text:
    GYNN, Plaintiff-Appellee, v. GYNN, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24319.
    Decided February 20, 1958.
    Arthur E. Griffith, for plaintiff-appellee.
    Harrison M. Crellin, for defendant-appellant.
   OPINION

By SKEEL, PJ.

This appeal comes to this court from an order entered in a special proceeding overruling defendant’s petition (motion) to vacate a judgment after term under the provisions of §2325.01 et seq, R. C. The original action was one for divorce filed by the plaintiff March 20, 1952. The defendant was then in the Ohio State Penitentiary at Columbus, Ohio, where he was served with summons by the sheriff of Franklin County. Summons was returned April 2, 1952 and the defendant filed his answer on May 9, 1952. On May 20, 1952, the plaintiff filed a motion to advance, which is not shown on the transcript (a copy is found among the original papers) but a copy was mailed to this defendant at the Ohio State Penitentiary in Columbus where the defendant received it on May 21, 1952. The court, in ruling on the motion to advance, set the case at the head of the list for June 9th and ordered the defendant be directed to appear and a subpoena was issued, directed to the Warden of the Ohio Penitentiary, to appear before the Common Pleas Court of Cuyahoga County on June 9, 1952 and to bring the defendant, Emerson R. Gynn, No. 91714, to testify as party defendant. The Warden could not recall whether or not he notified the defendant of the subpoena but it was in the defendant’s file at the time the Warden’s deposition was taken. For some unexplained reason, the court’s order, directing the subpoena to be issued, is not in the transcript but is set forth in handwriting on the motion to advance (above referred to), the entry being “5/28/52 — granted. Adv. for top of list June 9, 1951 — deft, to be ordered to court for trial. Artl J.” The reasons for seeking to advance the case on the trial list are set out in a statement by plaintiff’s counsel attached to the motion, and if supported by evidence, would justify advancing the case for trial.

The case was tried by the court in the absence of the defendant on June 9, 1952, and a decree of divorce was ordered, granting plaintiff certain property, the decree being entered on the journal of the court on July l, 1952, and a certified copy of the decree mailed to the defendant, which he received July 8, 1952.

The defendant filed his “petition” to vacate on July 1, 1955. The grounds set out as the basis upon which he seeks an order vacating such decree is founded upon §2325.01 (C) R. C., which provides: “For mistake, neglect, or omission of the clerk, or irregularity in obtaining a judgment or order.” More specifically, the irregularities set out in the petition are:

1. In not noting on the record the filing of the motion to advance.

2. In not setting out a time for the hearing of such motion.

3. In not putting on the record the court’s ruling on the motion to advance.

4. In not notifying defendant the date the case was set for trial.

The defendant also filed an amended answer and cross-petition on July 15,1955. The plaintiff was served on the petition to vacate by publication and on March 12, 1956, the plaintiff filed a motion to strike defendant’s petition to vacate, which was overruled November 16, 1956. On April 11, 1957, after hearing evidence, the court entered its “* * * special finding of fact and law denying defendant’s petition to vacate * * *” and on May 11, 1957, the court’s decision, denying the said petition, was journalized.

A motion for new trial was filed May 21, 1957, which was overruled July 26, 1957, which was followed by the filing of a notice of appeal on questions of law on August 14, 1957.

The defendant claims the following assignments of error:

“1. Said court committed error prejudicial to the rights of the appellant by its refusal to vacate, render null and void and of no effect, and to declare for naught the entry of judgment, decree and final order of divorce, and award to the appellee of all of appellant’s property, journalized on July 1, 1952, after the appellant had duly filed his valid answer to the appellee’s petition, and rendered without legal notice to the appellant of the day, hour, place of hearing and an opportunity to be heard, and to grant a new trial thereof, because it constitutes the denial to the appellant of the equal protection of the law, and deprives the appellant of his rights and property without due course of law, or due process of law, as guaranteed by Article 1, Section 16, Ohio Constitution, and by Article XIV, Section 1, of the Constitution of the United States of America, and is contrary to law.
“2. That the finding and judgment of the court refusing to vacate the- entry of judgment, decree of divorce and final order, journalized on July 1, 1952, and grant a new trial herein, is contrary to the manifest weight of the evidence.
“3. That the Court committed error prejudicial to the rights of the appellant in failing to respect the defendant’s inherent right to act as his own attorney in the conduct of the defense of his own case.
“4. The Court committed error prejudicial to the rights of the appellant by overruling appellant’s motion for a new trial.”

Assignments numbers one, two and four are based entirely on the evidence and depend wholly on its sufficiency. From a careful examination of the record, there being credible evidence to support the conclusions of the court that no irregularity was established on the record, we are unable to find that the defendant was prejudiced by the court’s ruling. These assignments of error are, therefore, overruled. And (as the court found) any claim that the judgment was entered before the case regularly stood for trial, as a basis for seeking to vacate such judgment, must be filed within the first three days of the succeeding term at which the judgment was entered.

Assignment of error number three is likewise overruled because there is no evidence that the defendant was not permitted to act as his own lawyer.

The judgment of the court, journalized May 11, 1957, overruling defendant’s “petition” to vacate judgment, is, therefore, affirmed. '

One other question appearing in the record should be here considered and that is whether or not the notice of appeal, filed August 14, 1957, vested this court with jurisdiction of this appeal.

This is a special proceeding by which a party to an action seeks a new trial upon the vacation of judgment after term. Sec. 2325.01 E. C., as applicable here, provides in part:

“The Court of Common Pleas or the Court of Appeals may vacate or modify its own final order, judgment or decree after term at which it is made:
“(C) For mistake, neglect, or omission of the clerk, or irregularity in obtaining a judgment or order.”

Sec. 2325.04 R. C., provides that the procedure wherein a new trial is sought for errors of the clerk or other irregularities (under paragraph (C) of §2325.01 R.' C.) “* * * shall be by motion, upon reasonable notice to the adverse party or his attorney in the action * * Certainly, if the motion was granted under this provision of the Code, the issue presented by the pleadings would remain for retrial in exactly the same way as would be true if a motion for new trial filed after judgment, as provided by §2321.17 et seq, It. C., had been granted. There is no provision of the statute providing for a retrial of the questions presented by a party seeking relief from a judgment after term under §2325.01 R. C. While an order entered under these sections is a final order as defined by §2505.02 R. C., that is, an order affecting a substantial right made in a special proceeding and is, therefore, appealable, it is not, in fact, a final determination of the rights of the parties to which a motion for new trial may be addressed. It is in legal effect a motion for new trial especially provided for after term upon the specific grounds set out by §2325.01 R. C. There is no statutory right to seek a retrial in such special proceeding after the court judgment has been journalized. The time within which a notice of appeal must be filed is, therefore, not tolled after the journalization of such judgment by filing a motion for a new trial. A notice of appeal filed ninety-five days after the order from which the appeal is taken does not vest this court with jurisdiction of the appeal. We are, therefore, constrained to hold that this court is without jurisdiction to entertain this appeal.

HURD and KOVACHY, JJ, concur.


source: Caselaw Access Project

author: By PHILLIPS, J.

license: Public Domain

text:
    NATIONWIDE MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. MANLEY, Defendant-Appellant, SIMPSON, WARREN ZONE CAB COMPANY, Defendants-Appellees.
    Ohio Appeals, Seventh District, Trumbull County.
    No. 1378.
    Decided April 4, 1957.

      Hoppe, Day & Ford, Warren, for plaintiff-appellee.
    Steven Robinson, Warren, for defendant-appellees.
    Gillmer, Klinger & Keating, Warren, for defendant-appellant.
   OPINION

By PHILLIPS, J.

On November 12, 1954, plaintiff, Nationwide Mutual Insurance Company, issued its policy of insurance No. 92R-176-050 to defendant, Frances E. Simpson insuring her until March 18, 1955, against personal injuries to others and property damages caused by her negligent operation of her Chevrolet sedan. At the date of issuance plaintiff mistakenly purported to cancel its policy number 92R-162-955 issued to Charles Simpson and the Second National Bank, as mortgagee, on the Kaiser automobile of Charles Simpson and to credit policy 92R-176-050 with $24.40 part of the unearned premium of purported cancelled policy 92R-162-955. On November 18, 1954, plaintiff paid defendant Frances E. Simpson $20.17 as the amount of the unearned premium on policy number 92R-162-955.

Thereafter plaintiff advised Charles Simpson and defendant, Frances E. Simpson, his wife, of its mistake in crediting policy number 92R-176-050 with part of the unearned premium of policy 92R-162-955, and of paying the balance thereof to Charles Simpson, and requested that such amount be repaid to it.

By its terms policy 92R-176-050 provided for cancellation thereof by plaintiff by mailing to the named insured, defendant, Frances E. Simpson, at the address shown in the policy written notice of such cancellation when not less than ten days thereafter such cancellation should be effective.

In accordance with the stated provisions of policy 92R-176-050, on March 4, 1955, plaintiff notified Frances E. Simpson by letter, which letter v/as received by defendant Simpson on March 7, 1955, that policy No. 92R-176-050 was cancelled effective 12:01 A. M. March 18, 1955, unless $28.30, the amount of the premium paid to The Second National Bank, was paid plaintiff by that time, which was not paid at that time on that date.

On March 27, 1955, the Chevrolet automobile theretofore insured by policy 92R-176-050 and being driven by defendant, Frances E. Simpson, was involved in a collision with a taxicab owned and operated by Warren Zone Cab Company, in which cab defendant, John Manley, was a passenger.

As the result of such collision defendant Manley sued defendant, Frances E. Simpson, and Warren Zone Cab Company in the court of common pleas in case numbered 64649 on the docket of that court to recover damages for personal injuries received allegedly as the result of defendant’s negligence in such collision on March 27, 1955.

