author: By HORNBECK, J.

text:
    CAMPFIELD, Petitioner-Appellant, v. STATE, Respondent-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4496.
    Decided October 5, 1950.
    Wayne S. Gerber, Columbus, for petitioner-appellant.
    Herbert S. Duffy, Atty. Geni., Alan E. Schwarzwalder, Asst. Atty. Geni., Columbus, for respondent-appellee.
   OPINION

By HORNBECK, J.

This is an appeal from a judgment of the Common Pleas Court denying petitioner’s prayer for a writ of habeas corpus.

The errors assigned to the judgment are seven but all of them may be included in one, namely, that the Court erred in failing to hold that the sentence and judgment were void because predicated upon an indictment which charged no offense against the defendant.

The indictment in so far as is pertinent charges that the petitioner,

“unlawfully and knowingly, falsely pretend, with intent to defraud, to one C. E. Lunsford, that he, the said L. R. Camp-field had installed certain wiring and fixtures in the residence of the said C. E. Lunsford and that said house was ready for electricity to be turned on therein, by which such false pretenses, the said L. R. Campfield then and there did obtain from the said C. E. Lunsford money of the value of $122.00 of the personal property of the said C. E. Lunsford, with intent then and there to cheat and defraud the said C. E. Lunsford out of the same. Whereas, in truth and in fact said house had not been properly or completely wired for electricity and the said L. R. Campfield at the time so falsely pretended as aforesaid, well knew the false pretenses were false in fact and induced the said C. E. Lunsford to part with his money.”

Unless the language of the indictment that “in truth and in fact said house had not been properly and completely wired for electricity” negates the false pretense set up in the earlier part of the indictment, namely, “that said house was ready for electricity to be turned on therein,” the indictment states no offense. 2nd syllabus, Harris v. State, 125 Oh St 257.

We are satisfied that the later language of the indictment cannot in any reasonable interpretation of its meaning negative the false pretense set up therein. If the petitioner had admitted all of the subject-matter of the indictment with which he was charged it would not constitute the offense of obtaining money under false pretense or any other crime in Ohio. The petitioner may have represented that he had installed certain wiring and fixtures in the residence of the prosecuting witness and he may have done that which he represented although he may not have properly or completely wired the residence for electricity. Clearly the averment that the house had not been properly or completely wired did not negative the representation that he had installed certain wiring and fixtures. The indictment is as faulty in its effect as if no negation whatever had been attempted. Indeed it is more flagrantly defective than the indictment in Harris v. State, supra.

It is urged that although the indictment was uncertain, ambiguous and defective in substantial matters the irregularity could be corrected by a bill of particulars and that the petitioner having failed to demand such bill could not be heard to deny the validity of the indictment.

In State v. Collett, 44 Abs 225, a member of this Court at page 232 and 233 quoted from 27 Am. Jur. 672:

“The office of a bill of particulars is to supply the accused and the Court additional information concerning an accusation that the defendant has committed an act or acts constituting a criminal offense.

“It is designed to be used only where the indictment is sufficient on demurrer, * *

We cite a number of cases all of which disclose that a bill of particulars does not serve the office of providing an essential element of the crime charged. The indictment itself must charge an offense. We conclude in the second syllabus of State v. Collett,

“The bill of particulars * * *, contemplates something over and above the mere essentials of the averments necessary to state an offense and something further and more specific than is set forth in the forms of indictments prescribed by the statute.”

The infirmity in the indictment here is not that it is uncertain, vague and irregular but that it states no offense.

We are cognizant of the nice distinction which is sometimes made between an act which does not constitute any offense known to the law and the determination by a court of general jurisdiction whether or not particular acts constitute a specific offense. This distinction is too nice to be given application here.

State v. Whitmore and State v. McNary, et al., 126 Oh St 381, are cited and particular language of Judge Stephenson in the opinion wherein he said, in substance, that an indictment which was insufficient to constitute an offense could be cured by demanding a bill of particulars wherein was set forth the facts which would constitute an offense. This language of the opinion is clearly obiter because the judgment was predicated upon the determination that the indictments under consideration did charge offenses, therefore, the bills of particulars were not required to accomplish that purpose.

In the Harris case, supra, the indictment was tested by an appeal from the judgment but Judge Jones writing the opinion said:

“One of the vital and material elements identifying and characterizing the crime has been omitted from the indictment and that such defective indictment is insufficient to charge an offense, and cannot be cured by the court, as such a procedure would not only violate the constitutional rights of the accused, but would allow the court to convict him on an indictment essentially different from that found by the grand jury.”

The court not only reversed the judgment but ordered the defendant discharged.

Situations analogous to that presented here were held to support the issuance of the writ of habeas corpus in State, ex rel. Bailey v. Henderson, Warden, 76 Oh Ap 547, and In re Moreno, 83 Oh Ap 54.

The errors assigned are well made. The judgment will be reversed and the writ allowed.

MILLER, PJ, WISEMAN, J, concur.


source: Caselaw Access Project

author: By HURD, J:

license: Public Domain

text:
    FISK, Plaintiff-Appellant, v. GLECHOFF et, Defendant-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22237.
    Decided December 3, 1951.

    Allison M. Gibbons, Cleveland, for plaintiff-appellant.
    Griswold, Leeper, Miller & Corry, Cleveland, for defendantappellees.
   OPINION

By HURD, J:

This cause originating in the Municipal Court of the City of Cleveland as an action for money only, is here appealed on questions of law.

The case came on for trial on October 3rd and 4th, 1950, at which time evidence was presented by the respective parties. Following the presentation of evidence, briefs were filed and on January 2, 1951, the trial court made the following entry:

“Parties in' Court. Trial had. Court finds for defendant and renders judgment for said defendant and for costs against plaintiff.”

This entry was made in the absence of the parties. Notice of the 'judgment, as journalized, was given by postal card and received by the parties January 3, 1951, On January 4, 1951, the following entry appears:

“Motion by plaintiff for new trial with brief, filed and request by plaintiff for separate findings of fact and conclusions of law filed.”

Thus, it will be observed, that the day following notice of the entry of judgment, by the court, a request for separate 'conclusions of fact and law was presented. After the filing of additional briefs, the trial judge made an entry on April 9, 1951, overruling the motion for new trial and denying the request for separate findings of fact.

There are four assignments of error, as follows:

1. Trial court refused to make separate findings of fact.

2. Trial court erred in admitting parol evidence to vary and contradict terms of a written contract.

3. Trial court .erred in refusing to strike from defendant’s answer the allegations that “plaintiff’s Exhibit B never became a part of the contract” and in admitting oral evidence to prove the same.

