author: By WISEMAN, J.:

text:
    OWENS, Plaintiff-Appellee, v. ACKERMAN, Safety Director of City of Xenia et, Defendants-Appellants.
    Ohio Appeals, Second District, Greene County.
    No. 562.
    Decided September 23, 1955.

      Shoup & Hagler, Xenia, By Marcus Shoup, of Counsel, for plaintiffappellee.
    Wm. A. Miller, City Solicitor, Xenia, for defendants-appellants.
   OPINION

By WISEMAN, J.:

This matter is presented on the merits of an appeal on questions of law, and also on motion of appellee to dismiss the appeal.

We first proceed to dispose of the motion to dismiss. Appellee, a police officer in the City of Xenia, Ohio, was removed by G. D. Ackerman, Safety Director, the appointing authority. Appellee appealed to the Municipal Civil Service Commission of the City of Xenia, which affirmed the removal order of the Safety Director. Appellee then appealed to the Common Pleas Court of Greene County, which found “insufficient cause of removal” and ordered the appellee reinstated. The Safety Director and the Municipal Civil Service Commission of Xenia appealed to this Court from the judgment of the Municipal Court. No appeal was taken by the City of Xenia.

All proceedings, prior to the appeal instituted in this matter, were filed and taken pursuant to the provisions of §143.27 R. C., which provides:

“The tenure of every officer or employee in the classified service of the state and the counties, cities, and city school districts thereof, holding a position under §§143.01 to 143.48, inclusive, R. C., shall be during good behavior and efficient service; but any such officer or employee may be removed for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, violation of such sections or the rules of the commission, or any other failure of good behavior, or any other acts of misfeasance, malfeasance, or nonfeasance in office.

“In all cases of removal, the appointing authority shall furnish such employee with a copy of the order of removal and his reasons for the same, and give such officer or employee a reasonable time in which to make and file an explanation. Such order with the explanation, if any, of the employee shall be filed with the commission.

“Any such employee so removed may appeal from the order of such appointing authority to the state civil service commission or the municipal civil service commission, as the case may be, within ten days after the date of such removal, in which event the commission shall forthwith notify the appointing authority and shall hear, or appoint' a trial board to hear, such appeal within thirty days from and after its filing with the commission, and it may affirm, disaffirm, or modify the judgment of the appointing authority, and the commission’s decision is final. In the case of the removal of a chief of police or a chief of the fire department or any member of the police or fire department of a city an appeal may be had from the decision of the municipal civil service commission to the court of common pleas of the county in which such city is situated to determine the sufficiency of the cause of removal. Such appeal shall be taken within ten days from the finding of the commission.” (Emphasis ours.)

The precise question presented on the motion to dismiss is whether the safety director or the Municipal Civil Service Commission of Xenia has legal authority to prosecute an appeal from the judgment of the Common Pleas Court of Greene County. In Hamaker v. Olson, 23 Abs 513, the 7th District Court of Appeals in 1936 held that under §486-17 (a) GC (§143.27 R. C.), the appointing power had no right of appeal to the Common Pleas Court from an order of the Municipal Civil Service Commission. In the Hamaker case only the right of appeal to the Common Pleas Court was questioned; in the instant case, unlike the Hamaker case, the right of appeal to the Court of Appeals is questioned. There is no right of appeal unless expressly conferred by the constitution or the statute. Corn v. Board of Liquor Control, 160 Oh St page 9, 113 N. E. (2d) 360. Since the constitution gives no right of appeal, we must determine whether the right is conferred by statute. We find no provision in §143.27 R. C., conferring upon the appointing power or the Civil Service Commission the right of appeal from the Common Pleas Court. It has been held that we may look to the Appellate Procedure Act (§2505.01 to 2505.45, inclusive, R. C.), to determine the procedural steps in taking an appeal from the Civil Service Commission to the Common Pleas Court. (Kearns v. Sherrill, 63 Oh Ap 533, 27 N. E. [2d] 407.) But this Act does not determine upon whom the right of appeal is conferred.

We now consider the provisions of the Administrative Procedure Act. Sec. 119.12 R. C., as amended effective October 21, 1953; in part provides:

“The judgment of the court shall be final and conclusive unless reversed, vacated, or modified on appeal. Such appeals may .be taken either by the party or the agency and shall proceed as in the case of appeals in civil actions as provided in §§2505.01 to 2505.45, inclusive, R. C.” (Emphasis ours.)

The word “agency” is defined in §119.01 R. C., which in part provides:

“As used in §§119.01 to 119.13, inclusive, R. C.:

“(A) ‘Agency’ means, except as limited by this division, any official, board, or commission having authority to promulgate rules or make adjudications in the bureau of unemployment compensation, the civil service commission, the department of industrial relations, the department of liquor control, the department of taxation, the industrial commission, the functions of any administrative or executive officer, department, division, bureau, board or commission of the government of the state specifically made subject to §§119.01 to 119.13, inclusive, R. C. * * *.” (Emphasis ours.)

It is observed that “The civil service commission” is designated as one of the agencies which may take an appeal from the judgment of the Common Pleas Court. Prior to the amendment, such agency had no right of appeal. Corn v. Board of Liquor Control, supra. In that case, on page 17, the court in its opinion said:

“Thus it appears that the right of appeal from an adverse ruling of the board to the Court of Common Pleas is limited’ to those persons whose interests are subject to adjudication by the board, and it is likewise clear that such an appeal is in fact a review of the record of the agency.

“The board, the department, and the director, being agencies, can not be considered persons aggrieved by a decision, giving them a right of appeal, any more than can a trial court be a party aggrieved, with a right of appeal, because of a reversal by the Court of Appeals. No one would claim that under the Appellate Procedure Act such a trial court could appeal to this court from such a reversal.”

The language used by the Supreme Court in the Corn case is still applicable to the safety director, as his interest is not affected and he is not an aggrieved party. Does the amended section give a right of appeal in the instant case to the Municipal Civil Service Commission? The definition of “agency” in §119.01 R. C., includes “civil service commission.” Is the term “civil service commission" limited in its application to the State civil service commission? We find nothing in the Code which would so limit its application. Sec. 143.27 R. C., applies to both State and Municipal civil service commissions. At the end of this section there is a specific provision giving the right of a member of the police or fire department to appeal to the Common Pleas Court. But there is no provision in this section applicable to appeals from the judgment of the Common Pleas Court to the Court of Appeals. The Administrative Procedure Act furnishes this statutory authority. Furthermore, in determining the meaning of “civil service commission,” as used in the Administrative Procedure Act, it is well to observe the definition of “civil service” and “commission” as used in the Civil Service Act. Sec. 143.01 R. C., defines “civil service” as follows:

“(A) ‘Civil service’ includes ail offices and positions of trust or employment in the service of the state and the counties, cities and city school districts thereof.”

This section defines “commission” as follows:

“(E) ‘Commission’ signifies either the state civil service commission or the municipal civil service commission of any city.”

In the Revised Code, in Chapter 143, which is headed “Civil Service,” in numerous instances the terms “state civil service commission” and “municipal civil service commission” are used. Where the term “civil service commission” is used it is applied to both state and municipal systems. We conclude that the term “civil service commission” as used in §119.01 R. C., includes both state and municipal civil service commissions. It follows that the municipal civil service commission of Xenia is an agency which is given the right of appeal from a judgment of the Common Pleas Court. The motion will be overruled.

Coming now to consider the appeal on the merits, this Court, under §119.12 R. C., may “review and determine the correctness of the judgment of the court of common pleas” and decide from the entire record whether the order of the agency is “supported by any reliable, probative and substantial evidence.”

In the instant case the Common Pleas Court reversed the removal order of the Municipal Civil Service Commission in an entry which in part provides:

“The court, for the reasons stated in the decision and supplemental decision rendered in said cause, finds and determines that said order of removal of plaintiff-appellant from the Division of Police of the City of Xenia, Ohio, by the defendant-appellee appointing authority and as affirmed by the defendant-appellee Civil Service Commission of the City of Xenia, Ohio, was insufficient at law and irregular to the extent that such appeal is allowed, and the action of said defendantsappellees is reversed in toto, and said plaintiff-appellant is hereby reinstated to his position and restored to the emoluments of his office from the date of his discharge on November 17, 1953.”

In the two written opinions of the trial judge, which are attached to and made a part of the transcript, he ruled that the order of removal made by the safety director and forwarded to Owens by letter dated November 17, 1953, which was received by Owens on November 18, 1953, requiring Owens to make and file an explanation on November 20, 1953, did not give Owens sufficient time to prepare an explanation and did not comply with the requirements of §143.27 R. C., which in part provides:

“In all cases of removal, the appointing authority shall furnish such employee with a copy of the order of removal and his reasons for the same, and give such officer or employee a reasonable time in which to make and file an explanation.”

The Common Pleas Court ruled that the order of removal, which simply charged Owens with “conduct unbecoming an officer” without more, did not comply with the requirements of §143.27 R. C., which provides that in the order of removal the appointing authority shall furnish such employee his reasons for the same. The court held that this provision of the Code is mandatory and an order which does not comply therewith is void and all proceedings thereafter are a nullity. Citing State, ex rel. Brittain v. Board of Agriculture, 95 Oh St 276, 116 N. E. 459; City of Toledo v. Osborn, 23 Oh Ap 62, 155 N. E. 250; Curtis v. State, 32 Oh Ap 394, 168 N. E. 151; State, ex rel. Weber v. Eirick, 47 Oh Ap 481, 192 N. E. 172; State, ex rel. Wilkins v. Merrell, 10 Abs 282; and Vol. 9, O. Jur. 2d 436.