While case number 64649 was pending in the court of common pleas plaintiff filed an action in the court of common pleas against defendant, Frances E. Simpson, Warren Zone Cab Company, and John Manley in which they prayed for a declaratory judgment as follows:—

“* * * finding and declaring that policy No. 92R-176-050 aforesaid was duly cancelled effective March 18, 1955, and that defendants or any of them have no rights thereunder and no claim against this plaintiff; that this plaintiff is under no duty to defend any action against the defendant Frances E. Simpson against any action arising subsequent to March 18, 1955; that such policy does not indemnify the defendant Frances E. Simpson, John Manley or Warren Zone Cab Company, and that this plaintiff is not liable for any judgment which may or might hereafter be recovered in the action aforesaid or otherwise; for its costs and for all such other relief as may be necessary and proper for the protection of this plaintiff in the premises.”

The evidence supports the statement made by plaintiff’s counsel by brief that:—

“On March 28,1955, Charles Simpson appeared at the Warren office of plaintiff and paid $7.13 (R. 144-146) which money was to be paid to Ross Baker for a ‘New Pol.’, and was in fact so paid to him (DX-A). No explanation was offered by Mr. Simpson when he testified as to the purpose of such payment and it stands unexplained and unrelated to any of the transactions surrounding cancellation of policy No. 92R-176-050.
“On March 31, 1955, defendant Simpson acquired title to a 1949 Pontiac (PX-22; R. 153, 157) and on April 11, 1955, Charles Simpson applied for insurance on his wife’s Pontiac. Pursuant thereto policy No. 92R-201-686 (PX-22) was issued as of April 11, 1955, although no premium was paid at that date (R. 152, 159). Two days later Mr. Simpson paid a $24.40 premium at the Warren office of plaintiff (DX-B, R. 147). While he testified that he did not know what that payment was for, it was the amount of the premium due on a new policy No. 92R-201-686, and being paid two days after the policy was applied for and taken out must have been meant to apply to the new policy In any event, while the receipt (DX-B) bore the policy No. 92R-176-050, that reference was made for the purpose of reviving the defendant’s membership so that it could be transferred to the new policy (R. 157) and the Due Date 4-19-55 was after the collision. Liability coverages were not reinstated and were the result of the new contract entered into on. April 11,1955. That contract was to operate prospectively and not retroactively as the six month term April 11, to October 11, 1955 shows. Mr. Simpson also had his own car, a Cadillac, insured with plaintiff and a like $24.40 premium was due on Cadillac policy at the time the $24.40 was paid (DX-D).”

The trial judge sitting as the trier of the facts by agreement of counsel, acting on the request of defendant Manley, made findings of fact in writing substantially as set forth in the prayer of plaintiff’s petition, and in the factual statement of this opinion, and entered judgment accordingly.

Defendant Manley appealed from that judgment on questions of lav/ and filed nine assigned grounds of error in which he contends the trial judge erred to his prejudice, which, as suggested by counsel for plaintiff-appellee by brief, in our judgment present the following questions:—

“1. Was defendant-appellant Manley a proper party to this action?
“2. Was plaintiff’s policy No. 92R-176-050 issued to defendant Simpson on November 12, 1954 cancelled as of 12:01 a. m., March 18, 1955?
•‘3. Did plaintiff-appellee, by its conduct waive cancellation of policy No. 92R-176-050? (This was not an issue in the case but we shall, nevertheless, discuss it.)” (sic.)

In the case of Travelers Indemnity Co. v. Cochrane, Jr., 155 Oh St 305, it is said in the first paragraph of the syllabus:—

“A controversy between an insurer and his insured under an automobile liability insurance policy as to the fact or extent of liability thereunder .to persons injured as a result of the operation of the insured automobile or as to the insurer’s obligation to defend the insured in an action for damages against him is an actual or justiciable controversy determinable by a declaratory judgment.”

On authority of that case we conclude that defendant-appellant Manley was a proper party to this action.

Also see Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 61 S. Ct. 510; and Universal Underwriters v. Gran, 52 O. O. 60.

The cancellation clause of policy 92R-176-050 provides:—

“21. Cancellation.
“This policy may be cancelled by the named insured by mailing to the company written notice stating when thereafter such cancellation shall be effective. This policy may be cancelled by the company by mailing to the named insured at the address shown in this policy written notice stating when not less than ten days thereafter such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice, and the effective date and hour of cancellation stated in the notice shall become the end of the policy period. Delivery of such written notice either by the named insured or by the company shall be equivalent to mailing.
“If the named insured cancels, earned premiums shall be computed in accordance with the customary short rate table and procedure. If the company cancels, earned premiums shall be computed pro rata. Premium adjustment may be made at the time cancellation is effected and, if not then made, shall be made as soon as practicable after cancellation becomes effective. The company’s check or the check of its representative mailed or delivered as aforesaid shall be a sufficient tender of any refund of premium due to the named insured.”

The policy cancellation provision in the policy bf insurance in the case of Gibbons v. Kelly, 156 Oh St 163, was identical with that of provision twenty-one in policy 92R-176-050, with the exception that only five days notice of cancellation was required in the policy in that case.

In the case of Gibbons v. Kelly, supra, the cancellation notice stated that the policy was being cancelled for non-payment of premium and accordingly no unearned premium was due defendant. Actually the premium had been paid and the unearned premium was credited to the agent who wrote the policy on a debt owed by the defendant insurance company to such agent.

In the opinion written in the case of Gibbons v. Kelly, supra, the supreme court said:—

. “1. A person injured by an insured cannot recover from the insurer under the provisions of §9510-4 GC, if, before the injuries were received, there was a valid cancellation of the insurance which would otherwise have justified recovery against the insurer by the person so injured.
“2. In the absence of legislation the rights of the parties on cancellation of an insurance policy pursuant to its terms are as fixed by the contract as set forth in the policy.
“3. Where a policy of insurance provides that it ‘may be cancelled by the company by mailing to the named insured * * * written notice stating when not less than five days thereafter such cancellation shall be effective,’ that the time of cancellation ‘stated in the notice shall become the end of the policy period,’ that ‘earned premiums shall be computed pro rata,’ that ‘premium adjustment may be made at the time cancellation is effected and, if not then made, shall be made as soon as practicable after cancellation become effective’ and that ‘the company’s check or the check of its representative mailed or delivered as aforesaid shall be a sufficient tender of any refund or premium due to the named insured,’ the refund of unearned premium to the insured is not a condition, either precedent or subsequent, to effective cancellation of the policy; and, after cancellation pursuant to such written notice, the insurer is merely indebted to the insured for the amount of any such unearned premium.
“4. Where an insurer is not required by the terms of the policy to give a reason for its cancellation, the fact that its notice of cancellation gives a reason and that reason is not a correct reason will not affect the validity of such cancellation.”

At page 167 of the opinion it is said:—

“The fact that the insurer stated that cancellation was for nonpayment of premium when the premium had been paid, has no significance in the instant case. Under the terms of this policy the insurer was not required to give any reason for cancellation. Where an insurer is required to give no reason for cancellation of a policy, the fact that its notice of cancellation gives a reason and that reason is not a correct reason will not affect the validity of such cancellation.”

Also see Plotner v. Buckeye Union Casualty Co., 94 Oh Ap 94.

In our opinion the cited cases control in the case under review, and we conclude that policy number 92R-176-050 issued to defendant, Frances E. Simpson, on November 12, 1954, was duly cancelled by plaintiff on March 18, 1955.

The ten day period for March 18, 1955, to March 28,1955, was a period of delinquency of Frances E. Simpson. During that entire period her Chevrolet automobile was not covered by insurance. If policy 92R-176-050 was reinstated it was reinstated on March 28,1955, when $7.13 was paid to plaintiff.

In Motz v. Root, 53 Oh Ap 375, at page 376, it is said:—

“A waiver is the voluntary surrender or relinquishment of a known legal right by agreement, supported by a consideration, or by a failure to exercise a privilege to claim a right when the acts and conduct connected with such failure are such as to plainly indicate an intention not to claim such right, * *

At page 377 it is said:—

“In many cases where a waiver is claimed by reason of a party’s neglect to insist upon his right at the proper time, the circumstances have been such as to lead the court to the conclusion that there was no waiver unless the other party was misled to his prejudice; but there are many other cases where claimed waivers were sustained although no element of estoppel or consideration existed. * * *
“A waiver may be proved by express declaration, or by acts and declarations manifesting an intent and purpose not to claim the supposed advantage, or by a course of acts and conduct, or by so neglecting and failing to act, as to clearly evidence that it was the person’s intention and purpose to waive.”

The evidence discloses that plaintiff acted in strict accordance with the quoted policy cancellation provision, and its act of cancellation on March 18, 1955, it seems to us showed an intent to cancel policy number 92R-176-050 which in our opinion defeats “any legal basis for a claimed waiver of legal rights” by the defendant.

Viewing the evidence in its entirety we, like the trial judge, can not construe the actions of Charles Simpson as his intention to reinstate policy number 92R-176-050 nor plaintiff’s actions as accepting money for that purpose.

If policy number 92R-176-050 was cancelled reinstatement thereof created a new contract between the interested parties effective as of the date of reinstatement, especially where, as in the contract under consideration, the policy did not provide for its reinstatement or reinstatement was at the plaintiff’s option.

See the following cases cited by plaintiff by brief: Schwer, Admx. v. Benefit Assn. of Railway Employees, Inc., 153 Oh St 312; MacDonald v. Metropolitan Life Ins. Co., 304 Pa. 213, 155 Atlantic 491; Eisenberger v. National American Accident Ins., Co., 165 Atlantic 295; and Elliott v. Farmers Mutual Fire Ins. Assn., 10 N. W. (2nd) 556, where at page 560, it is said:—

“* * * Under the notice the appellant was required to pay the assessment before it became delinquent, and not having done so he is in no position to complain. He had repeated notices of the delinquency, and there is nothing in the record to indicate that he evinced the slightest desire to pay what he owed until after the fire. The fact that he sent a check to the company a few days after the fire does not help his case. That payment was due October 1, 1937.”

We believe, as the trial judge found, that there was no waiver of the cancellation, and that neither plaintiff nor the Simpsons intended to reinstate policy number 92R-176-050.