4. Trial court erred in rendering judgment for defendants instead of in favor of plaintiff, on the pleadings and the evidence.

No bill of exceptions was filed with this appeal, consequently we are unable to consider assignments of error, Numbers Two and Four because the same relate entirely to questions of admission and rejection of evidence and the weight of the evidence. See: Carroll v. Employers Liability Ins. Corp., 46 Oh Ap 220; In re Marshall Estate, 78 Oh Ap 282.

The third assignment of error appears to be a question of mixed law and fact which having in part to do with evidence, likewise cannot be demonstrated in the absence of a bill of exceptions.

This leaves for our consideration assignment of error No. 1 which presents two questions for decision: (1) is a request for such conclusions made in sufficient time when it is filed the day following the municipal court’s notice of entry of judgment? (2) does it appear from the record in this case that appellants were not prejudiced by the court’s refusal?

Sec. 11421-2 GC, provides:

“When questions of fact are tried by the court its findings may be general for the plaintiff or defendant, unless, with a view of excepting to the court’s decision upon questions of law involved in the trial, one of the parties so requests, in which case the court shall state in writing conclusions of fact found separately from conclusions of law.”

It will be noted that the section is silent as to the time when such request shall be made. Therefore, it is necessary to look to decided cases to determine when and under what circumstances a request is timely made. The most authoritative pronouncement on this subject is to be found in the case of Levick v. Bonnell, 137 Oh St 453. That case originated in the Municipal Court of Cleveland and was also an action for money only, the facts of which are closely analogous to the instant case. That case went to trial before a court and jury, but when both parties moved for a directed verdict at the close of all of the evidence, the trial court was thereby clothed with jurisdiction to adjudicate the issues. Thereupon the court overruled defendant’s motion, granted plaintiff’s motion and entered judgment for plaintiff in the sum of $671.00 and costs.

The following day, the defendant filed in writing a request for separate findings of fact and conclusions of law which was denied by the trial court. On appeal to the Court of Appeals, the case was “reversed for error of law in refusing to make findings of fact and law as requested.” The Supreme Court, upon the allowance of a motion to certify, affirmed the judgment of the Court of Appeals. The second paragraph of the syllabus is as follows:

“2. Sec. 11421-2 GC applies to cases tried before the Municipal Court of Cleveland, other than those cases within the exclusive jurisdiction of a justice of the peace.”

At page 456 of the opinion, Turner, J., speaking for the court, said:

“In the Municipal Court (of Cleveland) journalization of the court’s order is a somewhat informal matter. In this case there was no entry submitted to counsel. The defendant had no opportunity to make the request before it was journalized. To require parties to make the demand for conclusions in advance would increase unnecessarily the work of the trial court. We hold that the request for conclusions made in this case on the day following the entry of the court’s judgment was in time.” (Emphasis and matter in parenthesis supplied.)

Counsel for defendant have cited a number of cases, including Bloom v. Klein, 43 Oh Ap 314; Parker v. Dales, 13 Abs 655; Toledo v. Barnes, 1 O. N. P. 188; Yetter v. Kleinman, 34 Oh Ap 434, all of which were decided prior to the Levick case, supra. Therefore, the holding in Levick v. Bonnell must be considered as decisive of the questions in this case, unless the legislative changes in procedure in respect of entry of judgments and motions for new trial, effective October 11, 1945, under §§11575 to 11578 GC, as amended, make inapplicable now the principles therein pronounced.

Sec. 11575 GC, as amended, reads:

“A new trial is a re-examination, in the same court, of the issues, after a final order, judgment, or decree by the court.”

This amendment changed the definition of a new trial from a re-examination of only the issues of fact in the same court to a re-examination of all the issues, both of law and fact, and by virtue of this amendment such motions are addressed to the judgment and are applications to vacate judgments as well as motions for new trial. See Duemer v. Duemer, 83 Oh Ap 192; McAteer v. Western etc. Life Ins. Co., 82 Oh Ap 131.

The applicable part of §11578 GC provides:

“The application for a new trial must be made within ten days after the journal entry of a final order, judgment or decree has been approved by the court in writing and filed with the clerk for journalization * *

Prior to the adoption of this amendment, the filing of a motion for a new trial within three days after the verdict or decision was a necessary prerequisite and the overruling of said motion was a final order from which appeal could be prosecuted. By analogy therefore a request for findings made before journalization of judgment was timely.

Sec. 11599 GC as amended Sept. 27, 1947, provides for the journalization of a judgment upon a verdict of the jury. It will be noted that this section applies by its language only to cases tried by a jury, and it has been held that this section does not apply to a case tried by a court.

See also: Craig v. Welply, 104 Oh St 312.

A review and comparison of the statutes governing procedure after trial, both prior to and after the amendments, leads to the conclusion that the amendments do not make inapplicable the principle announced in Levick v. Bonnell.

We think we should allude to one distinguishing feature between the two cases, and that is, that in the Levick case counsel for the parties were in court at the time of the court’s announcing, and entry of judgment. Whereas, in the instant case, the presentation of evidence was some sixty days prior to the judgment of the court which was entered in the absence of the parties and without their knowledge. The record shows that upon notice of the entry of judgment and “the informal manner in which it was entered in the Municipal Court,” the plaintiff promptly filed a request for findings of fact and conclusions of law. Under the circumstances and deciding no more than we feel called upon to decide in this case, we must hold that the request for findings was timely made, and should have been granted.

We have examined the record in this case, and have concluded that the second question posed above must also be answered in the affirmative, because we are unable to determine without a bill of exceptions, and without conclusions of law and conclusions of fact that the appellants were not prejudiced by the court’s refusal.

We have reached the conclusion, however, that it is unnecessary to re-try this case in the Municipal Court, but that it is necessary only to reverse and remand the case with instructions to the trial court to make findings of fact and conclusions of law, and to vacate the judgment and re-enter the same as of the date of the filing of such findings of fact and conclusions of law, thus reserving to the parties their respective rights of appeal, after such findings have been made. We have determined that this procedure will result in equal justice to all parties to this action and will enable the plaintiff to raise the issues of law attempted to be raised on this appeal.

An entry may be made accordingly. Exceptions noted. Order see journal.