The testimony submitted to the Civil Service Commission was taken before a referee and at the hearing an abundance of hearsay evidence was given which counsel allowed to go into the record over objections before the referee with the understanding that the objections to the consideration of this evidence would be presented to the Civil Service Commission. A transcript of the record before the referee was furnished the Commission. The Commission promptly disposed of the matter by affirming the order of removal without giving counsel an opportunity to present the questions arising on the admissibility of the hearsay evidence. The Common Pleas Court found that after excluding the hearsay evidence, the evidence was insufficient in law as a cause of removal. Citing Hawkins v. City of Steubenville, 134 Oh St 468, 17 N. E. (2d) 641; Kearns v. Sherrill, 137 Oh St 468, 30 N. E. (2d) 805; Sorge v. Sutton, 159 Oh St 574, 113 N. E. (2d) 10; In re Koellner, 160 Oh St 504, 117 N. E. (2d) 169.

The Common Pleas Court further ruled that the Civil Service Commission, in failing to give counsel for Owens an opportunity to present the case properly to the Commission, did not accord to Owens due process of law.

The Common Pleas Court reversed the order of removal in toco. This was the proper order. Hawkins v. City of Steubenville, supra. Furthermore, it should be noted that there is not presented in the record a question of waiver by Owens. From the very inception, and at every step of the proceedings, Owens carefully protected his legal rights in the record.

In all of the matters which are raised and assigned as error by appellant, we are in accord with the judgment of the Common Pleas Court. Several errors assigned which have not been discussed have been carefully considered by this Court and are found to be without merit.

Finding no error in the record prejudicial to the rights of the appellant, the judgment is affirmed.

MILLER, PJ, HORNBECK, J, concur.


source: Caselaw Access Project

author: By KOVACHY, PJ.

license: Public Domain

text:
    CLEVELAND (City), Plaintiff-Appellee, v. SZABO, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23545.
    Decided November 2, 1955.

      Ralph S. Locher, Director of Law, Bernard J. Conway, Chief Police Prosecutor, Edward V. Cain, Asst. Police Prosecutor, Cleveland, for plaintiff-appellee.
    John C. Lyon, for defendant-appellant.
   OPINION

By KOVACHY, PJ.

This cause comes to us on questions of law from the Criminal Branch of the Cleveland Municipal Court.

Defendant-appellant, Edward Szabo, was found guilty of driving a tractor-trailer on the streets of the City of Cleveland without Ohio license plates. He was charged with violating Section 9.3101 of the Traffic Code of the City of Cleveland which reads as follows:

“9.3101 (2426) License Numbers.

“No person shall operate any motor vehicle without the number or numbers required by law or ordinance. Said number or numbers shall at all times be maintained, both as to position and condition thereof so that they shall be plainly visible and free from any substance or material of any kind obscuring them and said numbers shall be at all times maintained in their entirety.

“No placard which purports to be a license placard other than the license number plate or placard required by law to be displayed on motor vehicles shall be displayed on any motor vehicle in the city of Cleveland.”

At the time of the arrest, the tractor and trailer bore license plates issued by the State of Pennsylvania where they had been duly registered in accordance with the laws of that commonwealth. Edward Szabo, at the time, was employed at the Cleveland Freight Terminal of the Baltimore and Pittsburgh Motor Express Company (hereafter called the Company) a Pennsylvania corporation engaged in interstate commerce as a common carrier by motor vehicle and duly authorized by the Interstate Commerce Commission as exemplified by a Certificate of Public Convenience and Necessity issued to it under I. C. C. Docket No. M. C.-1936.

The facts in this case are not in dispute. A shipment of copper billets by tractor-trailer from Baltimore, Maryland, arrived at the Cleveland Freight Terminal of the Company at 8:15 A. M. on April 14, 1955, consigned to the Chase Brass and Copper Company, located at Euclid, Ohio, a suburban city of Greater Cleveland. The tractor that had pulled the shipment from Baltimore was detached and another one, also owned by the Company and bearing Pennsylvania license plates registered in Pennsylvania, was attached. At 10:00 A. M., this tractor-trailer, driven by Edward Szabo, left the Terminal for the plant of the consignee in Euclid. It was on this trip that the arrest took place. The tractor used on this short trip was customarily used to haul trailers between Pittsburgh and Cleveland by the Company.

The City of Cleveland contends that the tractor that was used to haul this shipment from the Cleveland Freight Terminal of the Company to the consignee’s plant was engaged in a purely local operation within the State of Ohio and as such, was engaging in intrastate conduct requiring the payment of a fee for registration and issuance of Ohio license plates under Ohio laws.

The defendant, on the other hand, contends that the trip from the Cleveland Freight Terminal of the Company to the consignee’s plant, under the circumstances, was an operation still in the flow of interstate commerce and as a result the tractor and trailer used in the operation were exempted from registration and licensing in Ohio by virtue of the Reciprocal Agreement entered into between the State of Ohio and the State of Pennsylvania in the year 1940.

*****

Sec. 4503.36 R. C. provides as follows:

“The owner of every motor vehicle which is duly registered in any state, district, country, or sovereignty other than this state is exempt from the laws of this state pertaining to registration and licensing and the penal statutes relating thereto, provided the owner thereof has complied with the law in regard to motor vehicles in the state, district, country, or sovereignty of his residence and complies with such law while operating and driving such motor vehicle upon the public roads or highways of this state. Such exemption shall be operative only if the law of such other state, district, country, or sovereignty makes substantially like and equal exemptions to the owners of motor vehicles registered in this state.

“Reciprocal agreements between this and any other state, district, country, or sovereignty necessary in administering this section shall be made as provided in §4503.37 R. C.”

A corresponding statute of the State of Pennsylvania, as found in Title 75, Section 99, reads as follows:

“The secretary shall have authority to make agreements with the duly authorized representatives of other states, exempting the residents of such other states using the highways of the Commonwealth from the payment of all or any such taxes, fees, or other charges imposed under this act, with such restrictions, privileges, or lack of them, as he may deem advisable, provided that all vehicles owned by non-residents shall be properly registered in the state of residence of their owner and shall conspicuously display a registration plate, and that residents of this Commonwealth when using the highways of such other state, shall receive exemptions of a similar kind to a like degree.”

Sec. 4503.37 R. C. reads:

“The attorney general, the director of highways, and the member of the public utilities commission who is designated by the commission for such purpose, may enter into any reciprocal contracts and agreements with the proper authorities of adjoining states as are proper and expedient, regulating the use, on the roads and highways of this state, of trucks, automobiles, and other motor vehicles owned in such adjoining states and licensed under the law thereof.

“Said state officials may also confer and advise with the proper officers and legislative bodies of this and other states, and the District of Columbia, for the purpose of promoting reciprocal agreements under which the registration of vehicles owned in this state, and the licenses of chauffeurs residing in this state, shall be recognized by such other states and federal districts.”

The Attorney General, Director of Highways and a specially designated member of the Ohio Utilities Commission on the part of the State of Ohio and the Deputy Secretary of Revenue and Senior Counsel of the State of Pennsylvania entered into a Reciprocal Agreement relating to the use of streets and highways of Ohio of vehicles registered in Pennsylvania and bearing license plates from that state in the State of Ohio and vice-versa with respect to Ohio vehicles in the State of- Pennsylvania on February 8, 1940.

Parts pertinent to this case provide as follows:

“The term ‘Ohio Motor Carrier’ as used in this agreement, shall be deemed to mean a natural person, resident of Ohio, or a firm, partnership, association or corporation organized or incorporated, or domesticated under the laws of Ohio, including their respective legal representatives in all cases, who or which is engaged in the business of transporting goods or passengers for hire by means of motor vehicles operated over the public streets and highways, including a motor transportation company or a private motor carrier as defined in the applicable provisions of the Ohio General Code, being such motor carrier as shail have its principal business headquarters within the State of Ohio; * * *”

“The term ‘Pennsylvania Motor Carrier’ as used in this agreement shall be deemed to mean a natural person, resident of Pennsylvania, or a firm, partnership, association or corporation organized or domesticated under the laws of Pennsylvania, including their respective legal representatives in all cases, who or which is engaged in the business of transporting goods or passengers for hire by means of motor vehicles operating over the public streets and highways, being such motor carrier as shall have its principal business headquarters within the State of Pennsylvania; * * *”

“* * * no such Pennsylvania motor carrier shall be entitled to the benefits of this agreement with respect to operations in Ohio, except as it shall, where lawfully required, have and possess with respect to such operations any requisite permit or authority under Pennsylvania laws, and also a certificate of public convenience and equivalent authority under the Federal Motor Carrier Act of 1935, and also any requisite permit or authority from the Ohio Public Utilities Commission.”

“In order to facilitate motor vehicle movements in interstate commerce between and through their combined geographical territories, the State of Ohio with respect to the interstate commerce operations of Pennsylvania Motor Carriers within Ohio territorial limits, and the State of Pennsylvania with respect to the interstate operations of Ohio Motor Carriers within the Pennsylvania territorial limits, agree that when such outstate carriers have secured reciprocity exemption cards or plates upon application as hereinafter mentioned, then they, the said States, shall to the extent of granted exemptions, severally waive and forego, and do hereby so waive and forego payment of their respective outstate motor carriers of the license plate taxes, * * *”

“The tax accrual period for and during which such taxes and fees may thus be waived shall commence with January 1, 1940, and shall continue until December 31, 1940, and thereafter until this compact and agreement shall be modified or altered between the contracting parties, or terminated by either on written notice first to be given to the other, of intent to terminate. * * •”

“And both states during the term of this agreement and subject to carrier’s procurement of reciprocity exemption, will permit motor carriers of the other state, as qualified and included in the definition ‘motor carrier’ contained in Paragraph 1 hereof, to travel and operate in interstate commerce upon their several public streets and highways without necessity for the payment of the fees and taxes for which waiver provision is herein made. * * *”

“Neither state, however, shall be deemed to waive any of the foregoing taxes and fees insofar as the same may relate to intrastate operations within their respective territorial limits as conducted and performed by their said outstate carriers.”

