author: By BUCKLEY, J.

text:
    CURRY, et al, Plaintiffs-Appellees, v. ENGLE, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3289.
    Decided May 2, 1949

      McKain, Ohl & Swanner, Youngstown, for plaintiffs-ap-pellees.
    George S. Edwards, Youngstown, for defendant-appellant.
   OPINION

By BUCKLEY, J.

This appeal came on to be heard in this court on questions of law.

The defendant-appellant in his assignments of error from a decision by the court of common pleas sets forth that the decision and judgment of the court of common pleas is contrary to law and against the weight of the evidence; and that the parties plaintiff and defendant are not the real parties in interest.

In the case before the court the pertinent facts are as follows: Prior to the third day of September, 1948, the premises which are the subject matter of this action in forcible detainer were owned by Alice C. Schreiber, et al. A sale was executed from Schreibers to Joseph S. Curry, et al, as evidenced by warranty deed set forth in the bill of exceptions and dated the 3rd day of September 1948. By virtue of this deed, a full and complete fee simple estate was vested in Curry, et al, by the grantors. At the time of this conveyance, the premises were occupied by Harry Engle, defendant-appellant, under a month to month tenancy, and the termination of his tenancy would occur on the 15th day of September, 1948. On September 4, 1948, in compliance with the Federal Rent Regulations, the new owners, by registered mail, served on the defendant-appellant written notice advising the tenant that the property had been sold to them, and that they desired the immediate and personal use of the premises for occupancy as a home; and requested surrender of possession not later than 60 days after the date of receiving the notice. The notice also contained a provision that compliance therewith will prevent legal measures being taken to secure possession of said property. As evidenced by the record, this notice was received by the defendant-appellant on the 7th day of September, 1948. On the 8th day of November, 1948, plaintiff-appellee notified the defendant-appellant by statutory three day notice demanding-surrender of possession of the premises within three days thereafter; and on the 12th day of November, 1948, the plaintiffs-appellees filed their petition in the municipal court of Youngstown seeking recovery of the premises in a forcible detainer action. After receiving the 60 day notice required under the Federal Rent Regulations, the defendant-appellant endeavored to pay rent to the new owners, plaintiffs-appellees, which was refused; and on November 13, 1948, defendant-appellant again attempted to pay rent by depositing $40.00 on an account with the First Federal Savings and Loan Association of Youngstown in the name of A. T. Sehreiber, one of the former owners.

In defense of this action, the defendant-appellant claims that no action could be maintained against him in that he was not the tenant of the purchasers, and that by reason of the sale a contractual relationship of landlord and tenant never existed between plaintiffs-appellees and defendant-appellant.

In consideration of this assignment of error this court considers with approval the opinion of the court of common pleas as set forth in the transcript.

It is the opinion of this court that the former owner, Sehreiber, in transferring to the plaintiffs-appellees title to the property by a general warranty deed made a full and complete transfer of all interests which they had therein subject only to the right of the tenant to occupy the premises until the end of his then legal possession, which occurred on September 14, 1948. The new owners received the property subject to this month to month tenancy, and it would therefore be incumbent upon the plaintiffs-appellees, the new owners, to begin proceedings to properly terminate the tenancy of the defendant-appellant.

Under the statute law of Ohio, §10451 GC, it is required;—

“A party desiring to commence an action under this chapter, must notify the adverse party to leave the premises, for the possession of which action is about to be brought, three or more days before beginning the action, by handing a written copy of the notice to the defendant in person, or by leaving it at his usual place of abode.”

In this action the 60 day notice was served by registered mail and a return receipt acknowledged delivery thereof.

In the case of Nunlist v. Motter, 69 N. E. (2nd) 201, also reported in 34 O. O. 6, it has been held that the statutory phrase “ ‘by handing a written copy' of the notice to the defendant in person’ is complied with where the landlord has caused such notice to be delivered to the tenant by registered mail and the tenant personally acknowledged its receipt in writing”.

Therefore, as to the proper receipt of the notices to leave the premises and surrender possession thereof, there can be no question but that the same were properly sent and received.

There seems to be no contention but that the tenancy of the defendant-appellant is on a month to month basis terminating on the 14th day of each month.

At the time the new owner received title to the premises the tenant was legally in possession until the 14th day of September, 1948.

By serving the 60 day notice required under the Federal Rent Regulations did the plaintiffs-appellees extend the legal tenancy of the defendant-appellant over the period covered thereby so as to extend his tenancy necessarily to the 14th day of November, 1948?

