompetence, defendant was not capable of that degree of understanding necessary for him to comprehend the obligation which he signed, which incompetence, lack of understanding and mental infirmities were well known to plaintiffs. Again, a cross petition asks cancellation.

At the hearing on the petition to vacate, defendant produced as a witness one Inez Verby who has lived directly across the street from defendant for more than 10 years. He came to her home often and she knew him well. Once he lived at her home 10 days. She is a registered nurse, having graduated from Lakeside Hospital in 1915 and having been in the practice since then. She hag handled many mental cases. She testified that from April 1, 1946 to the present time, the defendant was irrational, was of unsound mind and had no mental capacity to understand important business or to perform ordinary business transactions.

Miss Verby based her opinion on the following facts to which she testified. Defendant is nearly 83 years old. He came to her often with his troubles for advice. He was non-cooperative at all times. When she explained something he would burst out in temper and go into extreme waves of swearing and screaming at her. When his wife died about 1942 he became much worse and was at witness’ house more frequently. He was lonesome, disturbed, disoriented. About 3 days after his wife died he advertised in the newspaper for a housekeeper or a wife. He was pitiful, and all mixed up. He did idiotic things. He believed that people were persecuting him and that no one was his friend. He heard noises in his house. He came to her house one night at 2:00 A. M. saying that people were after him and knocking on his windows; and he stayed at her house the balance of the night. To protect himself, he closed and boarded some of his windows, including the big bay window. He took out the glass, covered the window over with siding and painted it with lime. He covered the whole house with lime. He boarded up his porch with laths and cardboard cartons so no one could look in. He would remain on the porch all night in the summer with the lights on, sleeping on two chairs with no pillow. He put about a dozen spikes in a two-by-four and laid it in his driveway so people wouldn’t enter. People whose tires were punctured had him before the prosecutor. He put in a large stump on the corner of his tree lawn to prevent people from getting near his premises. Though the law allows car parking in front of his house, he objected. Near the curb he erected gas pipes about an inch in diameter and 2 feet long which he bent over so as to rip fenders of anyone parking there. Further to prevent such parking, he strewed broken glass on the street, smeared parked cars at night with mud and broke locks on cars parked there. He doesn’t like other people. The neighbors do not like him. They fear him. They shut the door on him. When he passes them on the opposite side of the street, he swears at them and uses foul language. He follows people. Once he met the witness on 105th Street and followed her all the way home. Last fall her gardner had to prevent him from attacking her when he found a sign erected on his premises advertising the Probate Court land sale. Though she has befriended him, he accuses her of his difficulty. He is estranged from his children. Though his house is tied up in Probate Court and he does not own the full interest in it and though he is under guardianship, he continues to try to sell it,- and barks at people who come to look at it. The witness said she tried to reason with him, but it is impossible and she has given up.

Another witness produced by defendant was Attorney Alexander Apple, of the firm Apple and Apple. He testified that from the beginning of 1946 until he ceased being defendant’s attorney in January, 1949, defendant’s mind was very unsound at times; that he didn’t have enough mind to conserve and manage his property; that he didn’t have the mental capacity to transact ordinary business beyond probably buying groceries at a store; and that in an instance like this where pleadings were filed and the case placed on the active list a short time before his attorney withdrew, defendant wasn’t competent to select counsel.

Attorney Apple based his opinion on the following facts to which he testified. His firm had been doing work for defendant continuously for almost 10 years until about 1949 when it was supplanted by Attorney Greenfield. Defendant was a difficult, non-cooperative client. He wouldn’t follow advice. He couldn’t make up his mind. He was changeable like the weather. In his 30 years of practice, Apple never had a client whose failure to cooperate was so glaring and who changed his mind so much. By such failure he put his limited property in jeopardy. He disregarded Apple’s advice when he signed the paper on which the instant action is based, thereby purporting to sell a property to which he did not have full title and which was tied up in Probate Court. As a result he became involved not only in the instant suit, but in an action by a broker to collect a commission. He seemed to be in a fog — sort of groping. He wouldn’t understand what was going on. He didn’t realize he had to do things legally and cooperate. He could hardly read English, if at all. Defendant couldn’t understand a deal in reference to any property of substantial value. Apple had the most difficult time in getting defendant to come in and do anything about the instant case when it came on for trial at a previous time before Judge Connell — and with default then confronting him. At the court room, defendant became noisy and excitable. Apple went with him into the lobby and tried to persuade him to come in and sit down and try the case and be a witness. Apple couldn’t make him understand why he had to do that. He said it was his property and no one was going to take it away from him. Defendant started pounding his fists on his forehead and talked about jumping out of the window. Apple could not handle him. Apple told the Judge he couldn’t try the case. The trial had to be postponed. Apple thereafter couldn’t get defendant into his office. He wouldn’t respond to Apple’s letters or calls. The case came up a number of times and Apple had to get a number of continuances. Finally Ñamen was appointed guardian, and later Apple was supplanted by Attorney Greenfield.

Plaintiffs had only one witness — the plaintiff Mary Yaney. She said she talked with defendant several times at his house, both before and after signing. He showed her the house and discussed sale of furniture. She said he was a foreigner, but she didn’t have any difficulty understanding him and he understood her. She also said he was not excited or confused while she was there.

After observing the witnesses and listening to the testimony the court has no hesitancy in finding that the defendant’s mind was unsound when the default judgment was taken, and a considerable time before and subsequent thereto. 44 C. J. S. 46-48, Sec. 2 (Definitions of Unsound Mind and Unsoundness of Mind); Black’s Law Dictionary (1944) 1786 (Definition, Unsound Mind); Ballentine’s Law Dictionary (1930) 1320 (Definition, Unsound Mind); Lowe v. Union Trust Co., 124 Oh St 302, 307 (client unable to converse intelligently about case, or to understand what the situation was, or what was happening to her); Wheeler v. State, 34 Oh St 394, 399 (threat of suicide); Niemes v. Niemes, 97 Oh St 145, 153, 154 (layman permitted to give opinion as to whether mind was sound or unsound, whether had ability to transact ordinary business, and whether could understand ordinary or important business transactions); Weis v. Weis, 147 Oh St 416, 420 (same; also permitted to testify whether rational or irrational); Herlihy v. Kane, 310 Mass. 457, 458 (non-cooperative, disoriented, wouldn’t listen to reason); Bensberg v. Washington University, 251 Mo. 641, 651, 662 (delusions of being persecuted, being pursued, having no friends); Petroleum Casualty Co. v. Kincaid, 98 S. W. (2) T. C. A. 499, 501 (delusions—false beliefs); Wuller’s Estate, 14 Pa. Dist. 88 (symptoms—delusions, extreme irritability, proneness to anger, suspicion, obstinancy, abnormal impulses and inclinations); Pulaski County v. Hill, 97 Ark. 450, 457, syl. 4 (unable to conduct ordinary affairs of life, susceptibility to be victim, unable to govern self or affairs rationally); Snyder v. Snyder, 142 Ill. 60, 68-70 (inability to transact ordinary business and to take care of and manage his property); Commonwealth v. Schneider, 59 Pa. St. 328, 330 (inability to manage his property or affairs); Fiscus v. Turner, 125 Ind. 46, 48-49, syl. 47 (essential privation of reasoning facilities, or incapable of understanding or acting with discretion in ordinary affairs of life); Beattie v. Bower, 290 Mich. 517, 521, 522, 523, 525 (persecution complex, being followed, irritability, emotional instability, swearing violently at neighbors, delusions, unreasonable and purposeless actions and language); Parsons v. Parsons, 66 Io. 754, 757, syl. 4 (acting strangely); Bell v. Blackwell, 273 S. W. (T. C. A.) 870, syl. 4, reversed on other ground in 283 S. W. 765 (unsoundness shown by appearances, acts and conduct which to person of ordinary intelligence would indicate abnormality); 44 C. J. S. 51, Sec. 51 (surrounding circumstances, conduct and appearance, irrational acts and beliefs, improvident bargains); 22 O. Jur. 102, Sec. 57 (same); 28 Am. Jur. 759, Sec. 132 (same); Ekin v. McCracken, 11 Phila. (Pa) 534, 536 (the greater the number of absurd and irrational acts, the stronger the evidence); 22 O. Jur. 106, Sec. 60 (evidence of condition a reasonable time before and after the event); 44 C. J. S. 52, Sec. 5 (same); 28 Amer. Jur. 759, Sec. 132 (same); 17 O. Jur. 478-79, Sec. 385 (laymen’s opinion); 22 O. Jur. 99, Sec. 56, 106-07, Sec. 61 (opinion of neighbors and laymen).