It is clear from the above that a license fee as regards this Company is waived by the State of Ohio, since it was organized under the Laws of Pennsylvania, has its principal business headquarters in that State and has the requisite permit and authority under Pennsylvania Laws to operate in Ohio as well as a Certificate of Public Convenience and equivalent authority under the Federal Motor Carrier Act of 1935, so long as it operates “in interstate commerce” upon the public streets and highways of Ohio. The State of Ohio, however, does not waive such fee if the conduct and performance by this outstate carrier “relates to intrastate operations” within the State of Ohio.

The trial court obviously determined that the transaction leading to the arrest of the defendant was of the nature of intrastate commerce and as such required Ohio license plates on the tractor participating in accordance with the plain provision of the Reciprocal Agreement with respect to intrastate operations in Ohio of an outstate carrier. Was the court right in finding that Edward Szabo was engaged in intrastate commerce under the facts and circumstances of this case? If so, the defendant was guilty of the charge brought against him and the judgment against him must stand. If, however, he was engaged in interstate commerce at the time of his arrest, the conviction was erroneous and judgment will have to be reversed and the defendant discharged for the reason that under the reciprocal agreement, the license fee of the outstate vehicle is waived when operated in interstate commerce in Ohio..

It is stated in 9 O. Jur., 2d, 538, Sec. 33:

“The term ‘commerce’ includes the transportation of persons and property by land and water, and it is well settled that interstate commerce includes the transportation of persons and commodities from one state to another.

“In the determination of whether a transportation of persons or property constitutes interstate or intrastate commerce, the essential character or unity of the movement is the decisive feature.”

“In order for local transportation to constitute interstate or foreign commerce, there must be such continuity of movement as to show that shipment to the ultimate destination was within the original contemplation of the shipper, and that stoppage or change of carriers is merely incidental to the shipment.”

The commodity herein involved was shipped by the American Smelting and Refining Company of Baltimore, Maryland, to the Chase Brass and Copper Company, Cleveland, Ohio via the Baltimore and Pittsburgh Motor Express Company. . The trailer on which the copper billets were loaded carried the load the entire route and reached the grounds of the consignee intact without transfer or change of any kind. The intention of the parties was that it be so transmitted and consequently the stoppage at the Cleveland Freight Terminal a mere procedural requirement that in no way interrupted the unity of the movement. It does not seem to us that the character and nature of the shipment from consignor to consignee was changed to any extent by the mere fact of the change of tractor and driver, at the Cleveland Freight Terminal. In our opinion, it was a simple transaction transporting property from one state to another and constituted one movement throughout until delivery of the load to the plant of the Chase Brass and Copper Company at Euclid, Ohio, with the stoppage at the Cleveland Freight Terminal a mere incident to the general movement of the shipment from state to state. The trip from the terminal to the Chase Brass and Copper Company was part and parcel of that movement and as a result, an operation in interstate commerce.

In Swift and Company v. U. S., 196 U. S. 375, the Supreme Court of the United States had this to say:

“When cattle are sent for sale from a place in one state, with the expectation they will end their transit, after purchase, in another state, and when in effect they do so, with only the interruption necessary to find a purchaser at the stockyards, and when this is a constantly recurring course, it constitutes interstate commerce and the purchase of the cattle is an incident of such commerce.”

and in Stafford et al v. Wallace, Secretary of Agriculture et al., 258 U. S. 495, the Supreme Court in paragraph four of the syllabus stated the following:

“4. Streams of commerce among the states are under the national protection and regulation, including subordinate activities and facilities which are essential to such movements though not of interstate character when viewed apart from them.”

See Albers, Admr. v. G. C. Transport Corp., 74 Oh Ap 425, paragraph one of the syllabus; Beam v. B. & O. Rd. Co., 77 Oh Ap 419, paragraph one of the syllabus.

We hold, therefore, that the defendant-appellant, Edward Szabo, was operating a tractor-trailer in interstate commerce while driving from the Cleveland Freight Terminal of the Baltimore and Pittsburg Motor Express Company to the Chase Brass and Copper Company at its plant in Euclid, Ohio, and that he was not in violation of Section 9.3101 of the Traffic Code of the City of Cleveland.

The judgment of the Cleveland Municipal Court accordingly is reversed and we proceed to render the judgment which the trial court should have rendered and discharge the defendant. Exceptions. Order see journal.

SKEEL, J, HURD, J, concur.


author: By CONN, J.

text:
    SCOTT et, Plaintiffs-Appellees, NUSHAWG, Intervening Plaintiff-Appellant, v. FAYETTE COUNTY AGRICULTURAL SOCIETY, Defendant-Appellant.
    Ohio Appeals, Second District, Fayette County.
    No. 276.
    Decided November 19, 1955.

      Hon. Carrington T. Marshall, Frederick L. Orum, Columbus, for plaintiffs-appellees.
    Brownfield & Malone, Columbus, for defendant-appellant.
    (CONN, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By CONN, J.

This appeal is on questions of law and fact from a judgment entered in the Common Pleas Court to this court for trial de novo.

It was stipulated by counsel for the parties that the case here shall be heard on the transcript of the evidence received in the Common Pleas Court, and such additional evidence as may be taken by deposition. The parties will be designated herein as in the lower court.

This cause was submitted on the amended petition of plaintiffs, the intervening petition of Herbert B. Nushawg, the answer of defendant, transcript of the docket and journal entries, transcript of the evidence anri depositions and briefs of counsel.

This is an action for injunctive relief originally brought and tried in the Court of Common Pleas, to restrain the defendant from further proceeding in an action previously brought by defendant in the Common Pleas Court, cause No. 21553, to appropriate certain lands of plaintiffs, particularly described in plaintiffs’ petition filed in this cause. Plaintiffs also pray for a declaratory judgment.

The amended petition of plaintiffs, as pleaded, contains twenty causes of action. Under the Code of Civil Procedure (§2309.07 R. C.), where a petition contains more than one cause of action, each must be separately stated and numbered.

A cause of action .is properly designated as such in a pleading where the facts alleged, and if established, provide a basis for judicial relief. The fact that the relief prayed for is predicated on plural grounds, does not give rise to separate causes of action.

Where a single cause of action is split into two or more counts, there is a dearth of clarity and conciseness, which are elements of good pleading under the Code, and provides a well-designed way to confusion. Furthermore, this form of pleading tends to impose an added burden on the court in applying the evidence and adjudicating the issues, and is not in harmony with modern procedure, and is not approved.

The confusion created by the several causes of action set up in plaintiffs’ amended petition, is illustrated by the form of the judgment entry in the lower court and the nature of appeal of defendant, specifically limited as an appeal from the judgment of the trial court on allegations in the 8th and 18th causes of action; likewise by the cross appeal of plaintiffs from the adverse judgment of the Court of Common Pleas on the 1st to the 17th causes of action, excepting the 8th.

In our opinion, the appeal of defendant, not being challenged, brings up the whole case to this court for trial de novo, and that the specific limitation in the notice of appeal of defendant, and the cross appeal filed by plaintiffs, as to certain “causes of action,” effect no limitation as to the jurisdiction of this court to conduct a trial de novo.

We call attention to the provisions in §2505.21 R. C.:

“An appeal taken on questions of law and fact entitled the party to a hearing and determination of the facts de novo, which shall be upon the same or amended pleadings.”

An analysis of plaintiff’s amended petition discloses that it contains but two causes of action, one for injunctive relief and the other, for a declaratory judgment, and sua,sponte shall be so considered.

The material allegations in the amended petition, which provides a basis for relief, as prayed for, are as follows:

That on February 13, 1953, the defendant filed its petition in the Court of Common Pleas, cause No. 21553, to appropriate certain lands of plaintiffs, situated in Fayette County, consisting of two parcels, described by metes and bounds, one parcel containing 47.033 acres and the other containing two-tenths of an acre; that said parcels are not correctly described in said application of defendant; that no bona fide effort was made to agree with the owner of said first parcel upon a price for or the right to use the second parcel, for an agricultural fair; that in said appropriation proceedings one, Wilson, is made a party and claims some interest, but has no interest in said real estate.

Plaintiffs further aver that a large portion of the premises to be appropriated is not intended to be used for an agriculture fair; that large portions of said lands have been used for purposes other than an agriculture fair and if said lands should be appropriated, defendants intend to use same for private uses; that defendants intend to acquire said lands for resale at a profit; that for many years defendants have used said premises for many purposes other than holding an agriculture fair.— such as stock sales, horse shows and sales, — said uses were not being public uses but for the purpose of making profit.

Plaintiffs further say that defendant is a private corporation for profit and does not have the power nor right to own real estate; that' under the statutes of Ohio, the defendant can acquire lands for the sole purpose of holding an agriculture fair; that the use of land for an agriculture fair is not a public use as contemplated in Sec. 19 of the Ohio Bill of Rights and the 5th amendment of the Constitution of the United States; that therefore the statute attemping to confer the power of eminent domain is unconstitutional and void.

