author: By SKEEL, J:

text:
    CURTISS, Plaintiff-Appellee, v. CLEVELAND (City) et, Defendants-Appellants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    Nos. 23398, 23436.
    Decided November 23, 1955.

      McCreary, Hinslea & Ray, for plaintiff-appellee.
    Ralph S. Locher, Dir. of Law, John Dolan, Asst., James Metzenbaum, for defendants-appellants.
    Hubert B. Fuller, Abraham Kollin, Walter & Haverfield, Robert Merkle, for defendants-appellees.
   OPINION

By SKEEL, J:

Two appeals are here considered from a single judgment and decree of the Common Pleas Court entered in the above entitled case, whereby the City of Cleveland was enjoined from enforcing the amended provisions of its zoning ordinance as it affected the use of the plaintiff’s property and that of some of the cross-petitioning defendants located on Lake Shore Boulevard between the intersections of Nottingham Road and Windward Road in said city.

The first appeal is on questions of law. The appellants seek a reversal of the judgment appealed from for the reason that the plaintiff and cross-petitioning defendants did not seek relief through legislative or by administrative procedure before filing this case. The second appeal is on law and fact filed by the City of Cleveland. Such appeal, which constitutes a trial de novo of the issues in this Court, was presented by stipulations as to the evidence, the briefs and arguments of counsel.

The plaintiffs and cross-petitioning defendants, who by cross-petition join in requesting the relief prayed for by the plaintiff, are owners of property fronting on Lake Shore Boulevard, located between the intersection of Lake Shore Boulevard with Nottingham Road on the west and Windward Road on the East.

The original comprehensive zoning ordinance of the City of Cleveland was passed in 1929. By such ordinance, the property fronting on Lake Shore Boulevard between said intersections was zoned for retail business. The City Council in April, 1945, by the procedure provided in the zoning ordinance and the City Charter, amended the zoning ordinance, changing the use restrictions of this frontage from a retail business classification to a residence classification, that is, multi-family dwelling purposes. Both before and after the passage of the zoning ordinance in 1929, the plaintiff and some of the cross-petitioning defendants and other owners of boulevard property within the district affected by the amendment had expended capital in developing their property for retail business purposes. As to such properties, the amendment had the effect of putting them in the class of lawful non-conforming uses and subject to the restrictions provided for such uses by the zoning ordinance.

In dealing with the appeal on questions of law, the record shows that the defendant-appellants in this appeal objected to the introduction of evidence at the beginning of the trial, claiming that the petition did not state a cause of action for failure to allege an attempt to get relief by compliance with procedural requirements of the zoning ordinance and for not having alleged an effort to secure legislative relief before filing this action.

There is some evidence that at least two of the cross-petitioning defendants who join in plaintiff’s prayer sought by application to the Commissioner of Buildings of Cleveland to enlarge their facilities for the more efficient conduct of their retail businesses and were refused the right to make such improvements. There is no evidence that appeals were taken to the courts by these defendants as provided by law. There is no question, however, but that the plaintiff brought her action without seeking Legislative or Administrative relief.

The amended petition of the plaintiff as well as the cross-petition of at least one of the defendants prays for a declaratory' judgment as to their rights in the use of their property and their status with respect thereto under the amendatory ordinance. It is likewise true that the prayer of the amended petition of the plaintiff and all of the' cross-petitioning defendants who have joined with the plaintiff in seeking relief, in addition to seeking a declaratory judgment as to their rights under the ordinance, charge that the amendment, as it applies to their property on Lake Shore Boulevard and as to all the Lake Shore Boulevard frontage is confiscatory and therefore unconstitutional. The plaintiff and cross-petitioning defendants do not seek relief within the terms of the amended ordinance but seek directly to destroy the enforcibility of its provisions as to their property on constitutional grounds as well as seeking a declaratory judgment as to their rights—a remedy provided by statute.

In the case of Euclid v. Ambler Realty Co., 272 U. S. 365, the action was one to enjoin the Village from enforcing the provisions of the village zoning ordinance as it applied to the Realty Company’s property. In dealing with the legal question of whether or not the plaintiff, before seeking injunctive relief, was required to seek legislative relief or to seek relief as to their properties by following administrative procedure within the terms of the ordinance, said on page 386:

“A motion was made in the court below to dismiss the bill on the ground that, because complainant (appellee) had made no effort to obtain a building permit or apply to the zoning board of appeals for relief as it might have done under the terms of the ordinance, the suit was premature. The motion was properly overruled. The effect of the allegations of the bill is that the ordinance of its own force operates greatly to reduce the value of appellee’s lands and destroy their marketability for industrial, commercial and residential uses; and the attack is directed, not against any specific provision or provisions, but against the ordinance as an entirety. Assuming the premises, the existence and maintenance of the ordinance, in effect, constitutes a present invasion of appellee’s property rights and a threat to continue it. Under these circumstances, the equitable jurisdiction is clear. See Terrace v. Thompson, 263 U. S. 197, 215; Pierce v. Society of Sisters, 268 U. S. 510, 535.”

This court has twice dealt directly with this question. In the case of Criterion Service Inc. v. East Cleveland (City), 55 Abs 90, this court said on page 92:

“This being an appeal on questions of law and fact, we are not concerned with the results below but must look to the issues as presented by the pleadings and the evidence introduced in this court in support of or contradicting the claims of the parties. There are two preliminary questions:
“1. Is injunction the proper remedy under the facts here presented, or is plaintiff’s remedy to be found in an action in mandamus?
“2. It being admitted that the plaintiff did not follow out the provisions of the ordinances of East Cleveland, wherein upon refusal of the building department to issue permits, the applicant may take an appeal from such refusal to the board of zoning appeals and from an adverse ruling before such appeal board, a review is provided for before the City Commission, may the plaintiff seek redress in the court without first having complied with such administrative proceedings?
“Upon these two claims of defendant we hold for the plaintiff,
“It is the claim of plaintiff that the zoning ordinance is unconstitutional and void as to its application to plaintiff’s business and that therefore it cannot be compelled to show an attempt to comply with the provisions of the ordinance. The cases cited by defendant are in support of circumstances where the plaintiff is seeking to compel the city to afford plaintiff the benefits of an ordinance. They are, therefore, not in point upon the issues here presented. The plaintiff may seek relief by injunction against an ordinance which he claims to be unconstitutional and void without first complying with the administrative procedure provided for by such ordinance.”

In the case of Henle v. City of Euclid et al, 97 Oh Ap 258, this Court held in the first paragraph of the syllabus:

“1. A property owner is empowered to test by action seeking a declaratory judgment the constitutionality of the restrictions placed upon his property by a zoning ordinance.”

and on page 262, the Court said:

“The plaintiff’s action is for a declaratory judgment seeking to have the restrictions of the zoning ordinance of Euclid declared unconstitutional as confiscatory and unreasonable in preventing her from using her property, described in the petition, for filling station purposes and seeking a mandatory injunction compelling a permit and directing that a permit be issued for that purpose. This court held, in the case of Criterion Service, Inc. v. City of East Cleveland, 55 Abs 90, 88 N. E. (2d), 300, that a property owner is a proper party plaintiff in seeking injunctive relief against an ordinance affecting his property which he claims to be unconstitutional, without complying with administrative procedure provided for by such ordinance. It is also the right of plaintiff under the declaratory judgment act to prosecute this action. (Sec. 2721.03 R. C.)”

The appellants in this appeal put great reliance on the case of Central Trust Co. v. Cincinnati, 62 Oh Ap 139. The facts and the law applicable in the Central Trust case are clearly distinguishable from those in the case now being considered. The court, in its opinion, explains the difference in the elements to be found between cases where a direct attack may be made by an original action against the constitutionality of the provisions of a zoning ordinance as confiscatory or as taking the claimant’s property without due process and those cases where the facts are such that a property owner, claiming hardship, must follow administrative procedure. In the Central Trust case, supra, the property involved was a single parcel located on the borderline between the residence and business zones. The plaintiff claimed that a hardship was imposed upon him (in the use of his property) by not extending the limit of the business zone to include his property. There was no attempt to claim that the ordinance in its entirety was unconstitutional. The court said on page 144:

“If the plaintiff is then relying upon the Village of Euclid v. Realty Co., supra, it must be taken for granted that it is attacking the zoning ordinance in its entirety, in that the plaintiff must assert that ‘the gravamen of the bill is that the ordinance of its own force operates Unconstitutionally to reduce the value of the lunfi a,nc} destroy its marketability, and the attack is not against specific provisions but against the ordinance in its entirety.’ Certainly, this cannot be the position of the plaintiff in the instant case. If it is, then the evidence fails to sustain the application of any such sweeping charge against the ordinance in ‘its entirety.’ The question presented to the court appears defined on page 386 of the opinion in the Euclid case.”

The facts pleaded in this action are that the amendment, the constitutionality of which is directly challenged, changes a district formerly zoned for retail business into a multi-family district, thus the property developed for business becomes a non-conforming use by which its value is almost completely destroyed. If administrative procedure is forced upon the .plaintiff and cross-petitioning defendants, the administrative agencies would be called upon not to relieve from incidental hardship resulting from the amendment but in effect would, be called upon to repeal the amendment as it applies to the parties complaining. This an administrative agency is without power to do. The City Council has no power to delegate legislative powers to an administrative agency.