It is the considered opinion of this court that such extension was not granted, and that subsequent to the 14th day of September, 1948, the defendant-appellant, for the remainder of the time required under the Federal Rent Regulations, bcame tenants at sufferance rather than tenants from month to month; and that upon completion of the 60 day notice the plaintiffs-appellees could have proceeded legally to file their a.ction in forcible detainer and ask for possession of the premises therewith.

The 60 day notice required by the Federal Rent Regulations was placed in effect because of the war emergency and the scarcity of houses. The statutory three day notice required under the laws of the State of Ohio was not extended. It therefore appears to this court that the giving of the 60 day notice required by the Federal Rent Regulations would be a complete compliance with the Ohio statute which required only a 3 day notice; and that by the giving of the 60 day notice, which would of necessity expire beyond the current month, the tenant subsequent to his current month legal occupancy would, subsequent to that date, become a tenant at sufferance; and that there would be no extension of the month to month tenancy which had existed prior to the serving of the 60 day notice.

In consideration of this point this court views with approval the reasoning set forth in the case of Hoveler v. Luhrmann, 3 Ohio Nisi Prius 224. The term of that tenant expired on October 20, 1895. On October 19th, in compliance with the statutory requirements of Ohio, the owner, Mary Hoveler, served upon the tenant, Charles Luhrmann, a notice to surrender possession on or before three days from the date thereof. On October 23, 1895, the plaintiff filed a complaint before a justice of the peace stating in effect that the said.Charles Luhrmann has ever since the 20th day of October, and. does still, unlawfully and forcibly detain from the plaintiff said premises. On trial before the magistrate, the defendant moved to dismiss on the ground of a variance between the notice to quit and the complaint. The motion was sustained and exceptions taken. The plaintiff asked leave to file a petition in error. In considering these facts the reviewing court stated as follows:—

“If the tenant holds from month to month, and the landlord allows him to enter on a new month under such circumstances as to lead the tenant, as a reasonable man, to believe that the landlord will and does renew the lease for such month, the tenant would hold for that month lawfully; but that is because of an implied contract arising out of the conduct of the parties. The tenant has no election to hold for another term (Taylor on Landlord and Tenant, section 22). If, however, before the end of the month the landlord notifies the tenant to quit, no implied contract for a lease for another month arises, and if the tenant holds over he will hold unlawfully.”

In the instant case, we have a month to month tenancy and the current legal month ended on the 14th day of September, 1948. On the 7th day of September, 1948, in compliance with the Federal Rent Regulations, the purchaser served upon the tenant a notice to surrender possession of the premises; and of necessity, under the Federal Rent Regulations, such notice had to be 60 days.

It is the opinion of this court that the month to month tenancy of the tenant expired at the end of the then current month, to-wit September 14, 1948, and that his occupancy of the premises thereafter was a tenancy at sufferance which legally expired on the 60th day after the service of such notice, to-wit on the 6th day of November, 1948; and that his occupancy of the premises from September 15th to October 14th, and from October 15th to November 14th, was not an extension of his month to month tenancy as the notice served in requirement with the Federal Rent Regulations was such that a reasonable man could not believe that the landlord would renew the lease on such month to month basis, but that he allowed possession only to conform with the Federal Rent Regulations.

The three days statutory notice in compliance with §10451 GC and received by the tenant on November 8th requiring that possession be surrendered three days thereafter was in full compliance with the statutory provisions of the notice, and subsequent thereto petition was properly filed in the municipal court on the 12th day of November, 1948.

Further quoting from the reasoning of the court of common pleas of Hamilton County in Hoveler v. Luhrmann, cited as above, it is the opinion of this court that no right is given by §10451 GC to the tenant; “under the law of the land his term has expired; and he has no right to hold”. But by §10451 GC, “a right is taken from the landlord; he may not sue until three days have expired from service of the notice to quit, although the tenant is holding unlawfully.”

The landlord in this case, in the opinion of this court, has completely satisfied both the requirements of the Federal Rent Regulations and the statute law of the state of Ohio, and is entitled to the relief sought.

It is therefore the judgment of this court that the decision and judgment of the court of common pleas of Ma-honing County is proper, should be affirmed, and is affirmed.