SKEEL, PJ, THOMPSON, J, concur.


text:
    STATE, ex BARKER, Relator, v. INDUSTRIAL COMMISSION, Respondent.
    Ohio Appeals, Second District, Franklin County.
    No. 4353.
    Decided February 9, 1950.
    John F. Locke, Canton, for relator.
    Hon. Herbert S. Duffy, Atty. Geni., T. Vincent Martin, Asst. Atty. Geni., Columbus, for respondent.
   OPINION

By HORNBECK, J.

We shall not attempt to set out all of the operative facts in this mandamus action. Suffice to say, that the prayer of the petition is to require the respondent to grant, the relator a rehearing under §1465-90 GC and/or to require it to grant relator further compensation in the maximum amount allowed by law and for any other relief to which he may be entitled.

The proof does not require that we issue an order to require the respondent to grant the relator further compensation. His claim is that he is totally .disabled as a result of an injury suffered by him and for which the respondent has made several awards.

The last order of the Commission of date August 10, 1949, isN

“It appearing that the Commission’s order of July 13, 1949, does not constitute a denial of claimant’s right to receive compensation on any of the grounds enumerated in §1465-90 GC, but merely constitutes a finding as to the extent of claimant’s disability concerning which the Commission has final jurisdiction, it is ordered that the application for rehearing filed on July 21, 1949, be dismissed.”

The order to which the application for rehearing was directed is:

“It is ordered that the Commission’s order of May 12, 1949, be vacated and set aside and it is further ordered that the claimant’s application filed April 19, 1949, be denied for the reason that proof on file fails to show that claimant is permanently and totally disabled; that the proof on file further shows that claimant has a permanent partial disability equivalent to 80% of the maximum provided by law, and that he has already been awarded compensation for such disability.”

The question which concerns this court is whether the Commission should make an order respecting subject matter included in §1465-90 GC to which under the facts the relator claims he was entitled. We refer to this language in §1465-90 GC:

“The Commission shall definitely and specifically pass upon each and every issue raised in the claim, necessary for a proper and complete decision thereon. In all claims for compensation on account of injury, * * * if the Commission denies the right of the claimant * * * to continue to receive compensation the order of the Commission shall state the ground or grounds on which the claim was denied; and if the claim was deiend on any of the following grounds: * * * that the claimant, having received compensation (1) for the period of temporary total disability and (2) having received the maximum amount of compensation for temporary partial disability as provided in this act, and (3) having engaged in no gainful occupation for the period of four years prior to the decision of the Commission, during which time compensation has been payable to such claimant, (4) is not permanently and totally disabled as a result of the injury; * * *. If the order of the Commission does not state the ground or grounds on which the claim was denied, or if the order of the Industrial Commission is not definite in such regards, the claimant may maintain an action in mandamus against the Commission in the Supreme Court of Ohio,” etc.

The relator invoked the action of the Commission on that part of §1465-90 GC in which we have indicated the material elements of the finding requested, but the Commission has failed to make definite response to the request. As we interpret the record the Commission would be required to find in accord with the claim of respondent in brackets (1) and (2). It has made a finding responsive to the subject matter in bracket (4), but it has not made any determination of the subject matter in bracket (3). If the Commission finds that the claimant has received compensation for the period of temporary total disability and has received the maximum amount of compensation for temporary partial disability and has engaged in no gainful occupation for the period of four years prior to the decision of the Commission during which time compensation has been payable to him, then, even though it further finds that he was not permanently and totally disabled as the result of the injury, the finding and order thereon would require the Commission to grant a rehearing of the claim. We cannot say what the Commission should find respecting the engagement of relator in gainful occupation during the period set out in the Statute, but we are satisfied that he has the right to have it respond to his request that it be determined along with the other essentials of §1465-90 GC.

It will be the order of this court that the Commission make a finding and order responsive to that part of §1465-90 GC which we have discussed.

MILLER, PJ, and WISEMAN, J, concur.


author: By McBRIDE, J:

text:
    NORSKOG, Plaintiff, v. ATHA, Defendant.
    Municipal Court (Civil Division), City of Dayton.
    No. 15477.
    Decided September 10, 1951.

      Webb R. Clark, Dayton, for plaintiff.
    William H. Wolfe, Dayton, for defendant.
   OPINION

By McBRIDE, J:

In this action in forcible entry and detention, the landlord expressly directed the tenant to send rental payments to him at his residence. The record reveals that for the preceding year, the tenant purchased a bank check each month, addressed the envelope and delivered it to the local carrier or dropped it in a convenient mail box. For the period in question, the record contains a carbon copy of such a draft for the proper amount dated three days before the rent was due. There is testimony of an officer of the financial institution that, as in the past, he addressed the envelope. There is also testimony that the envelope was personally handed on the same day to the local mail carrier, who remembered receiving such a cover on that day. The landlord testified that he never received the envelope or the check.

• Generally a tenant is bound to pay his landlord in person and he does not fulfill his obligation by making reasonable efforts to transmit the rent by mail, however, if by the landlord’s express direction or assent, the usual course of dealing between the parties, or other facts from which such direction or assent may be inferred, the landlord has authorized the money to be mailed to him, then the post office is made the agent of the landlord and delivery of money there is payment. 31 O. Jur. 161; 21 Ruling Case Law 35; 9 O. Jur. 267.

While the case of Hitz v. Ohio Fuel, 43 Oh Ap 484 (1932), was an equitable action for the cancellation of a lease, the general law announced is applicable to an action in forcible entry and detainer. In that case, the lessee was accorded the privilege of payment “by bank check to the W. J. Hitz mailed to his P. O. address.” The court held that such a requirement MADE POSTAL SERVICE LESSOR’S AGENT TO DELIVER THE CHECK.

And to the same effect, we quote 40 American Jurisprudence, Section 36, page 737:

“It is firmly established that payment may be made by mail where, by the creditor’s express direction or assent, the usual course of dealing between the parties or other facts from which such direction or assent may be inferred, the creditor has authorized the money to be thus delivered to him. In such a case, the posting of a letter inclosing the remittance as directed constitutes a payment, although the letter is lost, and a delay of the remittance in the mail will not result in a forfeiture or loss of rights through nonpayment. Thus, the inclosure of an addressed envelope, with a request to use it in sending a remittance, authorizes the sending of it through the mail.”

Judge Sherick, in the Hitz case, 43 Oh Ap 492, outlines the burden of proof in a situation where it is necessary to establish non-payment of rent.