We must conclude, therefore, that the plaintiff and the cross-petitioning defendants, joining in the same prayer for relief, by their petition and cross-petitions stated a maintainable cause of action in equity in seeking directly to enjoin the enforcement of the amended zoning ordinance of the City of Cleveland changing the zoning of their property fronting on Lake Shore Boulevard from retail business uses to multifamily dwelling uses whereby the value of their property is unlawfully destroyed. We also hold that such actions as pleaded are clearly permissible under the statute providing for a declaratory judgment of their rights under such amended ordinance. The appeal of appellants seeking to dismiss plaintiff and cross-petitioning defendants’ action because legislative relief was not first sought and that the parties did not follow administrative procedure in seeking relief against the amended zoning ordinance is overruled.

There remains the appeal on questions of law and fact to determine de novo whether under the facts as shown by the evidence received and the law, the plaintiff and cross-petitioning defendants, who have joined with the plaintiff in seeking relief from the amended zoning ordinance, are entitled to an injunction as práyed for and a decree declaring their rights as to the unrestricted use of their property under such ordinance for retail business purposes.

The first claim of those seeking relief in this action is that where the city, having once fixed the use for which their property may be utilized, they have the right to rely on the continuance of such classification in expending capital for the development of their property. The case of Clifton Hills Realty Co. v. Cincinnati, 60 Oh Ap 443 is cited. Beginning on page 449, the court says:

“3. Zoning ordinances are an exercise of the so-called police power and the police power has been said to be synonymous with sovereign power. Thurlow v. Massachusetts (License Cases), 46 U. S. (5 How.), 504, at 582, 12 L. Ed., 256; Mutual Loan Co. v. Martell, 222 U. S., 225, 56 L. Ed., 175, 32 S. Ct., 74. It is the power of government to enact all manner of laws in furtherance of the public safety, health, morals, general welfare and prosperity of the body politic.
“It extends to every just object of government, but not beyond that. Ii does not extend to arbitrary, capricious, and unreasonable action, ostensibly taken to promote the public safety, health, morals, general welfare or prosperity, but having no reasonable relation to any of those objects.
“The original zoning ordinance involved in the case at bar was sustained because the court could not say that the professed purpose to promote the public safety, health, morals, general welfare and prosperity was unfounded and a pretense for the exercise of arbitrary power. Pritz v. Messer, supra.
“The constitutionality of every subsequent zoning ordinance must be determined by the same test. In Kennedy v. City of Evanston, 348 Ill., 426, 181 N. E. 312, the court said:
“ ‘If a general zoning ordinance is passed and persons buy property in a certain district, they have a right to rely upon the rule of law that the classification made in the general ordinance will not be changed unless the change is required for the public good. (Western Theological Seminary v. City of Evanston, 325 Ill. 511; Phipps v. City of Chicago, 339 Ill. 315) where the amendment of a zoning ordinance is clearly an arbitrary and unreasonable action on the part of the city council and not authorized or contemplated by the zoning statute, it is of no force and effect. Michigan-Lake Building Corp. v. Hamilton, 340 Ill. 284; Brown v. Board of Appeals, 327 Ill. 644.'
“This results, not because the city may not repeal or amend the existing ordinance, but because in enacting the new legislation it must stay within constitutional limitations which exclude arbitrary and unreasonable action as lacking due process of law. As is said in Mondou v. New York, N. H. & H. Rd. Co., 223 U. S. 1, 50, 56 L. Ed., 327, 32 S. Ct., 169, 38 L. R. A. (N. S.), 44, wherein the court quotes from Munn v. Illinois, 94 U. S. 113, 134, 24 L. Ed., 77.
“ ‘A person has no property, no vested interest, in any rule of the common law. That is only one of the forms of municipal law and is no more sacred than any other. Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will * * * of the Legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances.’ ”

We accept this as a correct statement of the law applicable to the basic facts in this case. The right to enjoin the use restriction of property by an amendatory zoning ordinance changing the use classification of the property involved from retail business to multi-family dwelling must depend upon whether such change is reasonably necessary to promote the public safety, health, morals, general welfare and prosperity of the people. This, is a question which is primarily for the determination of the City Council. A court will not substitute its judgment for that of the legislature in a zoning case unless it is made clearly to appear that the action of the legislative body was arbitrary, unreasonable and completely lacking in the fundamentals basically necessary in exercising the police power of the state to protect the public health, morals, safety, general welfare and prosperity over otherwise personal constitutional property rights.

The plaintiff’s petition seeks relief from the provisions of the amended use classification of the property on Lake Shore Boulevard only as to her holdings and those adjacent thereto. Some of the cross-petitioning defendants have broadened the scope of the proceeding by seeking relief from such provisions for all the Lake Shore Boulevard frontage amended by the ordinance. Except for the devedopment between Windward and Schenely Roads, most of the retail business in this neighborhood is to be found in that section of Lake Shore Boulevard between the intersection of Marcella and Neff Roads as alleged in plaintiff’s petition. In fact, except for the property of the cross-petitioning defendant, The Kangesser Company, all of the property of the parties seeking relief by this action is found between such intersections.

The evidence shows that the greater part of the development of this section of Lake Shore Boulevard, and the property to the north, extending to the Lake, and to the south and southeast as far as East 185th Street, took place long before the amended zoning ordinance was passed in April of 1945. The property on the lateral streets, leading from the Boulevard, was improved for residence purposes while a number of retail establishments were built on the Boulevard, much of such development taking place prior to the passage of the original zoning ordinance of 1929. The retail commercial buildings built after 1929 included that of the plaintiff, and three other cross-petitioning defendants. At the time the amended ordinance of 1945 was passed about sixty per cent of the frontage on Lake Shore Boulevard was either vacant or was used for residence purposes. At that time the lateral streets were almost completely developed. It is also true that the retail business area on East 185th Street in the immediate neighborhood was fully developed during the period prior to 1945 while most of the lots on Lake Shore Boulevard remained undeveloped.

The evidence shows that the former trend of community development, whereby main thoroughfares were used for retail purposes, and the lateral streets used for residence purposes, has completely fallen into disuse. The modern trend is toward the development of marketing and shopping centers where adequate off-street automobile parking can be provided to the greater safety and convenience of the public. There is substantial evidence in the record that the vacant lots on Lake Shore Boulevard, which are in part the subject of this action, are narrow and shallow and not suited to provide sufficient off-street parking necessary for the safe operation of any retail business and that any use for which such vacant property can be used was described by a number of the expert witnesses as “secondary.”

At least as to the vacant land and that upon which only temporary commercial buildings have been erected in the territory involved, the ordinance cannot be said to be confiscatory in nature, and, therefore, unconstitutional. The judgment of the City Council that the public health, safety, morals, welfare and prosperity required the rezoning of this property must be sustained as a reasonable exercise of the power vested in the Council. Shepard v. Village of Skaneateles, 300 N. Y. 115; Cleveland Trust Co. v. Village of Brooklyn, 92 Oh Ap 351.

It is claimed by the plaintiff and cross-petitioning defendants that a different question is presented as to those properties which were improved for retail commercial enterprises under the authority of the zoning ordinance prior to the amendment of April 1945. These property owners have expended substantial capital in the improvement of their properties under the protection of the zoning ordinance then in effect and until the amendatory ordinance was passed, they were in full compliance with its provisions. Their businesses were not, when established, injurious to the public health, safety, morals, welfare and prosperity of the community. By the passage of the amendatory ordinance, these properties became lawful non-conforming uses and subject to the limitations applicable to such use as is provided by the zoning ordinance of Cleveland.

It should be noted that when the amendatory ordinance of April 1945 was first presented to the Council, it was drafted in such a way as not to change the zoning where a substantial number of the business structures had been erected. The frontage not affected was the south-side of the boulevard from Marcella to Bazel Roads and on the north and south side of the boulevard from Schenely to Windward Roads. Even as first proposed, a number of substantial retail business establishments would become non-conforming uses.

There is much evidence as to the loss in. value of the properties now substantially developed for retail business in the district under consideration. To change a property from a conforming to a non-conforming use after it is improved for retail business will, as a matter of course, destroy the greater part of its value. Such a change would be far more destructive of the value of improved property than would be the case with regard to vacant land. Having declared that as to the vacant land the change of its classification use to multi-family dwelling was within the power of the City Council of Cleveland in the exercise of the police power, the basis on which a finding that as to the improved property in the same district such change is confiscatory and, therefore, unconstitutional, must be founded first on the premises of whether or not a greater part of its value is destroyed in becoming a non-conforming use and second, whether or not such change has any reasonable relationship to and is necessary for the protection of the health, morals,'safety and the general welfare of the people. These questions must be decided on the evidence presented on these issues.

In the case of Quilici v. Village of Mount Prospect, 399 Ill. 418, 78 N. E. (2d) 240, the Village Council changed the zoning of plaintiff’s property from commercial to residence purposes. The lot in question was vacant land on a main highway and in part on a railroad with no development within the immediate vicinity. The court found that the only purpose accomplished by the amendment was the reduction in value of plaintiff’s property and that such change, under the eircumstance, bore no relation to the health, safety, morals, and general welfare of the people. The court on page 244 (78 N. E. 2d) said:

“Under the facts in this case, the rezoning of the property of the plaintiff’s reduced its value to such an extent that the restriction comes within the constitutional inhibition against taking private property for public use without just compensation. Upon the basis of the record here, we can see no relaton to the public health, safety, morals or public welfare.”