PHILLIPS, PJ, NICHOLS, J, concur in judgment.


source: Caselaw Access Project

author: By THE COURT.

license: Public Domain

text:
    GOETZ, et al., Plaintiffs-Appellants, v. JACOBS, et al., Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4326.
    Decided September 28, 1949
    Binns & Tresemer, Columbus, for defendants-appellees, and for the motion.
    Matthew L. Bigger, Columbus, for plaintiffs-appellants, contra the motion.
   OPINION

By THE COURT.

Submitted on motion of defendants-appellees to dismiss the appeal for defect of parties defendants-appellees. The judgment was entered on a motion directed to the fourth amended petition in which the defendants were specifically named. The notice of appeal sets out the defendants-appellees by name, two of them in type, with the addition, “et al. Defendants”.

The Code, §12223-5 GC, provides in part:

“In said notice the party appealing shall be designated the appellant, and the adverse party, the appellee, and the style of the case shall be the same as in the court of origin.”

The notice of appeal is not in good form, but we cannot say that there was an intention not to make all defendants named in the fourth amended petition parties appellees to the appeal. The status of the appellant is well defined and it reasonably appears that it was intended to make all parties to the fourth amended petition, other than the plaintiffs below, defendants-appellees. Counsel cite Young v. Meyers, Jr., Exr., et al., 124 Oh St 448, to effect that full force must be given to §11256 GC, requiring that parties who are united in interest must be joined as plaintiffs or defendants in the appellate court. However, this case was decided under the old error proceedings when, it was necessary to get a defendant in error into court that he be served with summons. This is now accomplished by the filing of the notice of appeal in the trial court.

The motion will be denied.

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


author: By HUNSICKER, J.

text:
    McGEE, Appellant, v. RANDOLPH et, Appellees.
    Ohio Appeals, Ninth District, Summit County.
    No. 4036.
    Decided November 9, 1949.
    Brouse, McDowell, May, Bierce & Wortman, Akron, for appellant.
    C. L. Dinsmore, Akron, for appellees.
   OPINION

By HUNSICKER, J.

In this appeal on questions of law and fact, the facts disclose that the plaintiff (appellant), Iris F. McGee, is the owner of a parcel of real estate known as lot No. 807, and the defendant (appellee) Ever L. Randolph is the owner of the adjoining parcel of real estate known as lot No. 808. The defendant (appellee) A. Rastus Randolph is the husband of Ever L. Randolph. Both parcels are located in the Goodyear Heights allotment in the city of Akron, Ohio. The east line of lot No. 807 is the west line of lot No. 808.

The parties live next to each other on their respective lands. Appellee Ever L. Randolph constructed on her lands a curb or low retaining wall along her west line, so that stones from her driveway, which extended to this line, would not go over onto the adjoining lot of the appellant, Iris F. McGee.

At the beginning of the construction of such curb, the appellant notified the appellees that such curb was being built beyond the lot line and onto the McGee property. Notwithstanding such notice, appellees proceeded to complete the construction of such curb.

Appellant, McGee, then filed an action in the Common Pleas Court of Summit County, Ohio, seeking a mandatory injunction to compel the removal of such curb from her property. The lower court refused the relief asked for, and, from that decree, this appeal is taken. The case is before us for trial de novo on the record, testimony and exhibits which were before the lower court.

We desire, as much as the Common Pleas Court, that these neighbors amicably settle their differences’ and live in peace and harmony. We have, however, from the matters before us, to decide the issue on the settled law applicable to such situations.

The appellant says that the curb which appellees built is encroaching on her property, and that the appellees have violated a restriction, which is a part of the genera] plan of such allotment, by constructing this curb.

The appellees deny that there is any encroachment or taking of appellant’s property, deny any violation of a restriction applicable to this allotment, and say that the proper remedy is not an action for mandatory injunction but an action in ejectment.

The evidence discloses that the west wall of this curb is one inch west of the true line of appellee Ever L. Randolph’s property at the sidewalk, and that such encroachment gradually diminishes, and disappears at a distance of fifty-seven (57) feet south of this point.

Said appellee relied upon an iron pin near the point where her west property line intersected the sidewalk line, which iron pin was not the true point at which her west line began. She did not secure an accurate measurement of the extent of her property, refused to heed the warning of the appellant, and proceeded to build the curb partially on the McGee land.

The first problem presented to us concerns the propriety of the request for mandatory injunction under the facts presented herein.

Although no Ohio cases with a similar factual situation have been found, yet the rule has been followed in Ohio that a mandatory injunction will lie where an encroachment is made on the property of another without his acquiescence or consent.