It is further alleged that defendants are already in possession of real estate, excepting a small parcel along Pairview Avenue, by reason of a lease from the county commissioners that county commissioners are obligated by said lease until January 1, 197Í, and said property is used for purposes intended; that defendant does not have available resources for paying the reasonable value of said property; that defendant has permitted pari-mutuel gambling on said premises; that there is a defect of parties and that defendant will seek to appropriate said lands unless restrained by this court; and that plaintiffs have no adequate remedy at law. Plaintiffs pray that defendant be enjoined from proceeding further to procure said lands.

Plaintiffs further allege that defendant has held a leasehold interest in said premises beginning August 25, 1885; that under the terms of certain leases, defendant had the right to remove the buildings and improvements thereon within a given time; that defendant did not rémove any of said buildings or improvements at any time prior to May 1, 1950; that the right to remove them ceased on said date; that notwithstanding the provisions in each of said leases, defendant claims ownership of all buildings and improvements on said premises and prays for a declaratory judgment in event the prayer for injunction is denied.

For answer to the amended petition, defendant admits the filing of said appropriation proceedings; that it has permitted stock sales, horse shows and horse sales on said premises; that it held fairs for the years 1951, 1952 and 1953 on a portion of said lands under lease from the county commissioners; that it has permitted pari-mutuel wagering/pursuant to the statutes of Ohio; that plaintiffs gave a lease to the county commissioners from January 1, 1951 to January 1, 1971; and that defendant is a body corporate and politic under the laws of Ohio. Defendant denies generally each and all allegations m the amended petition not herein admitted, and prays that the amended petition be dismissed.

In the intervening petition of Herbert B. Nushawg it is alleged that said petitioner on February 5, 1953, acquired by warranty deed from plaintiffs the land described in parcel 2 of the amended petition; that prior to February 13, 1953, he entered into a contract with plaintiffs to purchase an additional parcel facing ü. S. Highway No. 22; that no effort has been made by defendants to agree on a price for said property; and that the land owned by him is not intended to be used by defendants for holding an agriculture fair. Said petitioner prays defendant be enjoined from proceeding further to appropriate his lands.

Defendant admits the execution and delivery of said warranty deed and denies generally all allegations not admitted.

Plaintiffs have the burden of establishing the allegations of their amended petition which are essential as grounds for injunctive relief.

The rule is stated concisely in 21 O. Jur., 1277, Sec. 202, which we quote in part:

“The burden is upon one who seeks to enjoin the action of a public board in the exercise of its discretion, to show with that clearness which is always necessary to move a court of equity to interfere, a state of facts which would constitute an abuse of discretion.”

The weight and sufficiency of evidence necessary to support a prayer for injunction is expressed in such terms as “clear,” “clear and convincing” or “satisfactory.”

21 O. Jur., 1280, Sec. 204; See Wen v. Board of Trustees, etc., 21 Oh Ap 367; White v. City of Columbus, 27 Abs 489.

Briefly stated, plaintiffs must sustain the several fact issues raised on the amended petition, intervening petition . and answers, by clear and convincing evidence.

The action to appropriate the lands described in plaintiffs’ amended petition was begun by defendant pursuant to the provisions of §9885-1 GC (now §1711.14 R. C.) which are as follows:

“Appropriation of land for agricultural fair purposes; procedure. When it is necessary in the opinion of any county agricultural society to procure or enlarge any site for the purpose of holding an agricultural fair, and the agricultural society and the owner of the property needed for such purposes, are unable to agree upon the sale and purchase thereof, the agricultural society shall make an accurate plat and description of the parcel of land which it desires for such purposes, and file them with the probate judge, or with the court of common pleas in the county in which the land sought to be taken is located. Thereupon the same proceedings of appropriations shall be had which are provided foi the appropriation of private property by municipal corporations in §3681 to §3697, both inclusive, GC.”

This court held, on the first appeal of this case, 96 Oh Ap 6. that said §9885-1 and §§3681 to 3697 GC, are in pari materia. These latter sections are found in Chapter 1 of the General Code, “Appropriation of Property” by municipal corporaions.

It was held on this first appeal that the Agricultural Fair Society, defendant herein, had complied with the requirements of the above statutes with respect to notice and the correct description of the property and plat of said lands, filed simultaneously therewith.

Plaintiffs claim again on this appeal that the statutes with respect to the description of the property and the plat were not complied with. This contention is without merit. It was made on the previous appeal to this court and not sustained. That Judgment has become final, as no appeal was taken.

The evidence received on the claims of plaintiffs that no bona fide effort was made by defendant to agree with the owners upon a price for said parcels of land does not sustain plaintiffs’ claim. It appears that the parties authorized their respective counsel to negotiate for the sale and purchase of said lands and that these negotiations were carried on for approximately one year, during which time plaintiffs put a price on said lands and defendants made a counter offer. The parties not being able to agree, defendant notified plaintiffs that an application to appropriate the lands would presently be filed. Then, within a few days before said application was filed, plaintiffs conveyed parcel two by warranty deed to the intervening petitioner, and conditionally agreed to convey a second parcel, although intervening petitioner knew of the negotiations between the parties and knew that defendant intended to commence appropriation proceedings.

The situation thus presented subjects plaintiffs to the equitable doctrine that he who seeks equity must do equity. The advantage sought by plaintiffs in these doubtful transactions has no standing in a court of equity.

Respecting the same claim made by the intervening petitioner it is apparent that his rights can rise no higher than plaintiffs’ under the facts and circumstances disclosed by the record. In our opinion, the defendant was not required to conduct further negotiations as a condition precedent to filing its application for appropriation of said property.

Further fact issues were raised that certain portions of said described property are not necessary for purpose of agriculture fair and defendants did not intend to use them for that purpose, and had no right to appropriate same; that defendant had used said premises for many purposes other than holding an agriculture fair; that the use of said property by defendant was not a public use; that defendant was a private corporation and had no right to appropriate said lands; and that defendant did not have available' resources for the payment of the reasonable value of said premises.

On these issues, the president and secretary of defendant, and other witnesses, were called to testify. The president testified very fully, among other things, as to the need and use of all the lands described in plaintiffs’ amended petition for the purposes of defendant, including land for improvements, parking, etc., and to meet generally the public use of all the lands sought to be appropriated, together with all the numerous public activities of defendant, culminating in the annual fair.

The evidence adduced shows that defendant has held annual fairs for many years in Fayette County; that in addition to holding fairs, the lands sought to be appropriated are needed for many public activities di. defendant, including programs for 4-H Clubs for boys and girls; Junior and Senior department FHA and FFA; Exhibits sponsored by Garden Clubs; Health Groups, Farm Bureau; Grange and State Highway Department; also exhibits of livestock, grain, fruit, sewing, canning, cooking and other public uses.

Said officers were also examined fully as to ways and means defendant has to provide funds with which to pay for the reasonable value of said premises. No testimony was offered tending to show that defendant would be unable to pay the amount of the assessed valuation. Said witnesses were not impeached and little or no evidence was offered, of an affirmative character, which was materially conflicting or which tended to show a want of good faith in seeking to appropriate the lands of plaintiffs for the public uses of an agriculture fair grounds for Fayette County.

Moreover, there was no showing that the defendant has acted arbitrarily or had been guilty of an abuse of discretion in determining what amount of property is reasonably required for its public use and purposes or in the management of its property in relation to the general public, or in the use it has made or intends to make of the property it seeks to appropriate for the uses and purposes of the defendant as an agriculture fair society.

There being no showing of bad faith or abuse of discretion on the part of the defendant in making application to appropriate plaintiffs’ property for public use, the rule announced by this court in Shepard Paint Co. v. Board of Trustees, etc., 88 Oh Ap 319, has application here. We quote:

“4. The necessity for and extent of property to be taken by eminent domain are questions for legislative determination, and, in the absence of fraud, bad faith or abuse of discretion, such determination will not be disturbed by the courts.”

See Geisey v. Cincinnati, 4 Oh St 308.

On the cause of action for a declaratory judgment on the issue of ownership of the buildings and improvements on said property, and the right to remove same, under the terms of the several leases, the first lease of defendant, bearing date August 25, 1885, there is a great dearth of evidence in the record in support of the prayer for a declaratory judgment.

On the state of the record, we conclude that the prayer for declaratory judgment may not be granted.

In conclusion, there should be a finding and judgment for defendant, as it appears on the whole record that the several steps taken by defendant to appropriate the property of plaintiffs for the public uses of an agriculture fair society, have been pursuant to the statutes made and provided in such cases and further that plaintiffs have an adequate remedy at law.

The petition of plaintiff and the intervening petition of Herbert B. Nushawg are each dismissed at costs of plaintiff, and cause remanded to the Court of Common Pleas for execution for costs.

MILLER, PJ, HORNBECK, J, concur.


author: Per CURIAM:

text:
    HURT, Plaintiff-Appellee and Cross-Appellant, v. CHARLES J. ROGERS TRANSPORTATION CO., Defendant-Appellant and Cross-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23179.
    Decided December 13, 1954.
    Harrison, Spangenburg & Hull, Cleveland, for plaintiff-appellee.
    McConnell, Blackmore, Cory & Burke, Cleveland, for defendant-appellant.
    (DOYLE, PJ, STEVENS, J, HUNSICKER, J, of the Ninth District, sitting by designation, in the Eight District.)
   OPINION

Per CURIAM:

We have in this case an appeal on questions of law, and a cross-appeal on questions of law from a judgment of the Common Pleas Court of Cuyahoga County, Ohio.

Howard H. Hurt brought an action for personal injuries against Charles J. Rogers Transportation Company (hereinafter called Rogers) and Ford Motor Company. A verdict for $100,000 was returned by the jury against both defendants. Both defendants filed motions for judgment notwithstanding the verdict. Rogers also filed a motion for a new trial. The motion for judgment notwithstanding the verdict, filed on behalf of Ford Motor Company was granted by the trial court; and in this appeal we do not have that judgment to review.