In the case of Offner Electronics, Inc. v. Gerhardt, 398 Ill. 265, 76 N. E. (2d) 27, the facts were somewhat similar to those in the instant ease. The plaintiff owned property zoned for industrial use which had been partly improved for that purpose by the erection of a substantial building. It was thereafter zoned for two-family residences. The plaintiff filed application to enlarge its commercial building which was refused because of the zoning amendment. The action was in mandamus to compel the building commissioner to issue a permit for the improvement. The Supreme Court, in reversing the trial court’s judgment for the defendant and ordering the issuance of the building permit, said as reported in headnotes Nos. 4, 6, 9, 10 and 11 Of the North Eastern Reporter:

“4. A zoning ordinance may be valid in its general aspects and so unreasonable as to a particular parcel of real estate as to result in confiscation.
“6. Where street on which plaintiff’s electronic machine plant was located was a streetcar line street with heavy traffic, many vacant lots, numerous commercial buildings, and relatively few residences, and there was testimony that property was more valuable for commercial than for duplex residence purposes, rezoning ordinance changing classification of area from commercial use to duplex residence use was arbitrary and unreasonable as applied to prevent enlargement of plaintiff’s plant by extending existing one-story building back toward alley.
“9. Power of city council to amend zoning ordinance is not unfettered and can be exercised only when public good demands that an amendment be made.
"10. A rezoning ordinance, rezoning commercial zone as a residence zone merely because certain parties so desire, is unreasonable and arbitrary and invades property rights of purchasers of property in reliance on prior zoning ordinance.
“11. In determining whether invasion of property rights by zoning ordinance is unreasonable and confiscatory, degree in which values incident to property are diminished by restrictions of ordinance must be considered in connection with facts in particular case.”

The evidence, including Defendants’ Exhibit No. K, which is a map showing the uses to which the frontage of Lake Shore Boulevard, between Windward and Nottingham Roads is devoted, and the pictures introduced of many of the business establishments, depicted two areas of retail business development in the district where at least seventy-five percent of the frontage is devoted to such use. These sections of the Boulevard are shown by the evidence as being well established for retail business purposes. Are these business establishments occupying one third of the frontage involved by the amended zoning ordinance to be legislated into the hazard of substantial destruction, if because of becoming a non-conforming use, they cannot meet the necessity of physical modernization for the economical operation of their establishments?

A zoning ordinance by amendment cannot disregard the real character of a neighborhood at least to the extent of its development under its provisions in effect prior to the amendment. To that extent, to change the permitted use to a higher bracket where the evidence shows that in so doing the greater part of the value of the property improved for retail business is destroyed, constitutes an unconstitutional taking of property without due process of law.

For the foregoing reasons, a decree may be entered enjoining the defendant, The City of Cleveland, from enforcing the amended zoning ordinance as to those properties fronting on Lake Shore Boulevard between Windward and Nottingham Roads that have been substantially improved for retail purposes as provided by the zoning ordinance prior to the amendment of April 1945.

Exceptions noted. Order see journal.

KOVACHY, PJ, HURD, J, concur.


source: Caselaw Access Project

author: By THE COURT. By THE COURT.

license: Public Domain

text:
    SOMERSET, Plaintiff-Appellant, v. STINSON, d. b. a. ARLINGTON-TRI-VILLAGE CABS CO. et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 5316.
    Decided October 5, 1955
    Smith, Clark & Holzapfel, John E. Holzapfel, of Counsel, Columbus, for plaintiff-appellant.
    Clifford L. Rose, Columbus, for defendants-appellees.
   OPINION

By THE COURT.

This is a law appeal from a judgment of the Common Pleas Court rendered upon the verdict of a jury in favor of the defendant at the close of the plaintiff’s case, the same having been in accordance with instructions from the court. The action was one for damages for injuries incurred by the plaintiff while alighting from a taxicab in which she was a paying passenger. The taxicab was being operated by the defendant-appellee.

The petition alleges that the plaintiff entered the taxicab and was aided and assisted in entering the same; that she directed the defendant to transport her to her residence; that she directed the defendant to stop the taxicab beneath the street light in front of her home in order to permit her to alight from the taxicab; that contrary to said instructions defendant carelessly and negligently carried her beyond said street into a driveway at her home where she was discharged in darkness.

The plaintiff charged the defendant with the following acts of negligence, to wit:

“Defendant failed to discharge said passenger in a safe place and that the ground was sloping, uneven and unlighted; that as a direct and proximate result of the same she was injured in certain particulars.”

All of the errors assigned relate to the sufficiency of the evidence to support the verdict. In other words, was the evidence when viewed in its most favorable light toward the plaintiff such that reasonable minds could arrive at only one conclusion, to wit, that there was no negligence on the part of the defendant which was a proximate cause of the plaintiff’s injuries?

An examination of the record reveals that the negligence complained of consisted of the driver’s failure to comply with the plaintiff’s instructions to let her out of the cab under the street light in front of her home, but instead he drove into the driveway of her home and stopped at a place which was unsafe for discharging a passenger It is also urged that she was in such poor physical condition as to require assistance from the driver of the cab, which he failed to afford to her.

We have carefully examined the entire record and find no evidence which tends to prove that the plaintiff’s physical condition was such as to require assistance in alighting from the cab. It shows that she had walked unassisted for some six or seven squares to the place where she had been employed as a baby sitter and from which she entered the cab at approximately 1:00 o’clock A M.; that prior to the accident she had always helped with the housework in the home with the exception of the cleaning, and that her condition was normally that of a person of her age, to wit, 78 years. We think it is clear that under these circumstances and also the additional fact that no request was made for assistance, that the defendant owed no duty to her in this respect. We find no objection to the law cited by counsel for the appellant but it just does not fit the facts in this case.

We further find that there is no evidence to support the conclusion that the driver violated the plaintiff’s instruction as to the place where she desired to be discharged. The substance of her conversation with the driver was to the effect that he need not enter the driveway but might discharge her under the street light in front of her home. It also appears that the plaintiff practically always alighted from automobiles in this driveway instead of the street and she was thoroughly familiar with its condition. Any risk that might have been involved was therefore assumed by her. She also testified in response to a question. “Certainly, if I had looked, I would have seen that the ground was not real even.” This constituted an admission of negligence on her part which alone is sufficient to support the verdict. In Winkler v. City of Columbus, 149 Oh St 39, the court said in the syllabus:

Decided November 21, 1955.

“Where, in an action for personal injury, plaintiff’s testimony amounts to an admission that she was guilty of negligence at the time and place, which contributed directly to her injury, it is the duty of the trial court to sustain a motion for a directed verdict in favor of defendant. (Paragraph fourth of the syllabus of New York Central Rd. Co. v. Stevens, Admr., 126 Oh St 395, approved and followed.)”

We, therefore, find no error in the record and the judgment will be affirmed.

MILLER, PJ, HORNBECK, J, concur.

WISEMAN, J, not participating.

No. 5316.

OPINION

By THE COURT.

This is a motion to dismiss the notice of appeal from a judgment of this Court for the reason that it was not filed within 20 days of the date of the judgment entry as required by §2505.07 R. C. Since the appeal is now pending in the Supreme Court, this Court has no jurisdiction to entertain such a motion. It will, therefore, be overruled.

MILLER, PJ, HORNBECK, J, concur.

WISEMAN, J, not participating.


author: By HORNBECK, J.

text:
    GARBRY, Estate of, In re.
    Ohio Appeals, Second District, Miami County.
    No. 503.
    Decided March 21, 1956.
    Baird Broomhall, John E. Fulker, Troy, for defendants-appellants.
    C. William O’Neill, Atty Geni., Earl M. Merwin, Asst. Atty. Geni., Columbus, for plaintiffs-appellees.
    (CONN, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By HORNBECK, J.

This is an appeal on questions of law from an order of the Probate Court of Miami County, Ohio, sustaining exceptions filed by the Department of Taxation of Ohio to the determination of inheritance tax in the estate of Pearl D. Garbry, deceased. By the order it was held that the transfer of certain real property from decedent to her son was subject to the succession tax provided in §5731.02 R. C. The tax was ordered to be levied by that part of the foregoing section in

(C) When the succession is to property from a resident * * *, by deed * S! * or gift, made without a valuable consideration substantially in money or money’s worth to the full value of such property;

(2) Intended to take effect in possession or enjoyment at or after such death.

The only question presented in this case is whether or not the transfer under consideration was intended to take effect in possession or enjoyment at or after the death of Pearl D. Garbry, deceased.

The material facts appearing are that on March 14, 1949, decedent executed and delivered her deed for her undivided one-third interest in some two-thousand acres of land, which she had acquired by devise from her late husband, to her sons, Ralph B. Garbry and J. Scott Garbry, reserving a life estate to herself. The sons were at the time the deed was made the owners in fee of the undivided two-thirds interest in the real estate described in the foregoing deed and then and thereafter were in the active management and in the possession of the real estate. Prior to the making of the deed and subsequent thereto until the death of decedent she received annually one-third of all the income from the land.

Appellánts urge that the transfer in question was not intended to take effect in possession or enjoyment upon the death of Mrs. Garbry, “but was intended to and actually did take effect in both possession and enjoyment immediately, and that the transfer was not, therefore, within the statute.”

Giving to the applicable language of the statute its most favorable interpretation in favor of appellants, we are required to say that decedent did not relinquish her right of possession and enjoyment of the land deeded which right was reserved to her by her life estate. This right is the controlling test of the application of the statute. It is well stated in Lloyd v. Commissioner of Internal Revenue, 141 F. 2d 758.

“The criterion for determining whether the transfer of an interest in property is intended to take effect in possession or enjoyment at or after the transferor’s death is whether he retains a string or a tie whereby he can reclaim the transferred property or whether he has otherwise reserved an interest the passing of which to others is determinable by his death.” '

In lieu of the exercise of the right of possession decedent received the income for that right. None of the acts of decedent respecting possession and enjoyment of her life estate succeeding the delivery of the deed was inconsistent with her full right of possession and enjoyment of her interest in the land.