This conclusion is supported by the evidence summarized by plaintiff’s counsel by brief and lifted therefrom as follows:—

“* * * Tile ¿ay after the accident, Mr. Simpson came into the local office of Nationwide and paid $7.13 to the clerk instructing her it was for a ‘new pol.’ and was to be transmitted to Agent Ross Baker • (R. 144-146) Mr. Simpson on the witness stand did not claim he intended that payment to reinstate the cancelled policy. On April 11, Charles Simpson once again had Ross Baker write a new policy on appellee Simpson’s Pontiac purchased after the collision and as a replacement for the totally wrecked Chevrolet covered by cancelled policy No. 92R-176-050 (R. 149, 150). Two days later Mr. Simpson was again at the local office with $24.10 to pay to Nationwide (DX-B, R. 147). He again offered no explanation of the payment on trial. Is it more logical to assume that he was paying six months’ liability insurance coverage on an automobile that was a total loss, or was paying $24.40 for six months’ liability insurance coverage for the newly purchased Pontiac? The trial court found that he intended payment on the Pontiac policy.”

We cannot conclude that the trial judge erred in the introduction of “irrelevant testimony and admitted immaterial evidence, and specifically of allowing evidence of transactions between appellee, Nationwide Mutual Insurance Company, and one Charles S. Simpson;” in denying “appellant’s demurrer to the evidence at the close of plaintiff-appellee’s case”; nor in overruling the motions of defendant Manley and Warren Zone Cab Company to “be dismissed from the action for the reason that no justiciable controversy existed between plaintiff-appellee and appellant and appellee Warren Zone Cab Company”; nor in “finding that policy 92R-176-050 issued to appellee Frances E. Simpson by appellee Nationwide Mutual Insurance Company had been effectively cancelled”; nor that the “alleged cancellation, if effective, of policy 92R-176-050, was not waived by the subsequent acts, words and conduct of appellee, Nationwide Mutual Insurance Company; nor in finding that that policy was not in force and effect on March 27, 1955; nor that the verdict and judgment entered thereon are against the manifest weight of the evidence or contrary to law as claimed by defendant Manley in his assignment of errors.

Appellant’s counsel has failed to call our attention to “other errors manifest upon the face of the record,” as alleged as a ground of error, or to comply in respect thereto with the provisions of Rule vn of this court that his brief “shall contain a statement of the questions presented and a succinct statement of so much of the cause, referring to the pages of the record, as is necessary to show how the questions arose, together with a statement of the authorities relied upon.” Accordingly we will not pass upon this assigned ground of error.

The judgment of the court of common pleas is affirmed.

NICHOLS, PJ, concurs.

GRIFFITH, J, concurs in judgment.


author: By RUTHERFORD, J.

text:
    AMERICAN EMPLOYERS’ INSURANCE COMPANY, Boston, Massachusetts Plaintiff, v. TOLEDO SERVICE PARKING COMPANY, Defendant.
    Common Pleas Court, Lucas County.
    No. 170458.
    Decided October 21, 1955.
   OPINION

By RUTHERFORD, J.

In this action the plaintiff as subrogee of the lessor seeks indemnity from the lessee, based upon the indemnity provisions contained in the. lease.

On February 25th, 1944, at about 8:00 P. M. Helen Wenner Dodson, Marilyn Ann Riehl, Vance A. Dodson, Jr., and Richard Byers had parked their car in a lot at the corner of Huron and Jackson Streets and were walking east along the public sidewalk on the north side of Jackson Street, Toledo, Ohio, on their way to the Rivoli Theatre. Shortly before they reached the point where Jackson and Superior Streets intersect and at a point where the sidewalk was abutted on the north by property owned by The New England Trust Company, Trustee, and leased to the Toledo Service Parking, Inc., the sidewalk collapsed and the four pedestrians were precipitated into an areaway underneath. Helen Wenner Dodson, Vance H. Dodson, Jr., and Paul L. Riehl as Administrator of the Estate of Marilyn Ann Riehl, deceased, each brought separate actions in the Court of Common Pleas, Lucas County, naming The New England Trust Company and the Toledo Service Parking Co. as defendants. Richard Byers made no claim.

The case of Helen Wenner Dodson v. The New England Trust Company and the Toledo Service lurking Company was tried to a Jury in the Common Pleas Court of Lucas County. The jury returned a verdict for the Plaintiff against The New England Trust Company (owner and lessor) in the sum of Fifteen Thousand ($15,000.00) Dollars but returned no verdict against the Toledo Service Parking Co. (lessee). An appeal was taken by The New England Trust Company but the judgment was affirmed as reported in the Dodson v. The New England Trust Co., 78 Oh Ap 503. Thereafter a motion for certification was duly filed, but was denied by the Supreme Court of Ohio.

The judgment plus interest and costs was paid by the plaintiff in this case, American Employers’ Insurance Co., which also made settlement of the cases brought by Vance H. Dodson, Jr., and Paul L, Riehl as Administrator of the estate of Marilyn Ann Riehl, deceased.

By stipulation of the parties, it is agreed that the American Employers’ Insurance Co. as insurance carrier of the New England Trust Co. (owner and lessor) under the terms of its policy was compelled to, and did, pay to each of the individuals the amounts as set forth in plaintiff’s petition, the total of said amounts being $25,805.07; that plaintiff, by virtue of the provisions of its policy became subrogated to all rights held by The New England Trust Co., Trustee, under its lease to the defendant, Toledo Service Parking Co.; and that in event of a finding against the defendant in this case the recovery should be in the amount of $25,805.07 as prayed for in the prayer of the petition plus proper interest and costs.

Both Plaintiff and Defendant have expressly waived trial by jury and this cause is submitted to the Court upon the pleadings and the evidence, which evidence consists of agreed stipulation of facts, agreed exhibits, and includes therein the transcript of the testimony and proceedings in the Common Pleas Court in cause No. 163073, Helen Wenner Dodson v. The New England Trust Co., Trustee, and Toledo Service Parking Co., including the charge of the Trial Court in said case. Said transcript consists of 447 pages.

Also in evidence in this cause is the entire lease entered into between The New England Trust Co., Trustee, and Toledo Service Parking, Inc., on September 4, 1942. Those provisions of the lease which related to contractual right of indemnity as between the lessor and lessee were properly excluded from evidence in the case brought by Helen Wenner Dodson. Her action was in tort and the indemnity provisions of the lease as between the lessor and lessee were not in issue and could not relieve either the lessor or lessee of its liability in tort, if any, to Helen Wenner Dodson, a third party.

There has been no prior determination of the contractual obligation, if any, of the lesse'e to the lessor, based upon the indemnity clauses of the lease, upon which contractual provisions Plaintiff, as subrogee of the lessor, has brought this action.

The pertinent provisions of the lease which was prepared by the lessor acting through its agent, The Geo. P. Crosbey Co. are:

THIS LEASE ENTERED INTO THIS 4TH DAY OF SEPTEMBER, 1942, by and between The New England Trust Co., Trustee under the will of Robinson D. Locke, hereinafter designated lessor, and Toledo Service Parking Co., an Ohio Corporation, hereinafter designated lessee,

WITNESSETH:

That in consideration of the rents, covenants and conditions hereinafter set forth, on the part of said lessee to be paid, performed and observed, said Lessor does hereby demise, let and lease unto said lessee, the following described premises, situated in the City of Toledo, County of Lucas, and State of Ohio, to-wit:

The unimproved premises known as 501-503 Superior Street, being further described as Lot No. 1036 and the southwesterly 25 feet of Lot 1037 Vistula Division, in the City of Toledo, Lucas County, Ohio, reserving, however, unto said Lessor and to tenants of other parts of said building, or of the adjoining premises owned by said Lessor, such parts of the lot of land upon which said building is located not occupied thereby.

Said leased premises are to be used for automobile parking purposes only and for no other purpose without the written consent of the lessor.

Said lessee does hereby convenant and agree with said lessor, his, her or its successors and assigns, as follows, to-wit:

1. That said lessee will and hereby does accept said premises in the condition they may be at the commencement of the term thereof, subject to all defects therein, whether concealed or otherwise, and whether known or unknown to said Lessor, and to release and forever discharge said Lessor from any and all damages of every kind and nature that may be in any way occasioned thereby, and at all times to indemnify and save said Lessor said premises and the improvements thereon harmless from all liens and all liability in any way arising out of the use or condition of said premises or of the improvements thereon.

8. That said lessee will not obstruct the sidewalk in front or along the side of said premises by displaying thereon any goods, ware or merchandise, without the written consent of said Lessor.

9. That said Lessee will at all times keep the sidewalks along said premises free and clear of obstructions to travel thereon, and of snow and ice.

10. That said Lessee will use and keep said premises in a careful, safe and proper manner, and will carefully conduct and guard all fires that may be conducted thereon.

12. That said Lessee will keep said premises, and all parts thereof, and all fixtures, machinery and apparatus, in good repair and in such condition that no damage will occur to any person by reason thereof

13. That said Lessee will fully comply with and obey all laws, ordinances, rules, regulations and requirements of all regularly constituted authorities, in any way affecting said premises or .the use thereof, or this lease.

18. That said Lessee will permit said Lessor and the agents of said Lessor to enter upon said premises at all reasonable times, to examine the condition thereof.

22. That said Lessee will keep said premises in such repair and condition as may be required by the Board of Health, or other City, State or Federal authorities, free of all cost to said Lessor.

23. That said Lessee shall and will save Lessor harmless from any and all claims and demands of every kind and nature, in favor of any person, whether by way of damages or otherwise, arising from the failure on the part of said Lessee to perform and observe any covenant or condition hereof.

27. That said Lessee shall and will pay all charges, fees and assessments made, imposed or exacted by the City of Toledo, or its public authorities for inspection, use, permit to use and rental of the so-called subspace under any sidewalks, streets, or alleys in connection with said demised premises.

The premises described are at the Northwest corner of Jackson Street and Superior Street. On the South they are abutted by Jackson Street, on which street the sidewalk collapsed, and on the East by Superior Street.