The trial court denied the motion for judgment notwithstanding the verdict filed in behalf of Rogers, and thereafter the instant appeal was duly filed. The trial court, on the hearing of the Rogers motion for a new trial, held the verdict excessive and ordered a remittitur in the sum of $45,000.00. Howard H. Hurt refused to accept the remittitur, whereupon the Rogers motion for a new trial was granted. It is from the judgment awarding a new trial to Rogers that Howard H. Hurt filed his cross-appeal herein.

Rogers, for his assignment of error, says:

“1. The court erred in its failure to direct a verdict for Rogers at the end of all of the evidence.

“2. The court erred in failing to grant Rpgers’ motien for judgment notwithstanding the verdict.

“3. The judgment of the trial court was contrary to law.”

Howard H. Hurt, for his assignment of error on the cross-appeal says:

“The trial court committed error, prejudicial to the rights of plaintiff, in entering order granting a new trial to the defendant, upon plaintiff’s refusal to accept a remittitur reducing the verdict.”

There is no occasion in this memorandum to detail the evidence shown by the lengthy bill of exceptions.

The judges of the Sixth Appellate District, in an opinion written by Judge Fess, on May 7, 1952, in a former appeal in this case, made an analysis of the same evidence presented to us in the instant appeal. After a careful examination of the evidence, the briefs and the law, we must arrive at the same result expressed by the Judges of the Sixth Appellate District, when, at the end of their opinion, they said:

«* * * we conclude that as against Rogers * * * there was some evidence to support each essential issue of plaintiff’s claim.”

The judgment of the trial court denying the Rogers’ motion for judgment notwithstanding the verdict is affirmed.

In our examination of the cross-appeal, we are met with the question, — Did the trial judge, in granting this motion for a new trial, abuse his discretion? A judgment granting a new trial is not a final appeal-able order, unless the trial judge, in allowing a new trial, committed an abuse of discretion.

Abuse of discretion is a term that has been defined as “more than an error of law or of judgment; it implies an unreasonable, arbitrary or unconscionable attitude on the part of the court in granting such motion.” Klever v. Reid Bros. Express Inc. et al, 154 Oh St 492.

In the instant case, we do not find that the trial court abused his discretion. The question, is a judgment granting a new trial a final appealable order? has been before the court many times. And in the case of Green v. Acacia Mutual Life Ins. Co., 156 Oh St 1, the Supreme Court said:

“4. An ofder granting a new trial upon motion made in accordance with §11578 GC, is not a final determination of the rights of the parties and does not constitute a judgment or final order, the General Assembly has no power or authority to provide for an appeal from such order, and §12223-2 GC providing that ‘an order vacating or setting aside a judgment and ordering a new trial, is a final order,’ is in conflict with Section 6, Article IV of the Ohio Constitution.”

In the case of Gray v. Youngstown Municipal Ry. Co., 160 Oh St 511, there appears a change of attitude, evidenced by one of the judges who joined in the majority decision in the Green v. Acacia etc case supra. What new development or change in the law may take place in the Supreme Court, as it will be in the near future, due to an impending change of membership, can be only a guess on the part of this Court. We believe that, notwithstanding the adoption of the Revised Code, wherein former §12223-2 GC has been re-enacted as §2505.02 R. C., this court is bound to follow the rule in the Green v. Acacia etc. case, supra.

We therefore determine, as to the cross-appeal, that there was no abuse of discretion on the part of the trial judge in granting the motion for a new trial and hence such judgment is not a final order from which an appeal may be taken.

The order denying the motion for judgment notwithstanding the verdict, is affirmed and the cross-appeal from the order granting the motion for a new trial is dismissed. Each party will pay the costs incurred as a result of the action taken by such party. Exc. Order see journal.

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


author: By HORNBECK, J.

text:
    CEDARVILLE LUMBER COMPANY, Plaintiff-Appellee, v. DEMENT, Defendant-Appellant.
    Ohio Appeals, Second District, Greene County.
    No. 548.
    Decided October 20, 1955.

      Wead & Aultman, Xenia, for plaintiff-appellee.
    Aultman, Shaw & Cox, Xenia, for defendant-appellant.
    (MILLER, PJ, CONN, J, of the Sixth District, sitting by assignment, in the Second District.)
   OPINION

By HORNBECK, J.

This is an appeal on questions of law from a judgment for the plaintiff in the sum of $430.60 with interest and costs upon a directed verdict.

Plaintiff’s cause of action was on a book-account for building materials and supplies furnished to defendant. Defendant answered. The first defense was a denial that the statement of account attached to plaintiff’s petition was a correct statement of account between plaintiff and defendant. The second defense was a general denial. By way of cross-petition defendant averred that there was a contract between him and plaintiff whereby plaintiff agreed to furnish all of the lumber and materials, except masonry work, needed in the construction of a barn by the defendant on the farm of a Mr. Ross near Westerville, Ohio, for the sum of $4,500.00; that defendant had paid to the plaintiff the full amount which he was obligated to pay and that there was nothing due or owing to the plaintiff; that plaintiff failed to furnish all the lumber and materials, but furnished only part, and averred that he was required to use old lumber to his damage in the sum of $470.00 and that materials of the value of $128.00 had not been furnished by the plaintiff under the contract. Defendant prayed for judgment in the sum of $598.00. Plaintiff replied denying any special contract as pleaded in the cross-petition.

Plaintiff in chief, called the defendant for cross-examination. It was developed that the contract set up in defendant’s cross-petition was oral. Defendant testified further that plaintiff did not furnish all the materials which it had agreed to furnish, that although there was no blue print of the barn which was to' be erected, there was a set of working plans from which Mr. Haines of plaintiff company could take off the necessary material to be furnished for the erection of the barn. Defendant said that he had settled in full of his obligation under the contract. That he had paid $2000.00 when the job was about two-thirds completed, and $2500.00 after it was completed and settlement was made, and at that time, no balance was due plaintiff. At the conclusion of defendant’s testimony on cross-examination, counsel for plaintiff moved that the cross-petition be dismissed for the reason that by §8383 GC and §8384 GC, the contract sued upon in the cross-petition being in an' amount over $2500.00 for the sale of personal property to be enforceable must have been in writing. The Court sustained the motion.

Later, after plaintiff had rested, defendant and another witness offered testimony that a conference had been held between defendant, Mr. Haines, for plaintiff company, and several others, at which time a sketch of the barn to be erected together with a bill of materials which had been prepared by Mr. Haines, was considered and the price of maaterials to be furnishd by plaintiff made. When a question was put to the witness, Dinnen, as to what was said in the conversation between him and Mr. Haines, objection was interposed which was sustained.

There was no material difference in the testimony as to the delivery onto the job of the items set forth in the book-account. Defendant did not admit the price thereof as set out in the charges for the items to be correct and Mr. Dinnen questioned the delivery of articles for which the charge of about $63.00 had been made. At the conclusion of all the testimony, plaintiff moved for a directed verdict in its favor for the sum of $430.60. The motion was sustained, the Court saying:

“The statute in this state provides under certain circumstances like this, as the Court views it, that any contract in reference to these matters which is $2500.00 or more has to be in writing and signed by the parties charged therewith, and there was no written contract or memorandum that the goods were to be furnished for forty-five hundred dollars. So that isn’t a good defense to this action in the opinion of the Court.”

Three errors are assigned which test the rulings of the Court in refusing to admit evidence to show that the contract which defendant sued upon had been taken out of the statute, §8384 GC by complete performance and in directing the jury to return its verdict for the plaintiff for the amount prayed.

As we reconcile the pleadings and the evidence, the plaintiff sued upon a book-account, which in the answer was denied in all particulars. Defendant in his testimony admitted the delivery of the articles substantially as set out in the account. But by his answer and cross-petition and his testimony, defendant specifically denied that the materials and supplies were delivered under the contract implicit in the book-account and asserted that they were delivered under the specific oral contract set up in the cross-petition.

The applicable sections are §8383 GC, now §1315.04 R. C. and §8384 GC, now §1315.05 R. C., the former providing that subject to §§1315.01 to 1315.76 R. C., a contract to sell or a sale may be made in writing, or by word of mouth, or partly in writing and partly by word of mouth, or may be inferred from the conduct of the party.

Sec. 8384 GC, now §1315.05 R. C. reads:

“A contract to sell or a sale of any goods * * * of the value of $2500.00 or upwards is not enforceable by action unless the buyer accepts part of the goods, * * * so contracted to be sold, or sold, and actually receives them, or gives something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale is signed by the party to be charged or his agent in that behalf.” (Emphasis ours.)

The Court failed to give consideration to the emphasized portions of §8384 GC. Upon defendant’s pleadings and the testimony in his behalf, if true, the exceptions to the obligation that the contract sued upon be in writing appeared and the oral contract, though in excess of $2500.00 was valid.

Sec. 8384 GC incorporates the well recognized rule that part performance of an oral contract avoids the statutory requirement that it be in writing.

The respective theories of the parties in this case are well defined both by the pleadings and the evidence. Plaintiff contends that the materials were furnished under a book-account. Defendant insists that they were not so furnished but were delivered under an express oral contract as pleaded. Upon the facts as pleaded and developed by the defendant, in the words of the statute, he had accepted part of the goods sold under the contract and actually received them.

Though it is clear that the testimony respecting the special contract upon which defendant relied was admissible on the averments of his cross-petition, it is probable that it was also admissible under the general denial of his answer. Bates Pleadings, Practice, Parties and Forms, Volume II, page 1283 has this to say on the subject:

“Under a general denial, defendant can offer any evidence going to controvert the facts which plaintiff must establish. * * * As that the contract was never made. * * * That the actual contract differs from that declared on.”