“The burden of proof was upon the plaintiffs to show that the lessee and its assignee had breached the contract. This burden they have failed to maintain. Their denial of delivery to them by the postal service of the check might have been sufficient to dispel the proven facts and the final presumption of mailing based thereon, if delivery had been a part of the covenant of payment; but it cannot destroy that presumption entirely when proof of mailing was alone required, for the agent of the plaintiffs, the postal service, might have been responsible for failure of delivery.”

The landlord in this case directed the tenant to “send” the rent to his residence. The tenant was an elderly lady who was not able to personally deliver the money. These instructions under the circumstances imply authority to select an agent. In addition, the continuous use of the mail and the acceptance by the landlord over a period of many months operates as a consent to this method of payment. Accordingly we find that the landlord has not established that the defendant failed to pay the rent according to the contract and under the rent regulations the landlord is not entitled to possession. Any other decision in such a situation would enable a landlord to evade the rent regulations at will.

An entry may be prepared for the defendant.


author: By THE COURT. By THE COURT.

text:
    DONOVAN et, Plaintiffs-Appellees, v. DECKER, Exr., etc., Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4536.
    Decided March 1, 1951.
    George T. Tarbutton, Columbus, for appellees.
    Addison & Addison, Richard C. Addison, of Counsel, Columbus, Robert W. Newlon, Lloyd E. Bilger, Columbus, for appellants.
   OPINION

By THE COURT.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Franklin County rendered on the verdict of the jury setting aside the will of Dana McBride, deceased. The case was tried- on the theory of undue. influence and the Court so charged the jury.

Four errors are assigned:

Overruling defendants’ motion for directed verdict at the close of all the evidence; the verdict was contrary to the evidence and against the manifest weight of the evidence; error in the admission of evidence offered by the plaintiffs; and that the verdict was contrary to law.

We find that there was sufficient evidence admitted to require the presentation of this case to the jury under the rule of Hamden Lodge v. Ohio Fuel Gas Company, 127 Oh St 469, 189 N. E. 246; and McNeil v. McNeil, 50 Abs 487, 76 N. E. (2d) 621. We cannot find that the verdict and judgment are contrary to the evidence, against the manifest weight of the evidence or contrary to law.

The plaintiffs while presenting their case called two of the defendants who were beneficiaries under the will and also next of kin of the deceased, for cross-examination. In the course of such examination counsel for plaintiffs proceeded to lead the witnesses. This was permitted under §11497 GC. The two witnesses were adversary under the rule laid down in Vance v. Davis, 107 Oh St 577, 140 N. E. 588. The adversary position of the witnesses was not affected by the fact that counsel for the plaintiffs had issued subpoenas for these two witnesses; nor the fact that defense in the case was made only by the executor and one of the other beneficiaries. Lumber Co. v. Martin, 10 Oh Ap 188, 194.

The examination of the attorney who drew the will did not transgress the rule laid down in Knepper, et al. v. Knepper, 103 Oh St 529, 134 N. E. 476.

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

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

ON MOTION FOR REHEARING

No. 4536. Decided March 30, 1951.

By THE COURT.

Submitted on motion of the appellants for rehearing on the ground that since the Court has announced its opinion certain information has come to the knowledge of the appellants that the plaintiffs are not the real parties in interest.

This is an appeal on questions of law. We know of no way whereby this Court can take testimony on the issue raised by the appellants. This appeal must be disposed of on the record of the trial court. The appellants will be required to pursue whatever remedy may be afforded in the trial court.

Motion overruled.

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


author: Per CURIAM:

text:
    CHAPMAN et, Plaintiff-Appellee, v. PARK LANE VILLA COMPANY, Defendant-Appellant.
    Ohio Appeals; Eighth District, Cuyahoga County.
    No. 22286.
    Decided December 17, 1951.
    Michael S. Cerrezin, Cleveland, for plaintiff-appellee.
    P. Jerome Pasch, Cleveland, for defendant-appellant.
    (HUNSICKER, PJ, DOYLE, J, of the 9th District; NICHOLS, J, of the 7th District, sitting by designation in the 8th District.)
   OPINION

Per CURIAM:

• This is an appeal on questions of law from a judgment rendered by the Municipal Court of the City of Cleveland, Ohio.

It is not necessary herein to set out the facts of this case. Liability does not arise herein for the failure of the landlord to make repairs but the liability does arise from repairs negligently made when voluntarily and gratuitously undertaken by an agent of the landlord. The result of such repairs so negligently made was injury to the property of the plafntiff-appellees. -

The rule in the instant case has heretofore been stated to be as follows:

“We recognize the general rule to be that a lessor out of possession and control is not liable to a tenant for the condition of the premises, or for damages resulting therefrom, in the absence of deceit or of any agreement, or warranty, or liability created by statute.

“Goodall v. Deters, 121 Oh St 432; 24 O. Jur., Landlord and Tenant, Sec. 189, p. 924, and cases cited there.

“Where, however, a landlord voluntarily and. gratuitously undertakes, during the tenant’s occupancy of the premises to repair the demised premises, he is bound in so doing to use reasonable and ordinary care and diligence, and will be liable for injuries caused by want of due care or skill in the execution of the work on the part of himself or his agent.”

Verplank v. Morgan, 55 Abs 574, at p. 575.

We find in the instant case that there is competent evidence warranting the findings that: the relationship existing between the appellant and the person sent to make the repairs was that of master and servant; such repairs were voluntarily and gratuitously undertaken; such repairs were negligently made and that the property damage was the proximate result of such negligence.

The judgment is affirmed. Exceptions noted.

HUNSICKER, PJ, DOYLE, J, NICHOLS, J, concur.


author: By MERRICK, J:

text:
    MONROE, Treas., Plaintiff, v. GEMEINER et, Defendants.
    Common Pleas Court, Cuyahoga County.
    No. 583850.
    Decided October 5, 1951.

      F. T. Cullitan, Pros. Atty., F. M. Surtz, Asst. Pros. Atty., Cleveland, for plaintiff.
    Jack Persky, Cleveland, for defendant.
   OPINION

By MERRICK, J:

This action is before the Court on applications by the sheriff for instructions. The first of such applications reads as follows:

“Now comes Joseph M. Sweeney, the duly qualified and acting Sheriff of Cuyahoga County, Ohio, and makes this application to the Court for instructions in the above entitled case, and says that pursuant to an order of sale in this case, which is a tax foreclosure action, he did offer for sale at public auction in Room 26, known as the assembly hall, in the basement of the new Court House, in the City of Cleveland, County of Cuyahoga and State of Ohio, on Monday, April 2nd, 1951, the premises, the subject matter of the above entitled action, being the premises described in the plaintiff’s petition and in the decree of foreclosure herein; that said premises previous to notice of sale, and sale, had been appraised for THIRTY-THREE THOUSAND DOLLARS ($33,-000.00).