In 1884 there was constructed on the premises a three-story brick building, with basement and with sub-basement under the sidewalk on Jackson Street. The supporting wall of the building was on the south lot line so as to abut the North line of Jackson Street. Then an areaway, about 3% feet wide, was provided between the main wall of the building, and a wall parallel thereto, which together with another wall along the curb line of Jackson Street, supported the sidewalk over the subspace. The sidewalk consisted of stone slabs about 814 feet long, 4 feet wide and 10 inches thick, supported at each end by one of the walls.

There were openings as means of ingress and egress from the basement into this areaway and from it into the sub-space under the sidewalk; and this space could be and was used as additional basement space by the occupants of the building.

In 1898, Robinson Locke acquired title to the property by deed. Upon his death, title passed to Trustees under the will of Robinson Loeke, and in 1936 to The New England Trust Company, successor Trustee under the will of Robinson Locke. The New England Trust Company as successor Trustee continued to hold the legal title to this real estate upon which the sidewalk, causing plaintiffs injury, abutted and still held said title on February 25th, 1944, when a section of the sidewalk collapsed. Subsequent to acquiring title in 1936, The New England Trust Co. sent its agent to inspect the premises and thereafter in 1937, The New England Trust Company had said building razed, filled up the basement and leveled off the lot, but did not fill the space under the walk on Jackson Street. The unimproved lot was then leased to the Toledo Service Parking Co., as hereinbefore set forth, for the purpose of open air automobile parking; and Toledo Service Parking Co. was in possession of the lot at the time the sidewalk collapsed.

From the evidence, the Court finds that there was a defect in the slab which collapsed, which defect was due to some foreign material or deposit through the center of the stone slab; that this' defect caused the lower portion, by action of the elements, to separate from the upper, over a period of years, and break or scale off, and caused the broken parts to fall into the subspace; and that the stone was originally about 10 inches thick, but had from scaling off become much less, and at the time it broke was less than one-half of its original strength. This defect in the stone which collapsed could have in the exercise of ordinary care been detected from an inspection of its edges before installation. This defect could not be detected from view of the top surface; however, the deterioration of the stone was apparent, from the subspace underneath, many years before the collapse, and would have in the exercise of ordinary care been apparent upon inspection before the building was razed in 1937.

There is no evidence that the defendant lessee was advised of the existence of the subspace by the lessor, and there was nothing to direct attention to existence of any subspace underneath the sidewalk to either the lessee or the injured parties except three manholes, none of which were in the slab that broke.

The entrance and exit to the parking lot was on Superior Street. As shown by Exhibit No. 3 there were parking meters at the curb line of Jackson Street opposite which the slab collapsed and a wire fence along the parking lot at the North line of Jackson Street. The lessee was not using this portion of the sidewalk as a means of ingress to or egress from the premises, and those who were injured were neither invitees nor licensees of the defendant, but were exercising their right to use the sidewalk of a public street, on their way to a theatre.

It is the Court’s finding that the Toledo Service Parking Inc., the lessee, was not negligent. It did not create the condition; did not use this portion of the sidewalk in connection with the operation of the parking lot, and did not have either actual or constructive notice of the existing defect. On the other hand, the owner and lessor to whose rights the plaintiff has been subrogated, was negligent since the potentially dangerous condition of the sidewalk, in the exercise of ordinary care, should have been observed before the building was razed in 1937; however, in spite of the existing dangerous condition which should then have been observed from the areaway, no repairs were made; but the building basement, from which access to the areaway had been gained, was filled in, without filling the areaway.

Not only was the dangerous condition a continuing condition, but in 1937, as a result of the building being razed, it became a hidden condition. This finding of negligence on the part of the lessor is in accord' with the finding of the jury in the case of Helen Wenner Dodson v. The New England Trust Co., Trustee; and this plaintiff cannot now attack that finding made against its insured without which there would have been no liability on the policy and resulting right of subrogation against the lessee.

Under these facts, what is the contractual liability, if any, of the lessee to indemnify the subrogee of the lessor for the loss proximately caused by negligence of the Lessor?

The premises as described in the lease are the unimproved premises consisting of Lot No. 1036 and the southwesterly 25 feet of Lot No. 1037.

Sections 1, 10, 12, 13, 22 each make specific reference to “said premises” being the unimproved premises described, which, as shown by the plat, extend only to the street line and do not include any portion of the street or sidewalk which is a part of the street.

The covenants as to the sidewalks are contained in Section 8 and 9 of the Lease as hereinbefore set forth, and there is no evidence that the Lessee breached either of these covenants relating to sidewalks.

Section 27 of the lease refers to subspace under the sidewalks. In 1921 the City of Toledo passed an ordinance requiring a permit by anyone constructing a subspace under sidewalks, or by the user of a subspace previously constructed. The Lessee has not violated this section because he did not construct the subspace, nor has he ever been a user of it, since it was rendered inaccessible by the Lessor before the lease was entered into and its utility destroyed when the building was razed in 1937.

Another section of the ordinance provides that any subspace must be rebuilt or repaired, upon proper notice from the Director of Public Safety, but no notice was ever given.

The lease was a made over form, which had originally been drafted for a building lease. Before signing, several of its provisions were marked out. However, even assuming that Section 27 is binding upon the parties because it was not omitted, the Court finds no breach thereof by the lessee.

Section 23 refers to Sections 10, 12, 13 and 22, which as hereinbefore stated refer only to “said premises” as described in the lease, being the vacant lots as they extend only to the street lines.

Section 23 also refers to Section 1, and this section is somewhat broader in that it refers to “all liability in any way arising out of the use or condition of said premises.” Under this provision arises the question of liability of the lessee as a result of its use of the premises, but in this case it need not be decided as to what would be the liability of the lessee, if in connection with operating the parking lot he were using the sidewalk as a means of ingress or egress, or if the injury had been to one of its invitees or licensees.

In this case the lessee did not use the Jackson Street sidewalk, which was separated from the parking lot by a fence and the persons injured were neither going to nor from the lot.

The lease was prepared by the lessor and there is nothing in its provisions to indicate any intent and understanding of the parties by which it can be construed to be sufficiently wide in scope, to cover a preexisting dangerous condition of a sidewalk subspace, which subspace was not leased to or used by the lessee, the existence of which was not disclosed to the lessee, and which subspace and its condition would not be discovered by the lessee in the exercise of ordinary care; but, which dangerous condition was permitted to continue through negligence of the lessor, resulting in a loss which did not arise in any way from the operation or use of the leased premises.

As between the lessor and the lessee, when the indemnity provisions as in this lease refer only to “said premises,” which are described as the unimproved lots, which the City Plat shows to extend only to the street line, and to all liability in any way arising out of the use, or condition, of said premises or the improvements thereon, it is the Court’s finding: That there is no right of indemnity in the Lessor, for an amount recovered against the Lessor, due solely to the lessor’s negligence which was the cause of the collapse of the sidewalk at a point where the sidewalk was not used in connection with the operation of the leased premises and when the persons injured were neither invitees nor licensees of the lessee, but were persons exercising their right to be on the public sidewalk on their way to the theatre.

Because the loss for which indemnity is asked, falls outside the scope of the covenants of indemnity contained in the lease, the finding is in favor of the defendant, Toledo Service Parking, Inc.

A Journal Entry may be submitted accordingly with costs taxed to the Plaintiff.


author: By THE COURT.

text:
    STATE, ex rel. LANE DEVELOPMENT CO., Plaintiff-Relator, v. BARTLETT, Defendant-Respondent.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5752.
    Decided January 8, 1958.
    Saxbe, Boyd & Prine, Columbus, for plaintiff -relator.
    Carlisle O. Dollings, Thomas W. Maxson, Columbus, for defendant-respondent.
   OPINION

By THE COURT.

This is an action wherein the relator is seeking a writ prohibiting the Hon. Ralph J. Bartlett, a Judge of the Common Pleas Court, from modifying a former restraining order issued by another member of the same court.

The respondent has filed a demurrer to the petition for the reason that it does not state facts which show a cause of action. The Court of Common Pleas is a court of general jurisdiction with inherent power to pass upon its own jurisdiction. Should the court act erroneously in the exercise of the same, prohibition is not the proper remedy but relief may be had only by appeal. The rule of law applicable is well defined in State, ex rel. v. Brough, 94 Oh St 115, the first paragraph of the syllabus of which provides:

• “The writ of prohibition is an extraordinary legal remedy whose object is to prevent a court or tribunal of peculiar, limited or inferior power from assuming jurisdiction of a matter beyond its cognizance. The writ cannot be made to serve the purpose of a writ of error to correct mistakes of the lower court in deciding questions of law within its jurisdiction.”

The demurrer will be sustained and the action dismissed at plaintiff’s costs.

BRYANT & MILLER, JJ, concur.

PETREE, PJ, not participating.


author: Per CURIAM. By NICHOLS, PJ.

text:
    HOVANEC, Plaintiff-Appellant, v. SCANLON, Admr. Bureau of Workmen’s Compensation, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3886.
    Decided April 4, 1957.

      Green, Schiavoni & Anderson, Youngstown, for plaintiff-appellant.
    William Saxbe, Atty. Geni., John R. Barrett, Asst. Atty. Geni., Columbus, for defendant-appellee.
   OPINION

Per CURIAM.

Defendant appealed to this court on questions of law from a judgment of the court of common pleas striking from the files of that court plaintiff’s notice of appeal to that court from a ruling of the Industrial Commission of Ohio adverse to him for the reason plaintiff’s employer was not named in his notice of appeal filed in that court. That notice of appeal is as follows:—

“STATE OF OHIO ) MAHONING COUNTY) SS.
“MICHAEL J. HOVANEC, ) PLAINTIFF, ) vs ) “JOSEPH SCANLON, ) ADMINISTRATOR, BUREAU OF WORKMEN’S ) COMPENSATION, ) DEFENDANT.
IN THE COURT OF COMMON PLEAS
NOTICE OF APPEAL.
“Comes now Michael J. Hovanec and files this notice of appeal from a decision by the Industrial Commission of Ohio rendered under date of March 27, 1956, at which time his appeal from the Canton Regional Board of Review, denying his application for compensation as a result of an accidental injury sustained on April 2, 1955, while in the employ of the Youngstown Sanitary Milk Company was denied. Notice of such disallowance by the Industrial Commission of Ohio was mailed to the plaintiff under date of March 27, 1956. Plaintiff’s claim was given Claim No. 2052605 in' the files of the Industrial Commission of Ohio. Plaintiff contends that the findings by the Industrial Commission of Ohio and by the Canton Regional Board of Review was in disregard of the facts and that he is entitled to Workmen’s Compensation as a result of the accidental injury which he received on April 2, 1955 while in the employ of the Youngstown Sanitary Milk Company.
“Plaintiff requests a trial by jury, praying judgment against the defendant, in that a finding may be made in his favor for compensation and that he be .given the right to participate in the benefits of the Workmen’s Compensation Fund.”