We have been favored with the written opinion of Judge Fause of the Probate Court and are satisfied that it is sound. His reliance upon the case of In re Estate Sharp, 67 Abs 415 is justified.

In Ohio there is no opinion of the higher courts but outside of Ohio, there is an abundance of authority supporting the construction of the statute as made by the trial judge in this case.

Annotations: 49 A. L. R. 874; 67 A. L. R. 1250; 100 A. L. R. 1244; 121 A. L. R. 359; 155 A. L. R. 850. Contra Reinecke v. Northern Trust Co., 278 U. S. 347, 49 S. C. R. 125; dissenting opinion, Olsen, J., in Rising’s Estate v. State ex rel Benson, Attorney General (Minn.) 242 N. W. 464.

It seems a misnomer to call the transfer in this case a succession. Decedent passed nothing whatever to appellants and the enlargement of their right of possession and enjoyment developed because of their title to the remainder and not by reason of the succession of the life estate. However, this phase of the case is not before us and the scope of the statute may not be determined by the common understanding of its purpose, viz: to levy a tax on succession.

The judgment will be affirmed.

MILLER, PJ, CONN, J, concur.


author: By KOVACHY, PJ: By SKEEL, J.

text:
    RATAJCZAK, Plaintiff-Appellant, v. CARNEY et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23705.
    Decided June 6, 1956.

      Woodle & Wachtel, Edwin F. Woodle, of Counsel, for plaintiff-appellant.
    Frank T. Cullitan, County Prosecutor, Frederick W. Frey, Asst. County Prosecutor, for defendants-appellees.
   OPINION

By KOVACHY, PJ:

This is an appeal on questions of law and fact from a judgment entered in favor of the defendants by the Common Pleas Court of Cuyahoga County. The cause here was tried de novo on the pleadings, agreed statement of facts, briefs and arguments of counsel.

The petition of the plaintiff prays for a decree vacating and setting aside a delinquent tax sale of a portion of certain real estate owned by the plaintiff.

The defendants are the county auditor, the county treasurer and the purchaser at the delinquent tax sale.

The answers of the defendants, in general, aver that the real estate of the plaintiff included two parcels of land; that the taxes of one parcel became delinquent; that said parcel was forfeited to the State of Ohio and duly and properly sold to Max Sablack, who received a deed thereto and now has good title.

On August 14,1946, the plaintiff was the wife of Henry J. Akuszewski. On said date she entered into a property settlement agreement in a divorce proceeding pursuant to which on August 15, 1946, she took title to certain real estate bounded on the south by Harvard Avenue and on the north of Cassius Avenue in the City of Cleveland. The warranty deed transferring the property describes the premises as a single parcel of land 242 feet deep and reads as follows:

Situated in the City of Cleveland, County of Cuyahoga and State of Ohio, and known as being a part of sublot No. 29 in James Eastwood’s subdivision of part of original 100 acre lot No. 457, as shown by the recorded plat of said subdivision in Vol. 9 of Maps, page 37 of Cuyahoga County Records, and also part of original 100 acre lot No. 457, bounded and described as follows:

Beginning on the center line of Harvard Ave. S. E. (formerly Hamilton St.), at its intersection with the southerly prolongation of the westerly line of sublot No. 1 in said James Eastwood’s subdivision; thence westerly along said center line of Harvard Ave. S. E., 62 feet to the southeasterly corner of land conveyed to Elnora Fletcher Lillie, by deed dated May 10th 1900 and recorded in Vol. 753, page 554 of Cuyahoga County Records; thence northerly along the easterly line of land so conveyed to Lillie, 132 feet to the southerly line of said sublot No. 30 in said James Eastwood’s subdivision; thence easterly along the southerly line of said sublot No. 30, 10 feet to the southeasterly corner thereof; thence northerly along the easterly line of sublot No. 30, 33 feet to the southwesterly corner of sublot No. 29 in said James Eastwood’s subdivision; thence easterly along the southerly line of said sublot No. 29, 1G feet; thence northerly parallel with the easterly line of said sublot No. 29, 77 feet to the southerly line of Cassius Ave S. E. (formerly Eastwood Ave.); thence easterly along the southerly line of Cassius Ave., S. E. 40 feet to the northwesterly corner of sublot No. 28 in said James Eastwood’s subdivision; thence southerly along the westerly line of said sub-lot No. 28 and along the westerly line of sublot No. 1 in said subdivision, 242 feet to the place of beginning, as appears by said plat, be the same more or less, but subject to all legal highways.

The records in the office of the defendant, John J. Carney, County Auditor, however, list the premises as two adjacent and adjoining parcels, one numbered 136-8-16 fronting on Harvard Avenue, and the other numbered 136-8-10 fronting on Cassius Avenue. A single family residence, which the plaintiff occupies as her home, is located at the southerly end of parcel No. 136-8-16, and is known as 9607 Harvard Avenue. Parcel No. 136-8-10 is unimproved except for green lawn and has no visible dividing line from parcel No. 136-8-16. It is in the “back yard” of the residence property, extending northerly in an unbroken line to Cassius Avenue. The plaintiff was wholly unaware of the fact that the land described in her deed as one parcel of land was listed as two separate parcels on the maps in the office of the County Auditor.

Although the plaintiff notified the County Treasurer of the fact that she had acquired title and was the sole owner of the parcel of land described in the warranty deed, she, semi-annually, only received bills for the real estate tax on the portion of her land fronting on Harvard Avenue and listed on the County Auditor’s records as parcel No. 136-8-16. These taxes she paid promptly and at no time became delinquent with respect to them. Real estate taxes for the parcel listed on the County Auditor’s records as parcel No. 136-8-10 were not included in the tax oilis sent to her, but she was of the belief that the bills being sent her covered the entire property and that she was paying all the taxes assessed against the property transferred to her in the deed. In any event, she at no time knew that the tax bills sent her did not include raxes on parcel No. 136-8-10 and that she was delinquent with respect to them from the time of transfer on August 15, 1946. Her former husband had paid the taxes until then. As a direct consequence of this, parcel No. 136-8-10 was put on the forfeiture List by the Board of Review, was advertised according to law and then was sold by order of rhe Common Pleas Court on July 16, 1952. The defendant, Max Sablack, purchased it for $100.00 and received an auditor’s deed. The tax delinquency at the time was $52.54. Veronica S. Ratajczak received no actual notice of the forfeiture proceedings and knew nothing of them prior to the date of the sale. She changed her last name from Akuszewski to Ratajczak, her maiden name, in 1947.

The measurements in the exhibit appearing on this page do not accord with the description in the deed and are, therefore, obviously inaccurate. However, since no questions are raised in this case with respect to the areas of the property involved, the discrepancies are of no moment in the determination of the issues in the case.

Under the Statutes of Ohio, a county recorder shall not record any deed of absolute conveyance of land until it has been presented to the county auditor, and by him endorsed “transferred.” Sec. 317.22 R. C.

The county auditor upon the presentation of title to land “shall transfer any land or town lot or part thereof * * * charged with taxes on the tax list, from the name in which it stands into the name of the owner, when rendered necessary by a conveyance * * Sec. 319.20 R. C.

Under §5713.09 R. C., the county commissioners are authorized to designate the county engineer to provide “for making, correcting, and keeping up to date a complete set of the tax maps of the county * * *. Such maps shall show * * * all transfers of property, showing the lot or parcel of land transferred, the name of the grantee, and the date of the transfer, so that such maps shall furnish the county auditor, for entering on the tax duplicate, a correct and proper description of each lot or parcel of land offered for transfer. Such map shall be for the use of * * * the auditor, and shall be kept in the office of the auditor.” (Emphasis ours.)

The auditor then, under §319.28 R. C., is required to prepare a general tax list and general duplicate of real property on or before the first Monday of August and in so doing “shall compile and make up, in tabular form and in alphabetical order, separate lists of the names of the several persons * * * in whose names real property has been listed in each * * * municipal corporation * * * in his county, placing separately, in appropriate columns, opposite each name, the description of each tract, lot or parcel of real estate, the value of each tract, lot or parcel, the value of the improvements thereon, * * *. Such lists shall be prepared .in duplicate. * * * the auditor shall * * * on the first day of October deliver one copy thereof to the county treasurer. The copies prepared by. the auditor shall constitute the auditor’s general tax list and the treasurer’s general duplicate of real 4 * * property for the current year * * (Emphasis ours.)

It seems plain from these statutes that the tax maps in the county auditor’s office must be corrected and kept up to date as to all transfer of property in the county. They must show in particular the parcel of land transferred and the name of the grantee to enable the county auditor to enter on the tax duplicate a correct and proper description of each parcel of land transferred. The county auditor then, in preparing the tax duplicate for the county treasurer, can fulfill his mandatory duty to compile a table listing the names of the owners of real estate in alphabetical order and placing separately, opposite each name, the description of each parcel of real estate.

The real estate here was transferred as one parcel of land. This was notice to the county auditor that the person owning it as such had the right to expect that the tax bills would cover the entire tract of land transferred because the two parcels now were united and inseparable in the description in the warranty deed. We believe that the description opposite the name of Veronica S. Akuszewski should have reflected this: that it was the duty of the county auditor to have noted such fact on the general tax list and the general tax duplicate. The county treasurer, then, would have had this information on his tax duplicate and the tax bill sent the plaintiff unquestionably would have carried the full tax on the land.