A mere eccentric mind is not an unsound one, 44 C. J. S. 14, Sec. 2, but this descends to a level far below eccentricity. Here is such a startling conglomeration of such startling abnormalities of such startling degree that it stamps “unsound” the mind from which it springs. To single out any one abnormality and say that it alone is not sufficient to establish unsoundness, cannot discount the combined effect. A book is no less a book because you can say of each separate page “That is not a book.”

The Court gives more weight to the testimony of defendant’s witnesses. In contrast to the plaintiffs’ one witness who in fact was one of plaintiffs, the defendant’s witnesses knew and had an opportunity many times to observe the defendant over a period of years. Emery v. Hoyt, 46 Ill. 258, 259, syl. 1; Ergang v. Anderson, 378 Ill. 312, 313-314. Besides, the defendant’s witnesses were disinterested. Because of defendant’s conduct toward them, no one could expect them to be partial toward defendant.

How does defendant’s unsound mind affect our problem? The pertinent parts of §11631 GC, read:

“The common pleas court * * * may vacate * * * its own final order, judgment or decree after the term at which it was made:
«* * *
“5. For erroneous proceedings against an infant or person of unsound mind, when the condition of such defendant does not appear in the record, nor the error in the proceedings.
“7. For unavoidable casualty or misfortune, preventing the party from prosecuting or defending.”

There are 10 statutory grounds set forth in said section. We quote only No. 5 and No. 7 because they are the only two urged. The court now eliminates No. 5 from consideration, not because it may not have merit but because No. 7 is so decisive it is not necessary to consider No. 5.

It is too well recognized to be disputed that unsoundness of mind is such misfortune. 1 Freeman on Judgments (1925) 440-441, Sec. 224, 507, Sec. 250; Bushwell on Insanity (1885) 156, Sec. 131; Bean v. Haffendorfer Bros., 84 Ky 685, 692-694, syl. 2; Small v. Reeves, 104 Ky. 289, 294 syl. 1; Southern National Life Ins. Co. v. Ford’s Admr., 151 Ky 476, 482-483; Herlihy v. Kane, 310 Mass. 457, 459; Swetland v. Swetland, 100 N. J. Eq. 196, 211; Gephart v. Block, 14 Abs. 163; 34 C. J. 314, Sec. 534, n. 23 (g); Pulaski County v. Hill, 134 S. W. 973, 975, syl. 4. Question has been raised as to whether, in the statute, the adjective “unavoidable” applies to “misfortune” as well as to “casualty.” It is not necessary to determine that here because the court finds that the defendant’s misfortune of unsoundness of mind is unavoidable.

Because the fifth ground for vacating a judgment under §11631 GC, also relates to unsoundness of mind and because the instant facts may not qualify on the fifth ground, do not prevent their qualifying on the seventh ground. Bean v. Haffendorfer Bros., 84 Ky. 685, 693-694. Sec. 11631 GC provides ten grounds for vacating a judgment after term. Each is sufficient to do the trick. Each is composed of a number of elements. Some of these grounds have an identical element in common but they have other elements not in common. Thus grounds No. 5 and No. 8 have the element of infancy in common; No. 5 and No. 8 the element of error; No. 4 and No. 10 the element of fraud. Though a set of facts does not qualify on one ground, it may qualify on another if it has all the elements of the latter even though the latter may have an element in common with the former.

Before the unsoundness of mind contemplated by such seventh ground can justify vacating this judgment on that ground, that unsoundness must have prevented defendant from defending. The court finds that defendant’s unsound mind did prevent him from defending. This was more than a mere indifferent, obstreperous or negligent mind. It was a mind that could not reason, had no understanding, had not the power to cooperate, about this very thing, i. e., defending this action. Once previously this action was called into a court room for trial. It was necessary to postpone the trial when defendant’s then counsel could not reason with him and defendant talked about jumping out of the window. Defendant was suffering from such mental deficiency that he was “unable to look into his affairs, properly consult with counsel, prepare and present his case, and assert and protect his rights in a court of justice.” Lowe v. Union Trust Co., 124 Oh St 302, syl. 1.

To pretend that a trial which is ex parte and in which defendant does not appear and no one appears for him, is a defended action, would be mockery. To pretend that a pleading on file makes it a defended action would be further mockery. Otherwise, defense trial lawyers receive compensation -under false pretenses. Otherwise, we should expunge from the law as unimportant the rights to a day in court, to be present and represented by counsel, to offer evidence, to cross-examine plaintiff and his witnesses, to object, etc.

Defendant’s derangement prevented him from defending this action just as effectively as if he and his counsel had been kidnapped by some maniac on the court house steps while on their way to the trial. Because defendant was a prisoner of his own unsound mind makes him no less a prisoner, makes this action no less undefended.

In addition to authorities cited above, we cite the following. They brace one or more angles for our conclusion. Haywood v. Haywood, 4 N. C. 204; Cornwell v. Cornwell, 118 F. (2d) 396; Lamprey v. Nudd, 29 N. H. 299, 303; Bergh v. Hellickson, 44 N. D. 9, syl. 2; Clandy v. Caldwell, 106 Ind. 256; McClain v. Davis, 77 Ind. 419; Dickerson v. Davis, 111 Ind. 433, 436, 437; Judd v. Gray, 156 Ind. 278, syl. 3; Manzi v. Carlson, 278 Mass. 267, 273-274; Brothers v. Brothers, 71 Mont. 378; Gerster v. Hilbert, 38 Wis. 609, 612; Bond v. Neuschwander, 86 Wis. 391.

We are not concerned with whether a person of unsound mind can be sued (22 O. Jur. 88, Sec. 43; 44 C. J. S. 291, Sec. 134), or what the duty of the court or the opposing party is if it appears that the defendant is of unsound mind (22 O. Jur. 89, Sec. 44, 94, Sec. 51; Johnson v. Pomeroy, 31 Oh St 247, 248; 44 C. J. S. 290-291), or whether a default judgment should be taken against such a defendant (22 O. Jur. 94-95, Sec. 52; 44 C. J. S. 326, Sec. 151; Taylor v. Lovering, 171 Mass. 303, 305-306), or whether a judgment against a defendant of unsound mind is void or only voidable (22 O. Jur. 94, Sec. 51; Johnson v. Pomeroy, 31 Oh St 247, 248) or under what circumstances equity grants relief against such a judgment (Johnson v. Pomeroy, 31 Oh St 247, 249). Starting with a judgment already rendered, we are concerned only with whether it may be vacated after term under Par. 7 of §11631 GC, because unsoundness of mind prevented defendant from defending. We believe it can.

Before the court can vacate this judgment it must, under §11637 GC, adjudge that there is a valid defense. Lutkenhouse v. Vella, 42 Abs 520; 23 O. Jur. 1245-1248, Secs. 1175, 1176. This the court does. 9 O. Jur. 248-249, Sec. 13, 284, Sec. 51; 22 O. Jur. 66-69 (Insane Persons, Etc. — Chap VI on Contracts Generally) Secs. 22-28, Pg. 76-81, Secs. 33-36; 17 C. J. S. 479-484, Sec. 133; 44 C. J. S. 270, Sec. 109, 277, Sec. 116; 6 O. Jur. 520-524, Secs. 19, 22. In Dickerson v. Davis, 111 Ind. 433, 436-437, it says:

“The protection of persons who are so unfortunate as to be bereft of reason and incapable of managing their own estates, is of higher obligation, and an object more to be cherished by the courts, than is the protection of holders of commercial paper, however innocent they may be (many citations). There can be no contract unless there is a meeting of the minds; and there can be no meeting of minds if the one party has no mind which can meet the mind of the other.”