Plaintiff by asignments of error contends:—

“1. The court of common pleas of Mahoning County erred in sustaining defendant, Joseph Scanlon’s motion to dismiss plaintiff’s notice of appeal and to strike plaintiff’s petition from the records of the court of common pleas.
“2. The court of common pleas of Mahoning County erred in dismissing plaintiff’s notice of appeal and striking plaintiff’s petition from the records of the court of common pleas, without affording appellant an opportunity to amend.
“3. The judgment of the court of common pleas of Mahoning county is contrary to law.”

The questions presented by plaintiff’s assigned grounds of error are based upon the following facts as interpreted by appellant’s counsel:—

“The first question of law presented in this cause is whether a notice of appeal filed in the court specified and within the time limited by §4123.519 R. C., is so defective as not to invest a court of common pleas with jurisdiction to hear an appeal from a decision of the Industrial Commission of Ohio, where the caption of such notice contains the name and title of the Administrator of the Bureau of Workmen’s Compensation as defendant, but not the name of the employer of the plaintiff, but where the name of plaintiff’s employer is stated in the main body of the notice.
“The second question of law is whether a court of common pleas may strike from the files a notice of appeal which is defective in that its caption fails to name an appellee, without affording to the appellant an opportunity to amend.”

Sec. 4123.519 R. C., provides in concise unambiguous language that:—

“* * * The administrator of the bureau of workmen’s compensation, the claimant and the employer shall be parties to such appeal and the commission shall be made a party if it makes application therefor. * *

The requirements of the statute must be complied with strictly. The employer had the right to be named as a party. Merely naming the employer in the body of the notice of appeal filed in the court of common pleas, as was done in the case under consideration, does not meet the requirements of the statute.

We find no merit in claimant’s contention that the Industrial Commission must assume claimant’s responsibility for notifying the employer by notifying the parties to the appeal.

We believe, as stated by the commission by brief, that:—

“Admittedly, after the notice of appeal is properly filed and has properly named the required parties as parties (including the employer), then, and then only, the Commision notifies the parties who are required to have been named by appellant.
“The last sentence of appellant’s brief on page 7, states, that in sharp contrast to §5717.04 R. C., §4123.519 R. C., imposes on the Industrial Commission the duty to notify the appellees. Admittedly, this is true but only appellant does name, and is required to name, the appellees and in this case he failed to do so.”

Sec. 2309.03 R. C„ mandatorily provides:—

“Every pleading must contain the name of the court and county in which the action is brought, and the names of the parties, followed by the name of the pleading.”

Plaintiff failed to name his employer as a party in the caption or as a party elsewhere in the body of the notice of appeal. Merely identifying plaintiff’s employer by name in the body of the notice of appeal he did not thereby comply with the statutory requirements and did not make plaintiff’s employer a party to the action.

In Gregg v. Mitchell, 99 Oh Ap 350, it is said:—

“Where a special statute prescribes the method of appeal from a particular order, such statute is controlling and the general statutes providing for appeal have no application; and compliance with the general statute, but not with the special statute, is not sufficient to perfect such appeal.”

Plaintiff had no inherent right to appeal. The right is purely statutory, and the statute conferring the right must be construed and enforced strictly.

In American Restaurant & Lunch Co. v. Glander, 147 Oh St 147 at page 150, it is said:—

“* * * The very statute which authorizes the appeal prescribes the conditions and procedure under and by which such appeal may be perfected. Where a statute confers the right of appeal, adherence to the conditions thereby imposed is essential to the enjoyment of the right conferred. * *

The only method by which plaintiff could perfect his appeal in a workmen’s compensation case is prescribed by §4123.519 R. C., with the specific provisions of which plaintiff did not comply. There must be complete compliance with the statutory provisions granting the right of appeal.

Obviously, we conclude that the court of common pleas did not err to plaintiff’s prejudice in dismissing appellant’s notice of appeal and striking plaintiff’s petition from the records of the court of common pleas without affording plaintiff an opportunity to amend his notice of appeal.

General appeal statutes upon which plaintiff relies are not applicable in this appeal. Sec. 4123.519 R. C., is a special statute applicable in the appeal under review.

It is held in the cases of Oliver v. Evatt, 144 Oh St 231, Kenney v. Evatt, 144 Oh St 369, and Lutz v. Evatt, 144 Oh St 341, that failure to comply with the requirement as specifically set forth for appeals in that specific type of case was grounds for dismissal.

The judgment of the court of common pleas is affirmed.

GRIFFITH and PHILLIPS, JJ, concur.

NICHOLS, PJ, dissents.

DISSENTING OPINION

By NICHOLS, PJ.

In the paper denominated “Notice of Appeal” the appellant has set forth every fact prescribed by the Legislature for incorporation in such notice of appeal. There is no requirement that a - caption precede the statement of such matters as are prescribed in §4123.519 R. C. This section of the Code prescribes who shall be parties to the appeal, and it was the duty of the Commission to give notice to the parties named in the section, including the employer. No duty rested upon the appellant in that respect. The employer’s name is specifically stated in this notice of appeal.

Sec. 2309.03 R. C., does not mandatorily require a caption to a pleading as a prerequisite to jurisdiction of the action, but merely requires that the pleading must contain the name of the court and county in which the action is brought and the names of the parties followed by the name of the pleading.

If there is an irregularity in the caption under the general statute a motion to amend would be in order but not a motion to dismiss for such irregularity. A pleading is never tested by the caption but by the allegations contained in the body thereof.

A notice of appeal is not a “pleading” under the special statute.

The trial court was in error in sustaining defendant’s motion to dismiss the appeal and the cause should be remanded for further proceedings according to law.


author: By SKEEL, PJ.

text:
    STATE, Plaintiff-Appellee, v. MOORE, Defendant-Appellant.
    Ohio Appeals, Ninth District, Summit County.
    No. 4778.
    Decided May 14, 1958.

      John S. Ballard, Pros. Atty., for plaintiff-appellee.
    Davis & Lipps, for defendant-appellant.
    (SKEEL, PJ, HURD and KOVACHY, JJ, of the Eighth District, sitting by designation in the Ninth District.)
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law from a judgment entered on the verdict of a jury of guilty as to counts one and two and not guilty as to counts three and four on an indictment charging the defendant with bribery in four counts.

It is the claim of the State that on May 6, 1957, the defendant paid or gave to each of two police officers of the vice squad of the City of Akron, Summit County, Ohio, the sum of fifty dollars to influence them in the performance of their duties, and that on May 13, 1957, the said defendant gave an additional fifty dollars to each of the said officers for like purposes. The defendant entered a plea of not guilty upon arraignment as to each count. In compliance with defendant’s request, the prosecuting attorney was ordered to and did file a bill of particulars setting out specifically the nature of the charge.

The testimony of the two officers, in brief, was that on May 6, 1957 at 10:30 A. M., they encountered the defendant sitting in his automobile on Howard Street in the City of Akron. That the defendant was known to them to be engaged in the “numbers racket.” The police officers proceeded to search the defendant and his automobile for-possession of contraband used in the “numbers racket.” Finding none, they started to depart. The record then shows the following as testified to by officer Valley:

“* * * He said (Sgt. Longacre) he’s clean, we might as well go. So I got out'of the car. Mr. Moore got back in. As he did he told me Valley, I want to see you somewhere. I said when and where. He said out to the house at one o’clock. I said ok I will tell the Sergeant.”

The officers kept the appointment after reporting their talk with the defendant on Howard Street to their superiors in the Police Department. When the officers arrived at the defendant’s house, the defendant. said: “I have been trying to. see you fellows for a long time.” He handed one of the officers a hundred dollar bill and said “split this with your buddy.” One of the officers asked “What do you expect for this?” to which the defendant replied, in substance, that he did not mind if they picked up any of his men on the street “let them fall, but if anything big comes up like a raid, let me know.” With this statement, the officer said the defendant gave him the defendant’s unlisted telephone number. On cross-examination, Officer Valley said that on the occasion of their visit to defendant’s home on May 6, 1957, he, the defendant, “Told us to come back on the 13th.”

The officers returned on the 13th but the defendant was not home. They found him a little later in a business place on North Howard Street. He left the establishment while the officers were talking to the proprietor and as they left a few minutes later, the defendant was observed sitting in his automobile parked in front. Officer Valley then testified that the defendant asked if they had been out to the house, to which he replied “yes.” The record then shows the following: “ ‘Well: he said, I’m going out then right now.’ He says, ‘come on out.’ ”. They returned to the defendant’s house where each officer again received fifty dollars and the defendant said “that money received last Monday was make-up money.” He also repeated what had been said the week before about being warned if anything big came up. On this occasion, Sergeant Longacre had equipped himself with a small portable recording machine, the recorder being carried in his hip pocket and the receiver strapped to his wrist, having the appearance of a wrist watch. After the officers returned to headquarters, they played back the recorded conversation. The defendant was then arrested but before a preliminary hearing was had in the Municipal Court of Akron, the evidence was submitted to the Grand Jury of Summit County, and an indictment, charging bribery, was returned containing four counts. Counts one and two were for the alleged bribery of each of the officers by a separate payment to each of fifty dollars on May 6th, 1957, to corruptly influence them with respect to their official duties as police officers. Counts three and four charged a like purpose for the money given to each of the officers on May 13th, 1957.