“Said Sheriff says that after about thirty bids, the highest bidder was Sidney Zehman, who bid the said property for the sum Of THIRTY-FIVE THOUSAND, FIFTY DOLLARS ($35,-050.00), of which amount the sum of THREE THOUSAND, SIX HUNDRED DOLLARS ($3,600.00) was paid at said time to the Sheriff as hereinafter set forth, and at which time the said Sidney Zehman instructed the Sheriff to cause the Deed to said property to isuse to the West Side Land Company, 13484 Cedar Road, University Heights, Ohio.

“Said Sheriff says that said bid of THIRTY-FIVE THOUSAND, FIFTY DOLLARS ($35,050.00) was insufficient in amount to pay in full the taxes, assessments, interest and penalties in the amount of THIRTY-THREE THOUSAND, SIX HUNDRED, FIFTY-ONE AND 27/100 DOLLARS ($33,651.27) and accrued taxes, assessments, interest and penalties found due to the plaintiff, Leslie R. Monroe, Successor to John J. Boyle, as Treasurer of Cuyahoga County, Ohio, in this action, and which, at the time of sale, amounted to approximately FORTY-FIVE THOUSAND, FOUR HUNDRED, THIRTY-FOUR AND 32/100 DOLLARS ($45,434.32).

“It comes to the attention of your applicant, who brings it to the attention of the Court, that the purchaser of said premises above referred to, Sidney Zehman, at the time of the Sheriff sale, paid to the Sheriff an Official Bank Check No. 90,039 of The Cleveland Trust Company Branch 24, of Cleveland, Ohio, in the amount of TWO THOUSAND, TWO HUNDRED DOLLARS ($2,200.00), payable to Sidney Zehman, and endorsed in blank by said Sidney Zehman, and also the sum of ONE THOUSAND, FOUR HUNDRED DOLLARS ($1,400.00) in cash, and that at said time said Sidney Zehman was the fee owner of the premises herein referred to by virtue of a Deed recorded on April 2nd, 1951, at 8:46 o’clock A. M. and recorded in Volume 7236, Page 276, of Cuyahoga County Records.

“These facts raised the question as to whether or not Sidney Zehman, the fee owner, is the real purchaser at this sale, which in turn does raise the question as to whether or not one who is the owner of real property and so under obligation to pay such taxes and assessments, as in this case Sidney Zehman can so be in default and then purchase said premises at a tax foreclosure sale for less than the amount due and owing for taxes, assessments, interest and penalties at the time of the sale, and be entitled to the abatement and removal from the tax duplicate and record of the Auditor and Treasurer of Cuyahoga County, Ohio, of the difference between the amount bid, the Court costs and the amount found due, as in this case, to the Plaintiff, Leslie R. Monroe, Successor to John J. Boyle, as Treasurer of Cuyahoga County, Ohio, or whether or not said purchase does constitute a bona ñde sale under the law, and whether or not your applicant shall demand from said purchaser the full amount of taxes, assessments, penalties, interest, accrued taxes, assessments and costs before submitting said sale to the Court for confirmation.

“If the Court finds the fee owner, Sidney Zehman, is not directly or indirectly the purchaser of said premises at Sheriff sale, then, of course, this question does not arise.'

“It is on these questions raised that your applicant asks the Court for its instructions herein.

“Joseph M. Sweeney (signed!

“SHERIFF OF CUYAHOGA COUNTY, OHIO.”

Pursuant to this application a hearing and trial was had on the issues raised by this application and this Court made the following finding of facts and conclusions of law:

“After examination of the agreed statement of facts and a hearing of the evidence in the request by the Sheriff for instructions, the Court finds each of the following facts:

“1. That Harry Blachman, Sidney Zehman and Milton Wolf entered into a plan to secure title to the land in question at the lowest possible price.

“2. That as’ a part of such plan they purchased the record title from Peter L. Gemeiner and Eleanor Gemeiner, for a consideration of $300.

“3. That the purchase of such title was made by Blachman for the benefit of all three and title taken in the name of Sidney Zehman.

“4. That the deed thus taken, was recorded prior to the sale by the sheriff and that such recording was done by Blachman with the knowledge and consent of the others and for the purpose of furthering the common plan to secure the land.

“5. That the property was bid for at sheriff’s sale by the three acting in concert and in furtherance of the common plan.

“6. That the name of The West Side Land Company was used in requesting the sheriff to prepare a deed and receipts were taken in the name of such corporation, which was used as a dummy. The purchase money being that of Sidney Zehman secured from various corporations which are controlled by himself and Wolf, who is his son-in-law.

“CONCLUSIONS OF LAW

“1. That under the facts and the reasonable conclusion w'hich this Court attaches thereto the same persons were the owners of the title and the successful bidders at the theriff’s sale

“2. The sheriff is instructed not to issue a deed but is to hold the fund received until further order of Court.

“3. That the matter is reserved for further proceedings as to the disposition of the funds by the sheriff.

“4. Exceptions may be noted and the prosecuting attorney may file a request for an order on the sheriff for the application or disposition of such funds.”

Thereafter the sheriff filed an application for further instructions as follows:

“Now comes Joseph M. Sweeney, the duly qualified and acting Sheriff of Cuyahoga County, Ohio, and makes this application to the Court for further instructions in the above entitled cause and says that by reason of the findings of fact and conclusions of law heretofore ■ made by this Court, and for the purposes of a final determination of this cause and application, Harry Blachman, Sidney Zehman, Milton Wolf and The West Side Land Company, an Ohio corporation, are necessary parties to this action and application and said Sheriff asks leave of Court to make them new parties defendant to this action and application.

“Said Sheriff says that in said finding of facts and conclusions of law, this Court found that said defendants, Harry Blachman, Sidney Zehman and Milton Wolf,- were the owners of the title before said Sheriff’s sale of the premises described in the plaintiff’s petition and in the.decree of foreclosure herein, and were the successful bidders for same at said Sheriff’s sale.

“Said Sheriff says further that he has in his possession the sum of THIRTY FIVE THOUSAND, FIFTY DOLLARS ($35,050.00), which said sum is the amount bid for said premises by said defendants, Harry Blachman, Sidney Zehman and Milton Wolf, and said Sheriff files this application for further instructions and for an order as to the application or disposition of this fund.