The plaintiff on the other hand did all to be expected of a taxpayer by notifying the county treasurer of the transfer and promptly paying the taxes listed in the bills sent her semi-annually. She had every right to assume that the bills sent her included all the taxes owed by her to the county on the property involved and there seems to be no question but that she acted in the utmost good faith and in the honest belief that the taxes on her property had been paid in full from August 15, 1946, when she acquired the property, through July 16, 1952, when parcel No. 136-8-10 was sold.

Where a taxpayer, pursuant to the recording of a warranty deed transferring property to him described as one parcel of land, notifies the county treasurer of the transfer of such property to him, receives a tax bill semi-annually which he promptly pays and which he, in good faith, believes covers all the real estate taxes assessed against his property, he has taken all the necessary steps required of him to pay the taxes on his property and if the county treasurer, because of the improper listing on the general tax duplicate furnished him by the county auditor, fails to include in the bills sent the taxpayer taxes on a portion of the land described in such deed, the unpaid taxes under the circumstances are deemed to have been paid and a forfeiture sale of that portion of the property for delinquent taxes is without authority of law and void.

Equity for purposes of justice looks upon that as done which ought to have been done.

134 A. L. R. states the rule on page 1300:

“According to the weight of authority, a delinquent taxpayer may i'p relieved from his failure to redeem his property within the required time if such failure was caused by misinformation or incomplete information received from a public official whose duty it was to have given him full and correct information as to the unpaid taxes or tax sales affecting such property, at least where the taxpayer relies upon such misinformation in good faith and is not chargeable with notice of its falsity.”

There do not seem to be any Ohio cases at point. The Supreme Courts of other states, however, have had the question presented to them. The defendants claim they are not applicable for the reason that the tax laws are different. The underlying principle involved in them is what we consider applicable to the instant case.

The Supreme Court of Arkansas in Schuman v. Person, 216 Ark., 732, 227 S. W. (2d), 160, said as follows in a case factually quite similar to the one here under consideration.

“1. TAXATION—SALE. An attempt of the landowner to pay his taxes made in good faith and frustrated by the mistake or negligence of the collector renders the subsequent sale of the land for the nonpayment of taxes void.

“2. TAXATION—MISTAKE OF COLLECTOR. Where appellee owning ' “‘s 15 and 16 in a named addition to the City of Little Rock appeared at the collector’s office in 1946 to pay the taxes thereon for 1945, but the collector receipted her for the taxes on lot 15 only, the finding of the chancellor that appellee made a BONA FIDE effort to pay the taxes on both lots and was frustrated by the mistake of the collector was not against the preponderance of the evidence.”

In Breisch v. Coxe, 81 Pa., 336, paragraph 8 of the syllabus states:

“8. A bona fide attempt to pay all the taxes, frustrated by the fault of the Treasurer, stands as equivalent to actual payment.”

The Supreme Court of Michigan in Kneeland v. Wood, 117 Mich., 174, 75 N. W., 461, on page 176 states:

“It is held in numerous cases that if a landowner in good faith applies to the proper officer for the purpose of paying his taxes, and is prevented by the mistake, wrong, or fault of the officer, such attempt to pay is equivalent to payment.”

The Court of Appeals of New York in Cooper v. Registrar, 114 N. Y., 19, 20 N. E., 611, stated:

“It seems where a taxpayer calls upon a proper officer for a statement of all the taxes due from him, receives the statement and pays all of the taxes included therein, and afterwards the land is sold for nonpayment of taxes in arrears at the time the statement was furnished, but which were omitted from it by the negligence of the officer or his clerk, the title of the taxpayer is not divested by the sale.”

The Supreme Court of Wisconsin in Bray & Choate Land Company v. Newman, 92 Wisc., 271, 65 N. W., 494, stated in paragraph 1 of the syllabus:

“1. Where the owner of land applied in good faith to the town treasurer to pay the taxes thereon, and received a statement, and paid accordingly, and afterwards the land was sold for taxes which were in arrears when such statement was furnished but were not included therein by the negligence, fault or mistake of the treasurer, and of which the owner had no knowledge, the title of such owner is not divested by the sale or barred by the three-year statute of limitations.”

See Hayward v. O’Connor, 145 Mich., 52; Gould v. Sullivan, 84 Wisc., 659; Guthrie v. Haun, 76 Pac. (2d), 292, Hough v. Auditor General, 116 Mich., 663; Palmer v. State, 304 Mich., 628; Wooten v. White, 125 N. Car., 403; Wallace v. McEchron, 176 N. Y., 424; State v. George, 58 Wash., 679; Pottsville Lumber Co. v. Wells, 157 Pa., 5.

The defendant contends that §323.13 R. C., which requires that the treasurer send out tax bills and then reads: “failure to receive any bill required by this section does not excuse failure or delay to pay any taxes, special assessments, or other charges shown on such bill or avoid any penalty, interest, or charge for such delay.” is controlling in this case and requires a determination that the plaintiff is not excused from paying her full tax bill. We feel that the statute is not pertinent to the facts in the instant case for the reason that the plaintiff here in good faith did all that could reasonably be expected of a taxpayer. Her predicament resulted from the fault of the defendants not tabulating properly the transfer of her property and supplying her with erroneous information of taxes due, upon which information she had a right to rely.

Smith v. Davidson, 23 Idaho, 555; 130 P. 1071, paragraph 1 of the syllabus states:

“1. Where a person offers to pay the taxes on his land and is informed by the proper officer that there is no tax to be paid on such land, and he relies upon such statement in good faith, a subsequent tax deed based on such tax will not pass title.”

The majority of this court accordingly hold that the forfeited land sale for delinquent taxes of parcel No. 138-8-10, under the facts and applicable law, was void and did not pass title to the purchaser and that consequently the same should be and herewith is vacated and set aside and the plaintiff restored to her full right and title to the real estate therein involved.

Decree for Plaintiff. Exceptions. Order see Journal.

HURD, J, concurs.

SKEEL, J, dissents.

DISSENTING OPINION

By SKEEL, J.

This appeal on questions of law and fact seeks to vacate a delinquent tax sale of plaintiff’s property. The case was tried in this Court on an agreed statement of facts.

On August 14, 1946, the plaintiff, then known as Veronica S. Akuszewski, became the owner of certain real estate through a property settlement agreement with her husband in an action in which a decree of divorce was entered. The property consists of two parcels, one facing on Harvard Avenue, bearing permanent parcel No. 136-8-16,' and the other facing on Cassius Avenue, bearing permanent parcel No. 136-8-10 on the records of the County Auditor of Cuyahoga County, the rear lines of each parcel, except for the difference in width of the respective parcels, being the same.

The deed from the plaintiff’s husband described both parcels as one by metes and bounds. The Harvard Avenue parcel is improved with a residence which plaintiff occupies as her home and is known as 9607 Harvard Avenue. The backyard of this residence extends from the rear of the residence to Cassius Avenue, which includes all of Parcel No. 136-8-10.

When the deed to plaintiff was filed for record, the Auditor noted the change of title as to both parcels, and, as set forth in the agreed facts, “she (the plaintiff) notified the county treasurer of the fact. Her name was then Akuszewski. Thereafter she received semi-annually in the mail a bill for her real estate taxes. Each of such real estate tax bills was promptly paid by the plaintiff when due and none of said real estate tax bills was at any time delinquent.” The agreement of facts then provides that the tax bills received were for the Harvard Avenue parcel listed by the Auditor as permanent parcel No. 136-8-16 and that no tax bills were received or paid for parcel No. 138-8-10 on the Auditor’s Duplicate. The plaintiff’s husband, before the divorce, paid the taxes on both parcels without default. Thereafter, the taxes became delinquent for the reasons stated, on parcel' No. 138-8-10, whereupon this lot was forfeited to the state in the manner provided by law and in like manner thereafter sold at forfeited land sale.

It is the claim of the plaintiff that the fact that there were two parcels of land included in her deed as carried on the public records of land in Cuyahoga County was not known to her and that the Treasurer of Cuyahoga County, in sending a tax bill for the lot facing on Harvard Avenue, and not including the tax bill for the Cassius Avenue lot, after she advised the Treasurer that she was the owner of the property, was misleading to her and led her into believing she owed only the taxes represented by the bill she received and that the Treasurer of Cuyahoga County, is now estopped from claiming that the taxes on the Cassius Avenue frontage were not paid.

The legal theory of plaintiff’s case is estoppel. Estoppel is defined in Black’s Law Dictionary as follows:

“A bar or impediment raised by the law, which precludes a man from alleging or from denying a certain fact or state of facts, in consequence of his previous allegation or denial or conduct or admission, or in consequence of a final adjudication of the matter in a court of law.” Equitable estoppel is defined in the same work as:
“* * * estoppel which equity puts upon a person who has made a false representation or a conceaiment of material facts, with knowledge of the facts, to a party ignorant of the truth of the matter with ‘ the intention that the other pary should act upon it, and with the result that such party is actually induced to act upon it to his damage.”

The stipulated facts do not bring this action within the elements of either estoppel or equitable estoppel as thus defined. The stipulations of fact show that the property faces on two residence streets in the City of Cleveland with the back line of each lot abutting the other for the width of (40 feet) the lot facing on Cassius Avenue. These two parcels or lots had separate parcel numbers on the maps and permanent card records of real property in Cuyahoga County as recorded on the official records in the Auditor’s Office. There is no claim that the parcel numbers on these lots were incorrect or not properly kept. The plaintiff’s husband had experienced no trouble in paying the taxes on both lots and had done so prior to the transfer of the property of the plaintiff in 1946. The plaintiff’s husband made out the deed for the two lots by a metes and bounds description which the plaintiff accepted and caused to be recorded. Neither the County Treasurer nor the Auditor directed this manner of transferring the property. The stipulations of fact then provided above quoted:

“When the plaintiff acquired title to the premises under the aforesaid warranty deed, she notified the County Treasurer of the fact. * * * Thereafter she received semi-annually in the mail a bill for her real estate taxes.”