The defendant did not take the stand or offer any evidence to challenge the evidence offered by the State.

The defendant claims the following errors:

1. The verdict and judgment are manifestly against the weight of the evidence and contrary to law.

2. The Court erred in refusing to charge on the law as requested by appellant.

3. The Court erred in overruling appellant’s motion at the close of the State’s case, after all the evidence and his motion for a new trial.

4. The Court erred in his charge of law to the Jury.

5. Appellant was denied due process of law.

The first claim of error, that the judgment is not sustained by sufficient evidence, or as stated by the defendant, “manifestly against the weight of the evidence and contrary to law,” cannot be sustained. The defendant was indicted on four counts, charging separate acts of bribery under §2917.01 R. C., which provides, insofar as this case is concerned:

“No person shall corruptly give * * * to a ’ ' ’ officer * * * of the state any valuable thing * * * to influence him with respect to his official duty * *

The elements to be established by the state beyond a reasonable doubt are: 1) the giving corruptly, 2) of anything of value, 3) to a public officer to influence him in the discharge of his public duty, 4) such thing of value must have been given intentionally for such purpose.

There is evidence in the record, as hereinabove briefly outlined, in support of every element of the crime charged in each count of the indictment. That the defendant gave money to police officers of the City of Akron was clearly supported by the evidence. The defendant’s reputation as a numbers (gambling) operator, when considered in the light of his conduct (paying money in the solitude of his bedroom) and his statement in response to the police officer’s question as to what he expected for the money, that he be notified of impending police interference to the operation of his unlawful business or, as he put it, “if anything big comes up as a raid, let me know,” together with the surrounding circumstances attending the defendant’s giving two hundred dollars to the police officers of the vice squad without explanation, were such that a jury would be clearly warranted in concluding that the defendant was guilty of bribery as defined by the statute.

The defendant’s claim, that his statements to the officers at the time he paid them the money were improperly received in evidence and presented to the jury, is likewise without merit. The objection to this testimony seems to be that until some evidence is presented that the crime charged has been committed (some evidence to support the corpus delicti) confessions of the defendant are inadmissible. This question is presented by objection shown in the record but not argued in defendant’s brief. The court’s ruling on these objections was correct. The defendant made these statements, according to the officers, as a part of the transaction in which the money was paid. They were made in explanation of what the defendant expected for the money given, and were a part of the act of giving the money. The statements were “verbal acts” necessary to make out the corpus delicti of the crime charged against the defendant and for that reason clearly admissible. See Wigmore on Evidence, 3rd Ed., Vol. 6, para. 1772. They were likewise statements against the defendant’s interests and for that reason admissible. We conclude that the defendant’s first claim of error must be overruled.

The second claim of error deals with the refusal of the court to give the jury certain charges on questions of law requested and presented in writing to the court before argument. Three charges were presented. The law of this state is well settled that the provisions of §2315.01-(e) R. C., do not apply in a criminal case. State v. Petro, 148 Oh St 473, 76 N. E. 2d 355. The Supreme Court has said in the case of Grossweiler v. State, 113 Oh St 46, 148 N. E. 89, that a request made by defendant’s attorney for a proper instruction before argument may not be ignored in a general charge, even though the request has not been repeated. We will, therefore, consider whether the court properly refused the charges requested.

The first request was directed toward the jury’s duty to resolve in defendant’s favor inferences which are consistent with innocence. The substance of this request was clearly and correctly contained in the court’s general charge.

The second request was as follows:

“If the Jury are satisfied that the police officers received money from the defendant as alleged in the indictment, then said police officers are accomplices of the defendant and the Jury ought not to convict the defendant on the testimony of said accomplice police officers unless their testimony is corroborated by other evidence that satisfies the Jury beyond a reasonable doubt that the defendant is guilty as alleged.”

This request does not state a correct proposition of law nor is there any evidence in the record that the police officers were accomplices or acted as co-conspirators with the defendant in carrying out his alleged unlawful purpose to secure immunity in the operation of the numbers game (gambling) by the unlawful payment of money. In order that the officers could be held as accomplices, they must have knowingly and wilfully taken part or joined in the unlawful enterprise while the unlawful act or conspiracy was in progress.

The third request to charge was as follows:

“If the Jury are satisfied that prior to the commission of the acts alleged that the defendant never conceived any intention of committing these offenses or any similar offenses but that the police officers incited and by suggestions and representations lured him to commit the offenses alleged in order to entrap, arrest and prosecute the defendant therefor, then these facts are fatal to the prosecution of these offenses, and the defendant is entitled to a verdict of not guilty.”

The court did charge correctly on the law of entrapment in its general charge so that this request was complied with. It should be noted, however, that the giving of such charge was highly beneficial to the defendant. In doing so, the right of the State was erroneously prejudiced. There is no evidence in the record that would justify a charge on the law of entrapment. Assignments of error two and four are, therefore, overruled.

Assignment of error number three is not well taken. What has been said in considering assignment of error number one is applicable here.

We also overrule assignment of error number five as the record shows the defendant was afforded a fair trial under the laws of this State.

Judgment affirmed. Exceptions noted.

HURD and KOVACHY, JJ, concur.


author: Per CURIAM.

text:
    DEELY, Estate of, In re.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5859.
    Decided February 11, 1958.
    Meredith, Meredith & Tait, Quentin M. Derryberry, of Counsel, Lima, Robert R. Shaw, Columbus, for appellant.
    Joseph L. Eisenberg, Ralph Shapiro, Columbus, for appellee-administrator.
   OPINION

Per CURIAM.

On January 14, 1958, appellee, administrator of the estate of George H. Deely, deceased, moved the court to dismiss this appeal as an appeal on questions of law and fact upon the ground that this is not a chancery suit but is an action at law.

An examination of the transcript discloses that notice of appeal was filed on November 22, 1957, together with an entry approving an appeal bond in the amount of $100.00. Assignments of error and brief of the appellant, The City Loan and Savings Company, were filed January 8, 1958, within the fifty days required by Rule VII B, in effect in 1957 at the time this notice of appeal was filed. Along with the brief was filed what purports to be an agreed statement of facts which is attached as Appendix A. The entry in the court below, which is exhibited in the transcript by photostatic copy, recites that the matter of the application of the administrator to have the court make an order of distribution of the funds and to determine in what order the debts and items listed in the application should be paid, was heard upon an agreed statement of facts. Then follows the finding of the court.'

Upon this state of the record, the motion of appellee to dismiss this appeal on questions of law and fact will be sustained for the reason that this appeal does not fall within one of the ten groups enumerated for appeal on questions of law and fact under §2501.02 R. C. The appeal will be retained on questions of law under the Supplement to Rule VII, as in effect in 1957, when this appeal was perfected. Appellant will be given thirty days from the date of entry on this motion within which to refile his assignments of error and brief.

Motion sustained.

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


author: By DEEDS, J.

text:
    BRETSCHER, Plaintiff-Appellee, v. ROBINSON, Supt. of Insurance, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2335.
    Decided April 26, 1956.
    Pickrel, Schaefer & Ebeling, By William H. Selva, of Counsel, Dayton, for plaintiff-appellee.
    C. William O’Neill, Atty Geni., By Franklin A. Kropp, Asst. Atty Geni., Columbus, for defendant-appellant.
    (DEEDS and CONN, JJ, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By DEEDS, J.

This is an appeal on questions of law from a judgment of the court of common pleas of Montgomery County entered in vacating the order of defendant-appellant revoking the agency licenses of plaintiff-appellee.

The order of the defendant-appellant, as Superintendent of Insurance, State of Ohio, revoking agency licenses of the plaintiff-appellee was made after a hearing pursuant to notice by registered mail, which notice was as follows:

“In accordance with your written request, a hearing to determine your suitability to be licensed in accordance with §§3905.08 and 3905.18 R. C., will be held in the office, of the Superintendent of Insurance on Tuesday, April 13, 1954, at 2:00 P. M. E. S. T„ in the State House Annex, Columbus, Ohio.”

The order of the Superintendent of Insurance revoking the license of the plaintiff-appellee is in part as follows:

“This matter came on for hearing on April 13, 1954, to determine the suitability of William A. Bretscher to remain licensed by this Division as an accident and health insurance agent for the Mutual Benefit Health and Accident Association, Continental Casualty Company and All American Casualty Company, and was held pursuant to the written request of Mr. Bretscher.
“Witnesses were sworn, testimony taken and evidence introduced. After due consideration of the evidence it is the finding of the Superintendent of Insurance that Mr. Bretscher is not a suitable person to be licensed by this Division as required by the provisions of §§3905.08 and 3905.18 R. C. It is therefore ordered that the licenses held by him as specified above be and the same hereby are revoked.
“The applicant is hereby notified that an appe#al may be taken from this order in accordance with §119.12 R. C., to the Court of Common Pleas of the county in which his place of business is located, or of the county in which he resides, and notice of such appeal must be filed with the proper court and this Division within fifteen days after the mailing of this notice.”

