author: By HURD, J. McNAMEE, J.:

text:
    HEALD, Plaintiff-Appellant, v. GOEBEL et, Defendants-Appellees and YOUGHIOGHENY & OHIO COAL CO., Garnishee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21998.
    Decided August 16, 1950.

      Bulkley, Butler & Pillen, Cleveland, for plaintiff-appellant.
    Squire, Sanders & Dempsey, Cleveland, for defendants-appellees.
    (PHILLIPS, J, of the Seventh District sitting by designation in place of SKEEL, PJ.)
   OPINION

By HURD, J.

This is an appeal on questions of law from an order of Common Pleas Court of Cuyahoga County wherein the trial court granted separate motions to discharge attachments and overruled separate motions for new trials. The plaintiff and the two individual defendants are nonresidents of the state of Ohio, all being residents of Ligonier, Pa.

The record shows that on May 9, 1950, the plaintiff filed suit in Cuyahoga County alleging that the defendants were indebted to him in the sum of $10,291.40 asserting among other things that said individual defendants were “associated together and doing business as coal producers and brokers, sometimes trading under the name and style of Green Valley Coal Company, Ligonier, Pennsylvania.” Plaintiff further alleged that the third party. defendant, the garnishee herein, was an Ohio corporation with its principal office in the city of Cleveland.

Contemporaneously with the filing of its petition, plaintiff filed an affidavit in attachment on the ground of non-residence alleging that the corporate defendant “is indebted to one or both defendants” and that said indebtedness of defendant, Youghiogheny & Ohio Coal Company to defendants is an asset of defendants in Ohio. Plaintiff further alleged that the affidavit of attachment was made in conformity with §11820 GC for the purpose of procuring an attachment against defendants in the State of Ohio at the commencement of the action. At the same time, an affidavit for service by publication was filed.

In pursuance of plaintiff’s affidavit, the Clerk of Common Pleas Court issued an order of attachment without bond against the defendant garnishee, Y & O Coal Company, in accordance with the order of attachment, the garnishee advised the clerk of court by letter that it was indebted to the defendant, Bernard J. Goebel, in the total net amount of $10,853.16 and that it was indebted to Green Valley Coal Company in the amount of $26.00 and that it had no indebtedness to defendant, John M. Lee, and that the said sums would be held pending further order of the Court.

Thereafter, the individual defendants appeared specially and solely for the purpose of the motions and without submitting themselves to the jurisdiction of the Court filed separate motions to discharge the attachment as to each of them.

Upon due notice a hearing was held July 14th, on the motions to discharge the attachment. Upon said hearing, counter affidavits of the defendants were filed and introduced in evidence and considered by the trial court. The counter affidavit of the defendant, Goebel, denied the allegations of the plaintiff as contained in the petition and traversed directly the statements set forth in the affidavit of attachment. He set forth in substance that he did not then have and never had any dealings with the plaintiff; that he had never been associated with the defendant, John M. Lee, in the business of Coal broker or producer and that he had never traded under the name of Green Valley Coal Company and had no interest or connection whatsoever with said company and that he was not indebted to the plaintiff in any sum whatsoever. Likewise, the defendant, Lee, filed a counter affidavit in which he deposed and said in substance that he was an individual doing business under the name of Green Valley Coal Company, that the trade name had been duly registered in the state of Pennsylvania, that the defendant, Goebel, had no interest or connection whatsoever with the business conducted by said affiant, under the trade name of Green Valley Coal Company and that the defendant, Goebel, was not connected with said affiant in any of the transactions between the plaintifl and the affiant or between Heald Coal Company and Green Valley Coal Company. In short, his statement corroborated completely the allegations of fact contained in Goebel’s affidavit. However, the affiant, Lee, stated that he himself had done business with Heald Coal Company, the trade name of the plaintiff, which to the best of his knowledge had not been registered in the state of Pennsylvania and then alleged that there was not due or owing to the plaintiff herein any sum whatsoever from the affiant or from Green Valley Coal Company, and that the plaintiff had failed to set forth as credits on account “at least three payments to Heald Coal Company from Green Valley Coal Company in the total amount of $16,081.44.

Supporting said affidavits there was filed and introduced in evidence the certificate of the Secretary of the Commonwealth of Pennsylvania, certifying that defendant, John M. Lee, carried on a business under the name and style of Green Valley Coal Company at Ligonier, Pa. and that he was engaged in the business of operating coal and coal lands, buying and selling coal, inspecting coal for shipment and the certificate of the Prothonotary of Westmoreland County, Pa., certifying that there had been filed in his office the certificate provided for in the act of the general assembly above described.

The bill of exceptions sets forth the fact that the plaintiff was present in the court room at the time of the hearing on the motion to discharge the attachment, but did not take the witness stand to offer testimony contradicting the allegaions contained in the counter affidavits of the defendants.

By Journal Entry dated July 24, 1950, trial court granted the motion of the defendant, Goebel, to discharge the attachment and ordered the garnishee to release all-of the attached funds of defendant, Goebel, to the said defendant and allowed the plaintiff to July 28, 1950, to file his appeal to this court provided that with such appeal the plaintiff give bond to the defendants with surety to be approved by the Clerk of the Court of Appeals in double the amount of the appraised value of the property which had been attached, conditioned to pay said defendant in the manner provided by law.

A motion for new trial having been filed, the same was overruled July 27th, at which time the trial court by journal entry again ordered the garnishee to release all of the attached funds of Bernard J. Goebel, as well as the attached funds of Green Valley Coal Company to each of them respectively and then extended the time for appeal to August 4, 1950 under the same conditions set forth in the previous order above-described. The plaintiff appellant then appealed to this court, but has not up to this date posted bond as ordered by the trial court conditioned upon the appeal to this court.

The case here was advanced for hearing on application of plaintiff appellant at which time the defendant appellees again entered their appearance specially and solely for the purpose of the motions without submitting themselves to the jurisdiction of this court and each filed separate motions to dismiss; the first motion on the ground that this court is without jurisdiction to hear this appeal and the second for failure of plaintiff appellant to comply with the journal entry appealed from by filing bond in accordance with the order of the trial court. The case is now before us on said motion of defendant appellees to dismiss and upon the appeal of the plaintiff appellant.

The assignments of error are as follows:

“1. The trial court erred in granting the separate motions of defendants to discharge attachment.
“2. The trial court erred in entering its order having the effect of terminating the jurisdiction of the court over the defendants when the plaintiff had not had. his day in court, and defendants, electing to enter only a special appearance, waived their right to deny plaintiff’s allegations, or to demur.
“3. The trial court erred in its order requiring the plaintiff to file an appeal bond in a sum double the amount of the appraised value of the property attached.
“4. Other errors manifest on the face of the record.”

It should be observed at the outset, that whatever jurisdiction is had either by the trial court is solely in rem. The defendants being non-residents, the only way in which the trial court acquires jurisdiction over the defendants is by the seizure of property lying within the territorial jurisdiction of the court under the order of attachment. Thus, there can be no judgment in personam but in rem only and any judgment rendered could have no effect beyond the appropriation of the attached property to the satisfaction of the debt and costs. See District Co. v. Galsworthy, Inc., 148 Oh St 567.

It has been the contention of the plaintiff appellant in substance both in oral argument and by way of brief that on the motion to discharge attachment the trial court should have considered only the proposition of non-residence of the defendants and that being admitted, the motion to discharge the attachment should have been overruled.

The attachment at the commencement of the action was secured through the Clerk of Court without the intervention of a judge or an order of the court under favor of §11820 GC, which provides in substance that an order attachment shall be made by the Clerk of Court in which the action is brought in any case mentioned in §11819 GC, when there is filed in the office of the clerk an affidavit of the plaintiff, his agent, or attorney, showing the nature of the plaintiff’s claim, that it is just, the amount which the affiant believes the plaintiff ought to recover and the existence of any one of the grounds or attachment enumerated in said §11819 GC.

Sec. 11819 GC provides that in a civil action for the recovery of money, at or after its commencement the plaintiff may have an attachment against the property of the defendant upon any of the grounds therein mentioned and ground two is that the defendant “is not a resident of this state.” The last paragraph of §11819 GC specifically provides that an attachment shall not be granted on the ground that the defendant is a non-resident of the state for any claim other than a debt or demand arising upon contract, judgment or decree or for causing damage to property or death or personal injury, by negligent or wrongful act. In this case, as indicated, the plaintiff predicates its right of attachment on the ground that defendants are non-residents and that the debt or demand is one arising upon contract. It follows therefore that unless the plaintiff shows by the requisite degrée of proof that his debt arises upon contract, his right of attachment must fail. To hold otherwise would be in direct contravention of the express terms of the statute which gives rise to the right of attachment. Non-residence alone is not sufficient. There must perforce co-exist as a right of attachment one of the conditions set forth in the last paragraph of §11819 GC. Therefore, where the plaintiff relies upon non-residence as a ground for attachment in respect of a claim arising on contract, the latter is a condition precedent which must be sustained by the plaintiff on a hearing to discharge the attachment secured in the first instance on these grounds. The claim that the court may not inquire into this condition precedent upon the assertion that the court will be going into the merits of the original case to which the defendant has not pleaded over is therefore untenable.

As noted in 40 O. Jur. Sec. 209 commencing at page 273 under heading of “Attachment”—

“It would seem obvious, however, that an attachment would be discharged on ¡the ground that the action was not one of the class of actions in which an order of attachment may be obtained. Thus, it might be alleged that the action was not upon a claim arising upon a contract, judgment, or decree although the attachment was obtained upon the ground of non-residence.”

The majority of this court therefore holds that nonresidence alone is not sufficient to sustain an order of attachment at the commencement of the action but that the provisions of §11819 GC require the existence of one or more of the conditions enumerated therein as a condition precedent before an attachment can be sustained where the same is challenged upon hearing of a motion to discharge.