1 O. Jur. page 189:

“As shown above the statements prescribed by the statute for an action in a short form (Book-account) are the equivalent of and imply all that would otherwise be necessary to allege in the statement of a sufficient cause of action. Every fact thus averred by implication is traversed and put in issue by the general denial.”

Citing Dykeman v. Johnson, 83 Oh St 126.

In Simmons, et al v. Greene, 35 Oh St 104, the action was to recover damages for breach of contract which was pleaded. The answer set up a different contract than pleaded in the petition. The Court in the first syllabus says:

“In an action to recover damages for the breach of the contract, averments in the answer setting up a different contract are immaterial except as they operate to deny the making of the one sued on. Such averments do not constitute new matter, and require no reply.”

The errors assigned are well made. The judgment will be reversed and cause remanded for a new trial.

MILLER, PJ, CONN, J, concur.


author: By THE COURT.

text:
    HOLLYWOOD TELEVISION SERVICE, INC. et, Plaintiffs-Appellees, v. PICTURE WAVES, INC. et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 5051.
    Decided November 12, 1954.
    C. C. Crabbe, Garek & Sillman, Maugan & Vacca, Columbus, for plain tiffs-appellees.

      Stephen Mack, Toledo, Dale D. Rapp, W. B. McLeskey and C. W. McLeskey, Columbus, for defendant, Picture Waves, Inc.
   OPINION

By THE COURT.

This is an appeal from a judgment of the Common Pleas Court appointing a receiver for the defendant-appellant, Picture Waves, Inc. The judgment entry is rather extended consisting of twelve numbered paragraphs of findings which precede formal adjudication appointment of the receiver. Appellant assigns fourteen errors as follows:

1. That §1701.93 R. C. (§8623-85 GC) by virtue of which said receiver is alleged to have been appointed, is unconstitutional in that it deprives the corporation involved of its property without due process of law in contravention of Article I, Section 16 of the Ohio Constitution and the 14th Amendment to the Constitution of the United States.

2. That said plaintiffs-appellees were and are not authorized to commence and maintain this action because they were not judgment creditors at the commencement thereof.

3. That the petition filed in this cause does not state facts sufficient to constitute a cause of action or to justify the appointment of a receiver.

4. That in determining whether or not a receiver should be appointed the Court erred in requiring the defendant-appellant, Picture Waves, Inc., to show cause why a receiver should not be appointed.

5. That the appointment of said receiver was not in accordance with law.

6. That the appointment of said receiver constituted an abuse of discretion. '

7. That the appointment of Peter Vacca, as receiver, and Justin L. Sillman, as attorney for receiver, was not in accordance with law.

8. That the appointment of Peter Vacca, as receiver, and Justin L. Sillman, as attorney for receiver, constituted an abuse of discretion.

9. That the findings and conclusions set forth in paragraph numbered 10 of said judgment are not sustained by sufficient evidence, are against the manifest weight thereof, and are contrary to law.

10. That the findings and conclusions set forth in paragraph numbered 11 of said judgment are not sustained by sufficient evidence, are against the manifest weight thereof, and are contrary to law.

11. That the findings and conclusions set forth in paragraph 12 of said judgment are not sustained by sufficient evidence, are against the manifest weight thereof.

12. That said judgment is not sustained by sufficient evidence, is against the manifest weight thereof and is contrary to law.

13. That said judgment should have been for the defendant-appellant, Picture Waves, Inc., instead of for the plaintiffs-appellees.

14. Other errors of law occurring at the hearings and trials in said Court and apparent upon the face of the record, to which said defendant-appellant, Picture Waves, Inc., then and there duly excepted.

Counsel have briefed the questions presented by the errors assigned at great length. In discussing and determining the questions presented, we will be as brief as possible and will not in many instances where we believe the principles of law controlling are well established cite authority. The contention of appellant as to the first error assigned is that §1701.93 R. C. defining jurisdiction and procedure in voluntary dissolutions of corporations is unconstitutional in that it deprives the corporations of due process of law in contravention of Federal and our State Constitution. The section in our judgment provides for notice to all the directors of the dissolved corporation and such other persons interested as such court or judge deems proper, * * *.

Second: The plaintiffs may not maintain the action because they were not judgment creditors of defendant-appellant, Picture Waves, Inc., at the commencement of the action. The section, §1701.93 R. C-, provides that the

“adjudications provided in this section may be made upon the petition of the directors of a dissolved corporation or a majority of them, or of a creditor, or shareholder, * *

It is insisted that the word “creditor” must be interpreted to mean judgment creditor of the dissolved corporation at the time the action is instituted for the appointment of a receiver. The term is not defined by the statute or at any place in the General Corporation Code. It must be interpreted in the light of the purpose of the section and the procedure set forth in the General Corporation Act.

There is merit in the respective contentions of the parties In the instant proceedings the claims of the alleged creditors, both of which have instituted actions against the defendant corporation and one of which has made shareholders parties, are disputed in their entirety. As we understand the pleadings in the cases which have been instituted,’ if the defendant corporation maintained its contention neither of the claimants would be a creditor. If this should eventuate, manifestly the corporation would be subjected to expenditures, court cost, etc., unnecessarily and improperly. The ultimate determination whether or not either of these claimants is a creditor must be made by a jury and not by a court alone. If “creditor” is to be given the meaning of simple contract creditor the judge who has the responsibility of naming a receiver must determine with some certainty that there is substance to the obligations upon which the applicants for the appointment of a receiver base their contention that they are creditors.

On the other hand, there are moving reasons for the construction that the word “creditor” includes simple contract creditors. The purpose of the appointment of a receiver by the authority of §1701.93 R. C. is to preserve the assets of the dissolved corporation to the end that no debtor will be unpaid if by the appointment of a receiver it can be prevented. The limitation in §1701.32 R. C., on an action by a creditor against a shareholder is one year after the corporation has been dissolved. This has effect whether or not a receiver has been appointed. This statute lends some support in favor of construing “creditor” as contract creditor.

Counsel have cited a number of cases on the proposition. The authorities set out in appellants’ brief, quite numerous, all were pronounced in receiverships sought or completed under the general equity powers of the courts and are not necessarily controlling here. Nor does the case In re Johnson Dissolution, 22 Abs 534, reach our question because it was not presented, discussed or decided in that case. The opinion in Drake v. National Bank of Commerce (Va.), 190 S. E. 302, is persuasive because of the soundness with which the statute there involved is discussed as it relates to an interpretation of the word “creditors” as found in the Act.

The issue is not free from doubt but by reason of the fact that we' must indulge a presumption in favor of the regularity and the correctness of the judgment under review Euclid Roxford Co. v. Bolgar, 4 Abs 733, we hold as did the trial judge.

The third assignment of error is that the petition did not state facts sufficient to constitute a cause of action for the appointment of a receiver and six reasons are assigned in support thereof. Without discussion, we hold against the appellant on this assignment particularly because the averments which would constitute a sufficient cause of action under the corporation act which is controlling here, are not to be determined in the light of the adjudications in receiverships arising under the general chancery jurisdiction of our courts.

The fourth assignment of error is that the court erred in requiring the defendant to show cause why a receiver should not be appointed. We agree with the proposition that the citation, so worded, was unfortunate and that at all times the burden was upon the applicants to establish by requisite proof the necessity for the appointment of a receiver. However, upon a full consideration of the record we cannot say that the judges who presided at the hearings leading up to the appointment of a receiver did not properly place the burden of proof.

We agree with Judge Harter that at the time of the conclusion of the hearing before him he had no choice but to name a receiver. At that time it appeared, without qualification, that the corporation had dissolved and that it had transferred all of its assets to its shareholders without any provision for payment of its creditors. The situation as developed in the later hearing before Judge Clifford was different and presented a much more serious challenge to the necessity, or the advisability of naming a receiver. We later consider the validity of the order under review.

The fifth and sixth assignments of error are that the appointment of a receiver was not in accordance with the law and constitute an abuse of discretion. Upon the state of the record, we cannot say that the court erred in concluding it did not satisfactorly appear that the Board of Directors of the defendant corporation had adequately provided for the payment of the obligations of the corporation, as is required by §1701.92 R. C. While it was the obligation of the court to name a receiver, if it reasonably appeared that there were creditors whose claims might be in jeopardy without the protection of a receiver, it could not have anticipated that there were creditors other than the petitioners unless it reasonably appeared there were such creditors. Mere suggestions that there might be other creditors could not afford justification for the assumption they were existent and therefore they should be protected by a receivership.

If the petitioning creditors had been made safe in the full amount of their claims, if they secured a final judgment against the corporation, that should have been sufficient to have prevented the appointment of a receiver and to have permitted the directors of the corporation to continue to carry on subject to the order of the court. Mr. Mack, no doubt, intended to make certain by his proffer that if the petitioning creditors secured judgments they would be paid and that a fund would be deposited with the clerk for that purpose. But he did not definitely say so, nor were the terms expressly stated under which he would deposit, nor was there any deposit forthcoming. We cannot hold that the offer of Mr. Mack is a complete bar to the appointment of a receiver nor that the court abused its discretion in the appointment.

The seventh and eighth assignments of error are that the court abused its discretion in naming Mr. Vacca as receiver and Mr. Sillman as his attorney. We do not so hold because of the language of the applicable part of §1701.98 R. C., “any officer, director, shareholder, or other person, whether a resident of the state or a nonresident, and however interested, may b.e appointed as receiver.” Neither the receiver nor his attorney was disqualified from eligibility for appointment.