There is one other question. At the hearing, plaintiff objected to Attorney Apple, former counsel for defendant, testifying, on the ground that the matters about which he proposed to testify were privileged communications between client and attorney and that §11494 GC prohibits him from testifying. It reads:

“The following persons shall not testify in certain respects: 1. An attorney, concerning a communication made to him by his client in that relation, or his advice to his client * * *. But the attorney * * * may testify by express consent of the client * * *.”

The guardian of defendant’s person and estate claimed that the matters in question were not privileged communications. We assume, without deciding, that they were privileged. Moreover, defendant’s guardian purported to waive the privilege upon behalf of his ward. Plaintiff contended that the guardian had no power to waive the privilege — that it was a personal privilege which could be waived only by the client himself, but that this particular client couldn’t waive it personally because he was an incompetent under guardianship.

Plaintiff cites Swetland v. Miles, 101 Oh St 501, which holds that in a will contest case, said section prohibits decedent’s attorney from testifying as to privileged communications with decedent, and that neither the decedent’s personal representative nor heirs can waive the privilege. In Industrial Commission v. Warnke, 131 Oh St 140, the Supreme Court created an exception to the Swetland case to the extent of allowing a widow-claimant in an action against the industrial commission to waive the similar statutory physician-patient privilege. Other Ohio courts later refused to extend this exception in non-Workmen’s compensation cases involving decedents. Russell v. Penn Mut. Life Ins. Co., 70 Oh Ap 113; Thompson v. National Life & Accident Ins. Co., 68 Oh Ap 439; Parisky v. Pierstorff, 63 Oh Ap 503.

Our case is drastically distinguishable. This client is not dead! The very purpose of this statute is to protect the client. A dead client may heed no protection. A live one does, whatever his condition. The statute protects the client in two ways — one by preventing the lawyer from testifying, the other by enabling the lawyer to testify. To a live client, one is as important as the other. Even more important is the fact that the client is given a choice between the two, because, in a certain instance, either could oppress instead of protect.

The live client is as much entitled to the one as to the other. Nothing denies him the benefit of either simply because he becomes incompetent. Do we discriminate against the incompetent, denying him the one right he may need most?

In pretense of protecting the incompetent, how can we actually deny him protection? Is the option which belongs to the client as long as he is competent, to be turned over to his opponent when client becomes incompetent? If so, try to explain it to a layman in a way that will give him confidence in courts and justice. .In the name of upholding “for the incompetent” a “privilege” which in no real sense is a privilege, are we to sanction the shocking spectacle of sending his cause to the gallows?

Client’s right may be a personal privilege, but a guardian does many responsible things for his ward, both in and out of court, as personal and important as this. See article on Guardian And Ward in 20 O. Jur. It is his duty to “defend, or cause to be defended, all suits against his ward.” (Sec. 10507-15 GC; 20 O. Jur. 292-293, Sec. 75) A guardian who defends a person under disability is not a bump-on-a-log champion. He is a two-fisted combatant. Bennett v. Fleming, 105 Oh St 352, 359, syl. 3; Hasty v. Weller, 19 O. O. 304, 306-307, 33 Abs 190, 192-194. The law does not require him to fight, then deny him ordinary weapons.

In reason, who more logically should exercise this existent right to protect the ward by authorizing his lawyer to testify than the one whom the court has specially appointed to protect the ward — his guardian!

If it is said that the guardian should apply to the Probate Court for authority to do this, then must the guardian also ask the Probate Court to instruct it about every ordinary detail of trial — whether it can file a motion or demurrer — what arguments and citations it may present — whether it can take depositions — what questions it may ask on voir dire — whether it can waive any of its peremptory challenges — whether it can issue a subpoena — whom it may call as witnesses — whether it can waive cross-examination, etc.?

Not in the whole United States have we been able to find a case exactly in point. There are some close, well-reasoned analogies however, such as the recognized right of a parent as natural guardian to waive a similar, statutory, physician-patient privilege as to an infant. Corey v. Bolton, 97 N. Y. S. 915; State v. Depositer, 21 Nev. 107; Jenkins v. State, 146 Miss. 339; 70 C. J. 462, Sec. 627.

We think the guardian had the power to consent to Attorney Apple testifying.

Accordingly, an entry may be drawn vacating the judgment.


author: By PHILLIPS, J. CARTER, PJ.

text:
    HERZIG et, Plaintiffs-Appellants, v. HUNKIN CONKEY CONSTRUCTION CO., Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 18207.
    Decided December 22, 1941.
    Woodle & Wachtel, Cleveland, for plaintiffs-appellants.
    A. O. Dickey, Calfee & Fogg, Cleveland, for defendantsappellees.
    (CARTER, PJ, PHILLIPS, NICHOLS, JJ, sitting by designation in the Eighth District Court of Appeals.)
   OPINION

By PHILLIPS, J.

Plaintiffs, alleged residents and taxpayers of the city of Cleveland, a municipal corporation, brought this action in the lower court on behalf of the city and all taxpayers of the city of Cleveland to recover from defendant, The Hunkin-Conkey Construction Company, a corporation, money paid to that company from city funds under a long before completed allegedly illegal contract with the city for the erection of a pump house, administration building and exterior wall surrounding and adjoining the Parma Reservoir in the City Parma a part of the water system of the City of Cleveland.

Although the action was properly brought by the alleged taxpayers on behalf of the City of Cleveland, that city was also named in the petition as a defendant.

Motions and demurrers directed against plaintiffs’ petition, first, second and third amended petitions were sustained, and to the fourth amended petition the city demurred on the ground that it did not state a cause of action against it.

The demurrer of the city was properly sustained. The city could not sue itself and no relief was asked against it.

Subsequently, defendant corporation filed a motion to make the latter pleading definite and certain and to strike therefrom certain allegations which was sustained. Plaintiffs then declined to plead further and the trial court entered judgment dismissing the fourth amended petition.

From that judgment plaintiffs appeal to this court on questions of law.

Though error of the trial court in ruling upon plaintiffs’ pleadings prior to the fourth amended petition was assigned as a ground of error, yet by reply brief the plaintiffs concede that by pleading over in each instance after that court had sustained the motions and demurrers to the original and all amended petitions prior to the fourth amended petition and thereupon failing to allow a judgment of dismissal of their case to be entered and to prosecute appeal therefrom, they abandoned all such pleadings prior to the latter and thereby waived all claimed errors of the lower court in sustaining such motions and demurrers directed against such pleadings.

This is not an action to recover damages for faulty work or excessive charges.

The authority for the commencement of this action is found in the case of Walker et al., v. The Village of Dillonvale, 82 Oh St, 137, approving Walker et al, v. The Village of Dillon-vale, 11 Ohio Cir. Ct. (n. s.) 385, on this point, and further recognized by the supreme court in the case of Council of Village of Bedford et al, v. State ex rel Thompson, Hine & Flory, a partnership, 123 Oh St, 143, but contains no allegation that plaintiffs had put, offered or were ready to put the defendant construction company in statu quo. See also Miller et al, v. Bieghler, 123 Oh St 227.

The fourth amended petition contains allegations supporting a claim of failure to comply with statute, but there are no facts stated sufficient to constitute an allegation of fraud in the making or execution of the involved contract.