It is also stipulated that she lived in the house on the Harvard Avenue parcel, known as 9607 Harvard Avenue. There is no stipulation that the County Treasurer was requested to mail any or all of plaintiff's tax bills or that a description of the parcels intended was given noils there a stipulation that any request was made to have the two parcels deeded to the plaintiff put under a single permanent number so that only one tax bill would be made out. A property owner owes the duty and must be charged with the responsibility of doing the things necessary to preserve his interest in property. Paying taxes is one of these duties and unless the owner of property is directly misled by an affirmative act of a public official, which act the official is charged by law to perform, a property owner cannot seek relief from his own failure to protect his own interests. The doctrine of estoppel can have no application where loss results from the failure of the owner to carry out his legal duty and such failure is not induced by the wrongful acts of a county official.

The last paragraph of §323.13 R. C., authorizing the mailing of tax bills, provides:

“Failure to receive any bill required by this section does not excuse failure or delay to pay any taxes, special assessments or other charges shown on such bill or avoid any penalty, interest or charge for such delay.”

It is not to be denied that a County Auditor may be estopped from enforcing a tax lien by his conduct or that of the Treasurer because of error in keeping the public records. The case of Cleveland Trust v. Boyle, 55 Oh Ap 54, cited by the plaintiff, is a case in point. In this case the Treasurer’s Duplicate showed the taxes had been paid when in fact they were unpaid. The right of the treasurer to assert a lien for the taxes carried as paid on the tax duplicate, which in fact were not paid, as senior to the rights of a mortgagee, relying on such record, was denied by the application of the doctrine of estoppel. There can be no doubt about the authority of this case being sustained by the great weight of authority. But the facts in the instant case do not bring it within the rule. The public records here are correct. Neither the Treasurer nor the Auditor have done anything to mislead the plaintiff. The acD which underlies the plaintiff’s unfortunate position is that she accepted a deed which included two parcels of real estate without requesting that the permanent parcel numbers be changed or demanding tax bills for the property identified by such permanent numbers as her husband had done prior thereto. The judgment of this Court should be the same as in the trial court, that is, decree for defendants.


author: By WOLDMAN, J:

text:
    ZERLICK, Neglected Children, In re.
    Juvenile Court, Cuyahoga County.
    No. 151781.
    Decided March 28, 1955.

      Frank T. Cullitan, Pros. Atty., Sheldon D. Clark, Edward Goette, Cleveland, for the County Welfare Department.

      Philip Kasdan, Cleveland, for the mother of minors.
    Charles A. Vanik, Cleveland, for the foster parents of the minors.
   OPINION

By WOLDMAN, J:

This matter came on to be heard on applications filed by the Cuyahoga County Welfare Department, Division of Child Welfare, for permanent custody of Florence Sullivan, Thomas Zerick and Lawrence Sullivan, minors 4, 9, and 6 years of age, respectively, for the purpose of having said minors placed for adoption.

Lawrence Sullivan, Sr., father of Lawrence, Jr., and of Florence Sullivan, has heretofore agreed in writing to relinquish his rights as a parent and has consented to the Cuyahoga County Child Welfare Board receiving permanent custody of said Lawrence, Jr., and Florence Sullivan, and has given his written consent to the adoption of his said two minor children.

Caroline Zerick, aka Caroline Sullivan, aka Caroline Kraft, the mother of Thomas Zerick and Lawrence and Florence Sullivan, opposes the granting of the motion and is requesting that the custody of the three children be returned to her.

Mr. Sullivan is not the father of Thomas Zerick. Thomas was six months old when Mr. and Mrs. Sullivan married. Mr. and Mrs. Sullivan have been divorced since June 25th, 1951.

The Sullivans have another child, Ellen Marie Sullivan, born January 5th, 1947. This child is not involved in this action. Another child, Rose Mary Kraft, was born to Mrs. Sullivan (who now goes by the name of Mrs. Kraft) on October 4th, 1951, the father of this child being Mr. Kraft, whom Mrs. Sullivan claims to be her common-law husband. This child, too, is not involved in this action.

The marital history of the Sullivans is an unbroken series of difficulties, separations, reunions and separations again. The father accused the mother of neglect, drinking and immorality. In June 1950 the father deserted the family and after his return in October 1950 the mother deserted the children. She returned on November 1st, 1950, and deserted them again on November 22nd, 1950.

On December 21st, 1950, this Court adjudged the minors, Thomas, Lawrence and Florence to be neglected children and committed them to the temporary care and custody of the Cuyahoga County Child Welfare Board. On March 9th, 1951, the mother, Caroline Sullivan, pled guilty to a charge of contributing to the neglect of her children and was given a one year sentence in the Ohio Reformatory for Women in Marysville, Ohio. This sentence was suspended on condition that she conduct herself properly and care for the children.

In April 1952, Mr. Kraft, father of Mrs. Sullivan’s new baby, Rose Mary, was convicted and sentenced to the Ohio State Penitentiary for auto theft, and Mr. Sullivan and his ex-wife planned remarriage for the purpose of giving all the children a home. However, the plans for remarriage did not materialize. On January 25, 1952, and again on June 1st, 1953, Mr. Sullivan signed agreements to relinquish his parental rights to Florence and consented to her adoption, and on November 8th, 1954, he signed an agreement to relinquish his parental rights to Lawrence and consented to his adoption.

On January 2nd, 1953, Mrs. Sullivan advised the Cuyahoga County Child Welfare Board in writing:

“It is my wish that the Cuyahoga County Child Welfare Board have permanent custody of my child, Florence Sullivan, at the time that it is learned that she is placeable for adoption.”

Mrs. Sullivan signed this consent as “Carolyne Frances Kraft.”

In June 1953 Mrs. Kraft left her child, Rose Mary, at her landlady’s home and disappeared, reportedly going to Columbus with another man, getting him drunk and stealing his automobile. She was arrested four months later and sentenced to the Federal Reformatory for Women at Alderson, West Virginia. She was committed to that institution on January 11th, 1954, to serve a term of one year and one day for interstate transportation. Her full term expired on December 29th, 1954, when she was released on parole.

Mrs. Sullivan testified in the present proceedings that she intends to return to Mr. Kraft, her common-law husband, after his release from prison some time in 1955. According to the records, the offense for which he is now serving is his fourth criminal offense.

The minor, Thomas Zerick, who was six months old when his mother married Mr. Sullivan, has a history of neglect and abuse by his parents. He was three and a half years old when his parents separated and subsequently he was placed in the home of a Harry and Pauline Egler where he has become a happy and well-adjusted child. The Eglers now desire to adopt Thomas.

Lawrence was 17 months old when he was deserted by his mother. He has been in foster home placement with the Eglers since April 6th, 1951. Having been abandoned by his mother when he was only 17 months old, he naturally does not remember her. The Eglers desire to adopt him also.

Florence, born July 14th, 1950, has been in foster home placement with Edwin A. and Clara M. Summers since March 26th, 1951 (when she v/as eight and a half months old). The evidence reveals that Florence is very happy and well adjusted in the Summers home and knows no other parents. They desire to adopt her.

The maternal grandparents have offered to assist Mrs. Sullivan in supporting the children should they be returned to her. But the grandparents, themselves, have had a stormy marital life with a history of alcoholism and abusive behavior on the part of the grandfather Other relatives of Mrs. Sullivan have also offered to help but they have no legal responsibility to continue such help and support.

Before the adoption proceedings contemplated by the Eglers and Summers can be effectuated, it is necessary to terminate the parental rights of the mother, Mrs. Sullivan. Termination of parental rights ends for all time these rights and duties virtually with the finality and irrevocability of death.

Involved in these proceedings is one of the most intimate and cherished of human relations, namely, the parent-child relationship. This relationship was not created by law but grows out of natural law. Human lives are the subject of consideration here, for what is done regarding the permanent custody of the three children involved in these proceedings permanently affects the whole course of their lives. The state should not interfere with the rights of parents with respect to their children and assume jurisdiction over such children on the generalized assumption that they are in need of the care and protection of the state merely because it disagrees with the parents as to the best course to pursue in rearing the children. Nor should it be authorized to take children from their parents merely because in the estimation of the court the children can be better provided for and more wisely trained as wards of the state.

A child is not property to be given away. The state may not abrogate the parents’ natural right to the custody and society of the child except when the interest of society requires it. The rights of parents to care for their children and to exercise their discretion in meeting the needs of their children are basic to our society. As is said in In re Hock, 55 Abs 74:

“The natural parents of any child have a predominant right to its custody and care, which can only be abrogated when it clearly appears that they have forfeited that right by conduct which will impair the present and future welfare of their child.
“The sacred tie which exists between parents and children should not be severed or terminated unless the evidence produced at the hearing clearly shows that any fault of the parents occurring in the past is at the time of the hearing of such charge, effective to render such parents unfit and unsuitable to have the care and custody of such child, and that they are then at such time, by reason of such fault, incapable of extending to such child proper parental care.”

There are situations in which society has the obligation to act in an individual case for the protection of the child and society. The state possesses supreme power over the welfare of its children and has the power to limit the parents’ rights in order to see to it that the child receives the care, protection or help he needs. In taking action in such a case the state must insure that both the child’s and the parents’ rights are protected and that, if they must be limited, they are limited only in accordance with due process of law and only to the minimum extent and for the minimum period necessary to accomplish the objective sought.