. We come next to a question more or less procedural in character which relates to the burden of proof upon such a hearing. From the earliest days the rule in Ohio has been that the burden of proof is upon the plaintiff seeking the attachment at the commencement of an action. See Coston v. Paige, 9 Oh St 397, the second paragraph of the syllabus of which is as follows:

“The charge thus made, if denied by the defendant, must be sustained by the plaintiff to the satisfaction of the court; upon the plaintiff, by the denial, is thrown the burden of proof.”

This proposition was concurred in by a unanimous court although Peck, J. dissented as to the first paragraph of the syllabus, the import of which is not in issue here. At page 398 of the opinion, we find the following cogent language by Gholson, J.:

“We have examined the affidavits as to the truth of the facts charged in the affidavit, in assigning the reasons for his decision, upon that part of the motion, the judge of the court of common pleas appears to have supposed that, the charge being made, it must be disproved by a clear preponderance of evidence, thus assuming that the burden of proof in such a case was thrown on the defendant. To this reasoning we can not assent. If the charge be made by the plaintiff and denied, and nothing appears to authorize greater credit to be given to the statements of the plaintiff than to those of the defendant, the attachment ought to be discharged. When the charge is made and denied, the burden of proof is, we think, thrown on the plaintiff, and he ought to satisfy the court that the charge he has made is well founded.”

We are unable to find any disapproval of this case by later Supreme Court decision. On the contrary the doctrine has been supported in cases dealing with the subject. See 4 O. Jur. on “Attachment,” p. 280, Section 216 and numerous cases thereunder cited including Coston v. Paige, supra, and Seville v. Wagner, 46 Oh St 52, the second paragraph of the syllabus of which is as follows:

“Where the weight of the evidence is the only question presented by such bill of exceptions, this court will not enter upon its review, or disturb the judgment of the court below thereon; but when the party against whom an order of attachment is obtained, in support of his motion to discharge the same, by his affidavit denies the ground of the attachment stated in the affidavit therefor, it devolves upon the party procuring the attachment, to establish such ground by proper evidence; and whether there is any evidence tending to sustain it, is a question of law, which the parties may have determined .by this court.”

To the same effect are the Court of Appeals cases of Morelli v. Thombs, 35 Oh Ap 233 and McCray Refrigerator Sales Corp. v. Logan, 36 Oh Ap 201. The latter case was decided by this Court May 5, 1930. The second paragraph of the syllabus thereof is as follows;

“On motion to dissolve attachment, where defendant introduced counter testimony, and plaintiff relies solely on affidavit, attachment must fail.”

At pages 203-4 of the same case, Sullivan, J. speaking for a unanimous court said:

“It is a well-settled proposition of law that, where there is counter testimony in a motion to dissolve an attachment, in the absence of further testimony on the part of the party attaching, the claim for attachment must fail. The reason for this is that the assertion of fact in the affidavit is mainly for the purpose of securing the attachment and not for the purpose of creating testimony as to any issue of fact that may arise thereon, unless additional testimony is offered.”

The same rule applies in many other jurisdictions where-there are comparable statutes, but we believe that it is sufficient for the purpose of this opinion to confine our consideration to the law of Ohio.

The only case cited contra by plaintiff appellant is Ascherenka v. Lonsdale Manufacturing Co., 20 Oh Ap 123. An examination of this case discloses that it is not at point in respect to this proceeding. The question there raised applied directly to the merits of the original case as indicated by the opinion of Buchwalter, J. and as appears by the second syllabus:

“The grounds stated in a motion to discharge an attachment, that plaintiff had entered his appearance and elected to pursue his remedy in a chancery court of another jurisdiction and was enjoined by said chancery proceeding from prosecuting his claim against defendant in any other cause are matters of defense and cannot be presented on a hearing on such motion to discharge.”

Coming now to apply the law to the evidence as set forth in the record herein we find that the affidavit of the plaintiff to secure the attachment was more than counterbalanced by the affidavits and supporting certificates filed on behalf of the defendant, Goebel, to the effect that the claim of the plaintiff did not arise and could not have arisen upon contract, either express or implied so far as the claim of plaintiff against defendant, Goebel, is concerned.

As previously indicated, the affidavit of the defendant, Goebel, is supported not only by the affidavit of the defendant, Lee, but is further supported by the certificate of the Secretary of Commonwealth of Pennsylvania certifying to the use of the fictitious name of Green Valley Coal Company by John M. Lee alone showing no relation of the defendant, Goebel, with said enterprise carried on under said fictitious name.

In this state of the record, “the burden of proof was thrown” upon plaintiff to sustain his claim for attachment against the defendant, Goebel, by producing further evidence. This, the plaintiff failed to do although present in the court room at the time of the hearing.

Therefore, we conclude that the order of the trial court granting the motion to dissolve the attachment as to the defendant, Goebel, must be affirmed and the attachment as to him discharged.

In relation to the defendant, Lee, it will be noted that the garnishee answers that it has no indebtedness to him, but that there is- a credit in favor of the Green Valley Coal Company, a fictitious trade name of defendant, Lee, in the amount of only $26.00, a sum obviously not within the jurisdiction of Common Pleas Court which in civil actions has original jurisdiction where the sum exceeds the exclusive jurisdiction of Justices of Peace, which is limited in amount to $100.00. This action being in rem only, no jurisdiction is acquired over the defendant, Lee.

Before concluding, we wish to make reference to the four separate motions of defendant appellees to dismiss this appeal.

The contention is made by defendant appellees, that no bond having been filed by plaintiff either in compliance, with the journal entry of the court of common pleas or at any other time, this court has no jurisdiction to hear this appeal from the motion dissolving an attachment on the ground that the statutes granting the right to an order of attachment require a bond to be filed by the person seeking the attachment at any time, the trial court may order it as a prerequisite to further prosecution of the attachment.

The further claim is made that the provisions of §11866 GC, which in positive language states that “the party who appeals must give a bond to the adverse party with surety to be approved by the Clerk of the Court of Appeals in double the amount of the appraised value of the property attached” are mandatory and the plaintiff having failed to comply with the order of the Court specifically made as a condition of the appeal, the same should be dismissed. In view, however, of our decision of this case on the merits of this appeal, we deem it unnecessary to pass upon the motions to dismiss.

The judgment of Common Pleas Court granting motions of the defendants to discharge the orders of attachment is affirmed and attachments discharged.

Exceptions allowed to all proper parties. A journal entry may be drawn in conformity herewith.

PHILLIPS, J, concurs; McNAMEE, J, dissents.

See Dissenting Opinion.

McNAMEE, J.:

(Dissenting)

The record discloses that defendants in their affidavits admitted they were non-residents of the State. The other averments in their affidavits traversed the allegations of plaintiff’s petition and included a denial that defendants were associated together in relation to the transactions referred to in plaintiff’s petition and further denials by both defendants, that defendant Goebel, either individually, or as an associate of defendant, Lee, had ever done business with or promised to pay plaintiff for shipments of coal.

Plaintiff took the position that these averments in defendants’ affidavits related to the merits of the principal action and ought not to be considered in a hearing of a motion to discharge the attachment where defendants appeared specially and solely for the purposes of the motion. There is abundant authority to support this position. 4 Am. Jur. 934, Sec. 635; 7 C. J. S. 606, Sec. 416; Asamen v. Thompson, 131 P. second 2 D 839; 55 Cal. App. second 657; Singer v. Schapiro, 43 Atl. second 12; 133 N. J. L. 133; Aurbach v. Grand National Pictures, 29 N. Y. S. second 747; affirmed 31 N. Y. S. second 670; 263 App. Div. 712; Republic Truck Sales Corp. v. Peak, 194 Cal. 492.

There was no indication by the trial court that its consideration of the affidavits of defendants was limited to a determination whether plaintiff could sustain his claim of contractual relations with both defendants as joint obligors. Plaintiff did not testify in support, of the allegations of his petition and affidavit in attachment that there traversed by the affidavits of defendants. However, plaintiff did offer to submit to interrogation by the trial court. The court declined to examine him. In view of these circumstances, the application here of the rule laid down in Coston v. Paige, 9 Oh St 397; Seville v. Wagner, 46 Oh St 52; and Morelli v. Thombs, 35 Oh Ap 233 is unwarranted.

It is settled law that the attachment statutes of Ohio and procedure incident thereto are of a remedial nature and must be construed liberally for the benefit of the attaching party. Northwestern Yeast Co. v. Broutin, 133 F. second 628; Weirick v. Mansfield Lumber Co., 96 Oh St 386; Hart v. Andrews, 103 Oh St 218; Buck v. Smith, 119 Oh St 101.

Assuming this court has jurisdiction on appeal, the attachment ought to be sustained and the cause remanded to the Common Pleas Court for further proceedings on the motion to discharge the attachment to enable the trial court to inquire and the plaintiff to testify in respect of his alleged contractual relations with both defendants jointly.