“Said Sheriff further says that said amount of THIRTY FIVE THOUSAND, FIFTY DOLLARS ($35,050.00), is insufficient in amount to pay in full the taxes, assessments, penalties and interest in the sum of THIRTY THREE THOUSAND, SIX HUNDRED FIFTY-ONE AND 27/100 DOLLARS ($33,651.27), and accrued taxes, assessments, penalties and interest heretofore found due to the. plaintiff, Leslie R. Monroe, as Treasurer of Cuyahoga County, Ohio, in this action, which at the time of said Sheriff’s sale together amounted to SIXTY-THREE THOUSAND FOUR HUNDRED FORTY FIVE AND 53/100 DOLLARS ($63,445.53).

“Said Sheriff further says that said facts and said finding of facts and conclusions of law raise the question as to whether or not said fund shall be considered a mode of payment by said defendants, Harry Blachman, Sidney Zehman and Milton Wolf, upon the account of said delinquent taxes, assessments, penalties and interest so found due herein and the said Sheriff accordingly directed and ordered to pay to the plaintiff the said sum so bid to be applied by him as a payment upon the account of said delinquent taxes, assessments, penalties and interest so found due him herein, upon said premises and owned by said Harry Blachman, Sidney Zehman and Milton Wolf.

“Said Sheriff further says that said facts and said finding of facts and conclusions of law also raise the question that, if the Court so finds that said fund is a mode of payment upon the account of said delinquent taxes, assessments, penalties and interest heretofore found due to the plaintiff upon said premises, under what conditions with reference to the payment of Court costs and of the balance of said taxes, assessments, penalties and interest heretofore found due to the plaintiff, shall said Sheriff issue his Deed to said defendants, Harry Blachman, Sidney Zehman and Milton Wolf, for said premises.

“It is on these questions so raised that your applicant asks the Court for its further instructions herein.

Joseph M. Sweeney, (signed!

JOSEPH M. SWEENEY, SHERIFF OF CUYAHOGA COUNTY, OHIO.”

At about the same time the purported purchaser at sheriff’s sale made application to confirm the judicial sale or in the alternative to vacate said sale and refund the payments made.

The evidence disclosed that the defendant Blachman was acting as attorney for the others interested in securing title to the land. He had negotiated the transfer from the original owners, the Gemeiners, to Zehman. He had handled the recording of this deed within an hour before the sheriff’s sale. He supervised the bidding at the same and he instructed the sheriff that title would be taken in the name of The West Side Land Company. Three days before the sale, Blachman had secured from the county auditor statements of payments necessary to redeem the land by virtue of compliance with §§2672-1, 2672-2 and 2672-3 GC. These are conveniently known as “The Whittemore Act.”

For the purpose of attempting to determine the intent and purpose behind all these steps and maneuvers by Blachman it is worthy to note the possibilities which were presented. There is no doubt but that these conspirators were after this particular land. It is in an area which is being rapidly developed for the erection of small homes. The preliminary judicial report on the title discloses that the county government has declared an intention to project an extension of one of the county roads through this land. It is not too far distant from an area recently developed with large industrial plants. The defendants Zehman and Wolf are in the business of building and developing residential areas and operate through various corporate names one of which is The West Side Land Co. The evidence disclosed that the attempt to take title in its name was the first transaction indulged in under this particular corporate name: The evidence also disclosed that there was some spirited bidding by other persons at the sheriff’s sale. The evidence also disclosed that the defendant Blachman had been buying and bidding at sheriff’s sales on many occasions in the part. His testimony revealed an acquaintance with the law and procedure that, is not possessed by the average lawyer who occasionally represents a client who is interested in securing a certain tract of land' at a sheriff’s sale. Blachman testified that he originated the plan to secure this land and- took it to Zehman for financing and development.

It is the opinion of this Court that Blachman and his associates were attempting to secure this land to the exclusion of any. other bidders. Their statements to the contrary made after the discovery of the plan do not stand up to the facts. Once having launched upon this program, they made the further resolve to obtain it as cheaply as possible under the circumstances.

What was the purpose in taking title from the Gemeiners? They paid $300 for the deed, after a lesser amount had been refused. Having the recorded title before the sale opened a wide avenue to them. In the event that the bidding went too high and they were forced to bid more than the cost of redemption under the statute, they could attempt to have the sale vacated and if successful could qualify under The Whittemore Act by paying the court costs and securing a spread of the taxes which would aggregate about $45,000. Many purchasers at sheriff’s sales have been relieved of the obligation to consummate the sale for various reasons and excuses, subject only to the discretionary power of the court. The successful bid in this instance was $35,050. If a deed would be ordered by the court following this sale, the defendants •would be securing title for $10,000 less than the accrued taxes and for $25,000 less than the accrued taxes with penalties and interest added. ■

Ordinarily there .is nothing wrong in selling land at foreclosure for less than the accrued taxes. But the sale must be bona fide and not made with any intent to defraud the public. The owner of the land.cannot be heard to complain that he has lost his title to a stranger because the ownership is coupled with an obligation to pay the taxes and assessments lawfully levied thereon. Ohio Constitution, Article XII. Secs. 5548, 5681, 3897 GC, Brown v. Russell, 20 Oh Ap 101.

Likewise, the law reserves to the owner the right to redeem his interest and retain 'his ownership continuously to the time of transfer to a purchaser at foreclosure or tax sale. Renner v. Rabkin, 84 Oh Ap, 309, Boyle v. Public, 148 Oh St, 559, Kinney v. Hoffman, 151 Oh St, 517; Monroe v. Zangerle, 155 Oh St, 129. In some instances such right is preserved after the giving of the sheriff’s or auditor’s deeds under certain statutes. This theory is so well accepted as to not require the citation of numerous sections of the General Code and decisions thereunder. It seems, therefore, that the law does not contemplate that the owner and the purchaser at sheriff’s sale may stand in the same shoes.

Cooley on Taxation, 4th Edition, at paragraph 1437 discusses this question:

“Some persons, from their relation to the land or to the tax are precluded from becoming purchasers on grounds which are apparent when their relation to the tax and t.o the property is shown. The title to be given on a tax sale is a title based on the default of a person who owes to the public the duty to pay the tax, and the sale is made by way of enforcing that duty. But one person may owe a duty to the public, and another may owe it to the owner of the land by reason of contract or other relations .... There is a general principle, applicable to such cases which may be stated thus: That a purchase made by one whose duty it was to pay the taxes shall operate as payment only . . .