Presented then for consideration is the question whether plaintiffs’ fourth amended petition, without an allegation that they had put, offered, or were ready to put the defendant construction company in statu quo, stated a cause of action under which, upon competent evidence, plaintiffs could recover against the defendant construction company.

Assuming, but not deciding, that the motion of defendant construction company was improperly sustained in whole or in part, still under authority of the State ex rel Hunt, prosecuting attorney, v. Fronizer et al, 77 Oh St 7, in the absence of an allegation that the plaintiffs had put, offered or were ready to put the defendant in statu quo their fourth amended petition at no time stated a cause of action against that company, under which they could recover in this action for there it is said:

“This court is of opinion that such recovery is not authorized. The principle applicable to the situation is the equitable one that where one has acquired possession of the property of another through an unauthorized and void contract, and has paid for the same, there can be no recovery back of the money paid without putting or showing readiness to put the other party in statu quo, and that rule controls this case unless such recovery is plainly authorized by the statute. The rule rests upon that principle of common honesty that imposes an obligation to do justice upon all persons, natural as well as artificial, and is recognized in many cases.” Chapman v. County of Douglas, 107 U S 348; Lee v. Board of Commissioners, 52 C C A, 376; Bridge Co. v. Utica, 17 Fed. Rep. 316.
“* * * The county should not be permitted to retain both the consideration and the bridges. And as in the case above cited (Buchanan Bridge Co., v. Campbell, 60 Oh St 406) the court left the bridge company where it found it so in this case the court leaves the county of Sandusky where it finds it.”

As late as in the case of Ludwig Hommel & Co., v. Incorporated Village of Woodsfield, 122 Oh St 148, at 155, the supreme court said that the Fronizer case was still the law of this state and has never reversed or modified that judgment.

The fourth amended petition was properly dismissed regardless of the reasons, if any, assigned by the trial court since the petition does not state a cause of action.

The judgment of the lower court is affirmed.

CARTER, PJ, concurs in judgment.

NICHOLS, J, concurs.

CARTER, PJ.

(Concurring.)

I desire to set out and make my position a little clearer.

Whether the claimed cause of action set out in the plaintiffs’ fourth amended petition be based on a void contract by reason of the claim violations of the statutes and the charter provisions, or based on fraud as alleged under the principle announced in the Fronizer case, 77 Oh St, 7, plaintiffs cannot recover, if they have not placed the contractor in statu quo, or shown readiness to so do.

The rule that the plaintiffs must place, or show readiness to place the other party in statu quo, applies to actions based on fraud, as well as violations of the statutes or ordinances by public officials in the entering into the same. To this effect see Donnelly on Public Contracts, paragraph 248, page 360, where the author states that the prevailing rule is to this effect.

There is nothing before us indicating a readiness or a willingness to place the contractor in the instant case in statu quo, or, if unable to do so, the reasons therefor.

The fourth amended petition does not state a cause of action.


author: By HORNBECK, J:

text:
    SHROYER, Plaintiff-Appellant, v. SHROYER et, Defendants-Appellants, BAGGOTT, Trustee, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2095.
    Decided April 4, 1950.

      Herbert M. Eikenbary, Dayton, for plaintiff-appellant.
    Hollencamp & Hollencamp, Dayton, for defendants-appellants.
    William T. Poliak, Dayton, for James C. Baggott, Trustee.
   OPINION

By HORNBECK, J:

This is an appeal on questions of law from a judgment of the Probate Court. By agreement of counsel it is to be considered and decided by two members of the Court.

Separate briefs are filed by appellants in one of which three errors are assigned; the judgment is contrary to law, against the manifest weight of the evidence, and other errors appearing in the record. We may not consider the claim that the judgment is against the weight of the evidence because we have no bill of exceptions.

The question here presented by one of the appellants is a matter of law. The issue on which the final judgment entry was predicated was decided in a written opinion by Judge Wiseman during his term of office as Probate Judge. Before the decision was journalized Judge Love succeeded Judge Wise-man and the matter came on on motion to journalize the written opinion. The successor judge refused to take this step, although he entered judgment which was in accord with the conclusion reached in the written opinion. The entry, however, was not approved and spread on the record until after the court had, upon his own investigation of the same subject matter which was before the predecessor judge, and upon the law, reached his own separate conclusion. The processes by which the trial judge determined what the final judgment should be are succinctly and completely set out in the fourth paragraph of the judgment entry. In our opinion, it correctly analyzes the responsibility and authority of the Probate Judge in the situation presented and conforms to the provisions of §10501-8 GC and is in accord with the cases in Ohio on the subject if taken under that section, although it may be doubted if the section was invoked at all in the judgment under review. Downey v. Dayton Federation, 23 Abs 143; Egbert v. Leiser, 67 Oh Ap 350.

It is urged by appellant that the court erred in not considering and weighing evidence but it does not appear that any evidence was proffered and we cannot say that counsel having elected to submit the matter without testimony the court had no power to decide the question upon that which was before' it, namely, the pleadings, including the last will and testament which was before the court for construction.

In the brief of other appellants it is urged that the correctness of the action of the court construing the will is questioned having been taken “upon the motion of James C. Baggott as Trustee in bankruptcy, when in truth and fact, James C. Baggott was made defendant in his individual capacity.” We think this claim is without merit because it is obvious from the final entry made by the successor judge that it was made on his own motion and not in accord with the request of Baggott, as Trustee in bankruptcy or individually. It would be immaterial as to the source of the suggestion that the court journalize an entry responsive to the issues drawn on the pleadings.

It is said that “the defendant, Phyllis Jean Shroyer Fenner, was either served prior to the date of her birth or if said defendant’s birth is mis-stated, said defendant reached majority prior to the rendition of the judgment in this cause, in which case, William P. Lauterbach, guardian ad litem, can no longer represent said defendant.” It does not appear that counsel who urges this error represented Phyllis Fenner in the trial court or represents her here and therefore may not urge the question. Nor does it appear that Phyllis Fenner objected in the trial court or objects here to the judgment. If she was properly served as a minor when the action was instituted and represented by a guardian ad litem in the trial court even though she became of age during the pendency of the action her coming to majority would not abate the action. Lake Shore & M. S. R. Co. v. Hutchins, 37 Oh St 282, Gard v. Neff, 39 Oh St 607.

Objection is urged to the failure in the trial court to notify defendants Signa Irvin, Phyllis Fenner, a minor, or her guardian ad litem, or Phyllis Jean Shroyer Fenner, as an adult, of a hearing on the application to journalize the decision of the predecessor judge. There is an affidavit of William T. Poliak in the files to the effect that Signa Irvin, among other defendants, was served by registered mail with notice of the motion to journalize the decision and of a hearing on said motion on the 11th day of May, 1949. Accompanying the affidavit are return receipts, one of which is signed by Phyllis Fenner and another signed by Signa Irvin. The court finds in the journal entry that all parties were notified of the hearing. While, of course, no court would intentionally fail to notify parties of hearings, we doubt if a failure to do so, assuming that proper service was had upon all necessary parties at the beginning of the action, would affect a judgment entered pursuant to §10501-8 GC.

It is said that the court did not have the full will of decedent before it. It is true that it is not among the papers, nor can we say that the copy in the files is a true and correct copy of the will. However, it must be presumed that the trial judge had the original will available to him as it had been probated and was a part of the records of the court.

Finally, the one question of substance on this appeal is presented, viz; the interest, if any, taken by the grand-children of testator in four parcels of real estate, by the applicable provision of the will, viz; Item 3.

“Item 3. After the death of my wife, I give and devise to my four children * * * the following real estate; to Harry Shroyer, (certain described real estate); to Roy Shroyer, (described real estate); to Sidney Glasgow, (described real estate); to David Shroyer, (described real estate) * * *. All said children to have the use and income therefrom so long as they live, and at their death the same is to descend to my heirs the same as though I had died intestate. I give and bequeath the remainder of my property to my four children above named, and in the event of the death of either of them, leaving a child or children surviving, then such child or children shall receive the share such parent would have received had he or she survived my wife.”