I am of the opinion also, that upon a hearing of a motion to discharge the attachment under the circumstances disclosed by the record in this case, the plaintiff is not required to sustain the burden of proof on the issue of the alleged contract with both defendants. If, upon a hearing of the motion, the court is satisfied that plaintiff’s claim is fictitious or not supported by credible evidence, the attachment ought to be discharged. However, if plaintiff offers evidence that establishes a prima facie case and a bona-fide dispute between the parties on such issue, the attachment ought to be sustained. Granting that a joint contract is a condition qualifying plaintiff’s right to an attachment against the property of both defendants as non-residents of the State, it is also a matter that relates directly to the merits of the main action and plaintiff is entitled to a determination thereof, upon the weight of the evidence, in a trial by a jury.


source: Caselaw Access Project

author: By MILLER, PJ: By THE COURT:

license: Public Domain

text:
    HARMON, Plaintiff-Appellee, v. LIBERTY CABS, INC., Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2052.
    Decided December 1, 1949.
    Wasserman & Talbot, Dayton, for plaintiff-appellee.
    Curtner & Brenton, Dayton, for defendant-appellant.
   OPINION

By MILLER, PJ:

This is a law appeal from the Common Pleas Court of Montgomery County, Ohio. The errors assigned are all based upon the insufficiency of the evidence introduced on behalf of the plaintiff. The action was one for damages arising out of a collision between two automobiles being operated by the parties hereto. The sole issue presented is whether the plaintiff offered sufficient proof to establish his ownership of the automobile he was driving and which was damaged in the collision. No certificate of title was offered in evidence to establish the plaintiff’s ownership. The appellant relies solely upon the recent case of Mielke v. Leeberson, 150 Oh St 528, which provides:

“Under the plain and unambiguous language of §6290-4 GC, a court cannot recognize the right, title, claim or interest of any person in or to any motor vehicle, without the production of a certificate of title or manufacturer’s or importer’s certificate duly issued in accordance with the Certificate of Title Law, and any other evidence of ownership is not of sufficient weight to sustain a verdict or judgment where title must be proved as a. condition precedent for the validity of such verdict or judgment.”

The appellee contends, and we thing rightly so, that the law announced in the case of Mielke v. Leeberson, supra, has no application as the pleadings and a stipulated agreement entered into at the time of the trial and made a part of the record admits the ownership of the automobile to be in the plaintiff. If this is true no evidence of ownership was required. An examination of the pleadings discloses that the petition alleges that “* * * he (the plaintiff) was driving his 1938 DeSoto, License No. 706 UR.” The material averments of the answer are as. follows:

“Comes now the defendant and for its defense to the petition of the plaintiff herein filed, admits its incorporation as alleged; that on or about the time, date and place an accident occurred wherein the automobile of plaintiff struck the automobile of the defendant.
“Further answering, defendant denies that it was guilty of any negligence in any respect or respects, demanding strict proof thereof.”

The defendant also filed a cross-petition which states:

“* * *; that at said time and said place the plaintiff was operating his said automobile * * *.
“As a direct result of the negligence of the plaintiff herein-above stated, plaintiff’s automobile was propelled into the automobile of the defendant, * *

It will be noted that the answer admits that the automobile of the plaintiff struck that of the defendant. The appellant contends the meaning of this to be that the automobile the plaintiff was driving struck the defendant and should not be construed to refer to the ownership of the automobile. We are unable to place such construction upon these words, as we construe them to constitute an admission of plaintiff’s ownership.

Next examining the cross-petition, there is an admission of plaintiff’s ownership in two separate instances, to wit: (1) “Plaintiff was operating his said automobile”; (2) “Plaintiff’s automobile was propelled,” etc.

It should be further noted that the answer is not a general denial, but a special one. The only denial contained therein is that of any negligence on the part of the defendant.

Every material allegation of the petition not controverted by the answer shall be taken as true, except as to value or the amount of damages. Sec. 11329 GC. Since the answer does not deny the plaintiff’s ownership of the automobile as set forth in the petition, this fact must be deemed to be admitted by the defendant, it being- a material allegation.

A further admission of plaintiff’s ownership of the automobile is found in the following agreed stipulation of facts: “And the defendant will admit that plaintiff was damaged in that amount ($505.50)”. The only purpose a certificate of title could serve would be to establish ownership of the car. Since this was established by the defendant’s admissions it could have served no useful purpose. We find no error in the record and the judgment is affirmed.

HORNBECK and WISEMAN, JJ, concur.

ON APPLICATION FOR REHEARING

No. 2052. Decided December 9, 1949.

By THE COURT:

The application for a rehearing is denied for the reasons set forth in our recent opinion.

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


author: By WISEMAN, J.

text:
    UNITED MERCANTILE AGENCIES, INC. et, Appellant, v. WILLIAMS, et al., Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4369.
    Decided February 6, 1950.
    O. C. Ingalls, Gene A. Jones, Columbus, for appellant.
    C. H. Benbow, Columbus, Henry A. Williams, Columbus, for appellee.
   OPINION

By WISEMAN, J.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Franklin County, Ohio, dismissing plaintiff’s motion for proceedings in aid of execution and sustaining the motion of the defendant to dismiss the proceedings in aid of execution.

The motion of defendant to dismiss was based on the fact that the judgment was taken on a promissory note and was barred by the defendant’s discharge in bankruptcy. The plaintiff sought to prove aliunde that the note on which the judgment was taken was given for money obtained by the defendant from the plaintiff’s assignor by false and fraudulent representation. The trial court held that such evidence was inadmissible. The only error assigned is directed to this ruling.

The question presented is whether or not, in a proceedings to enforce a judgment taken on a promissory note, the record being silent as to the facts and circumstances under which the indebtedness was created, and a defense of discharge in bankruptcy is interposed in the proceedings to enforce the judgment, evidence outside the record is admissible to show that the judgment debtor’s obligation is one that is excepted from the operation of a discharge by the provisions of Section 17, Clause 4, of the Bankruptcy Act of 1938.

The plaintiff contends that such evidence is admissible and cites in support of this proposition the following: Howland v. Carson, 28 Oh St 625, which held that “the court will look hack of the judgment, to the roof and origin of the cause of action on which it is founded, in order to determine whether the discharge is a bar to the collection of such judgment,” and also Fidelity and Casualty Company of New York v. Golombosky, 133 Conn. 317.

The defendant relies on the following cases: Morrow v. Pfleiderer, 4 Oh Ap 283, which held that where a judgment is taken on a note the judgment creditor cannot “explain the record by proof aliunde that the note was given for property obtained by the judgment debtor from such creditor by false and fraudulent representations” for the purpose of determining whether the claim is within one of the exceptions to the bar of a discharge in bankruptcy, and Bannon v. Knauss, 57 Oh Ap 288, 13 N. E. (2d) 733, which held that such evidence is admissible “only where the record of the case in which the judgment was obtained is ambiguous or does not disclose the nature of the cause of action on which the judgment was founded.” The defendant also cited Goodrich v. JEck, 25 Abs 548, which held that in a proceeding in aid of execution the court “has no right to go further into the origin of the case than to examine the pleadings, files and records of the evidence therein.” See Collier on Bankruptcy, Second Edition, Section 415, and Vol. 7, Remington on Bankruptcy, page 783.

The well-reasoned and exhaustive opinion of Judge Randall is attached to the transcript. The trial judge very ably discussed all the legal questions raised and differentiated the various cases cited. In Howland v. Carson, cited by the plaintiff, the root and origin of the judgment was disclosed by the record and it was unnecessary for the court in that case to determine the nature of the transaction o.n which the judgment was taken. In Bannon v. Knauss, the court, in commenting on Howland v. Carson, on page 290, stated:

“The opinion in the case of Howland v. Carson, 28 Oh St, 625, is in our judgment authority for the proposition that evidence ■outside the record of the case in which the judgment sought to '.foe enforced or voided was obtained cannot be introduced to show the nature of the cause of action on which such judgment is based where the record of the case discloses that fact.”

Again, on page 291, the court stated:

“We are therefore of the opinion that this case is authority only for the proposition that under the facts disclosed by the answer the court would look back of the record of the judgment to the record of the case to determine the nature of the cause of action on which the judgment was based.”

In Volume 8 C. J. S., page 1591, the rule is stated as follows:

“Where the claim or demand against which a discharge in bankruptcy is asserted is in the form of a judgment and the issue involved is whether such judgment comes within a class excepted from the operation of the discharge, the entire record of the action in which such judgment was recovered is admissible and may be considered in the determination of the question, especially if the nature of the cause in which the judgment was obtained is not apparent from the judgment itself. Beyond such record the court may not go, evidence outside the record not being admissible, certainly not to contradict the record. This rule confining the evidence to the record is applicable where fraud in the incurring of the indebtedness is asserted to save the judgment from the discharge.”

This Court very recently had before it a similar question in Pass v. Webster, 85 Oh Ap 403, 83 N. E. (2d) 116, in which it was held that in a proceeding to revive a judgment the court could not go outside of the pleadings to determine whether the claim fell in a class of one of the exceptions to the bar of the discharge in bankruptcy.

In the instant case, the judgment being a provable debt, was barred by the defendant’s discharge in bankruptcy. The trial court properly ruled that the evidence sought to be admitted was inadmissible and no error was committed in dismissing the proceedings.

Judgment affirmed.

MILLER, PJ, and HORNBECK, J, concur.


author: By BLYTHIN, J.

text:
    SAFIER’S INC. v. BIALER.
    Common Pleas Court, Cuyahoga County.
    No. 614391.
    Decided June 20, 1950.
    Harry J. Dworkin, Cleveland, for plaintiff.
    Joseph L. Newman, Cleveland, for defendant.
   OPINION

By BLYTHIN, J.

For about three years prior to May, 1950, the defendant Jack P. Bialer was a salesman for A. D. Goodman-Golden Company, a corporation. The company was engaged in a general cigarette, tobacco and candy jobbing business, and it was defendant’s duty to make weekly or periodical calls on 95 of his employer’s customers. He operated under an employment contract which, among other things, provided that in the event that he left the company’s employ he would not engage in the same line of business directly or indirectly as a salesman in Cuyahoga County for a period of one year thereafter, if such involved customers of the employer.