Even where the state compels the parental surrender of a child because of unfavorable circumstances clearly detrimental to the welfare of the child, it will not order permanent surrender of the parental rights and duties if effective control over the child can be established through the awarding of temporary guardianship and legal custody without ending for all time these final rights and duties. Ordinarily a parent though declared unfit will be permitted to reclaim the child when the circumstances change for the better. Any other policy would be harsh and cruel to the parent, a denial to the child of its natural birthright and contrary to public policy.

As stated in the case of In re Konneker, 30 Oh Ap 502, at page 510:

“Parents have a right to the custody of their children, the same as they have a right to the possession of property which they may acquire; and the fact that some one may think that the children can be reared better by some one else is no justification for judicial interference, because, if this were the rule, there are thousands of children in this community, and in every other, whose parents upon this pretense would be deprived of their custody. As was well said by another:
“ ‘The Juvenile Court Law certainly does not contemplate the taking of children from their parents and breaking up family ties merely because, in the estimation of probation officers and courts, the children can be better provided for and more wisely trained as wards of the state. Probably from mere considerations of healthful and hygienic living and systemic education and training this would be true in the cases of thousands of families of wealth and respectability. We think it is only in instances where there is demonstrated incapacity or something akin to criminal neglect that the law is justified in interfering with the natural relations of parent and child.’ People v. Gutierrez, 47 Cal. App., 128, 190 P., 200.”

But it is well-settled authority that the parents’ right to the custody of the child is not absolute under any and all circumstances. A parent “. . . may relinquish it by contract, forfeit it by abandonment, or lose it by being in a condition of total inability to afford his minor children necessary care and support.” Clark v. Bayer, 32 Oh St 299.

This ruling was approved and followed by the Supreme Court of Ohio as late as June 9, 1954, when in the case of In re Tilton, 161 Oh St 571, 53 O. O. 427, the court held:

“It has long been the law of this state that the right of custody of a child may be forfeited through abandonment. Such was the decision of this court in Clark v. Bayer, Supra. We do not believe that the law in that respect has changed by present statutory provisions.”

In the present case the mother, Mrs. Sullivan, is pressing her natural claim to the custody of her children. She impresses the Court as being sincere in her desire to make amends for her derelictions' and shortcomings as a mother and the abandonments and criminal neglect of the past. However, there is nothing in her past record to convince the Court that she possesses the ability or strength to refrain from returning to her former standard of conduct. Nor do her present and future prospects promise anything better, as she has indicated to the Court that she will return to her so-called common-law husband after his release from prison and that she would in all probability take her children to live with her in whatever home he might establish. The children ’hardly know her, and, through her neglect and abandonments of the past and her infrequent visits with them, she is hardly in a position to know them. The children appear to be happy and well adjusted with their present foster parents who desire to adopt them.

In controversies affecting the custody of a minor child, the interest and welfare of the child is the primary and controlling question by which the court must be guided and will prevail over any mere preponderance of legal right.

“In cases to determine the custody of minor children various interests are involved, those of the parent, of the person to whom the custody of the child is entrusted, of the state, and of the child. Of these, the most important and controlling is that of the child, for, by a proper decision as to that, the other interests are best subserved.” Wilson v. Mitchel, 48 Colo., 454, 111 Pac. 21, 30 LRA (n. s.) 507, Am Jur. Vol. 39, P. 607.

Because the Court feels that the children’s return to their mother and maternal relatives would not serve the best interests of the children, the mother’s request for the return of her children is denied, and the motion of the Division of Child Welfare of the Cuyahoga County Welfare Department for permanent custody is granted.


author: By BAYNES, J.

text:
    ANGEL, Plaintiff, v. ANGEL (now Clevenger), Defendant.
    Common Pleas Court, Madison County.
    No. 18890.
    Decided December 3, 1956.

      Forrest E. Sidener, Jr., for plaintiff.
    J. Harvey Crow, for defendant.
   OPINION

By BAYNES, J.

This matter came on to be heard on plaintiff’s motion to change visitation rights, each week, from noon Saturday, until Sunday 6 p. m. to Friday when school is dismissed until Saturday 6 p. m., during the school year, and from Friday noon to Saturday 6 p. m., during summer vacation. No contra motion was filed. Plaintiff and defendant offered testimony for and against the motion.

Plaintiff’s sole reason for the motion is that he desires the child to be brought up in the Catholic Church. Defendant desires him to be brought up as a Protestant. The child has been attending Sunday School at a Protestant Church and the London Public Schools.

Plaintiff contends, that since this court in January 1955 ordered custody to him from defendant, who had been awarded custody in the original decree in April 1950, which custody was reaffirmed during the present term of this Court contra defendant’s motion, he has the sole right to decide what religious affiliation the child shall have.

Neither counsel cited any authority for their respective contentions nor alluded to the Ohio Statutes relating to care, custody and control of minor children. This imposes an unfair burden on the Court.

The question of religious training of a child of divorced parents is a controversal subject from which the Courts may deem it advisable to stand aloof. A controversy as to religion is generally considered insufficient cause for changing custody. Nelson on Divorce and Annulment, 2d ed., v. 2, 183, Section 15.13. Visitation rights must be considered within like limitations.

As is not infrequent we are unable to find any reported case in Ohio which will aid the Court in resolving the case. Four sections of the Revised Code are to be considered in pari materia, establishing the legislative policy and the basis of decision for Courts in cases involving custody and visitation rights. Sec. 3109.03 R. C., provides:

“When husband and wife are living separate and apart from each other, or are divorced, and the question as to care, custody and control of their offspring is brought before a court of competent jurisdiction, they shall stand upon an equality as to the care, custody and control of such offspring, so far as parenthood is involved.”

Sec. 3105.21 R. C., provides:

“Upon satisfactory proof of any of the charges in the petition for divorce and alimony, the Court of Common Pleas shall make such order for the disposition, care and maintenance of the children of the marriage, as is just, and in accordance with §3109.04 R. C.”

The applicable part of §3109.04 R. C., provides:

“Upon hearing the testimony of either or both parents, corroborated by other proof, the Court shall decide which of them shall have the care, custody and control of the offspring, taking into account that which would be for their best interest . . . .”

The applicable part of §3109.05 R. C., provides:

“The Court may order either or both parents to support or help support their children, and may make any just or reasonable order or decree permitting the parent who is deprived of the care, custody and control of the children to visit them at such time and under such conditions as the Court may direct. . . .”

It will be noted that the statutes in each section continuously use the word parent. In legal contemplation “parenthood” is the state or relation of a parent. “Parent,” in legal contemplation, is not only the father and mother, that is the male and female who generated the child, but is the one or both of them who still possesses some right to the custody or control of a child, which he, she or they can relinquish.

It has been stated that the right of a parent to decide the religious faith in which children shall be educated is not necessarily lost merely because custody is taken from or refused the parent in a judicial proceeding. Generally speaking and apart from teachings that are subversive of morality and decency and some others equally obnoxious, the courts have no authority over that part of the child’s training which consists in religious discipline, 39 Am. Jur. 684, Section 50.

We agree with the latter proposition to the extent that our courts have no authority to direct either the person having custody or the visitation rights, under the above quoted Ohio Statutes, to direct or prevent any particular unobjectionable form of worship or lack of worship, Christian or otherwise. On the other hand courts recognize that there is more to religion than the teaching of a moral code of conduct, which, of course, is inherrent in all Christian denominations, and perhaps as well in others.

But the courts cannot ignore the fact that marriages between persons of different denominations and of different forms of worship are prevalent. Such situations often give rise to conflict, becoming the subject of or affecting questions to be decided by the courts. In so far as may be necessary such conflict is not to be, and cannot be, ignored.

This leads to the case of Boerger v. Boerger, 97 A. 2d, 419, 26 N. J. Super 90, decided 15 May 1953, where the Chancellor in an excellent opinion in a case involving the religious training, which was in conflict between the divorced parents of children, held, among other things:

“All Christian denominations stand on the same footing in the eye of the law.”

This is the law of Ohio as we find it.

When it is made to appear that a conflict between divorced parents as to religious instruction is affecting the welfare of their children, a court should always act in accordance with what is best for the happiness and welfare of the child. In legal contemplation the court recognizes no difference in object between religious and other conflicts. As between Christian religions denominational differences are irrelevant and cannot be the basis of decision by the court.

As observed in the opinion, page 422:

“In New Jersey, as generally throughout the nation, the rights of both parents, are, in the absence of misconduct, held to be equal as regards the care, nurture, education and welfare of the children of the marriage.”

A fair construction of the Ohio Statutes quoted leads to the same eonclusion. We so hold. This is unaffected by the fact that one of the divorced parents has legal custody and the other has, what for lack of a better term, been designated as visitation rights.

In the instant case we have twice decided that it was for the welfare of the child that his father have legal custody. On the other hand the welfare of the child also required that his mother have most liberal visitation rights not inconsistent with that welfare.

This, in effect designates the domicile of the child to be that of his father who has the primary, but not the exclusive right, especially in the interval that the mother has the child, to determine what is proper for the welfare of the child.

In these adverse circumstances of a “split relationship” the power of the Court is directed solely to making the condition, as it affects the welfare of the child, as harmonious as can be. Harmony is not only the strength and support of all institutions but the strength and support of the individual human being.

Nothing in the record of this case shows that the nine year old boy has been or will be affected by the kind of religious training he has received in the past or will receive in the future. Whether the form of training is single or dual is not of present, or should it be of, concern.

Therefore on the basis of the testimony adduced on this motion the court is of the opinion that visitation rights are to be changed as follows:

1. Defendant shall have visitation rights out of the home of plaintiff each week end from 4 p. m. Friday to 6 p. m. Sunday, except the second week end of the month. December 7th to the 9th is to be taken as the first such week end.