The pertinent provisions of §119.12 R. C., relating to the right of appeal from the order of the Superintendent of Insurance, to which Section reference is made by the Superintendent as appears in the order as quoted above, provides in part as follows:

“The court shall conduct a hearing on such appeal and shall give preference to all proceedings under §§119.01 to 119.13, inclusive, R. C., over all other civil cases, irrespective of the position of the proceedings on the calendar of the court. The hearing in the court of common pleas shall proceed as in the trial of a civil action, and the court shall determine the rights of the parties in accordance with the laws applicable to such action. At such hearing counsel may be heard on oral argument, briefs may be submitted,' and evidence introduced if the court has granted a request for the presentation of additional evidence.
“The court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and such additional evidence as the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law. In the absence of such a finding, it may reverse, vacate, or modify the order or make such other ruling as is supported by reliable, probative, and substantial evidence and is in accordance with law. 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. Such appeal by the agency shall be taken on questions of law relating to the constitutionality, construction or interpretation of statutes and rules and regulations of the agency and in such appeal the court may also review and determine the correctness of the judgment of the court of common pleas that the order of the agency is not supported by any reliable, probative and substantial evidence in the entire record. * * *”

The judgment entry of the court of common pleas wherein it is determined that the order “revoking the license held by William A. Bretscher is not in accordance with law,” etc., is as follows:

“This day this cause came on to be heard upon the appeal of William A. Bretscher from an order of Walter A. Robinson, Superintendent of Insurance of the State of Ohio, revoking insurance agent’s licenses heretofore issued by said superintendent to appellant, and the court, upon consideration of the record of the administrative proceedings, the briefs and arguments of counsel, finds that the order issued by Walter A. Robinson, Superintendent of Insurance, revoking the licenses held by William A. Bretscher is not in accordance with law in that said order does not recite nor contain a finding of fact upon which said order is based.
“Wherefore, it is Ordered, Adjudged and Decreed that the order of Walter A. Robinson, Superintendent of Insurance, revoking the licenses held by appellant be, and the same hereby is, reversed and vacated and appellant’s insurance agent’s licenses, affected by such order, are hereby restored to him.
“It is further ordered that a mandate be sent to the Superintendent of Insurance in accordance with this judgment.
Mills
Judge, Common Pleas Court,
Montgomery County, Ohio”

The principal error complained of and relied upon by the appellant determinative in our view of this appeal on questions of law is that §3905.18 R. C., was not pertinent and applicable, in a determination and revocation of the licenses of plaintiff-appellee by the Superintendent of Insurance, notwithstanding the notice of the hearing, the hearing and the order of the Superintendent revoking the licenses of the plaintiff-appellee were all pursuant to §3905.18 R. C., as appears from the notice, the proceedings and order of revocation quoted above. It is our view that §119.12 R. C., authorized the trial court to make the finding and enter the judgment which is now before this court for review. We determine, therefore, that the judgment of the court of common pleas should be and the same is affirmed for the reason that no error prejudicial to the appellant is disclosed by the record and judgment.

Reference is made to the opinion of the trial court and same is approved by this Court.

The judgment affirming the judgment of the court of common pleas shall be certified to the office of the Superintendent of Insurance in accord with the requirements of the law.

HORNBECK and CONN, JJ, concur.


author: Per CURIAM:

text:
    BOARD OF PARK COMMISSIONERS OF THE CLEVELAND METROPOLITAN PARK DISTRICT, Plaintiff-Appellee, v. BAY VILLAGE (City) et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24046.
    Decided April 24, 1957.
    Baskin, Kelley. Lausche, & Heavilin, for plaintiff-appellee.
    L. W. Kempf, Director of Law, City of Bay Village, for defendants-appellants.
   OPINION

Per CURIAM:

This appeal on questions of law comes to this court from a judgment entered for the plaintiff seeking a declaratory judgment as to the Park Board’s right to build and conduct a refreshment stand within its park located on Lake Erie within the city of Bay Village. That part of plaintiff’s park wherein the Board seeks the right to erect a refreshment stand is located within a district zoned by the city for single residence purposes.

The case was tried on stipulations of fact, the pleadings and arguments of counsel. It is, therefore, undisputed that the Park Board, acting within its statutory authority, purchased and now uses for park and recreational purposes a substantial number of acres of land fronting both sides of West Lake Road, its most northerly border being the shores of Lake Erie. The part of this large area lying north of West Lake Road fronting on the lake and known as “Huntington Park” has been improved as a picnic area, including a bath house, shelter houses, parking area and the like. It is within this area that the Park Board now seeks to build a small refreshment stand.

The trial court found from the stipulated facts that the operation of such a stand, located and used in the manner stipulated, would not constitute a nuisance. We are in full accord with this conclusion.

The only remaining question is whether or not the Park Board, in the exercise of its statutory powers of creating a Metropolitan Park System in the interests of the public health, morals, and safety, may or has the power to create upon its land the things needed and necessary to afford the public the greatest enjoyment of its recreational facilities even if such facility is in violation of a zoning ordinance of a city within which the Park created by the Board is situated.

The operation of a small refreshment stand in a large park or picnic area here established by the Park Board which is used as extensively as is here shown to be true by the evidence by picnickers and bathers, is a very necessary part of the service of such a public facility and is an accessory use of the land devoted to park purposes of this character. Such use comes within the zoning restrictions of the city as a permissive use. The greatest benefit to the public in the use of this park facility will be served by such activity.

It is concluded, therefore, that where the operation of a refreshment stand does not destroy any of the security or value or enjoyment of the use of the residential land in the surrounding residential area, it being clearly shown that such activity will not be a nuisance by reason of the manner of operation and the proposed location, the Park Board acted clearly within its statutory power in proposing to erect and operate such stand in the interests of public health and to provide for the recreational needs of the people to the fullest extent.

The judgment of the Court of Common Pleas is, therefore, affirmed.

SKEEL, PJ, HURD and KOVACHY, JJ, concur.


author: By STEVENS, J.

text:
    UNIVERSAL C. I. T. CREDIT CORPORATION, Plaintiff-Appellee, v. STYBLO, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24123.
    Decided May 29, 1957.
    Rocker, Zaller & Kleinman, for plaintiff-appellee.
    M. Morgenstern, B. B. Direnfeld, for defendant-appellant.
    (HUNSICKER, PJ, DOYLE and STEVENS, JJ, of the Ninth District, sitting by designation in th'e Eighth District.)
   OPINION

By STEVENS, J.

This action, in the Court of Common Pleas, sought an injunction against defendant to prevent his transfer of the title to his motor vehicle to any other person; and enjoining the defendant, Leonard F. Fuerst, from issuing a new title certificate for said' automobile to any other person; the petition further prayed that the certificate of title now held by defendant, Robert Styblo, be cancelled, and a new certificate containing thereon the lien of plaintiff be issued in the name of the defendant, Robert Styblo, and that said certificate be delivered to the plaintiff to be held by it pending payment in full of said lien.

The foregoing relief was claimed by plaintiff because defendant had purchased a motor truck upon which a mortgage for the balance owing had come into the hands of plaintiff by assignment. The plaintiff’s lien had been duly noted on defendant’s certificate of title for said truck.

The petition continued:

“When there was still a balance due this plaintiff on said mortgage, in the amount of $458.35, through a clerical error and mistake, the plaintiff canceled said lien on the certificate of title and delivered said certificate of title to the defendant, Robert C. Styblo; that said cancellation was made in error and by mistake, and that there is still due the sum of $458.35 from the defendant, Robert C. Styblo, on the obligation secured by the mortgage hereinbefore described.”

The answer of defendant, after admitting the purchase of the motor vehicle in question, and the execution of a chattel mortgage securing the unpaid balance of the purchase price thereof, denied generally the allegations of the petition. Upon trial, the relief sought by plaintiff was granted by the trial court. This appeal on questions of law challenges the propriety of that judgment.

Inasmuch as the claim for the relief sought was predicated upon mistake and clerical error, it was incumbent upon the plaintiff to prove that mistake and clerical error by clear and convincing evidence. 35 O. Jur. 202, Reformation of Instruments, Par. 64 and cases cited thereunder.

We have carefully read this entire record, and we are unanimously of the opinion that there was, at the end of plaintiff’s case in chief, and at the conclusion of all the evidence, a complete failure of proof to establish the claimed mistake and clerical error. Such being the case, the trial court should have sustained defendant’s motion for judgment made at the conclusion of plaintiff’s case, and again at the conclusion of all the evidence.

This court will accordingly reverse the judgment of the Court of Common Pleas as being contrary to law and will enter the final judgment for defendant-appellant, which the trial court should have entered.

Judgment reversed and final judgment for appellant.

HUNSICKER, PJ, DOYLE, J, concur.


author: By BRYANT, J.

text:
    LAWS, d. b. a. SUBWAY GRILL, Appellant, v. BOARD OF LIQUOR CONTROL, Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5863.
    Decided April 29, 1958.
    Mayer & Leshy, Columbus, Winston C. Allen, Newark, for appellant.
    William Saxbe, Atty. Geni., Chester Hummell, Asst. Atty. Geni., Columbus, for appellee.
   OPINION

By BRYANT, J.

Leola Elizabeth Laws, dba Subway Grill, 76 South Second Street, Newark, Ohio, the appellant herein, is the holder of two permits issued by the Department of Liquor Control for use in connection with her grill. One of them, Class D-l (§4303.13 R. C.), is for the sale of 3.2 beer at retail by glass or container for consumption on or off the premises, and the other is a Class D-2 permit (§4303.14 R. C.), for the sale of the various malt beverages of not less than 3.2 percentum of alcohol by weight and not more than seven percentum of alcohol by weight, wine and mixed beverages, either for consumption on or off the premises.

On February 9, 1957 appellant’s grill was visited by two investigators of the Department of Liquor Control and as a result, two charges were filed against appellant, the first charging her with knowingly and willfully allowing prostitutes to loiter and solicit business on her permit-premises and the second charging that on the same date a female employee of the appellant solicited from a customer a drink for said employee. The two charges were heard by the Board of Liquor Control, three witnesses testifying for the prosecution and three including thé appellant testifying for the defense. At the conclusion of the hearing, the said Board found appellant guilty on both charges and revoked both permits.

An appeal was taken to the Common Pleas Court of Franklin County and on October 9,1957, Marshall, J., of said Common Pleas Court rendered a decision affirming the order of the Liquor Board. A journal entry affirming the Liquor Board’s order based upon the above decision was filed November 18, 1957.

Two notices of appeal were filed. On October 18, 1957, a notice of appeal was filed containing the following language:

“Now comes the defendant-appellant, Leola Elizabeth Laws, and gives notice of appeal to the Court of Appeals of this County from a judgment rendered by the Court of Common Pleas in the above entitled case on the 9th of October, 1957.
“Said Appeal is on question of law.”

The above notice of appeal was filed nine days after the decision of the court below and approximately thirty days before the filing of the journal entry making that decision effective.