About the first of May, 1950, the A. D. Goodman-Golden Company entered upon negotiations looking to the sale of all of its assets. It is clear that this became known or was made known to the defendant. He, the defendant, concerned himself about his own welfare to the extent of entering into a new employment agreement, in writing, (Plaintiff’s Exhibit 1) with his employer, which agreement is dated May 8, 1950, and was probably signed on May 9th. This agreement does not appear to be substantially different from the one under which the parties had amicably and successfully operated in the past. It was perhaps a little more formal and verbose than the former and original agreement, and it is claimed that it was negotiated and entered into, at least in part, for the protection of defendant Bialer in case of a sale being consummated; in other words, Bialer was then thinking of his employment situation and the possible danger to it involved in a possible sale of the business of his employer. Whatever may have have been in the minds of the parties at the time it seems quite clear that Bialer voluntarily entered into the agreement and then knew that one of the changes embodied in it from'the original agreement was that it — the new — was between A. D. Goodman-Golden Company “their successors and assigns” while the original contract was purely personal and contained no reference to “successors or assigns.” The agreement contained these covenants:

“ (6) That said Employee will not directly or indirectly either as principal, agent, employee or in any other capacity, for the term of one year after any termination of said employment, enter or engage in any branch of the cigarette, cigar, tobacco or candy business which involves any customer of said Employer with whom said Employee has at any time had any dealings on behalf of said Employer under this contract.”
“(7) That said Employee hereby consents that an order, either temporary or permanent, may be made in any suit in equity brought for the purpose of enjoining him from violating any of the provisions of this agreement or any other action at law which by advice of counsel said Employer may take to enforce his rights under this contract.”

It is not clamed that these are unreasonable nor that they would not be clearly enforceable between the original employer and the employee.

The employer A. D. Goodman-Golden Company, sold all its assets and business to Sailer’s, Inc., a corporation, and such sale is "evidenced by a. written contract between the parties, (Plaintiff’s Exhibit 2) dated May 10, T950, which contract included the following:

“7. Seller agrees to assign to the Buyer all contracts of employment held by Seller with certain of its employees; Seller also agrees not to employ those indicated herein and Buyer agrees to retain them on terms indicated in contracts of employment referred herein. Such employees are Jack Bialer, Otto Broz, and Jack Epstein.”

The employment contract with Bialer was transferred by assignment thereon as follows, and delivery thereof was made to the purchaser of the business, Safier’s Inc.

“May 10, 1950. Pursuant to a contract of sale entered into this date between ourselves and Safier’s, Inc., we hereby assign the forgoing contract between ourselves and one Jack Bialer to said Safier’s, Inc.
(Signed)
A. D. Goodman-Golden Company
By: George Golden, Vice President, /s/”

It is not claimed that defendant Jack Bialer or his services could be bought or sold in the market without his consent and we are not here concerned with that question. The real issue is that of whether or not a restrictive covenant of the kind mentioned is an asset of a business transferrable with such business and enforceable by the.new owner.

The transfer took effect between the 10th and 15th days of May. It is undisputed that Bialer, defendant herein, visited the new owner on May 13 (Saturday) and that he was informed that such owner would welcome his continuance in the employment on the basis of his written agreement with the previous owner. There was no term of employment prescribed in the agreement of employment. Either party could terminate it at any time. The record discloses that Bialer, on May 13, said to Safier’s, Inc., that he would continue and would be on the job Monday morning (May 15). Preparatory to action he selected or took some sample or give-away materials from the stock of Safier’s, Inc. After leaving the place of business on Saturday, May 13, and before Monday, May 15, rolled around, Bialer changed his mind and ended his employment. He immediately proceeded to solicit the customers of his former employer, A. D. Goodman-Golden Company, on behalf of a new employer engaged in the same and identical line of business, and is still doing so.

It is claimed by plaintiff, in the second cause of action of its petition, that the A. D. Goodman-Golden Company had a collective bargaining contract with the Commission House Drivers and Employees Union, Local 400, A. F. L., and that such contract covered its salesmen and that such contract was also assigned by the A. D. Goodman-Golden Company to Sailer’s, Inc., as a part of the transaction of sale and purchase of the business. It is alleged that said collective bargaining agreement (Plaintiff’s Exhibit 3) contained, among others, the following provision:

“13. Any member discharged or leaving the employment of the employer is not to solicit or sell the products formerly sold by him, directly or indirectly, to the customers served by him for a period of one year.”

There was no evidence that Bialer was actually a member of the Union mentioned. The court, due to its finding on the first issue does not deem it necessary to pass upon the second. A finding for plaintiff on it would not entitled it to any additional relief in any event.

Based upon the above, and bearing in mind that it is conceded that the restrictive covenant is reasonable and would be enforceable by A. D. Goodman-Golden Company against Bialer if he had voluntarily left its employment, we are called upon to answer one or two simple but very sharp questions:

(1) Is a restrictive covenant of the kind here in issue, when for the benefit of successors and assigns, an asset of the employer in its business, and one which may be effectively transferred by it as a part of a sale of all its assets?

(2) Assuming the answer to our first question to be in the negative, would acceptance or continuation by the employee .of employment under the new owner change the situation, and, if so, did Bialer accept such employment?

Seeking answer to our first question we find no difficulty in holding that the “good will” of a business is a very valuable asset. That “good will” is reflected in good customers and, indeed, those customers can very well be the sum and substance of a very valuable business. The right to sell as a part of a business the “good will” developed over a period of years cannot be questioned and that “good will” must in a case such as this include the trade built up over the years with particular tradesmen. Having those tradesmen as customers and having at its own risk and expense furnished to Bialer as a paid employee free access to them and association with them, it must follow that A. D. Goodman-Golden Company had a perfect right to protect that “good will” under reasonable conditions and for a reasonable period of time against a raid by Jack Bialer, and, as between the Company and Jack Bialer the good will, under the conditions stated, was the property of the company to the extent that it could contractually be protected. While it is not necessary to so decide in this case, the court is inclined to the belief that such “good will” would be transferrable as a property right even though the contract of employment had not contained words or a provision extending its benefits to “successors and assigns.” The restrictive covenant is directed to a period after the employment has ceased and is protective of a relationship between a tradesman and his customers or “trade” as such customers are usually designated. Reason, common sense and fair dealing dictate that one who, as an employee, has dealt for his employer with his employer’s customers, can properly contract to grant to the employer a reasonable limit of protection in those customers as a “good will” asset. The court has no difficulty whatever in concluding that the restrictive covenant is a transferrable asset where, as in this case, the benefits are to the employer, “its successors and assigns” and that, in the instant case, the employment contract was properly sold and assigned. That the employment ceased by the voluntary act of Bialer, and he then acting within his rights, does not vitiate the restrictive covenant but, on the contrary, gives it life.

Coming to our second question, the court cannot escape the conclusion that Bialer, after an agreeable conference with the new owner of the business — Sailer’s, Inc., — agreed to continue with his employment under the contract. Bialer was a perfectly frank witness. Safier testified that Bialer said, on Saturday, that he would be on the job Monday morning. He admitted having “changed his mind.” If he accepted employment, even though he did not function, he cannot equitably change his mind and promptly proceed to raid the “good will” customers of his former employer in violation of his solemn contractual obligation to refrain from so doing.

Able counsel have invited the attention of the court to authorities which they believe contain germs of the answer to the questions to be decided in this cause, but the court is unable to find within them any comfort for the simple reason that the issue before us was not even present nor decided by the courts in those cases. The court will pass them by a mere reference to them in the order in which they were mentioned on trial.

Thomas-Bonner Co. v. Hooven, et al., etc., 284 Fed. Rep. 377. This case dealt with the assignability of a personal service contract without the consent of both parties. It is not helpful here because the instant case involves only the question of the enforceability of a “restrictive covenant” as distinguished from an attempt to compel one to work against his will.

Lucas et al., v. Gross Motor Car Co., 32 Oh Ap 183. This case holds that “personal contracts” are those in which personality of one of the parties is involved. The contract in issue was held “not” to be a “personal contract” and therefore was assignable. Only the issue of whether the contract was one for personal service was involved and no “restrictive covenant” problem was present.

Pestel Milk Co. v. Model Dairy, 39 Abs 197. (Ohio Appeals 2nd District, 1943.)

“Syl. 3. An executory contract for personal services to be paid for as performed cannot be assigned by the employer, unless the employee assents to the substitution of the assignee as employer.”

This case comes rather close to the issue involved in the case at bar. Employees had a contract with a restrictive covenant extending for six months beyond the termination of employment. The employer sold the business and assigned the contract. The employees continued in employ of new owner for the six months period but refused to enter into a new contract with it to the same effect as the contract with former employer. Held: That having observed the covenant for the six months period in the original agreement, the employees could not be further held. Putting the matter in reverse, it furnishes a powerful suggestion that' if they had not observed the restrictive covenant for six months they would be enjoined.

Chapin v. Longworth, 31 Oh St, 421. Again we have purely a question of an executory contract for personal services. No question of “restrictive covenant” such as the one in issue in the instant case is involved.

The court, after devoting some time to search for answer to the issue in the instant case, believes that it is not to be found in any reported case in our own state as pointedly as it is in cases in other jurisdictions. The court is satisfied that the following cases decide the issue, and correctly.

National Linen Service Corp. v. Clower, 179 Ga. 136. (July, 1934)

Syl. 1. “A restrictive covenant whereby an employee agrees that he will not engage in a competitive business either for himself or in behalf of another after the termination of his contract of employment is, if valid, assignable with the business of his employer; and the more especially is this true where the contract embracing such restrictive covenant contains a stipulation that its provisions shall extend to the successors and assigns of the employer.”

The above case is on all fours with the case at bar with the exception that Clower continued for a period of time in the employ of the new owner of the business. The court said — Page 142:

“In the instant case we are not concerned with any effort to assign the employee’s agreement to work for the employing corporation. It is only the restrictive covenant whereby the employee agreed not to engage in the same line of business, and not to work for any other person engaged in such business for the period of one year within a stipulated territory, that calls for any adjudication in the present case. This agreement, if valid, was assignable.”

The court further — Page 146 — dwells upon the distinction between seeking to deny an employee the right to violate his contract for personal services and seeking to deny him the right to breach a restrictive covenant ancillary to the contract of employment.

The Supreme Court of Georgia re-affirmed its holding in the third syllabus of Nelson v. Woods, et al., 205 Ga. 295, (1948).