Without discussion we hold against the appellant on the ninth, tenth and eleventh assignments of error.

We have not burdened this opinion with the detailed statement of the facts in this case because they are entirely familiar to counsel and by this time to the members of this Court.

The judgment will be affirmed.

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


text:
    HOLLYWOOD TELEVISION SERVICE, INC. et, Plaintiffs-Appellees, v. PICTURE WAVES, INC., and LAMB, Defendant-Appellant.
    No. 5052.
    Decided March 2, 1954.

      Crabbe, Garek & Sillman, Columbus, for plaintiff-appellee, Hollywood Television Service, Inc.
    Maugan & Vacca, Columbus, for plaintiff-appellee, Snader Telescriptions Sales, Inc.
    Justin L. Sillman, Columbus, for receiver, Peter Vacca.
    Stephen Mack, Toledo, Dale D. Rapp, W. B. McLeskey and C. W. McLeskey, Columbus, for defendant-appellant, Edward Lamb.
   OPINION

By THE COURT.

This is a motion to dismiss the appeal for the reason that the same is not directed to a final order. The pertinent facts disclose that on November 30, 1953, Peter Vacca was appointed Receiver for the defendant, Picture Waves, Inc.; that on the same day the Receiver filed an application with the Court and in response to the same the following order was made:

“Upon the application of the receiver Peter Vacca, and for good cause shown, the court hereby orders that Edward Lamb, of Toledo, Ohio, be and he is hereby made a party defendant to these proceedings; and said Edward Lamb is hereby ordered to deliver over to the receiver the books and records of the defendant, a dissolved corporation; and said Edward Lamb is hereby ordered to deliver over to the receiver the $51,123.00 cash in banks and the accounts receivable of face value of $21,800.00 and of claim value of $10,900.00, together with an appropriate assignment of said accounts receivable, all of which assets are in his possession or under his control, held for the benefit of creditors of the defendant; and said Edward Lamb is hereby restrained from in any manner disposing of said assets other than to the receiver, or doing anything in any manner interfering with said assets or the receiver’s right to take immediate possession of said assets or the receiver’s right to collect the accounts receivable which compromise part of said assets; and the Clerk of this court is instructed to issue a certified copy of the foregoing orders of the court to the Sheriff of Lucas County, Ohio, for service upon the said Edward Lamb.”

On the 7th day of December, 1953, Lamb filed the following motion, all of which was overruled:

“Now comes Edward Lamb of Toledo, Ohio and appearing solely for the purpose of this motion and for no other purpose and expressly disclaiming any intention to enter his general appearance herein, moves the court for an order vacating and setting aside the order made by this court on the 30th day of November, 1953, (1) making him a party defendant herein, (2) ordering him to deliver to the receiver named herein certain alleged assets, and (3) restraining him from disposing of said alleged assets, for the reason, among others, that no notice of the filing of the application for said order or of the time and place of the hearing thereof, was given to him before said order was made.”

The notice of appeal is directed to the order overruling the aforesaid motion. The action is one concerning the winding up of the affairs of a dissolved corporation and is a special proceeding. Sec. 8623-95 GC. It will be noted that a part of the relief sought was the dissolution of a temporary restraining order. Such an order was held by this Court to be one affecting a substantial right in a special proceeding and is an appealable order. See Black v. Poling, 45 Abs 298.

The motion will be overruled.

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


text:
    HOLLYWOOD TELEVISION SERVICE, INC. et, Plaintiffs-Appellees, v. PICTURE WAVES, INC. et, Defendants-Appellants.
    No. 5052.
    Decided November 12, 1954.
    C. C. Crabbe, Garek & Sillman, Maugan & Vacca, Columbus, for plaintiffs-appellees.
    Stephen Mack, Toledo, Dale D. Rapp, W. B. McLeskey and C. W. MeLeskey, Columbus, for defendant, Picture Waves, Inc.
   OPINION

By THE COURT.

This is an appeal from an order of the Common Pleas Court refusing to vacate and set aside its order of November 30, 1953, making Edward Lamb a party defendant, ordering him to deliver to the receiver certain assets and restraining him from disposing of said assets. Appellant assigns the action in each and all of the foregoing particulars as error. The mover appeared solely for the purpose of the motion disclaiming any intention to enter his general appearance.

It will not be necessary to restate the proceedings leading up to the order which is in question because they are discussed at considerable length in case No. 5051.

Counsel have briefed the questions presented at length and no objection is made to the record as appearing in this case, No. 5052. However, upon examination we find the transcript in this case entirely void of the motion, entry thereon and notice of appeal. We do not raise the question of the insufficiency of the transcript, as counsel do not, but suggest that counsel for appellant should put the record in order.

We do not propose to labor at length the decisive questions on this appeal. We have heretofore held that the cause was appealable and properly perfected.

We cannot find that anything was said or done by counsel for appellant in the proceedings incident to the adjudication of the motion to vacate which would subject him to the general jurisdiction of the court.

Appellee contends that the language of §1701.93 (K) R. C. made it discretionary with the court if notice should be given to Lamb, individually, before making the order to which the exceptions are taken. Appellant insists that the language of the section refers only to the authorization for the service of any notice by mail, if so ordered. The section reads:

• “ (K) The notice to be given of any hearing or any order, which notice, if so ordered, may be given by mail.”

The only specific mention of notice is that which appears in the first paragraph of the section which is the notice required to be given to directors and such other persons interested, as the court deems proper, of the petition, its prayer and purpose. It is highly improbable that any receivership named by reason of the filing of the petition of creditors would be worked out and concluded without consideration of some matter concerning which parties interested would be required to be given notice. The authority and obligation of the court to give notice where it would be required is implied by the provisions of the statute. It is our conclusion that paragraph (K) does not undertake to define the time when, or conditions under which, a notice shall be ordered by the court, and only refers to the manner of service of such notice. The construction of the sentence is not too orderly, but we read it to mean that if a notice of a hearing is ordered, such notice may be given by mail. If any other construction was required by the language of the section it would make the provision unconstitutional in this case because it would be a denial of due process of law, namely, notice before hearing or adjudication.

Paragraph (C), among other things, authorizes the court to make new parties to such actions or proceedings as the court may deem proper for the determination of all matters.

It certainly is contemplated that if new actions are authorized and new parties are named that they will be given such notice as is required by law.

It should be noted that Edward Lamb, individually, was made a party defendant upon application of one of appellees. Such action indicates an appreciation of the necessity that he be made a party.

The notice of the hearing on the petition for the appointment of a receiver only purports to bring before the court the defendant corporation and its directors. Lamb, as an individual, was not a party, was not notified, did not appear personally nor by counsel. Upon the evidence developed, the court might conclude that Lamb, as agent, held assets of the corporation, but this could not be binding upon Lamb, as agent or individually. When, and if, in either capacity he is properly before the court he might have a version entirely different from that developed in the record in this case.

It is basic that in the situation presented here the appellant was entitled to notice at least before the court made the order directing him to deliver the assets, named to the receiver. We have so held, in substance, in Madigan v. Dollar Building and Loan Company, 49 Oh Ap 69, 74, upon the authority of C. C. C. & I. Ry. Co. v. Jewett, 37 Oh St 649. We hold against the appellant on the first and the third grounds of his motion, the second is well made and to that extent should have been sustained.

The order appealed from will be modified to conform to this opinion.

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


author: By THE COURT:

text:
    WEIKERT, Plaintiff-Appellee, v. WEIKERT, Defendant-Appellant.
    Ohio Appeals, Second District, Champaign County.
    No. 140.
    Decided November 8, 1955.
    Donald M. Gibbs, Urbana, for plaintiff-appellee.
    J. Harvey Crow, Cleveland, for defendant-appellant.
   OPINION

By THE COURT:

Submitted on motion of appellant for an order allowing her temporary alimony and expenses during the pendency of her appeal.

In Sciacca v. Sciacca, 69 Abs 513, we hold that under §8003 GC, now §3105.14 R. C., we have the authority even where a divorce has been denied the appellant in the trial court to make an award oí expense money to appellant pending the appeal.

See also Sinclair v. Sinclair, 57 O. O. 350.

Support allowance to the wife is based either upon a showing of necessity existent while the marital relation subsists and pending an adjudication in a divorce or alimony action or in favor of the wife, if the successful party, who has established a ground for the allowance under the statute, upon the issuance of a decree of divorce.

In this case as the record now stands the appellant is divorced from the appellee upon the finding of her aggression. There is a presumption that this decree is valid. So that, defendant is not at this time the wife of the plaintiff. In this situation we doubt if the statute contemplates an award of support money pendente lite to the appellant. If it appear that appellant should be awarded alimony or further support money it will be determined on final disposition of this appeal and proper award provided.

However, the matter of expense money is on a somewhat different basis and we have allowed it in the Sciacca case, supra. The defendant is entitled to expense money for the services of her attorney during her appeal.

The motion for support money and alimony for plaintiff will, at this time, be denied, but her expenses will be allowed in the amount of $150.00 to be paid to the Clerk of Courts within 10 days after the journalizing of the ruling on this motion.

MILLER, PJ, HORNBECK, J, concur.

WISEMAN, J, not participating.


author: Per CURIAM.

text:
    BOWMAN, Petitioner, v. ALVIS, Warden, Respondent.
    United States Court of Appeals, Sixth Circuit.
    No. 12442
    Decided February 4, 1955.
    James G. Andrews, Jr., Cincinnati (appointed by the Court), for . petitioner.
    C. William O’Neill, Atty. Geni., Columbus, for respondent.

      Before SIMONS, Chief Judge, and ALLEN and STEWART, Circuit Judges.
   OPINION

Per CURIAM.