Continuing further in the same volume at paragraph 1449, Cooiey says:

“What cannot be done directly cannot be done indirectly. A person disqualified to purchase because of his interest in the property or relation to the owner, cannot acquire a good tax title by having the purchase made in the name of someone else. The effect of a purchase by one disqualified to purchase, cannot be overcome by having the tax certificate or deed issued in the name of another \ . . .”

The person in whose name the land was listed and assessed for taxation and whose duty it is to pay the tax can acquire no additional title by purchasing it at the sale. And one in possession of and claiming title acquires no additional title by siich purchase if the taxes were a lien upon the land at the time of his taking possession. Blackwell on Tax Titles 4th Edition, 442.

There are certain classes of persons who, from their connection with the title to real estate, or in consequence of their fiduciary relations to the owner, are disqualified from purchasing the land at a tax sale. This disability arises in part from the peculiar nature of the taxing power, and the rights and obligations growing out of its exercise, and the anomalous character of tax titles; but it rests, partly also upon certain broad and general principles of law and equity, easily recognized and familiar in their application, which furnish safe guides for the solution of doubtful questions. In the first place, to state the rule tersely; any person who owes a positive duty to the State to pay the taxes on a particular tract of land, cannot become a purchaser at a sale of the property for such taxes; or, if he does in form buy at such sale, he does not thereby acquire any right or title to the property better or stronger tfian what he had before, but his purchase is deemed merely a mode of paying the taxes, and leaves the title in precisely the position it would have occupied if rhe payment had been made before instead of after, the land was put up for sale. Black on Tax Titles, 2nd Edition Sec. 273. This same author comments further in paragraph 276: — It is a general rule that a person who, by reason of his legal or moral duty to pay the taxes on given lqnd is disqualified from purchasing the same directly at a tax sale, cannot acquire any valid title thereto indirectly by procuring another person to figure as the ostensible bidder at the sale, and then taking an assignment of the certificate or deed from such person, on refunding him the money expended. Such an arrangement, if not positively fraudulent, is at any rate an attempt to evade the law, to which the courts will lend no countenance.

There is a dearth of citations in Ohio On this question, but the few cases available seem to be in accord in the reasoning that the title holder to lands cannot become the purchaser at tax sale. Douglas v. Bangerfield, 10 Ohio, 152; Piatt v. St. Clair, 6 Ohio, 227; Clark v, Lindsey, 47 Oh St, 437; Anderson v. Messenger, 16 Ohio Federal Decisions, 134.

Under the weight of this reasoning there is but one conclusion and that is that the defendants herein, or any one of them acting in concert could not acquire the title by virtue of this purported sale by the sheriff. It will be noted that following the authorities and the cases cited above, the purchase under the circumstances in this case was by the one holding the title and having the obligation to pay the taxes. The effect of the payment to the sheriff herein must be considered as though made by the owner before the sale and therefore would have to be received as a payment against the delinquent taxes. 38 O. Jur., 1174; Clark v. Lindsey, supra; Anderson v. Messenger, supra; Piatt v. St. Clair, supra; Douglass v. Dangerfleld, supra; Dubois v. Campan, 24 Mich., 370; Oswald v. Wolf, 21 N. E. (Illinois) 839.

This Court is of the opinion that the purported sale by the sheriff to The West Side Land Company should be vacated and held for naught; that the funds now in the hands of the sheriff as a result of payments by the defendants or any of them in attempting to consummate the purchase at sheriff’s sale should be turned over to the plaintiff and should be applied as payment on the delinquent taxes on the lands set forth in the petition; that the decree of March 18, 1948, be modified to conform to such payment to the plaintiff and that an order of sale issue in conformity therewith for the advertisement and sale of such lands according to law. The application to confirm the sale is overruled.

Counsel may prepare the necessary entries to carry these instructions into judgment and submit the same to the Court at the earliest time convenient.


text:
    SCOTT, Plaintiff-Appellee, v. INDUSTRIAL COMMISSION OF OHIO, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2118.
    Decided January 4, 1951.
    Thomas W. Maxon, Columbus, for plaintiff-appellee.
    Hon. Herbert S. Duffy, Atty. Geni., T. Vincent Martin, Asst. Atty. Geni., Columbus, for defendant-appellant.
   OPINION

By THE COURT:

This is an appeal from a judgment in favor of the plaintiff and against the defendant finding that plaintiff is entitled to compensation for disability suffered by him as set forth in his petition. By consent of the parties the cause was submitted to a ¿udge without the intervention of a jury.

The facts developed that plaintiff at the time of his accident was employed in the Accounting Department of the Public Utilities Commission of Ohio. He made claim for an award from the Workmen’s Compensation Fund which was denied on hearing and rehearing and the cause was tried in the Common Pleas Court on an appeal from the order and finding of the defendant Commission that the plaintiff’s injury was not sustained in the course of and did not arise out of his employment.

It appears by stipulation and testimony that 'the plaintiff in his capacity as an accountant was subject to call at all times for transfer to cities other than his headquarters, Columbus, Ohio; that for several days prior to June 10, 1947, he had been assigned to check the books of the Dayton Power and Light Company and, as the employees of the company had to use the same books as plaintiff, he and an associate arranged their working hours to conform to the convenience of the Power and Light Company. On the 10th of .June, 1947, plaintiff worked until about twelve noon at the Power and Light Company office and then left for lunch at McShane’s Restaurant, which is on Third Street, a short distance from the offices where plaintiff was working. He ordered a lunch, ate quickly and left the restaurant and was returning to work about 12:25 P. M. and had reached a place in the street immediately in front of the Power Company’s office when he slipped on a wet and raised street-car rail and injured his left ankle bone. As a result of his injury he was compelled, on October' 6, 1947, to have the left leg amputated above the knee.

Plaintiff, in addition to his regular salary, received allowance for traveling expenses, lodging and meals when on assignments away from his headquarters. It was developed that it was a policy of the Commission, and required of its accountants, that they work at such times during, or after, regular office hours as would best conduce to the interests of the Commission and the convenience of the company whose books were being checked; that accountants such as plaintiff were subject to call at any timé, day or night; that they had no particular time for lunch and at times worked without lunch.

Appellant claims that as a matter of law the judgment should have been for the defendant.

We are not favored with the opinion of the trial judge who heard and determined this cáse and do not know upon what authority in Ohio he relied. However, we have been provided with complete briefs by counsel for the parties wherein are cited most of the applicable decisions. An examination of these cases is convincing that in no one of them do the facts sufficiently parallel those found in this case to be controlling authority of the judgment here.