Appellants claim that the grand-children “each have a vested contingent interest in the real estate of the testator and each had and have a vested interest in all the real estate remaining.”

It was admitted that at the time the will was construed, the widow was dead and that all of testator’s children mentioned in Item 3 were living at his death and at the death of their mother, widow of testator.

The court held that each child of the testator took a vested interest in remainder and the income for life from the one piece of real estate described and following his name in the will; that upon the death of each child the heirs of the testator came into full enjoyment of the fee simple title to the real estate in which the child had a remainder for life and that the grand-children took no interest in the property described in the will.

This construction as affects the grand-children, in our judgment, is correct. The contingency upon which the grandchildren would share in the residuary estate did not occur; viz; the death of one or more of the children of testator before the death of the widow of testator.

We find no error in this record which is prejudicial to any material right of the appellants.

Judgment will be affirmed.

MILLER, PJ, concurs.

WISEMAN, J, not participating.


author: Per CURIAM:

text:
    CHAPMAN, Plaintiff-Appellee, v. PARK LANE VILLA, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22053.
    Decided February 5, 1951.
    Cerrezin & Cerrezin, Cleveland, for plaintiff-appellee.
    P. Jerome Pasch, Cleveland, for defendant-appellant.
   OPINION

Per CURIAM:

This appeal comes to this court on questions of law from a judgment entered against the defendant-appellant on July 26, 1950. There is but one claim of error and that is, that the court failed to file its findings of fact and conclusions of law which were seasonably requested by defendant at the trial of the case.

The transcript discloses that the case came to trial on July 26, 1950, and was tried to the court, a jury having first been demanded but later waived. At the conclusion of the taking of testimony the court immediately announced his decision, whereupon counsel for defendant, in open court, orally requested the court to state his findings of fact and conclusions of law in writing as provided by §11421-2 GC.

The court directed the defendant to file such request in writing, which was done, the transcript disclosing such request to have been filed July 27, 1950. The court, however, journalized its judgment on July 26, 1950.

On November 17, 1950, the defendant filed a motion seeking to correct the record by showing that the request for findings of fact and conclusions of law was actually filed with the court on July 26, 1950, which motion the court granted and entered a correction of the record to show that the said request was in fact made on July 26, 1950.

A motion for new trial was filed July 31, 1950, and was overruled August 17, 1950. On Sept. 8, 1950, a paper was filed by plaintiff setting forth findings of fact and conclusions of law but neither the half sheet, which takes the place of a court calendar in the Municipal Court of Cleveland nor the transcript records said failing. On Nov. 29, 1950, the plaintiff filed a motion seeking a nunc pro tunc entry showing that the findings of fact and conclusions of law were in fact entered on the record as of Sept. 8, 1950. This motion was granted by the court.

The notice of appeal was filed Sept. 5, 1950, or three days before the time when the findings of fact and conclusions of law were ordered spread upon the record by the nunc pro tunc entry above referred to.

It is clear, therefore, that at the time the court overruled the defendant’s motion for a new trial, the court did not enter such findings of fact and conclusions of law on the record. The date upon which findings of fact and conclusions of law are filed by a judge which have been seasonably requested by a party under the statute, is not the subject of a nunc pro tunc order. The purpose for such request, as provided by statute, is to make possible excepting to the court’s decision upon questions of law, without the necessity of filing a bill of exceptions. Therefore, unless findings of fact and conclusions of law are filed before the time begins to run for the filing of a bill of exceptions — that is before the date of the order appealed from, a party who feels aggrieved because of the decision of the court could not determine whether he desired only to seek redress from the conclusions of law found as based upon the facts set forth in such findings of fact and conclusions of law, or whether he wished to test the sufficiency of the judgment based upon the weight of the testimony, which would require a bill of exceptions containing all of the evidence. It was error, therefore, to overrule the defendant’s motion for new trial before granting the request for findings of fact and conclusions of law.

It was held in the case of Commissioners etc., v. Carey, 1 Oh St 463, in the first paragraph of the syllabus:

“Where a judgment is reversed for error and remanded for further proceedings, the cause may be taken up by the court below at, the point where the first error was committed and proceeded with as in other cases to final judgment.”

And in the case of Shunk v. Shunk Mfg. Co., 86 Oh Ap 467, it was held:

“Upon reversal, and remand for failure to make findings of fact, a party is not entitled to a new trial, but the case proceeds in the trial court from the point where the error was committed.”

Without a complete record before us, the first error appearing from the transcript is the failure to file findings of fact and conclusions of law which were seasonably requested before the court overruled the defendant’s motion for a new trial.

The cause is therefore remanded with instructions to vacate the entry of August 15, 1950, overruling the defendant’s motion for a new trial, and to then furnish in writing findings of fact and conclusions of law as provided by §11421-2 GC, before ruling on said motion for a new trial.

Exceptions noted. Order see journal.

SKEEL, PJ, McNAMEE, J, HURD, J, concur.


author: By DOYLE, PJ.

text:
    GALLAGHER, Appellant, v. LEDERER et, Appellees.
    Ohio Appeals, First District, Hamilton County.
    No. 7266.
    Decided August 9, 1950.
    Walter K. Sibbald, Cincinnati, for appellant.
    William P. Hohmann, Cincinnati, for appellee Ella Lederer.
    John H. Ileilker, Cincinnati,- for appellee Emma Rick.
    (DOYLE, J, of the Ninth District, and McNAMEE, J, and HURD, J, of the Eighth District, sitting by designation in the First District.)
   OPINION

By DOYLE, PJ.

The record before us contains a deed of conveyance of a right of way over lands owned by the appellant. A part of the instrument reads as follows:

“* * * that Walter J. Gallagher, in consideration of the above covenants which shall run with the land, and the additional sum of $200.00 to him paid by Ella Lederer, does grant, bargain, sell and convey to said Ella Lederer, her heirs and assigns forever, a right of way for ingress and egress, water, gas, electricity and all utility purposes, over the following described real estate, which immediately adjoins the property of said Ella Lederer on the north, and which is described as follows: * * *.
“To have and to hold said easement and right of way to the said Ella Lederer, her heirs and assigns forever.
“The covenants herein set forth shall run with the land and (to) the future owners of the lands described herein and their heirs and assigns.” (Emphasis ours.)

The instrument then contains the signatures of the grantor and the grantee and their respective spouses. The complete execution of the deed of conveyance was in compliance with the terms of the statute.

The covenants, to which references are made in the above grant, are fully set out in Gallagher v. Lederer, 86 Oh Ap 181, at p. 184, and are incorporated herein by reference.

This instrument was duly recorded in Deed Book 2268, at p. 397, of the Hamilton County Records.

The litigation here before us for decision, pursuant to an appeal on questions of law and fact from the Common Pleas Court of Hamilton County, was commenced by the above-named Walter J. Gallagher, and he “prays that said easement agreement be declared to be forfeited; for an order of cancellation thereof, to be recorded in the land records of Hamilton County, Ohio; that said defendants and all persons claiming under them be forever enjoined from using plaintiff’s said land for the purposes described in said easement agreement or for any other purpose; that plaintiff’s title to said land be quieted against any claim of said defendants or any persons claiming under or through them; and for such-other relief as may be proper.”

As a basis for the relief sought, the appellant charges a breach of the covenants, and that, by constructing certain driveways, appellees accumulate surface waters and deposit same on the right of way, to its damage.

It appears that, when this suit was first commenced in the Common Pleas Court, it contained two separate causes of action, and a demurrer was filed and sustained as to each. Upon appeal to the Court of Appeals, the judgment on the first cause of action was sustained, but, as to the second one, the judgment was reversed and the cause remanded.