Blaser v. Linen Service Corp. of Texas, 135 S. W. Reporter, 509. (Court of Civil Appeals of Texas. Dallas, 1939.)

Syl. 3. “A valid restrictive covenant whereby employee agreed not to compete with employer engaged in towel and linen supply business for one year following termination of employment was assignable, where employment contract embracing covenant stipulated that privileges and benefits of contract should extend to successors and assigns of employer.”

The Texas court followed and approved the reasoning of the Supreme Court of Georgia in 179 Ga. 136, supra, and said— Page 511:

“We are of the opinion 'that the trial court did not err in its conclusion that the privileges and benefits of the negative covenant, not to engage in competing business, were assign-' able, enforceable by injunction. We are not concerned here with any effort to assign an employee’s agreement to work for the employing company, or its assigns, against an employee’s will. It is only the restrictive covenant whereby the employee expressly agreed that ‘the privileges and benefits’ of the contract may be assigned, that calls for adjudication in this case. The agreement of defendant to be bound by any assignment of the contract gives rise to the power of plaintiff’s predecessor to assign and clothes the assignee with all privileges and benefits of the employment agreement.”

Torrington Creamery, Inc., v. Davenport, 12 Atl. Rep. (2) 780. (Supreme Ct. of Errors of Connecticut, 126 Conn. 515. (1940).

Syl. 7. “Where an employee enters into contract continuing covenant restricting activities of employée after termination of his employment, the covenant becomes a valuable asset of the business and upon sale of that business the benefits of the covenant may be assigned to the purchaser.”

Syl. 8. “Where an employee enters into contract containing covenant restricting activities of employee after termination of his employment and proprietor of business sells it in its entirety to another, in equity the seller will be deemed to have assigned so much of the benefit of the contract as is severable and necessary for the protection of the business sold to the purchaser.”

Syl. 9. “Where employee entered into contract containing covenant restricting activities of employee after termination of his employment and employer sold business in its entirety, the purchaser could have brought action for enforcement of the covenant in its own name or in name of selling employer, and under such circumstances either was a proper party plaintiff.”

The courts, in the above cases, Georgia, Texas and Connecticut deal so clearly, and at length, with the principle here involved as to leave one with little or no doubt about the rights of the parties in the instant case.

While this court finds it unnecessary to pass upon the enforceability of the collective bargaining contract provisions, and restrictive covenant in it contained, pleaded in the Second Cause of Action of the petition in this cause, he deems it of interest to refer to the case of Western Maryland Dairy, Inc., v. Chenowith, et al., 23 Atl. Rep. (2) 660 (Court of Appeals of Maryland, 1942) and to cases therein cited and referred to.

The court holds that the contract involved in the case at bar was assignable for the protection of the employer under the restrictive covenant provision and that it would have been so assignable for that limited purpose even though it had not been made for the benefit of the “successors and assigns” of the original employer. The court further finds that Bialer accepted employment with the assignee of the business and contract, and that such acceptance, even though no work was actually performed under it, effected a novation, whether such a novation was necessary to the right to enforce the restrictive covenant or not. On the basis of what has been stated, an order will be entered herein enjoining the defendant, Jack P. Bialer, from violating paragraph 6 of his contract as recited in the first cause of action of the petition herein, such injunction to continue in effect for one year from May 13, 1950. No evidence sufficient to support the allegations of the second cause of action having been adduced the same will be dismissed. Exceptions will be noted.


author: By PHILLIPS, PJ.

text:
    WARREN TELEPHONE COMPANY, Plaintiff-Appellee, v. MILLER, Defendant, GLOBE INDEMNITY COMPANY, Defendant-Appellant.
    Ohio Appeals, Seventh District, Trumbull County.
    No. 1205.
    Decided November 9, 1949.
    Hoppe, Day & Ford, Warren, for plaintiff-appellee.
    Gillmer & Klinger, Warren, for defendant-appellant.
   OPINION

By PHILLIPS, PJ.

Plaintiff, a public utility corporation, called plaintiff in this opinion, sued Edwin P. Miller (called defendant Miller here) in the court of common pleas of Trumbull County, and alleged in its petition filed therein that on or about December 14, 1946, he negligently operated Steve Petrich’s automobile on. North Park Avenge in the City of Warren, Ohio, into collision with one of its telephone poles situated thereon, damaging it. and connecting cables to the extent of $1100.00, for which amount it prayed judgment against him.

Defendant Miller failed to appear personally, or by counsel, in the court of common pleas to defend such action, and the jury returned a verdict against him in favor of the plaintiff for $1062.36.

Acting in accordance with the provisions of §9310-4 GO* plaintiff corporation filed a supplemental petition in the court of common pleas making defendant Globe Indemnity Company, so designated here, a party defendant; and alleged inter alia that on and prior to December 14, 1946, defendant casualty company was a corporation engaged in issuing automobile liability insurance policies in the state of Ohio, and that prior to that date had issued one of its automobile liability insurance policies to Steve Petrich insuring him against loss or damage sustained by any one person or corporation through the negligent operation of his automobile, which policy on that date was in full force and effect; that on the 17th day of December, 1947, plaintiff recovered a judgment against defendant Miller in the amount stated and costs for damages sustained as alleged in its original petition; that a motion for a new trial was duly filed and overruled and judgment entered on the verdict, which judgment, no part of which has been paid, remains unreversed and unmodified; that more than thirty days had elapsed between the date of the rendition of the judgment and the filing of its supplemental petition; and concluded such pleading with a prayer for judgment against defendant Globe Indemnity Company upon the judgment so obtained against defendant Miller.

Defendant Globe Indemnity Company filed an answer to plaintiff’s supplemental petition in which it admitted its corporate identity; the fact that it was engaged in issuing automobile liability insurance policies in the state of Ohio as alleged in plaintiff’s supplemental petition; the issuance of a policy to Steve Petrich, which was in full force and effect on December 14, 1946, some of the provisions and conditions of which it set forth; the recovery of the judgment against defendant Miller as alleged; the lapse of more than 30 days after the rendition of such judgment and the filing of plaintiff’s supplemental petition; and that such judgment remains unreversed, unmodified and unsatisfied.

In its answer defendant Globe Indemnity Company alleged further that:—

8 * shortly after noon on Saturday, *the 14th day of December, 1946, said Steve Petrich delivered possession of ■said automobile to the defendant Edwin P. Miller for the .purpose of having certain repairs made at the repair garage operated by said Edwin P. Miller. That without the knowledge or consent of said Steve Petrich said defendant drove .said automobile from Leavittsburg, to Warren, Ohio, on a private mission and was involved in a collision on North Park Avenue.
“This answering defendant denies that the use of said automobile by said Edwin P. Miller was with the permission of said Steve Petrich.”

By way of a second defense defendant, Globe Indemnity Company, alleged that:—

“* * lf the insured failed and neglected to forward to the company the demand, notice, summons or other process received by him, and this answering defendant had no notice of the pendency of this cause or of the prayer of the petition.
“That the insured has failed and neglected to comply with the conditions precedent in said insuring agreement set forth and has failed and neglected to cooperate with this answering defendant in the defense of this action.
“Further answering this defendant denies each and every, all and singular the averments and allegations in said supplemental petition contained not herein expressly admitted to be true.”

Plaintiff filed an amended reply, and upon plaintiff’s supplemental petition, the answer of defendant, Globe Indemnity Company, and plaintiff’s amended reply thereto, the case proceeded to trial in the court of common pleas, which resulted in a verdict in favor of plaintiff in the amount of $1062.36 and costs.

The motions of defendant, Globe Indemnity Company, for judgment in its favor notwithstanding the verdict of the jury returned against it and for a new trial were overruled, and judgment was entered for plaintiff upon the verdict.

Defendant Globe Indemnity Company appealed from the judgment of the court of common pleas to this court on questions of law.

There is evidence that insured Steve Petrich and Miller met by appointment on December 14, 1946, to discuss repairs of Petrich’s automobile; that Miller drove such automobile, and finally Petrich alighted therefrom permitting Miller to take his automobile to repair it, and prior thereto to see a prospective purchaser of real estate he (Miller) owned, and Miller was enroute thereto when he collided with plaintiff’s telephone pole; that Miller did not drive directly to his garage; rather he visited several cafes where he drank intoxicating liquors; that counsel for defendant Globe Indemnity Company was notified of the commencement of a law suit against defendant Miller, and stated that it would not defend defendant Miller because defendant Miller was driving Petrich’s automobile on a mission of his own, and without the consent of Petrich, at the time he collided with the telephone pole of the plaintiff corporation.

Defendant Miller’s evidence is that he and Petrich reported such collision to defendant Globe Indemnity Company at its Warren office, the local agent of which advised Petrich to contact the company’s attorney, which he did, and1 for whom he signed a statement two days after such collision; that on December 21, 1946, defendant Miller, accompanied by insured Petrich, called at the office of defendant Glote Indemnity Company where Petrich’s statement was read to Miller, in which he acquiesced, and likewise signed a statement; that defendant Miller’s attorney, who represented him on a charge of operating a motor vehicle while under the influence of intoxicating liquors, advised him to deliver the summons he received in the case of plaintiff against him to defendant Globe Indemnity Company, but his attorney testified he did not know whether he had done as advised; that subsequent to December 21, 1946, Petrich never consulted with defendant Globe Indemnity Company, notwithstanding that subsequent thereto they requested him in writing to call and discuss the lawsuit with them.