All members of the Court are in agreement that this judgment must be reversed because the injuries suffered by the plaintiff were not the result of any hazard greater than that to which the general public was subjected.. Malone v. Industrial Commission, 140 Oh St 293, 3rd syl.

The accident occurred by slipping on a rail of a street-car track on a city street in downtown Dayton. .The use of the street by the plaintiff was no different than that of the public generally and was not a hazard of his employment. The proposition upon which we rely is not discussed in the briefs of either of the parties.

Two members of the Court are of opinion that upon the facts developed it cannot be held that plaintiff’s injury arose out of and occurred in the course of his employment. One member is of opinion that it can be so determined. The majority say that when plaintiff left his immediate place of employment for the purpose of securing his lunch, and while going thereto and coming therefrom, he was on a separate venture which had no causal connection between his employment and the injury which he suffered and' that it did not grow out of the activities, conditions and requirements of his employment.

One member of the Court is.of opinion that because of the terms and conditions of plaintiff’s employment, his employer impliedly required that he take his lunch near to his immediate place of employment and to that extent controlled his movements to and from the place of lunch; that in the venture in which he was engaged at the time of his injury he was working for the direct benefit of his employer and in a different sense than ordinarily would attend the going to and coming from a meal.

The majority is of opinion that this case is determined by Eagle v. Industrial Commission, 146 Oh St 1, and Ruddy v. Industrial Commission, 153 Oh St 475. The minority contends that there is no Ohio controlling case but that in particulars the facts here parallel those in the case of Henry v. Industrial Commission, 124 Oh St 616, in that the practice of the plaintiff to take his noon meal in such proximity to his immediate .place of employment was not only a custom followed by him with the consent of his employer but by the implied direction of his employer. If the dissenting opinion of Judge Zimmerman in the Eagle case were the law in Ohio there would be no question about -the right of the plaintiff to recover if the hazard resulting in his injury was not one to which the public was generally subjected. In this dissent .there is a quotation from 58 Am. Jur. 744, Section 240:

“Where a servant has deviated from his employment to go on a personal errand, but has accomplished his purpose and has, at the time an accident occurs, started back toward the place where he is to do some act or perform some service for his employer, the injury has been held to have arisen out of and in the course of the employment, notwithstanding such deviation.”

Outside of Ohio the decisions are at variance upon facts similar to those appearing here. In an annotation to Desautel v. North Dakota Workmen’s Compensation Bureau, 141 A. L. R. 862, are gathered the later cases arising under Workmen’s Compensation Acts relating to injuries to employees away from employer^’ premises during lunch hour. The principle case, at page 858, involved the claim of a ward attendant in.i-a state institution who was injured while on her own premises during lunch hour. She was regularly employed from 6:00 A. M. to 7:15 P. M. each day, with two periods of rest of 30 minutes each, and a 30-minute lunch period. It was understood and agreed that she was to take her lunch at her home, which was across the highway about 100 feet from the premises of the institution and three hundred yards from the ward in which she worked, and return to her duties within the half hour allotted for that purpose. The Court held that it could not be said, as a matter of law, that her injury did not arise in the course of her employment. The annotator in the note to the above cases says:

“The fact that an employee was injured while away from his employer’s premises during the lunch hour does not necessarily preclude a recovery of compensation under workmen’s compensation acts. It is, however, a factor together with the other circumstances, in determining whether the injury arose out of, or in the course of, the employment.”

In the annotation to Pearce v. Industrial Commission (111.), 18 A. L. R. 525, it is said that before one may claim the benefit of the Workmen’s Compensation Act by reason of an injury suffered upon the premises of the employer, it should appear that the act being performed by the employee at the time of the injury must result in some benefit or possibility of benefit to the employer.

The judgment will be reversed and judgment entered for the defendant.

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

ON MOTION FOR REHEARING

No. 2118.

Decided February 8, 1951.

Thomas W. Maxson, Columbus, for plaintiff-appellee.

Herbert S. Duffy, Atty Geni., C. William O’Neill, Atty Geni., T. Vincent Martin and Chalmers P. Wylie, Asst. Attys. Geni., Columbus, for defendant-appellant.

OPINION

By THE COURT:

Submitted on motion of plaintiff-appellee for rehearing. The motion is directed to our opinion wherein wé say that all members of the Court are in agreement that the judgment must be reversed because the injuries suffered by the' plaintiff were not the result of any hazard greater than that to which the general public was subjected. Malone v. Industrial Commission, 140 Oh St 293. It is true that we directed attention to the fact that the proposition upon which we relied had not been discussed in the briefs of counsel or in oral argument to the Court. However, inasmuch as a majority of the Court has concluded that the judgment should be reversed on another ground the sustaining of the application for a rehearing would not require a different judgment in this Court. For that reason, and also because we are of opinion that our former conclusion is correct, that the injuries suffered by the plaintiff were not the result of any hazard greater than that to which the general public was subjected, the motion will be denied.

We have considered the cases cited for and against the motion. The question presented is one of law only and no advantage would result by oral argument. The motion will be overruled.

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

ON MOTION TO VACATE OPINION

No. 2118.

Decided April 26, 1951.

Thomas W. Maxson, Columbus, for plaintiff-appellee.

C. William O’Neill, Atty. Geni., Chalmers P. Wylie, Asst. Atty. Geni., Columbus, for defendant-appellant.

OPINION

By THE COURT:

Submitted upon motion of appellee to vacate the opinion dated January 4, 1951, “for the reason that the Court of Appeals did not have jurisdiction to finally determine the matter.”

The notice of appeal was filed in the trial court before the death of Wallace M. Scott. This perfected the appeal and vested jurisdiction in the Court of Appeals to review and adjudicate the question of the validity of the judgment. Sec. 12223-4 GC. If the revivor in the name of the executrix of decedent’s estate was improper, it was nothing more than an irregularity which did not affect the jurisdiction of the court.

We find nothing in State ex rel. Gaddis v. Industrial Commission of Ohio, 133 Oh St 553, cited by counsel for appellee, which is contrary to our conclusion. The second syllabus of the cited case recognizes the possibility that the judgment in that case may have been reversed.

Any irregularity in the revivor in this Court could have been corrected by counsel for the appellee by timely action and if there had béeri any denial of proper representation of the cause of the plaintiff-appellee this Court would take any appropriate steps to assure such representation.' We are cognizant that all of the rights of the appellee were fully and capably presented by counsel. Even now any party may be substituted who has an interest in the judgment in this Court.

The motion will be overruled.

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