2. During the summer school vacation period defendant is to have the child for two weeks as plaintiff and defendant may arrange.

Plaintiff’s counsel is directed to prepare an Entry in accordance with this decision and submit the same to opposing counsel and the Court according to rule. Costs of this motion are to be taxed to plaintiff.


author: By MARSHALL, J.

text:
    McWILLIAMS, Plaintiff, v. McWILLIAMS, Defendant.
    Common Pleas Court, Franklin County.
    No. 192209.
    Decided April 7, 1956.

      Alexander, Ebinger & Wenger, Columbus, for plaintiff.
    Porter, Stanley, Treffinger & Platt, Columbus, for garnishee, The City National Bank and Trust Company of Columbus.
    Knepper, White, Richards, Miller & Roberts, for defendant.
   OPINION

By MARSHALL, J.

Plaintiff filed her petition herein on April 9, 1955 against her husband, a resident of Mexico, praying for a judgment to cover separate maintenance and support payments ordered by the Superior Court of the State of California as the result of an action instituted in California in 1953. In her first cause of action Plaintiff prayed for $296.69 as past due child support money, and in her second cause of action Plaintiff prayed for $2,252.96, as past due support money for plaintiff and three of her minor children and as attorney fees, costs and interest.

Also on April 9, 1955, Plaintiff filed herein an affidavit for attachment against the City National Bank and Trust Company of Columbus, Ohio, alleging that said Bank had in its possession certain moneys belonging to defendant, as beneficiary of a certain inter vivos trust established by J. Walter B. Floyd, and as beneficiary of a certain testamentary trust established by the will of J. Walter B. Floyd, deceased.

On April 9, 1955 Plaintiff filed an affidavit for service on defendant, by publication, alleging the defendant to be a non-resident of Ohio, and as being a resident of Mexico. The required public notice was printed six times in The Dailey Reporter, as shown on the proof of publication filed herein on May 25, 1955.

On June 8, 1955 the City National Bank and Trust Company of Columbus, Ohio, filed its answer, as garnishee herein, admitting the existence of the two trusts referred to by Plaintiff herein and that it was the trustee for said trusts; that on April 12, 1955, when it was served with notice of attachment, there was due and owing the defendant, as beneficiary of the Trust Agreement dated May 29, 1936, the sum of $46.56, under the terms and conditions of said Trust Agreement; that on April 11, 1955, when it was served with notice of attachment as to the testamentary trust under the Will of J. Walter B. Floyd, there was nothing due defendant, as beneficiary of said testamentary trust. The Bank urged that the Court should dissolve the two attachments and dismiss the Bank as garnishee from the case. The Bank specifically pointed out the identical clauses, contained in both trust instruments, which are commonly termed “spendthrift clauses,” and which in brief provide that the principal and income of the trust shall not be alienated, disposed of or encumbered by any beneficiary of the trust while in the possession and control of the Trustee, and that if such attempt be made that the interest of such beneficiary shall cease and shall be otherwise paid and distributed.

On June 14, 1955 by agreement of the Plaintiff and the Bank, as garnishee, the Court postponed Answer day in this cause, from June 11, 1955, the answer date contained in the Public Notice, to June 25, 1955. Defendant made no answer in this case before the new answer date of June 25, 1955.

On June 29, 1955 this Court on the application of Plaintiff approved a Judgment Entry granting Plaintiff judgment by default on her first cause of action for $296.69, plus interest of $20.03 and granting Plaintiff judgment on her second cause of action for $1,878.96, plus interest of $63.17, and attorney fees of $350.00, plus interest of $17.50 thereon, and Court costs of $24.00, plus interest of $1.20 thereon, or a total judgment for $2,651.55, together with costs of $52.55.

Briefs have been filed by Plaintiff and by the Bank as Garnishee, relative to the motion of the garnishee to discharge attachments.

On December 3, 1955 the Defendant filed his Motion and supporting brief to require the Court to set aside the judgment against him dated June 29, 1955, and to discharge the attachments against the garnishee, on the grounds:

1. The Court did not have jurisdiction over the person of defendant and could not render a personal judgment against him.

2. The judgment entry was prematurely entered prior to a determination that there was any property of defendant before the Court.

3. The attachment was invalid by reason of the terms of the inter vivos and testamentary trusts established by J. Walter B. Floyd.

Plaintiff filed her brief contra to the motions of defendant.

The real problem in this case is whether defendant has property within this jurisdiction which is subject to be appropriated or taken by the plaintiff and applied toward her separate maintenance and toward child support as ordered by the California Court.

It is clear that defendant has received amounts of money, from time to time, from the City National Bank and Trust Company, acting as trustee for the two trusts hereinbefore described. On the date when it was served with notice of attachment, April 12, 1955, it was holding for defendant, as beneficiary of the inter vivos trust, and under the terms and conditions of said Trust Agreement the sum of $46.56, as admitted in its Answer. Specifically, the question here is whether Plaintiff can successfully attach this money in the hands of the trustee and require the trustee to pay the same over to her, to apply on her judgment against defendant for maintenance and support, or whether this money is exempt from such attachment because of the limitations on its use imposed by J. Walter B. Floyd by his will or by the trust indenture created by him before his death. We are concerned with such money as it is accumulated by the trustee and held by the trustee for particular purposes and before the trustee has distributed such money for such purposes.

We believe that a person having the absolute title to money or personal property has the right to dispose of it as he wishes, either during his lifetime, or at his death through proper testamentary disposition, and this power of disposition is limited only by some lawful prohibition or as being against public policy. Within these limits, such person can impose any restrictions to such disposition as he desires, and may do so by the use of such instruments as a trust indenture or a will. If such person makes restrictions which are lawful and not against public policy they will be protected by the Court, so long as the intent of the donor or testator is clearly set forth and can be ascertained. It follows that a person can give his'property to anyone he chooses to give it to, and subject to such limitations as he thinks proper, so long as they are not unlawful or against public policy. He may also make use of a trustee in the handling of the property to receive the property, hold it or exchange it, and then distribute it, or the proceeds derived therefrom, as may be directed by the donor or testator in the trust indenture or will.

One method commonly employed by a donor or testator is to set up a trust for the benefit of designated beneficiaries, and the corpus or proceeds to be distributed by the trustee to or for the special benefit of designated beneficiaries under restricted conditions. These are known as “spendthrift trusts,” and the Courts of this state will enforce such trust instruments so long as they are not unlawful or against public policy. (See Adair v. Sharp, Exr. and Trustee, 49 Oh Ap 507, decided the Court of Appeals of this County on December 26, 1934.)

Surely it is not unlawful to make gifts to specified individuals, seiected solely by the donor or testator, and regardless of the needs of the beneficiary.

Likewise, we see nothing against public policy to make gifts either directly to designated beneficiaries, or to make gifts indirectly to such designated beneficiaries through the medium of a trustee designated by the donor or testator. The fact that other persons are specifically excluded does not in itself make the restrictions unlawful or against public policy. Such other persons excluded may be the creditors of the beneficiary while the gift is in the hands of the trustee. The Court of Appeals for Hamilton County, Ohio, in the case Norris v. Daiker, Adms. et al, 35 Oh Ap 394, which was decided on July 11, 1929, held in Syllabus 1, as follows:

“1. Trust of income and capital payable within the trustee’s discretion did not pass vested interest to beneficiary that could be reached by judgment creditor (§11760 GC).”

In this case, “other persons” excluded from the benefits of the trust include a spouse and children, as well as creditors, of the beneficiary. In some jurisdictions the Courts have held that claims of a wife and children are in a different category from ordinary creditors and cannot be excluded. While there is considerable merit to such a position we do not believe it is against public policy for the donor or testator to limit the gift, or proceeds derived from the gift, to designated beneficiaries and exclude others, even members of their own families, from any participation in the trust funds. In the case before us we believe the Trustee, the garnishee herein, is limited by the terms and conditions of the inter vivos and testamentary trusts to pay the money only to defendant and other specifically named beneficiaries of said trusts, and all others are excluded. This intent and direction should be protected and carried out without interference.

Plaintiff has raised the preliminary question as to the right of the Garnishee to move to discharge the attachments. There is a provision in §2715.44 R. C., for the defendant to move to discharge an attachment. However, this is not a prohibition for “one interested therein” to make application to the Court by motion, as provided by §2309.65 R. C. (See also the case of The Modoc Soap Co. v. Brankamp, 5 N. P. [n. s.] 252). We believe under the circumstances of this case that the Garnishee is “one interested therein” and therefore the Court should consider its Motion to discharge the attachments, along with the Motion of Defendant to set aside the judgment and discharge the attachments.

Having come to the conclusion that this Court has no jurisdiction over property of the defendant, and this proceeding is strictly one in rem, the Court believes that the default judgment rendered by it on June 29, 1955 should be set aside and held for naught. This conclusion is also on the grounds that the Court had no jurisdiction over the person of the defendant, who was served by publication as a non-resident of this state. Therefore the Court could not render a personal judgment for money against the defendant.

The Court sustains the Motion of defendant, filed Dec. 3, 1955, and sets aside and holds for naught the default judgment entered herein on June 29, 1955, discharges the attachments heretofore made in this case on April 11, 1955 and April 12, 1955, and orders that the City National Bank and Trust Company of Columbus be dismissed as garnishee from this case. To the same effect the Court sustains the Motion of the garnishee filed herein on June 8, 1955. Exceptions to these rulings may be entered on behalf of Plaintiff.