For instance, in the case of an overhanging cornice: Young, et al., v. Thedieck, 8 Oh Ap 103. And, in the case of a projecting bay window: Neithamer v. Heyer, 39 Oh Ap 532.

This court, in the unreported case of Gomory v. Cantor-Shaw Co., No. 1564, Summit County, decided Oct. 11, 1928, ordered, by mandatory injunction, the removal of a building for violation of allotment restrictions.

As was said in the early case of Culver v. Rodgers, 33 Oh St 537, at p. 541:

“Whether the facts in the case called for relief in law or in equity, is a question not altogether free from difficulty. It lies near the vague and indefinite boundary line between the jurisdiction of courts of law and equity. The books abound in cases lying near this line on either side, where unsuccessful attempts have been made to define, with some degree of precision, the limits of equity jurisdiction in cases of this class.”

The view more recently adopted by the courts upholds the view that “a mandatory injunction is a proper remedy for a landowner to invoke against an adjoining owner to compel the removal of structures which encroach upon complainant’s land.”

96 A. L. R. 1287, and cases there cited.

See also:

1 Am. Jur., Adjoining Landowners, Sec. 19.

4 Pomeroy’s Equity Jurisprudence (Fifth Ed.), Sec. 1359, et seq.

We do not have, under the facts of this case, a question of title to real estate, but the problem of a taking of real property where no right to do so existed.

We hold that mandatory injunction is a proper remedy in the instant case. A lot owner need not be relegated to an action at law where the valuation is slight or the loss of land not great. Title to this real estate should be protected in a court of equity by a decree which will preserve to the owner the property itself, instead of a sum of money which represents its value.

We therefore hold that the appellee Ever L. Randolph shall remove to the true line of her property the curb now encroaching on the lands of the appellant.

The claim of appellant that the curb violates the allotment restrictions, we do not find to be sustained. The restriction complained about, although applicable to the entire allotment, does not contemplate the type or kind of low curb now constructed. It does not constitute a fence or obstruction as is prohibited by the restriction.

A decree may be prepared in accord with this finding. The court costs shall be divided equally between the parties.

STEVENS, PJ, and DOYLE, J, concur.


author: By WISEMAN, J.

text:
    POTTS, Admr., Plaintiff-Appellant, v. ADAMS, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4241.
    Decided October 13, 1949.
    Potts & Schmidt, Columbus, for plaintiff-appellant.
    Bricker, Marburger, Evatt & Barton, Columbus, for defendant-appellee.
   OPINION

By WISEMAN, J.

This is an appeal on questions of law and fact from a judgment rendered in favor of the defendant by the Common Pleas Court of Franklin County, Ohio.

The plaintiff, Robert C. Potts, as Administrator of the Estate of Fannie L. Adams, brought an action to set aside a deed executed by plaintiff’s decedent whereby she conveyed a piece of real estate to the defendant.

The facts were stipulated by counsel which in substance are as follows: In 1936 Fannie L. Adams, deceased, made an application to the Division of Aid for the Aged, Departmént of Public Welfare, State of Ohio, for old age assistance and in said application she agreed that upon her death the Division of Aid for the Aged should be reimbursed to the extent of the benefits received, with interest, from the residue of her estate, if such residue existed. The application was allowed and she received assistance up to and including the month of June, 1946, in the total sum of $3,827.82. During her lifetime said decedent was the owner of a parcel of real estate located in Franklin County, State of Ohio. On or about the ninth day of August, 1946, the decedent conveyed this real estate to the defendant, Norna L. Adams, her daughter. The deed recited that the consideration was “One Dollar and other valuable considerations”. The decedent died approximately four weeks after the transfer was made and subsequently the plaintiff was appointed administrator of her estate. The State of Ohio filed its claim with the administrator, which was allowed. The administrator was unable to discover any assets in decedent’s estate and thereafter instituted this action to set aside the conveyance. Actual fraud is not alleged nor proven. The plaintiff relies on a showing of facts which he claims constituted constructive fraud.

The plaintiff contends that the State of Ohio was a creditor of the decedent by virtue of the provisions of §1359-7 GC, which in part provides that “Upon the death of a person, the total amount of aid paid to said person and to his or her spouse under this act, shall be a preferred claim against the estate of such deceased person”, etc.