It is now claimed by the appellant that the decision of the Court of Appeals establishes the law of the case, as follows:

“2. Where the major consideration for a contract for an easement granting a right of way over land consists of promises with reference to the condition and maintenance of the right of way, a petition alleging the failure to keep the promises states a cause of action for equitable relief and is good against demurrer.” Gallagher v. Lederer, 86 Oh Ap 181.

In this connection (without passing on the merits of the claim of “law of the case”), it is observed that the plaintiff’s petition pleaded parts only of the instrument creating the easement, and, from the petition (which was the only thing before the court), that court construed it as pleading “a contract for an easement” with a possible condition subsequent.

We do not here question the soundness of that decision, based upon that court’s interpretation of the language of the petition. We are not now called upon to determine the sufficiency of the pleading. That has already been done. It is our province only to determine from the evidence whether the appellant is entitled to relief; and, in making this determination, we look only to the evidence before us, submitted in the light of the pleadings.

As we view the instrument before us, we find it is entitled “Grant of Easement,” and that it contains all of the essentials necessary to convey to the grantee the rights and privileges therein set forth. It is an express grant of a right to the use of real property, and is executed with all of the legal formalities of a deed of conveyance. The instrument does not contain language indicating a condition subsequent, nor a right to forfeiture or reverter. It is a rule of universal application that no deed or grant will be construed as creating such a condition, unless language to that effect is clear and leaves room for no other construction.

It is to be further noted that the parties themselves expressly called the provisions in the instrument of conveyance “covenants,” and the use of this legal term is indeed significant of their intention. While this language standing alone would not make such provisions “covenants,” it has an important bearing on the intention of the parties, for the reason that technical terms in a conveyance are presumed to have been used with their accustomed meaning, unless the circumstances and context indicate a different intent.

It is the conclusion of the members of this court that the grant is absolute, and that the promises of the grantee are covenants and not conditions subsequent; that the alleged failure of the grantee to fulfill the promises and agreements which entered into the execution of the grant and which were to be performed in the future, even if true, are not sufficient grounds, in the absence of fraud, to justify a court of equity in rescinding an executed grant of an easement appurtenant. This is especially so in the absence of language importing a right to a forfeiture or reverter.

See: City of Cleveland v. Herron, 102 Oh St 218.

A journal entry will be prepared denying the relief prayed for, and dismissing the petition.

McNAMEE, J, and HURD, J, concur.


text:
    DIAMOND ALKALI COMPANY, Appellant, v. COUNTY BOARD OF REVISION, Appellee.
    Board of Tax Appeals.
    No. 17747.
    Decided January 22, 1951.
   ENTRY ’

This cause and matter came on to be heard and considered by the Board of Tax Appeals upon an appeal filed herein under date of April 25, 1950, by the Appellant above named from a final order of the County Board of Revision of Lake County, Ohio, and denying a complaint theretofore filed by the appellant with said County Board of Revision requesting said Board to remove from the County Auditor’s list of taxable real property and tax list duplicate of said County for the tax year 1948 certain items of property on the stated ground that such items were personal property and not taxable on the real property lists and duplicate of the' County. The case was heard and submitted to the Board of Tax Appeals upon said appeal, the transcript of the proceedings of the County Board of Revision herein complained of, and upon the evidence offered and introduced by and on behalf of the appellant, in the hearing of the case' before the Board and upon the Brief of Counsel for the appellant. No appearance was made for, or on behalf of, the County Board of Revision or by the County Auditor at this hearing.

The complaint filed with the County Board of Revision, other than the memorandum attached to and made a part thereof, is in words and figures as follows:

“To the County Board of Revision Lake County Painesville, Ohio Complaint as to Assessment of Real Property

Comes now Diamond Alkali Company, a Corporation organized and existing under the laws of the State of Delaware and duly authorized to carry on business in the State of Ohio, and requests said County Board of Revision of Lake County, Ohio to remove from the County Auditor’s list of taxable real property and duplicate for the tax year 1948 the following manufacturing equipment:

DIAMOND ALKALI COMPANY

/s/ W. A. Crichley

W. A. Crichley, Controller”

This complaint was denied by the County Board of Revision of said County by an order of said Board under date of March 6, 1950, which was certified to the appellant under date of April 1, 1950. This order of the County Board of Revision was apparently made without the offer of any evidence, documentary or otherwise, in support of or in connection with this said complaint;

Upon consideration of the case as same is submitted to the Board of Tax Appeals, the thought is suggested that there is some question as to whether the County Board of Revision was required or even authorized to consider and determine this complaint; and this, by reason of the fact that this complaint was not verified by oath as required by the provisions of §5601 GC. And in this connection it is suggested that the complaint might have been in better form if such complaint, properly verified, had set out the amount of the assessed valuation of the parcel or parcels of land on which such items of property were located, and the amount of the excessive valuation thereof, by reason of the fact, as claimed, that such items of property were personal property, and had requested the County Board of Revision to make an adjustment of the assessed valuation of such parcel or parcels by excluding therefrom the items of property here in question and the aggregate valuation thereof. This, in substance, was the form of the complaints in the several proceedings reviewed by the Supreme Court in the cases of Standard Oil Co., v. Zangerle, County Auditor, 133 Oh St 33, and State, ex rel. O’Connor v. Austin, County Auditor, 140 Oh St 7. However, no question was made as to the legal sufficiency of this complaint, either as to its execution, form or content, on the hearing of the case before the County Board of Revision; and no question is here made by any of the parties in interests with respect to this matter. In this situation, and by reason of the fact that the County Board of Revision apparently determined said complaint on its merits with respect to the questions thereby presented, this Board, giving effect by analogy to the rule noted in the case of Drake v. Tucker, 83 Oh St 97, and in many subsequent decisions of the Supreme Court of this State, does not feel it can do otherwise than to determine the questions herein presented on the record and evidence heard before it.

It appears from the evidence in this case that the items of property here in question are component parts of an integrated plant owned and operated by the appellant company at or near Painesville, Ohio, in which plant it manufactures alkali products, heavy chemicals, cement, coke, chromate products, chlorine and other related products. The plant property extends for about a mile along the shoreline of Lake Erie and comprises about 640 acres of land upon which have been erected and constructed about 75 buildings of various sizes and dimensions in which the activities of the company are carried on. The pumps referred to as Item 1 of the complaint are ten in number and are housed in a building along the lake front. These pumps or pump units which are set on separate foundations and each of which weighs from 5 to 7 tons, are used for the purpose of pumping water from the lake into the plant where it is used for various processing operations; and a part of such water is tapped off and is forced at extremely high pressure by certain other pumps, not here in question, through wells to salt deposits about 1900 feet below the surface of the ground, and by means of which salt brine is brought to the surface for use in the manufacture of many of the company’s various products. One or more of the pumps here in question are used in connection with the low pressure boilers in the plant, referred to as Item 10 of the complaint. All of these pumps are used solely in connection with the various operations of the plant as a whole; all of them are readily removable from the several foundations on which they are placed. Each of the lime kilns, ten in number, which are referred to as Items 2 and 3 of the complaint, is a large vertical steel shell 22 feet in diameter and 80 feet high. The steel shell is five-eighths of an inch thick and is lined on the inside by refractory brick and sand about 23 inches thick. The weight of this structure rests upon the kiln foundation through a number of supporting columns which are fastened to the foundation. The lime is charged into the kiln at the top through a bell, as is the coke, by means of which and of a draft of air from the bottom of the kiln the lime is burned as it descends in the kiln. From the evidence it appears that the refractory brick in the kiln have to be removed and replaced at intervals; and that the whole kiln is readily removable by taking the same down from the top. It likewise fairly appears from the evidence that these kilns and the burned lime products therein are used solely in the manufacture of the end products produced at this plant. Some of the boilers referred to in the complaint are low pressure units while most of them generate steam at extremely high pressures. The low pressure boilers are standby units which are used when one or more of the other boilers are, for any reason, not in use. The high pressure boilers generate steam for use in steam turbine operated generators and pumps; the exhaust steam from which turbines, which is still at substantial pressure, is used for other operations in the plant, and an extremely small portion of which is sometimes used at low pressure for the purpose of heating the plant and the several buildings thereof. Each and all of these boilers are readily removable from the several foundations on which they are set. As to the generators referred to in the complaint some of the same, as above noted, are operated by steam turbines. These generators are used for the purpose of producing electric power which is entirely used by the appellant company in its manufacturing operations at this plant. Some of these generators are motor operated; and these generators are used solely for the purpose of converting alternating current to direct current. The turbine generators generate alternating current, electric power which has to be changed to direct current for use in an electrochemical plant of this kind. These generators, like the other items of property above referred to, rest on their several foundations and are readily removable. The main power panelboard, noted as Item 6 in the complaint, is a part of the electric power distribution system of the plant; and is used solely in connection with the operation of the plant. From the evidence, it appears that the whole of this panelboard is removable with the exception of certain conduits in the wall and in the concrete floor. Although such conduits cannot be removed without injury to that part of the building, they are absolutely of no value whatever to the building as real property separate and apart from their use in carrying the electrical wiring used in the operation of the plant. The use of the water treating and water softener equipment, referred to as separate items in the complaint, is, perhaps, sufficiently indicated by the name. And the refuse conveyor, likewise referred to as an item in the complaint, is used for the purpose of carrying away seaweed, leaves, and other debris after the same has been taken from the water by the equipment above referred to. From the evidence in the case, it appears that these items of property like some of the more ponderous items above referred to are readily removable.