Defendant Globe Indemnity Company was duly notified of the action pending against it by service of summons on plaintiff’s supplemental petition upon it, filed an answer thereto and a reply therein, undertook the defense, and corresponded with insured Petrich, and hence was no stranger to the action. It had the right and did appear to defend the action, and had the same means and advantages of controverting the claim as did defendant assured Petrich, the real party defendant. Until the judgment rendered in the court of common pleas against defendant Miller was paid, or otherwise settled, the proceeding, which started with the filing of plaintiff judgment creditor’s petition in the court of common pleas, was not concluded, but was a pending proceeding; and in order for plaintiff judgment creditor to attain the given end, and to enforce its civil rights to collect the judgment against defendant Globe Indemnity Company, some other legal steps would have to be taken, and until that was done, and the entire matter concluded, the entire proceeding was a proceeding, and plaintiff had the right under the provisions of §9510-4 GC, to file a supplemental petition therein making Globe Indemnity Company a party defendant to have the proceeds of the policy of insurance applied toward the satisfaction of its judgment.

As the result of carefully reading the bill of exceptions submitted to us for review, further detailed reference to which need not be made, we conclude that questions for the determination of the jury were presented as to whether defendant Miller was operating Petrich’s automobile with his consent, permission, and on his business, or as his agent, and for a limited purpose only, when the automobile he was driving collided with plaintiff’s telephone pole; and whether defendant Miller and insured Petrich cooperated with defendant Globe Indemnity Insurance Company in the defense of the action to which reference has been made in accordance with the provisions of the policy issued by defendant Globe Insurance Company to insured Petrich; or whether Globe Indemnity Insurance Company waived the terms and conditions of its policy issued to Petrich. In our opinion the trial judge properly charged the jury upon both of these questions, which disposes of its assigned grounds of error that the trial judge “erred in overruling the defendant’s motion to arrest the testimony from the jury and enter judgment for the defendant made at the close of all the evidence” because plaintiff “failed to plead or prove compliance with the valid terms of the insurance contract relating to notice of suit,” and “in the instructions to the jury.” We cannot reach the conclusion at which counsel for defendant Globe Indemnity Company asks us to arrive that “the verdict and judgment in the common pleas court is contrary and against the manifest weight of the evidence.”

The judgment of the court of common pleas is affirmed.

NICHOLS, BUCKLEY, J, concur in judgment.


author: By MILLER, Jr., CJ.

text:
    PRICE v. NEW YORK CENTRAL SYSTEM.
    United States District Court, Northern District of Ohio, Eastern Division.
    Civ. A. No. 25902.
    Decided March 22, 1950.
    McConnell, Blackmore, Cory & Burke, Cleveland, for plaintiff.
    Paul Lamb, Cleveland, for defendant.
   OPINION

By MILLER, Jr., CJ.

Plaintiff sought by this action to recover $100,500.00 for personal injuries and property damages resulting from a railroad crossing accident in Crestline, Ohio, at about 2:47 a. m. on January 22, 1946. Plaintiff’s car, which he was driving at the time, was struck by a train of the defendant at the Bucyrus Street crossing. Plaintiff charged negligence on the part of the defendant, while defendant denied negligence on its part and charged contributory negligence on the part of the plaintiff.

At the close of all the evidence, the defendant moved for a directed verdict on the ground that the plaintiff’s negligence proximately contributing to his injury was established by the evidence as a matter of law. The court reserved its ruling on the motion and submitted the action to the jury. The jury returned a verdict in favor of the plaintiff for $12,500.00, on which judgment was entered. The defendant has moved the court to set aside the verdict and judgment and enter judgment in its favor in accordance with its motion for a directed verdict, as provided by Rule 50(b), Federal Rules of Civil Procedure, 28 U. S. C. A.

The tracks of the defendant are described in the evidence as running north and south. The train was northbound. Plaintiff was driving his car eastwardly on Bucyrus Street which crossed the tracks at an angle of 44 degrees on his right. On the right side of Bucyrus Street, before reaching the crossing, were some bushes some 5 to 5% feet in height. The east end of these bushes was 31 feet from the west rail of the southbound track measured parallel to the street, and 21 feet measured at right angles to the track. Plaintiff was very familiar with the crossing. Plaintiff testified that he stopped his car about 10 feet past the end of the bushes, that he looked to the left and right, saw no train or headlight, heard no whistle or bell, shifted into low gear and entered the crossing at a speed of approximately three miles per hour. He stated at one point that his car was stopped for probably half a minute before he started up, and at another point that it took approximately two seconds to get his car moving from a stopped position. He did not remember crossing the southbound tracks which were between him and the northbound tracks on which the accident occurred, or any details of the accident after starting across the intersection. He had no recollection of at any time seeing the train which struck him.

Photographs, maps, and the testimony of a surveyor showed the northbound track on which the train was running to be straight for an indefinite distance to the south or plaintiff’s right. At a point in the center line of Bucyrus Street 60 feet west of the center line of the northbound track, a person looking southwardly to his right had an unobstructed view of over a mile, and at a point a few feet closer to the track there was an unobstructed view for an indefinite distance. A person in a car on Bucyrus Street would have to look to his right at an angle of about 130 degrees in order to obtain such a view of the track. It was 27 feet from the west rail of the southbound track to the east rail of the northbound track. Plaintiff testified that' a friend was seated on the driver’s seat to his right, and that he had to lean forward on the steering wheel in order to see past his friend to the right, and in that position he was able to see southwardly only as far as the north end of the Y building, or Union Depot, a distance of approximately 350 feet. The night was cold, snow was on the ground, the windows in the car were up, but the visibility through the windows was good. The plaintiff testified in making such a look to the right he saw no train and heard no warning of any approaching train. The speed of the train, according to the evidence most favorable to the plaintiff, was about 45 miles per hour. The evidence is uncontradicted that a strong headlight on the engine was burning and functioning in its normal manner.

The court is of the opinion that under the Ohio law plaintiff was guilty of contributory negligence as a matter of law, and that defendant’s motion for a directed verdict should be sustained. The applicable Ohio law is stated by the Supreme Court of Ohio in Detroit, Toledo & Ironton Rd. Co. v. Rohrs, 114 Oh St, 493, 151 N. E. 714, 716. It is there said with respect to the duty of a traveler upon a highway when approaching a steam railroad grade crossing — “This duty has been defined many times by this court and by many other courts, and it is that the traveler must look and listen for the approach of trains before crossing, and furthermore that he must look and listen at a place and in a manner that will make the looking and listening effective. * * * Surely it will not do for one to claim the right to recover simply because he has looked and did not see, if the conditions are such that, had he looked, he must have seen. When he says he did look, and the conditions establish the fact that any one who looked would have seen, then, if he says he did not see, his own evidence establishes the fact that he did not look, though he may think he did. * * * The duty is definite, and is that he must look as well as listen, and that he must look from a point and at a time that will make the looking effective to apprise him whether danger is near or not.” The court held in that case that under facts 'similar to those in the present case the trial court should have granted the motion to direct a verdict for the defendant. Although the accident in that case was at 8 o’clock in the morning, the ruling has been approved and applied in a later case where the accident occurred about 2:30 a. m. and the locomotive was being operated with its headlight burning brightly. Woodforth, Adm’x v. New York Central R. Co., 149 Oh St 543, 37 O. O. 263, 80 N. E. 2d 142. The ruling of the Rohrs case has been consistently followed by other Ohio cases in addition to the Woodworth case. Pennsylvania R. Co. v. Rusynik, 117 Oh St 530, 159 N. E. 826, 56 A. L. R. 538; Pennsylvania R. Co. v. Moses, 125 Oh St 621, 184 N. E. 8; Patton v. Pennsylvania R. Co., 136 Oh St 159, 16 O. O. 114, 24 N. E. 2d 597; Lang, Adm’x. v. Pennsylvania R. Co., 59 Oh Ap 345, 13 O. O. 135, 18 N. E. 2d 271; Grove v. City Ry. Co. 78 Oh Ap 37, 33 O. O. 396, 64 N. E. 2d 429; Bowman v. B. & O. Rd. Co., 86 Oh Ap 129, 40 O. O. 525, 90 N. E. 2d 390. The rule has been heretofore followed and applied by the Court of Appeals for this Circuit. Detroit, Toledo & Ironton R. Co. v. Yeley, 6 Cir., 165 F. 2d 375; Baltimore & O. R. Co. v. Joseph, 6 Cir., 112 F. 2d 518, certiorari denied, 312 U. S. 682, 61 S. Ct. 551, 85 L. Ed. 1121, rehearing denied 312 U. S. 714, 61 S. Ct. 710, 85 L. Ed. 1144.

The evidence in the present case shows that at the point where the plaintiff stopped his car there was an unobstructed view of the tracks to the right for over a mile, and at a point closer to the intersection theré was an unobstructed view to the right for an indefinite distance. The Rohrs case says specifically that the traveler must look “from a point and at a time that will make the looking effective.” In the present case the plaintiff’s excuse for attempting the crossing is that he did not see the train, but there can be no doubt that there was a point from which the plaintiff could easily have made his looking effective and seen the approaching train if he had looked as he should have looked before entering the intersection. It seems clear that the plaintiff either did not look at all, or did not look “from a point and at a time that will make the looking effective.”