It is also claimed that the State of Ohio was a creditor within the meaning of §8618 GC, which in part provides “every gift, grant, or conveyance of lands, tenements, heredita-ments. rents, goods or chattels, and every bond, judgment or execution, made or obtained with intent to defraud creditors of their just and lawful debts or damages, * * * shall be utterly void and of no effect”.

It is urged that under the facts the State of Ohio was a contingent creditor. In support of this proposition plaintiff cites the case of Squire, Supt. of Banks, v. Cramer, 64 Oh Ap 169, 28 N. E. (2d) 516, which held that the contingent liability of the owner of bank stock constituted the Superintendent of Banks a creditor within the meaning of §8618 GC.

The defendant relies on Scobey v. Fair, Admr., 70 Oh Ap 51, 45 N. E. (2d) 139, which held that the Old Age Pension Law did not create contractual relationships between the State and the recipients, and that the relationship of debtor and creditor did not exist.

Both cases are of doubtful authority for the two propositions urged here. The Cramer case can be distinguished on the ground that it has been held that the superadded liability of a stockholder in a bank is a primary contractual obligation created by operation of law Squire, Supt. of Banks, v. Standen, Gdn., 135 Oh St 1, 18 N. E. (2d) 608. The Scobey case presented an entirely different factual situation. In that case the question was whether any advances by the State to the wife and the husband were a charge against that part of the estate of the deceased wife which passed to the husband. If the State had been permitted to recover against the husband, it would have amounted to a reimbursement during the lifetime of the recipient. This the State may not do.

The State has no claim which it can assert during the life of the recipient. The money paid by the State was a gratuity. However, we can conceive of a situation where the recipient might convey property for the sole purpose of defrauding the State and thus deprive the State of its right to reimbursement out of the estate of the recipient.

Under the facts stated the State is. placed in a position of a subsequent creditor. In Vol. 19 O. Jur., page 715, Section 35, a subsequent creditor is defined “as one who becomes a creditor after a transfer sought to be impeached as fraudulent is made”. A conveyance may be held to be fraudulent as to subsequent creditors as well as to existing creditors, However, subsequent creditors are in a less favorable position than existing creditors in attempting to set aside a conveyance. As to subsequent creditors transfers will be set aside only upon proof of actual intent to defraud such creditor. The burden of proof to establish such intent is upon the party asserting it. Vol. 19, O. Jur., pp. 713, 714, Section 34, Pfisterer v. Traction Company, 89 Oh St 172, 106 N. E. 18; Waxenfelter, Admr., v. Rouch, 30 Abs 376, 377. See also Edwards, Admx., v. Monning, 63 Oh Ap 449, 27 N. E. (2d) 156.

It is urged by the plaintiff in the case at bar that the burden of proof is upon the defendant to prove that the consideration, if any, for the transfer was bona ñde and adequate. In support of this proposition plaintiff cites the case of Allen v. Toth, 22 Abs 457, which held that “Fraud, as a matter of law, will be implied from the fact that a debtor gives his property away without retaining sufficient to pay his debts”. We readily accept this proposition as sound law. However, a consideration of the facts in the instant case shows that this case does not fall in that category. There is no showing made that the decedent gave away her property. The deed recited that the consideration was “One Dollar and other valuable considerations”. No effort was made to show that the deed was not given for a valuable consideration, or that the consideration was inadequate. Neither does the record show that decedent, by the transfer, rendered herself insolvent or intended thereby to defraud her creditors. The existence of these essential facts will not be presumed as a matter of law from the fact that the administrator was unable to find any assets in the estate of the decedent.

The burden of proof at all times rested on the plaintiff to prove all the essential elements in the case. From the facts appearing in the record the plaintiff failed to make a prima facie case which would have required defendant to go forward with the evidence. The record clearly shows a failure of proof.

Sec. 1359-20 GC, which in substance provides that when the consideration does not approximate the fair market value of the property, or when the consideration for such transfer is not paid, such transfer shall be deemed prima facie fraudulent, has no application to the facts in this case as this section was enacted after the transfer was made. However, the enactment of this section is indicative of the fact that our State Legislature realized that without such statutory provision the State was without a remedy.

Judgment for the defendant.

MILLER, PJ, and HORNBECK, J, concur.


author: By THE COURT:

text:
    HOEFLER & STOECKLEIN COMPANY, Plaintiff-Appellee, v. MARTIN et, Defendants-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    No. 2050.
    Decided May 3, 1949.
    Shaman, Winer & Shulman, Dayton, for plaintiff-appellee.
    Estabrook, Finn & McKee, Dayton, for defendant-appellee.
    Drewey H. Wysong, Dayton, for defendants-appellants.
   OPINION

By THE COURT:

Submitted on motion of defendant-appellee, Fidelity Building Association, to dismiss the appeal on questions of law and fact on the ground that an appeal bond was not filed within the time the notice of appeal is required to be filed as provided in §12223-6 GC.