With respect to each and all of the items of property noted in the complaint filed by the appellant with the County Board of Revision, it may be said that same were erected and installed on the premises solely for use in the manufacturing operations carried on by the company at this plant; and in no case were such items of property erected or installed as accessions to the real estate as such. And in this view, none of the items of property here in question can be considered as an improvement on land within the provisions of Section 2 of Article 12, of the State Constitution or within the purview of §5388 GC. In this situation, it is apparent that by Secs. 5386 and 5388 GC and related sections in General Code, provision is made for the taxation of this property as implements used in manufacturing and as personal property. And inasmuch as the taxation of these items as implements used in manufacturing and as personal property has been thus specially provided for, they are excepted from the provisions of §5322 GC, which might otherwise, conceivably, have the effect of making some of these items real property for purposes of taxation.

With respect to the question here presented, the several items of property here in question cannot be distinguished on principle from that under consideration by the Court in the cases of Zangerle, Auditor, v. Standard Oil Company of Ohio, 144 Oh St 506; Standard Oil Company v. Zangerle, Auditor, 144 Oh St 523; Zangerle, Auditor v. Republic Steel Corp., 144 Oh St 529; and Roseville Pottery, Inc., v. County Board of Revision of Muskingum County, 149 Oh St 89, wherein the several items of property involved in these cases were held to be personal property for purposes of taxation. The decisions of the Supreme Court in the several cases above noted were followed by the Board of Tax Appeals in its recent decision in the National Tube Company Case No. 13164 on the docket of this Board.

On the considerations above noted the Board of Tax Appeals feels that the items of property here in question were and are personal property for purposes of taxation, and that, for this reason, the County Board of Revision of said county erred in denying the complaint filed by the appellant with said Board; and it is by the Board of Tax Appeals considered and ordered that the order of the County Board of Revision denying said complaint, be and the same hereby is reversed.

Sec. 5611-1 GC provides that in the case of an appeal from a decision of a County Board of Revision the Board of Tax Appeals shall ascertain and determine the true value in money of the property, the valuation of assessment of which as determined by the County Board of Revision is complained of, and shall determine the liability of the property for taxation, if that question is in issue. The Board of Tax Appeals has determined here in that the items of property here in question are personal property and are not taxable as a part of the plant real estate; and it follows that the valuation of this property cannot be legally included in the building valuation of the plant property or of the parcel or parcels comprised in this plant. Inasmuch, however, since there is no information in the complaint or otherwise in the transcript, or in the evidence in this case as to the assessed land and building valuation of the plant property for the tax year 1948, this Board is unable to determine the taxable land and building valuation of the plant and of the parcel or parcels comprised therein by excluding from the assessed building valuation of the plant for said tax year the valuation of the items of property here in question which are found to be personal property and not taxable as real estate. In this situation, it is by the Board of Tax Appeals further considered and ordered that this case be remanded to the County Board of Revision and to the County Auditor to the end that said County Auditor may determine and reassess the land and building valuation of the appellant company’s real estate in this plant by excluding from the assessed building valuation of the plant property for said tax year the valuation of the several items of property noted in the appellant’s complaint, which items, as above indicated, are herein found to be personal property and not taxable on the real property list and duplicate of the County.

I hereby certify the foregoing to be a true and correct copy of the action of the Board of Tax Appeals of the Department of Taxation, this day taken with respect to the above matter.

Joseph D. Bryan

Secretary


author: By HURD, J:

text:
    PAULL, Estate of, In re: RUSSU, Executrix, Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21711.
    Decided November 20, 1950.
    Fred H. Mandel, Judson Herns, Cleveland, for plaintiffappellee.
    Davis, Davis & Handelman, Cleveland, for defendant-appellant.
   OPINION

By HURD, J:

This is an appeal on questions of law from an order of the Probate Court removing the appellant, Lucretia Russu, as Executrix of the estate of Henry Pauli, deceased. The principal ground of error assigned is the refusal of the court to hear evidence on the issues joined upon the application for removal and opening statements of counsel.

The record shows that the appellant is the sole devisee and the executrix named in the will of the decedent; that the State of Ohio through the Division of Aid for the Aged is the sole remaining creditor by reason of a judgment obtained against the executrix in the sum of $1904.40 for aid and assistance furnished during the lifetime of the decedent; that the only asset of the estate is a parcel of real property consisting of a single frame dwelling house located at 3068 Erin Avenue in the City of Cleveland, valued at $3000.00, according to the inventory and appraisal filed in the estate.

The application for removal of the executrix was filed by special counsel for the Attorney General of Ohio under the provisions of §10506-53 GC, ten days notice thereof having been given as required by law. It sets forth as the principal ground for removal “that she has been guilty of gross neglect of duty and inexcusable delay in closing the estate *** that the partial account of the executrix did not contain a statement of funds collected by her as rental of the real estate and that the executrix has taken no steps to sell the real estate to pay the debts due.

The bill of exceptions shows that upon the hearing of the application for removal, the executrix appeared with counsel to defend against the charges made against her. Opening statements were made by counsel for the Attorney General and by counsel for the executrix.

The opening statement of special counsel for the Attorney General charged that no steps had been taken by the executrix to sell the real estate to pay the judgment, obtained by the Division of Aid for the Aged of the State and that the account of the executrix did not contain funds collected by her as rental of the real estate devised to her by will.

The opening statement of counsel for the executrix denied that there were any funds unaccounted for belonging to the estate, so that a sharp issue was made on this charge. Counsel admitted that proceedings to sell the real estate to pay the claim of the State had not been commenced but gave as the reason justifying the executrix in not proceeding with the sale “that at the time the motion was filed and for some time past he had been in negotiation with the Division of Aid for the Aged for a compromise settlement of the claim, in view of the fact that the value of the property is such that in a forced sale the creditor would not get the amount claimed by it and that a compromise settlement would be for the best interest of all concerned; that the first proposal made by him was rejected but he had made a further proposal to W. E. Lawler (representing the Division of Aid for the Aged of the State of Ohio) who agreed * * * that the Division of Aid for the Aged would not insist on a sale until the settlement proposal was 'exhausted and that he would notify * * * counsel for the executrix as soon as he had heard from his superior in Columbus; that it was understood with Mr. Lawler the land sale proceedings would be withheld until he notified counsel in order to save the hundreds of dollars of expense which would be incurred in a land sale proceeding.” Counsel added that Mr. Lawler was present in court and that he would like to put him on the stand along with other witnesses and confirm his claim that the delay in commencing land sale proceedings was for all practical purposes intended to serve the best interest of the estate. The Bill of Exceptions shows that the trial judge then stated that he would hear no witnesses on either side in view of the statements of counsel and thereupon ordered the removal of the executrix.