In the present case there is an additional reason supporting the ruling. The plaintiff, after entering the intersection, had to cross the southbound tracks and travel the distance between the southbound and northbound tracks before reaching the northbound tracks on which the accident occurred. He was traveling at a speed of only three miles per hour and the headlight of the on-coming engine was burning brightly. A most casual look to the right would have disclosed the close proximity of the on-coming train. The car could have been' stopped within a foot or two. The court believes that the duty to look and listen effectively is not fulfilled by merely looking and listening at a point some 10 feet or more from the beginning of the intersection. In New York, C. & St. L. Railroad Co. v. Kistler, 66 Oh St 326, at page 336, 64 N. E. 130, at page 133, the court said: “There should be such looking before going upon the track, even though there was a looking farther away when no train was seen approaching.” In Woolley v. Cincinnati, Hamilton & Dayton Ry. Co., 90 Oh St 387, 108 N. E. 1135, the court approved a charge to the jury that the traveler’s duty to exercise reasonable care to discover an approaching train “continued until he was over the crossing and the danger was passed.” In Pennsylvania R. R. Co. v. Rusynik, supra, the court said in 117 Oh St at page 538, 159 N. E. at page 828, “The time to use his senses for his own protection was just before going into the zone of danger, and they should be employed in a manner that would make their use, both the looking and listening, effective.” In Patton v. Pennsylvania R. R. Co., supra, the court observed that if the traveler “had listened immediately before going upon the tracks” [136 Oh St 159, 16 O. O. 114, 24 N. E. 2d 600] he would have known of the existence of the approaching train. In Lang, Adm’x v. Pennsylvania R. R. Co., supra, the court spoke as follows: “The rule that such looking and listening must be at such time and place and in such manner as will be effective to accomplish the ends designed thereby, must necessarily comprehend looking and listening at the last time and place where a traveler could stop the conveyance in which he is riding and avoid a collision between the same and a train or trains being operated on such railway track or tracks. The omission so to do, without a reasonable excuse therefore, is negligence and will defeat an action by such person or his administrator for an injury to which such negligence contributes.” [59 Oh Ap 345, 13 O. O. 135, 18 N. E. 2d 274.]

Plaintiff’s chief contention seems to be that in order to obtain an unobstructed view of the track to the right he would have had to look somewhat backward at an angle of 130 degrees, and that the presence of his friend in the seat to his right prevented him from doing this and from seeing more than 350 feet down the track. He admits that he could have seen much farther if he had turned around and looked backward. We find nothing in the Rohrs case, or in the other Ohio authorities above referred to, which says that a traveler approaching the railroad crossing is not required to look upon entering a crossing at an angle more than the usual 90 degrees. They hold that the looking must be such as will make it effective. If the angle of the crossing is such as to require the traveler to turn to his side and rear 130 degrees to make his looking effective, we believe it is his duty to turn and look at the necessary angle. Nor is the driver excused from doing this because the presence of a passenger in the seat to his right makes it difficult to do so. The Ohio law seems well settled that where the danger at a railroad crossing is increased by conditions obstructing the vision, greater care and caution are imposed upon one about to pass over such crossing. Woodworth v. New York Central R. Co., 149 Oh St 543, 552, 37 O. O. 263, 80 N. E. 2d 142; Patton v. Pennsylvania R. Co., 136 Oh St 159, 165, 16 O. O. 114, 24 N. E. 2d 597; Baltimore & O. Ry. Co. v. McClellan, Adm’x, 69 Oh St 142, 157, 159, 68 N. E. 816; Pennsylvania Co. v. Morel, 40 Oh St 338.

The failure of the defendant to maintain a watchman at the crossing after 1:00 a. m. has no material bearing on the issue of contributory negligence. The plaintiff stopped at the crossing and waited even though no watchman was there. He testified that he always stopped for a crossing for his own safety regardless of whether it had a watchman. His position in this case is not that the absence of a watchman induced him to cross without looking, but that he stopped and looked and didn’t see the train.

Defendant’s motion will be sustained and judgment entered for defendant.


author: By MILLER, PJ:

text:
    MARTIN, d. b. a. M. & M. AUTO SALES, Plaintiff-Appellant, v. COFFMAN, d. b. a. JIM’S MOTOR SALES, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2067.
    Decided December 2, 1949.
    A. W. Schulman, Dayton, for plaintiff-appellant.
    Jacobson & Durst, Dayton, for defendant-appellee.
   OPINION

By MILLER, PJ:

This is a law appeal from the Municipal Court of Dayton, Ohio. The action was one for damages arising out of the purchase of a 1938 Buick Sedan by the plaintiff-appellant from the defendant-appellee. The parties will hereafter be referred to as plaintiff and defendant.

The record discloses that on the 8th day of September, 1948, the defendant sold a Buick automobile to the plaintiff for the sum of $340.00. The plaintiff was a used car dealer who made the purchase with the intention of making a resale. After making repairs to the extent of approximately $100.00 the car was sold by the plaintiff for the sum of $780.00 to one Jack Cales, part of which was paid in cash and the balance was financed through the General Finance Corporation. Soon after the purchase Cales became unemployed and as a result no payments were made on the note given for the balance pf the purchase price. The car was repossessed by the Finance Company, which in turn called upon the plaintiff to pay the amount of the note as it had been endorsed by him with recourse. This was done. The car was redelivered to the plaintiff and a certificate of title was reissued to him. It was then discovered that both the engine number and serial number in the certificate of title differed from those on the automobile. Upon examination it was found that the certificate of title transferred by the defendant to the plaintiff was different in the same respects. The difference in the engine numbers was several million, but there was a similarity in the serial number, the only difference being an omission of the digit “1” from all the certificates of title. After negotiating for some time with the defendant, endeavoring to get a bill of sale covering title to the automobile conveyed, and the 'defendant either refusing or not being able to deliver such a certificate of title, the plaintiff tendered the car back to the defendant and demanded a refund of the purchase price plus the amount of the repairs placed upon it. This being refused, action was brought seeking damages in the amount of $644.72, which was the balance of the purchase price from Jack Cales and which the plaintiff had to repay to the Finance Company. The trial court found that there was nothing due the plaintiff and the appeal is from this judgment.

The plaintiff relies upon the theory of a breach of an implied warranty, citing §8393 GC, which provides that in a contract to sell or salé, unless the contrary intention appears, there is an implied warranty on the- part of the seller that he has a right to sell the goods. Does the record show that the' defendant had a right to sell the Buick automobile which is the subject of this action? He did only upon the condition that he was the owner. Under §6290-4 GC there is only one way to prove ownership of an automobile and that is by producing a certificate of title. Mielke v. Leeberson, 150 Oh St 528. The certificate of title tendered by this defendant was therefore no evidence of ownership to the car being sold. Sec. 6290-13 GC requires that the certificate of title show the serial number and motor number of the car. Counsel for the defendant urges that since there has been no one to assert a claim of title superior to that of the plaintiff, that he has no right to maintain the action; that such a claim constitutes a condition precedent to the right to sue. We do not consider such to be the law of this state. This question has been passed upon in the case of Kwiatkowski v. Hoislbauer, 13 Oh Ap 202. At page 204 the court says:

“Under §8393 GC, there is an implied warranty on the part of the seller that he has a right to sell the goods, and there is a further implied warranty that the buyer should have and enjoy quiet possession of the goods as against any lawful claims existing at the time of the sale. On principle, therefore, it appears that when defendant sold the goods, there was an immediate breach of the implied warranty of right to sell. If there was a breach of warranty by the seller, the Sales Act, §8449 GC, authorizes the buyer at his election to rescind the sale, offer to return the goods to the seller and recover any part of the price which has been paid. The seats had an approximate value of $900 and constituted a substantial part of the goods sold.

Must there be a claim or eviction before the buyer can get redress? As to sales of goods the authorities at common law are in some conflict as to this question. The effect of the provision of the Sales Act, §8449 GC, would seem to give the buyer of chattels the right to proceed immediately, though his possession had not been disturbed. (See Williston on Sales, Section 221.) By pursuing this course, the buyer assumes the burden of establishing the infirmity of the seller’s title. Jordan v. Van Duzee, 139 Minn., 103, 107.”

It will be noted that this case places the burden of establishing the infirmity of the seller’s title upon the purchaser. The plaintiff fully met this burden when he proved that the defendant’s only evidence of ownership was not applicable to the automobile in question.

Having found that there was a breach of warranty we must next determine the plaintiff’s rights upon such a breach. These are definite under §8449 GC:

“Breach of warranty. (1) When there is a breach of warranty by the seller, the buyer may, at his election—

(b) Accept or keep the goods and maintain an action against the seller for damages for the breach of warranty.

* sj« * «

(6) The measure of damages for breach of warranty is the loss directly and naturally resulting, in the ordinary course of events from the breach of warranty.”

Since the petition does not ask that the contract be rescinded, although it does allege an offer to return the car which was refused, and the relief sought is only damages, it would appear that the plaintiff elects to keep the property and maintain his action for damages under paragraph (1) (b), supra. Even though the plaintiff had failed in his proof of a breach,of an implied warranty, which fact we do not admit, still under §8447 GC the plaintiff’s right of action would be maintainable as the right of ownership to the automobile never passed to the plaintiff. Sec. 8447 GC provides:

“(1) When the property in the goods has not passed to the buyer, and the seller wrongfully neglects or refuses to deliver the goods, the buyer may maintain an action against the seller for damages for non-delivery.
“(2) The measure of damages is the loss directly and naturally resulting, in the ordinary course of events, from the seller’s breach of contract.”

The defendant has cited §6290-10 GC, contending that under this section the plaintiff can obtain a proper certificate of title. We do not think the evidence supports this conclusion as there is no evidence in the record that the engine in the car had ever been replaced. That such was done is quite probable, but there are no facts in the record to support the conclusion. The section of the Code cited is applicable only when the engine of an automobile has been replaced.

We therefore hold that the trial court erred in rendering a judgment for the defendant; the same is reversed and the cause is ordered remanded to the trial court for further proceedings according to law.

HORNBECK, J, concurs.

WISEMAN, J, concurs in judgment.


author: By THE COURT:

text:
    WELGE, Plaintiff-Appellee, v. WELGE, Defendant-Appellant.
    Ohio Appeals, First District, Hamilton County.
    No. 7213.
    Decided January 30, 1950.
    Harry Falk, Cincinnati, for plaintiff-appellee.
    John A. Thorburn, for defendant-appellant.
   OPINION

By THE COURT:

This is an appeal from a judgment granting a divorce to the plaintiff and awarding alimony.

The answer of the defendant contains a general denial, which includes a denial of the jurisdictional fact that the plaintiff had been a resident of the State for one year and of the county for 30 days immediately preceding the filing of the petition. The decree contains a finding of the existence of the jurisdictional facts, but the bill of exceptions, certified to as containing all the evidence, shows no evidence on the subject of residence. The judgment must be reversed for lack of proof of the jurisdictional facts.