The petitioner was tried, convicted, and sentenced in the Court of Common Pleas of Richland County, Ohio, on the 10th day of June, 1948. After the filing of many petitions in the District Court of the United States for the Southern District of Ohio for writs of habeas corpus, which were denied, and for leave to appeal in this court, which was also denied on the ground that he had not exhausted his state remedies, he has now as of December 16, 1954, filed a petition to appeal from an order of the Honorable Lester L. Cecil, United States District Judge for the said district, which was returned to him by an order of the court because it failed to show that the petitioner had exhausted his state remedies and because no certificate of probable cause had been issued by the said District Judge.

The petitioner now, by supplemental petition, urges that he was unable to pursue his remedies in the state court because as a pauper he was unable to prepay the costs required by the Rules of Practice of the Ohio Supreme Court, Nos. VII and XVII appearing in 157 Oh St. His supplemental petition, therefore, presents a question as to whether Ohio provides an effective remedy for the review of state judgments in circumstances here presented.

In our order of December 16, 1954 we directed that the several petitions now lodged with the court may be filed, that the petitioner may proceed in forma pauperis, and that the clerk be directed to secure counsel for said petitioner, who may intelligently present his grievances to this court, directed to the question whether the state of Ohio makes available adequate remedies for the review of judgment, and whether there is adequate ground for the issue by this court of a certificate of probable cause to appeal.

Such counsel was appointed and has now presented a memorandum which fairly indicates that there is no provision in the Rules of Practice of the Ohio Supreme Court for an indigent prisoner to file an appeal to such court without paying the docket fee and the costs of the action, and that a pauper’s affidavit addressed to that court is not acceptable. It is, therefore, the view of this court that the Ohio Supreme Court does not provide an adequate remedy for the prosecution of an appeal from the state courts of Ohio and its failure so to provide gives the District Court of the Unted States jurisdiction to entertan a writ for habeas corpus and that upon its denial there is sufficient probable cause for an appeal therefrom. Therefore, we hereby grant to the petitioner a certificate of probable cause to appeal and the clerk of this court is directed to obtain counsel for the petitioner to prosecute such appeal, and, when perfected, such appeal will be placed upon the hearing docket of this court at a convenient date.

It is so ordered.


author: By HORNBECK, J. MILLER, PJ, By THE COURT:

text:
    CRELLIN, Plaintiff-Appellee, v. PARISH et, Defendants-Appellants.
    Ohio Appeals, Second District, Clark County.
    No. 523.
    Decided November 9, 1955.
    Robert B. Pavlatos, Robert E. Brown, Springfield, for plaintiff-appellee.
    Frank L. Nevius, Springfield, for defendant-appellant.
    (CONN, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By HORNBECK, J.

This is an appeal which proceeds as upon questions of law, from a decree of the Common Pleas Court engrafting a trust on a deed to the extent of an undivided one-half interest in the real estate described in the petition in favor of plaintiff subject to certain liens and a mortgage indebtedness thereon.

Nine errors are assigned which we will not set out verbatim.

We come immediately to the one assignment which is dispositive of the appeal, viz, the fourth: “The court erred in weighing the evidence •and awarding judgment to appellee upon a preponderance of the evidence, whereas, the degree of proof required must be clear and convincing.”

The Bill of Exceptions discloses that on the completion of the taking of the testimony and the submission of the cause to the trial judge, among other things he said:

“Now getting to the evidence, I would like to point out that this is not a criminal case. The court does not have to be convinced beyond a reasonable doubt upon the issues of this case. That is the degree of proof in criminal cases. It is not the degree of proof in civil cases. But the court is to determine the evidence and determine where the weight of the evidence lies or preponderance of the evidence as it is sometimes called and whether or not it arises to the degree to convince sufficiently to require a judgment in favor of the plaintiff or whether it is of sufficient quality and weight and calls for a judgment in favor of the defendants. That is the process of weighing the evidence and which the Court will undertake to do.”

He then indicated that he would decide the case on the next afternoon and fixed the time upon request of counsel at 2 o’clock.

Prom the foregoing statement of the trial judge it seems highly probable that when he decided the case he applied the preponderance of evidence rule as the basis for the burden of proof it was incumbent upon the plaintiff to establish, and that such proof would “arise to the degree to convince sufficiently to require a judgment in favor of the plaintiff.”

The burden of proof which was required in this case was that which was clear and convincing. Although the petition does not expressly plead fraud, counsel for appellee concede that it was predicated on fraud. The allegation of the petition was that there was an agreement between the parties to the effect that, upon the advancement of the sum of $1000.00 by plaintiff to the defendant upon the purchase price of the real estate, though the title was to be taken in the name of the defendants, the ownership was to be in both the plaintiff and the defendants in the proportion of one-half each. Upon this aver.ment, the prayer was that a trust be impressed upon the deed to the defendants for the real estate in one-half thereof in behalf of the plaintiff.

Although there has been some variation in the decisions of the courts on the question of the quantum of proof requisite to establish fraud or deceit the rule in Ohio now seems to be well established. The action here was to establish a trust. This suit was on the equity side of the court. Such actions have long been recognized as requiring clear and convincing proof to support a decree declaring a trust.

In the early case of Merrick v. Ditzler, 91 Oh St 256, in the opinion Chief Justice Nichols discusses the question and holds that suits seeking to engraft a trust come within the class of cases requiring clear and convincing proof. This declaration was not requisite to the judgment in the case and it is not carried in the syllabus, however, it conforms to the definite weight of authority. A general discussion of the subject is found in 19 O. Jur., Fraud and Deceit, page 519 et seq., paragraphs 244, 245 and 246. And also as applied to reformation of instruments, 17 O. Jur., Evidence, page 410, par. 320.

By the issues drawn by the pleadings and upon the evidence the defendants were entitled to have the trial judge pass upon them originally and to weigh them by clear and convincing evidence rule. This they were denied to their prejudice.

It is suggested that the record well supports the decree upon apply-4 ing the correct measure of proof, and that this court could so hold. It is not our function on a law appeal to pass upon the evidence as upon original presentation. The first trier of the facts has that exclusive privilege and until he has so acted, this court may not weigh the evidence.

Because of the fact that this appeal is determined upon the assignment of error which relates only to the quantum of proof, we may not consider the other errors assigned.

Judgment reversed and cause remanded for a new trial.

CONN, J, concurs.

MILLER, PJ,

dissents.

I am not able to concur with my associates in the conclusion that the record discloses the trial court decided the case upon a mere preponderance of the evidence instead of evidence that was clear and convincing which is the degree of proof necessary in order to declare a trust on the ground of unjust enrichment. It will be noted that the Court stated that he would determine “* * * where the weight of the evidence lies, or preponderance of the evidence as it is sometimes called, and whether or not it arises to the degree to convince sufficiently to require a judgment in favor of the plaintiff * * (Emphasis ours.) The degree to which the “weight” or “Preponderance of the evidence” must arise is nowhere expressed by the court. He may have determined that the evidence prepondered in favor of the plaintiff to such a degree that it was clear and convincing. Since there is a presumption of regularity in all actions by a court, in the absence of evidence to the contrary it must be presumed that he acted in accordance with law and decided the case on the evidence that was clear and convincing. In my opinion the judgment should be affirmed.

No. 523. Decided December 3, 1955.

(CONN, J, of the Sixth District, sitting by designation in the Second District.)

OPINION

By THE COURT:

Submitted on motion and application for rehearing by appellee.

The motion filed November 12, 1955, following submission of journal entries of both parties,

“Requests and moves that the court specify in writing the ground or grounds for its reversal to the prejudice of plaintiff-appellee of the decision of the trial court in this cause.”

We are somewhat at loss to understand the reason for this motion. In the majority opinion the ground of the reversal was definitely stated. Counsel thereafter in separate entries submitted to the court properly incorporated the ground for reversal.

The appeal is not on questions of law and fact and therefore a request for separate findings of law and fact would not be in order.

This motion will be overruled.

The application for re-hearing, is not dated, but was received subsequent to the approval of the final judgment entry.

Our rules do not contemplate an application for re-hearing but it is our practice, if attention is directed to an oversight in an opinion of some material question of fact or controlling principle of law, to entertain the application.

The first ground of the application is that our attention was not called to nor did we consider the motion made by defendants-appellants at the close of plaintiffs testimony in the trial that the petition be dismissed because the evidence presented by the plaintiff was not clear and convincing. It is true that our attention was not directed to this motion or the action of the court nor did we consider it.

A transcript of the proceedings is appended to plaintiff’s application, as follows:

Page 84, Bill of Exceptions:

MR. BROWN: The plaintiff rests.

MR. BAYLEY: If the court please, I would like to move that the petition be dismissed on the grounds that this is a case in equity that clear and convincing proof is necessary and that degree of proof has not been furnished as to either of the defendants.

THE COURT: Submitting the motion?

MR. BAYLEY: Yes, sir.

THE COURT: Overruled.

It will be noted that the Court made no comment whatever in overruling this motion. The action taken may have been based upon either of two reasons: One, assuming that Mr. Bayley’s premise was correct as to the quantity of proof required to be produced by plaintiff, there was at that juncture of the case sufficient proof to go to the jury. Two, that the measure of proof was not as stated by Mr. Bayley and, therefore, the motion was overruled.

The second ground of the motion is predicated upon the validity of the first branch thereof.

We find no assistance from that part of the Bill of Exceptions heretofore quoted, in the construction of the language of the trial judge upon which we based the opinion of the majority in reversing the judgment.

The application for re-hearing will be denied.

HORNBECK and CONN, JJ, concur.

MILLER, PJ, approves subject to prior dissent.