On December 5, 1957 appellant filed a second notice of appeal which contains the following language:

“Now comes the defendant-appellant, Leola Elizabeth Laws, and gives notice of appeal to the Court of Appeals of this County from a judgment rendered by the Court of Common Pleas in the above entitled case on the 9th day of October, 1957.
“Said Appeal is on question of law.”

The first notice of appeal, dated October 18, 1957, bears the caption at the top “IN THE COURT OF APPEALS OF FRANKLIN COUNTY, OHIO,” but the file indicates it was filed with the Common Pleas Court of Franklin County, while the second notice of appeal originally headed in the same manner has been corrected to indicate Court of Common Pleas and appears to have been filed in that court.

The notice of appeal of October 18, 1957 was accompanied by a precipe directing the Clerk of Common Pleas Court to “place papers and file with the Court of Appeals and a transcript of documents and journal entries together with such original papers as are necessary to exhibit errors captioned in the above entitled case.”

A precipe containing a similar request accompanied the notice of appeal of December 5, 1957. Apparently the first precipe had not been complied with as otherwise the journal entry dated November 18, 1957 would of necessity be left out of the file when it arrived at the Court of Appeals.

No further action appears to have been taken after December 5, 1957 by either party until one hundred twenty days later on April 4, 1958 counsel for appellee filed the following motion to dismiss:

“Now comes the appellee, Board of Liquor Control of the State of Ohio, and moves this Court for an order dismissing this appeal for the reason that appellant has failed to comply with Rule VII of this Court.” Reference is made to former Rule VII of this court for the reason that such numbering and form were in effect prior to the most recent amendment of the rules of this court effective January 1, 1958. Appellee filed a memorandum in support of the motion and appellant filed what was entitled “CONTRA MEMORANDUM” consisting of eight lines admitting that the brief had not been filed and stating that “It was a complete oversight” but contended “we do not believe it fair to dismiss this appeal, since upon notice, appellant’s brief was filed and the cause is now ready for hearing.” The latter memorandum was filed April 14, 1958 and on April 11, 1958 a four and one-half page brief containing two assignments of errors was filed.

The provisions of §2505.21 R. C., are pertinent here and are as follows:

“Appeals taken on questions of law shall be heard upon assignments of error filed in the cause or set out in the briefs of the appellant before hearing. Errors not specifically pointed out in the record and separately argued by brief may be disregarded, but the court may consider and decide errors which are not assigned or specified. Failure to file such briefs and assignments of error within the time prescribed by the court rules is cause for dismissal of such appeal. * * *” (Emphasis added.)

In 3 O. Jur. (2d) 487, Appellate Review, Section 572, it is said in part as follows:

“Rule VII of the Court of Appeals provides that unless otherwise ordered by the court or a judge thereof, briefs shall be filed as follows: Counsel for appellant shall, within fifty days after filing notice of appeal on law only, file with the clerk his brief; * * *
“* * * it is now settled by a specific decision of the Supreme Court, on a case certified on ground of conflict, affirming decisions of other Courts of Appeals, that the brief of the appellant must, under Rule VII, be filed within fifty days from the time of the filing of the notice of the appeal in the lower court, regardless of whether such notice is filed before or on the final day of the twenty days allowed for its filing. * * *”

Cited in support of the above is Anderson v. Industrial Commission of Ohio, 135 Oh St 77, which had been certified in conflict with Gusweiler v. Riverview Apartments, Inc., 54 Oh. Ap 132, decided three years prior to the Anderson case, supra.

As before pointed out fifty days after December 5, 1957 would expire on January 24, 1958, while the motion of appellee was not filed until seventy days thereafter or on April 4, 1958 as above pointed out.

But even if this were not true, the motion to dismiss would have to be sustained upon another more compelling ground affecting the jurisdiction of this court. The first notice of appeal dated October 18, 1957 refers to “a judgment rendered by the Court of Common Pleas in the above entitled case on the 9th of October, 1957.”

We have searched the record with care and are unable to find any judgment of the court whatsoever on that date affecting any right of appellant. True, there was a decision handed down by the Common Pleas Court of Franklin County but a decision is not a judgment nor a final order from which an appeal may be taken. The judgment or final order in this case was not'made until one month later on November 18, 1957 when the journal entry was filed incorporating the decision and ruling of the court below.

The second notice of appeal was filed December 5, 1957 and seeks to appeal from “a judgment rendered by the Court of Common Pleas in the above entitled case on the 9th day of October, 1957.” This has the same infirmity as the earlier notice of appeal. There was no final judgment or order of the court below on or near that date but only a decision of the trial court, which, as we have said, is not a final order and is not appealable.

To summarize, the appellant was seventy days late with her brief and assignments- of errors when the motion to dismiss was filed and seventy-seven days late when the brief actually was filed. No reason or justification was offered except merely the statement that “It was a complete oversight.” In addition, an appeal is attempted on what clearly and unmistakably is not a final order.

For the reasons above set forth the motion to dismiss is well taken and must be sustained.

PETREE, PJ, MILLER, J, concur.


author: By FESS, J.

text:
    SHAUCET, Plaintiff-Appellant, v. DAVIS et, Defendants-Appellees.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5215.
    Decided March 29, 1957.
    Ray E. Hughes, Columbus, for plaintiff-appellant.
    Walter R. Hill, Columbus, for defendants-appellees, Bessie Davis and Martha F. Hill.
    (FESS and DEEDS, JJ, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By FESS, J.

Appeal on questions of law from a judgment for defendants entered by the court at the conclusion of plaintiff’s case with respect to the first, second and fourth causes of action of plaintiff’s petition, and a judgment entered upon a verdict returned by the jury for defendants upon plaintiff’s third cause of action.

On September 4, 1951, plaintiff secured a judgment of the Municipal Court of Columbus against the defendant Bessie Davis for restitution and the sum of $180.00 as damages for detention and costs. Thereafter said defendant, having prosecuted an appeal to the Court of Common Pleas, executed a supersedeas bond in the sum of $720.00 with defendant Martha F. Hill as surety thereon. Under the terms of said bond, said defendants bound themselves to plaintiff in the sum of $720.00 that if said judgment be affirmed and not paid by the defendant Davis, said defendants “as sureties consent that judgment for the amount found due, together with the costs that have accrued, may be entered against us and for such purpose enter our appearance in the above case.” Under the terms of said bond the defendants further bound themselves that during the possession of the premises by defendant Davis she would not commit or suffer to be committed any waste thereon and that if the judgment be affirmed she would pay the value of the use and occupation of said property to the plaintiff from date until the delivery of the possession thereof together with all costs which may have accrued in both courts. Thereafter, on motion of the plaintiff to set aside the aforesaid bond, the Court of Common Pleas ordered that the defendant Davis provide an additional new supersedeas bond in the sum of $5,000.00, conditioned that if the judgment of the Municipal Court be affirmed, that judgment for the amount found due plaintiff against the defendant, together with costs be paid, “and that said principal and sureties will pay the value of the use and occupancy of said property to plaintiffappellee; and to pay all damages suffered by plaintiff-appellee during the possession of said property by defendant-appellant and for any waste committed or suffered to be committed by the defendant-appellant during her possession of the property.” Pursuant to said order, it appears that $2980.00 in cash was deposited in lieu of bond. Neither the bonds themselves nor copies thereof appear in the record upon this appeal, but excerpts therefrom as herein referred to were introducd 'as exhibits at the trial. It is alleged in the pleadings that in addition to the $1300.00 cash deposited incident to the Municipal Court bond, there was a $720.00 real estate bond upon which the defendant Hill was surety, and that the additional bond ordered by the Court of Common Pleas was in a total sum of $5,000.00.

It is to be observed that not only were the bonds exorbitant, but that they did not carry the exact phraseology prescribed by §2505.14 R. C.

In ner first cause of action, after setting forth the judgment of the Municipal Court, the execution of the bonds and the affirmance of the judgment by the Court of Common Pleas, plaintiff alleges that during the pendency of said appeal, from August 19, 1951 until March 5, 1952, the defendant Davis had exclusive possession and control of the subject premises and deprived plaintiff from the use and occupation thereof, and that the reasonable value of said occupancy was $3500.00, for which plaintiff sustained damages.

In our opinion, a good cause of action for use and occupancy was stated in this first cause of action. At the trial, plaintiff introduced evidence tending to show that she was deprived of the use and occupancy of the premises during the period alleged. Therefore, the court erred in entering judgment for the defendants at the conclusion of plaintiff’s case.

For her second cause of action, plaintiff alleges that because of her deprivation of the possession and control of said premises by defendant Davis, she suffered additional damages in the sum of $2117.50 due to the delay of some six months encountered by plaintiff in remodeling said premises. No substantial evidence to support this speculative claim was presented by the plaintiff. The judgment with respect to this cause of action is therefore affirmed.

For her third cause of action, plaintiff alleged that the defendant Davis had agreed to pay plaintiff all charges for water furnished by the City of Columbus in connection with the use of the premises by defendant Davis and seeks recovery in the sum of $174.34 for reimbursement for such water bills. The issues arising under this cause of action were properly submitted to the jury, which returned its verdict for the defendants, and the judgment with respect to this cause of action is affirmed.

For her fourth cause of action, plaintiff alleged that the defendant Davis suffered waste to be committed on the premises during the period in question, as a result of which plaintiff suffered damage in the sum of $500.00. A review of the record discloses no evidence in support of this cause of action and the judgment with respect thereto is affirmed.

The journal entry in this case includes the judgment of the court upon the four causes of action. But upon review of the judgment, the reviewing court may consider the errors assigned as to each of the several causes of action and may determine separately whether the judgment with respect to each of the causes of action should be affirmed, reversed or modified. Sidner v. Alexander, 31 Oh St 378.

Judgment with respect to the second, third and fourth causes of action affirmed. Judgment with respect to the first cause of action reversed and cause remanded to the Common Pleas Court for a new trial. Costs accruing upon this appeal should be equally divided between and assessed against the plaintiff and defendants. Sidner v. Alexander, 31 Oh St 433. Assessment of costs in the Common Pleas Court should abide the final judgment. Sec. 2505.41 R. C.

HORNBECK, PJ, DEEDS, J, concur.