No grounds for removal are stated in the court’s journal entry ordering the removal, other than “the court being fully advised in the premises finds that the statements contained in said application are true.”

The sole question presented on this appeal is whether the court erred prejudicially to the rights of the appellant in refusing to hear evidence upon charges contained in the application for her removal as executrix.

At the out-set it should be noted that the allegations contained in the application for removal are not evidence, neither are the opening statements of counsel to be considered as evidence. Consequently, we must conclude that there was no evidence before the court in support of the application for removal upon which to base a judgment.

The applicable part of §10506-53 GC (as amended effective August 22, 1941) providing for resignation or removal of fiduciary reads as follows:

“The probate court at any time may accept the resignation of any fiduciary, upon his proper accounting, if such fiduciary was appointed by or is under the control of, or accountable to, such court.
“If a fiduciary fails to make and file an inventory in the manner and within the time required by law, or to render upon oath a just and true account of his administration at the time or times required by law, and if such failure continues for thirty days after he has been notified by the probate court of the expiration of such time, the fiduciary may forthwith be removed by the court and shall receive no allowance for his services unless the court enters upon its journal that such delay was necessary and reasonable.
“The probate court may remove any such fiduciary, he having not less than ten days’ notice thereof, for habitual drunkenness, neglect of duty, incompetency, fraudulent conduct, because the interest of the trust demands it, or for any other cause authorized by law.”

Sec. 85, 18 O. Jur., Executors & Administrators pages 127, 128, contains in part the following statement:

“When an executor is once appointed, a removal cannot be had except for the reasons and upon the grounds set out in the statute and these alone, and in the manner prescribed. Certain causes for the removal of executors or administrators are specified in the general statute as to fiduciaries. ‘Habitual drunkenness, neglect of duty, incompetency, fraudulent conduct, because the interest of the estate demands it, or any other cause authorized by law.’ ”

In support of the text, the case of Fox v. Keister, 6 O. N. P. 327, 9 O. D. 316, affirmed without opinion by the Circuit Court, is cited. In that case at page 327 the court states:

“Upon the filing of such application for removal, the court must give due notice that such application has been made and that such executor or administrator is required to appear and show cause why his authority should not be revoked. 21 Enc. of Law, 360, Note 1. And the court cannot remove such executor or administrator, unless such petitioner for the removal has fully established his cause by proper evidence.”

In another opinion in the same case, involving the same parties reported at 6 O. N. P. 216, 8 O. D. (N. P.) 636 at pages 217, 218, the court says:

“It seems to me equally clear that when once appointed, a removal cannot be had except for the reasons and upon the grounds set out in the statute and these alone, and in the manner prescribed. This doctrine will be undisputed I think. It is so laid down in 1st Woerner, Sections 268, 271 and 272; and cases cited; and in the Encyclopedia of Law, under the title of Revocation, 21 Enc. of Law, 360, after the preliminary remarks, the authority says: ‘The court cannot remove an executor or administrator without giving him due notice that an application for that purpose has been made to the court. He must, in most all states, be cited to appear to show cause why his authority shall not be revoked. And upon a hearing the petitioner must establish his case by proper evidence.’ 21 Enc. of Law 362.”

In the case of Estate of Justin Breckenridge, deceased, Vol. 7, Cir Ct. Rep. (N. S.) 86, in an opinion by Henry J, concurred in by Winch and Marvin, JJ, the court at page 88 says:

“It is urged, however, that the statute under consideration is remedial in its nature and should be liberally construed so that upon the mere suggestion of fraud, or, at least upon the proof of facts showing that there may arise a bona fide controversy or litigation of the sort contemplated by the statute, the executor may be removed and deprived of his vantage ground and the issue litigated before a court and jury as an adversary action in the same manner as other civil actions and subject to the same rules of evidence. “We can not agree that the statute contemplates such an ex parte or summary proceeding for an executor’s removal.
“It must at least be made to appear that the claim made is on its face meritorious and the executor should be permitted to show, if he can, that it is without merit. Any other construction would be harsh and oppressive.
“We think the court below erred in excluding the evidence offered by the executor, and in concluding as a matter of law upon the facts found that there are unsettled claims and demands existing between said W. B. Durand and said estate which may be the subject of controversy or litigation between said Durand and said estate, or persons interested therein. For these errors the judgment of the common pleas court is reversed and the cause remanded for further proceedings.”

It should be observed that since the rendition of the decisions in cases above cited and quoted, the statute has been amended to provide for the removal of a fiduciary if he fails to make and file an inventory in the manner and within the time provided by law as set forth in the second paragraph of §10506-53 GC supra. This ground is not set forth in the application for removal and was not assigned as a ground in the order of removal. In respect of the inventory and appraisal, the record shows that there was a delay in filing the inventory and appraisal. The record shows also that the court appointed three appraisers on March 24, 1947, including one J. H. Zinner and the court thereafter found on August 8, 1949, that said J. H. Zinner was unable to serve as such, and appointed another appraiser to take his place. After the appointment of the substitute appraiser the inventory and appraisal was filed August 22, 1949 and approved by the court.

In oral argument, counsel for appellee cited the case of In re Trust of Marshall, 78 Oh Ap 1, which holds inter alia that a broad discretion is given the Probate Court in the removal of a fiduciary, under the provisions of §10506-53 GC, and emphasizes that a fiduciary may be removed “because the interest of the trust demands it.” Undoubtedly this is a correct statement of the law but an examination of the opinion in that case clearly shows that the Probate Court heard evidence on the motion for removal and on the basis of that evidence entered an order removing the trustee. Whereas, in the instant case, the Probate Court refused to hear evidence. The opinion in that case by Wiseman, J, concludes:

“For this court to reverse the judgment of the trial court it would be incumbent upon this court to find that the trial court after hearing all of the evidence abused, its discretion in ordering the removal of the appellant.” (Emphasis ours.)

We have heretofore alluded to the proposition that the executrix herein is the sole legatee and devisee under the will of decedent, and that the State of Ohio, through the Division of Aid for the Aged is the sole creditor. Other than its interest as a judgment creditor the State of Ohio has no interest in this estate. Once its claim or judgment is satisfied, settled or discharged, the assets of the estate are the sole property individually of the appellant. Under this factual situation we think the appellant was entitled to present evidence in support of her claim that her delay in commencing land sale proceedings of the single piece of real property appraised at only $3000.00 for a debt approximating $2000.00, was due to the agreement to that effect of the Division of Aid for the Aged, for the purpose of avoiding a forced sale of the real estate. Sec. 10506-53 GC provides for ten days notice for removal of a fiduciary on any of the specific grounds set forth in paragraph 3 of the statute and by clear implication contemplates a hearing, and a hearing contemplates that evidence shall be presented.

The situation here presented is most unusual in that one department of the state government, the office of Attorney General, and another department of the state represented by the Division of Aid for the Aged is in apparent conflict in respect of the procedure to be followed in the disposition or settlement of the only claim against this particular estate, if the proffer of proof on behalf of the executrix should be sustained.

Under these unusual circumstances as shown by the record it appears to us that a summary removal of the executrix without a hearing is not consonant with the applicable statutory provisions nor in accord with the weight of authority in Ohio.

For the reasons stated, we are of the opinion upon reason and authority that it was error prejudicial to the rights of the executrix, appellant herein, to cause her removal without according a hearing and the opportunity to present evidence on the issues joined.

The judgment will therefore be reversed and the cause remanded for further proceedings according to law. Exceptions. Order see journal.

SKEEL, PJ, McNAMEE, J, concur.