The ground of divorce alleged is gross neglect of duty, and that was the ground upon which the divorce was granted.

The bill of exceptions shows that the hearing was. very brief. It only required four double-spaced typewritten pages to record it. We do not criticize brevity per se, but a reading of these four pages discloses a complete inadequacy of proof. Only the barest outline of their domestic relation was given by the parties themselves. The statute (§11988 GC) precludes the granting of divorce or alimony upon the testimony of the parties alone, even when it is full and clear and non-conflicting. In this case the meager testimony of the parties was conflicting and there was no corroboration by any other witness of any of the essential elements of gross neglect of duty.

But it is said that another ground for divorce was proven, to-wit: wilful absence for three years. It is true that the record shows that these two parties had not lived together for fifteen years, but whether the defendant’s absence was wilful, or with the consent of, or caused by plaintiff’s misconduct had no corroboration from any other witness. Without intimating that the court would have jurisdiction to allow, by amendment, the substitution of one ground for divorce for another in a case where the proof of the unpleaded ground was proven, we could not allow such a substitution here for the reason stated.

It was said in oral argument that the court had before it a report of an investigation made under the provisions of §11979-4 GC. The investigation provided for by that section covers character, family relations, past conduct, earning ability, and financial worth of the parties. It does not in express terms authorize an investigation of the jurisdictional facts. Perhaps that omission was for the reason that all courts require, on their own motion, that their jurisdiction be made to appear before proceeding to hear the cause.

But in the case at bar, we are precluded from assuming the existence of such a report. It could only have been considered as evidence if it had been “filed in the case before trial.” The transcript of the docket and journal entries shows the filing of no such report, and it is not found among the original papers in the case. The bill of exceptions does not show it was offered in evidence. There is no cross-examination of the person making the report, and, as the certificate recites that it contains all the evidence, we must assume that the report was not offered in evidence, and, therefore, the court could not consider it.

For these reasons, the judgment is reversed and the cause remanded for further proceedings according to law.

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


author: Per CURIAM:

text:
    WELGE, Plaintiff-Appellee, v. WELGE, Defendant-Appellant.
    Ohio Appeals, First District, Hamilton County.
    No. 7213.
    Decided March 13, 1950.
    John A. Thorburn, for the motion.
    Harry Falk, Cincinnati, contra.
   OPINION

Per CURIAM:

In its opinion this court stated that “the bill of exceptions, certified to as containing all the evidence, shows no evidence on the subject of residence.” (Emphasis ours.)

The action was for divorce, and, under the statute, the court should have rendered judgment for the defendant, in the absence of some substantial evidence showing statutory residence of the plaintiff. This court ordered a new trial. Is the defendant entitled here to final judgment?

It has long been the rule of reviewing courts that action of inaction of a trial court cannot first be assigned as error in such reviewing courts. In other words, the trial court must be given the opportunity of avoiding error by having the claimed error brought to the attention of the court. 2 O. Jur., “Appellate Review” (Pt. I) Section 150, page 296; Id., Section 155, page 311.

The divorce case was submitted by the parties at the conclusion of the evidence, without comment, and the trial court’s attention was not directly called to the dearth of evidence upon the issue of domicil.

The problem presented by this motion is what action should the defendant have taken to raise this assignment of error in the trial court?

Obviously, under the practice applicable, the action having been filed after September 27th, 1947, no motion non obstante could be filed after the judgment, even if such motion were appropriate in a trial to the court without a jury. Sec. 11599-1 GC, effective September 27th, 1947. Also, it is obvious under such circumstances that a motion for an instructed verdict would have been inappropriate, there being no jury to so instruct.

What would have been the effect of a motion for judgment? Would not such motion under the circumstances have been mere surplusage, if not also wholly inappropriate, in view of the fact that upon final submission of the case by the parties at the conclusion of the evidence, both' parties were claiming the right to a judgment?

It is true that by such submission, the weight of the evidence is involved, but certainly under the state of the record at that time, the defendant was also entitled to judgment by reason of the absence of any evidence upon an essential element of the case of the plaintiff.

Is the defendant, at his peril, bound to indicate to the court then that he is by submission of the case relying on both, grounds — no evidence and the weight of the evidence? Again, how would he do this?

In Building Co. v. Stahl Co., 99 Oh St, 47, it is held that a motion for judgment at the close of plaintiff’s evidence in a trial to the court without a jury raises the question of the weight of the evidence, as well as the question of the absence of any evidence. At page 49 of the opinion, it is stated:

“The trial of a law case to the court without the intervention of a jury is tantamount to the trial of a chancery case. If the plaintiff at the close of his case has offered no evidence upon a material fact required to be proved, or has offered evidence of such a character as to overwhelm any prima facie case made by him, common sense would require that at the instance of the defendant the litigation should be then terminated. There is no presumption that later in the trial the defendant would offer more substantial evidence in the plaintiff’s favor than plaintiff himself offered.”

Does not this same situation exist at the close of the case? A motion for judgment would, therefore, raise no issue of law or fact not raised by mere submission of the case to the trier of the facts and law.

In McKellips v. Industrial Commission, 145 Oh St, 79, a case was tried to the court without a jury — no motion of any kind was made at the conclusion of the evidence. In the Per Curiam opinion at page 80 it is stated:

“An examination of the record herein shows that no motion for a directed verdict or for non-suit was made by the defendant after all the evidence had been introduced. By such failure to move for a directed verdict, which would challenge the legal sufficiency on the entire evidence adduced, the defendant submitted the issues to the trial court as a question of fact. ‘Without such challenge the whole case goes to the jury.’ Cincinnati Traction Co. v. Durack, Admx., 78 Oh St, 243, 85 N. E. 38.
“Unless a motion for a directed verdict is renewed at the close of all the evidence, error cannot be predicated upon the refusal of the court to direct a verdict.
“Upon appeal to the Court of Appeals, the issue presented was simply whether the judgment of the trial court was sustained by sufficient evidence. The defendant was not entitled to a judgment in its favor based on the legal insufficiency of the evidence, since he had made no such chailenge by appropriate motion. This court, in the case of Whitaker, Admr., v. Michigan Mutual Life Ins. Co., 77 Oh St, 518, 83 N. E., 899, paragraph two of the syllabus, held:
“ ‘Although a party against whom a- verdict is returned and a judgment is rendered in the Court of Common Pleas may have been entitled to an instruction to the jury to return a verdict in his favor, he is not, on that account, entitled to a final judgment in his favor in a reviewing court unless upon the trial he has requested that such instruction be given.’
“The Court of Appeals found the judgment not to be ‘against the weight of the evidence.’ This court does not weigh the evidence. It follows, therefore, the judgment of the Court of Appeals should be and is hereby affirmed.”

References to the cases cited by the court show that in those cases a jury was actually employed. Under such circumstances the trier of the facts (the jury) is not the trier of mere issues of law.

It is true that §11421-3 GC, provides:

“So far as in their nature applicable, the provisions of this chapter respecting trials by jury, apply to trials by the court.”

However, it is apparent that an entirely different situation prevails in a jury case from that existing in a case tried only to the court. Where a jury is employed, the court, on motion, may deprive the jury of the right to pass upon the facts because the issue of law — (the existence of any substantial evidence) is decided by the judge alone. Would any motion, therefore, split the judge into a trier of facts and law? It may be presumed that the judge is able to determine both the issues of law and fact and, if there is no evidence, will predicate his judgment upon the absence of proof. The record shows no evidence, and it may be also presumed that the judge when considering the evidence presented becomes aware of such absence of proof and enters his judgment accordingly.

It has been repeatedly held that where it appears that by reason of absence of proof the trial court should have rendered a judgment and has failed to do so, the Court of Appeals is required to enter the judgment which the trial court should have rendered. Leighton v. Hower Corp., 149 Oh St, 72; Greyhound Lines, Inc. v. Martin, 127 Oh St, 499; Majoros v. Cleveland Inter. Rd. Co., 127 Oh St, 255. However, in each of these cases, and especially in McKellips v. Industrial Commission, 145 Oh St, 79, it is apparent that the absence of evidence as a ground for non-suit was called to the attention of the trial court, by a motion for instructed verdict at the conclusion of all the evidence, a motion for judgment based upon a failure of the plaintiff to sustain an element of the plaintiff’s case or a motion non obstante.

Regardless of what has been said therefore herein it seems clear that under our present practice before final judgment may be entered in this Court by reason of a total failure of proof of an essential element of plaintiff’s case, the trial court must be given an opportunity to enter such judgment upon the dearth of proof being called to the attention of the court, and the record must show that the parties took appropriate action to permit such action by the trial court.

It would seem the appropriate motion should be made before submission, and that a motion for non-suit would be proper in a case tried to the court without a jury.

No motion of any kind having been made before submission by the defendant in the instant case, this Court feels bound to follow the rule sustained by the authorities noted and cannot, therefore, now, in the state of the record here, enter final judgment.

It is suggested the rule does not apply where the court lacks jurisdiction to enter judgment. This is, however, not the same as lacking jurisdiction over the subject-matter or the person of the defendant, ab initio. See: 2 O. Jur., “Appellate Review” (Pt. I) Section 154, page 309, supra.

The Court of Common Pleas had jurisdiction over divorce, the subject-matter of the instant action now considered. It had jurisdiction over the person of the defendant. Failure to establish residence merely required the court to enter judgment for the defendant. The absence of proof appearing at the conclusion of the case upon submission could not relate back and render the court unable to entertain the action. The question, therefore, presented is one of proof and evidence, not jurisdiction over either the subject matter of the action or jurisdiction over the person of the defendant.

The judgment was voidable, not void, and a motion by the defendant of some sort was required, as hereinbefore indicated, to call the attention of the trial court to the defect in proof.

The motion of the defendant for final judgment, therefore, must be denied.

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