Decided August, 13, 1949.

The judgment from which an appeal was taken was filed with the clerk for journalization on February 23, 1949. The notice of appeal was filed March 11, 1949. The last day on which the notice of appeal and bond was required to be filed was March 15, 1949. Said bond was filed on March 23, 1949.

It appearing that the bond was not filed within the time tlie notice of appeal was required to be filed an appeal on questions of law and fact can not be maintained. Under §12223-22 GC, the appeal shall not be dismissed but shall stand as an appeal on questions of law.

The motion to dismiss the appeal on questions of law and fact will be sustained. The appeal shall stand for hearing as an appeal on questions of law. The appellants will be required to file their exceptions, assignments of error and briefs in conformity to the provisions of the Supplement to Rule VII.

Counsel will draw the proper entry.

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

ON MOTIONS TO DISMISS APPEAL

No. 2050.

By THE COURT:

Submitted on motions of plaintiff-appellee and defendant-appellee to dismiss appeal on the ground that defendants-appellants failed to file a bill of exceptions, assignments of error and briefs within the time required by supplement to Rule VII.

On May 24, 1949 this Court dismissed the appeal on questions of law and fact and ordered the case retained for hearing on questions of law, and further ordered that defendants-appellants be required to file their bill of exceptions, assignments of error and briefs within the time prescribed by supplement to Rule VII.

The period of time prescribed in supplement to Rule VII ■having expired, and no bill of exceptions, assignments of error and briefs having been filed, the motion to dismiss the appeal will be sustained.

Counsel may prepare the proper entry.

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


author: By VINSON, CJ.

text:
    UNITED STATES, Petitioner v. AETNA CASUALTY and SURETY CO. UNITED STATES, Petitioner v. WORLD FIRE and MARINE INSURANCE CO. UNITED STATES, Petitioner v. YORKSHIRE INSURANCE CO. UNITED STATES, Petitioner v. HOME INSURANCE CO.
    United States Supreme Court
    Nos. 35, 36, 37 and 38.
    Decided December 12, 1949.
    Leavenworth Colby (Philip B. Perlman, Solicitor General, H. G. Morison, Assistant Attorney General, Samuel D. Slade and Joseph Kovner with him on the brief) for petitioner.
    William A. Hyman (Harold W. Hayman and Melville Harris with him on the brief) for respondent, in No. 35. Jackson G. Akin (Rodey, Dickason & Sloan and Pearce C. Rodey with him on the brief) for respondent, pro hac vice, by special leave of Court, in No. 36. Abraham Frankel for respondents, in Nos. 37-38.

      Mr. Chief JUSTICE VINSON delivered the opinion of the Court.
   OPINION

By VINSON, CJ.

These cases, here on certiorari, present this important question under the Federal Tort Claims Act: May an insurance company bring suit in its own name against the United States upon a claim to which it has become subrogated by payment to an insured who would have been able to bring such an action? That question, in turn, requires our consideration of R. S. 3477, the “Anti-Assignment” statute.

Three cases, each presenting a slightly different aspect of the problem, were heard by the Court, In No. 35, the complaint alleges that an employee of the Federal Reserve Bank of New York was injured as a result of the negligence of an United States Post Office Department employee. Respondent insurance carrier had insured the Federal Reserve Bank against its liability for workmen’s compensation, and duly paid the injured person’s claim under the New York Workmen’s Compensation Law. The complaint further alleges that the injured person failed to commence any action against the United States within one year after the accident, and that his inaction operated, according to New York law, as an assignment to the insurer of his cause of action against the United States. The District Court dismissed the complaint, but the Court of Appeals for the Second Circuit reversed and remanded the cause for trial.

In No. 36, the Government’s motion to dismiss the complaint was denied, and, after trial, it was found as fact that an employee of the United States Forest Service had negligently driven a Government vehicle into a vehicle owned by one Harding, causing damages of $1,484.50; that Harding was insured by the respondent insurance carrier and, pursuant to the terms of the policy, had been paid $784.50 by the insurer, to which it was now subrogated. Judgment was thereupon entered against the United States in favor of Harding for $700.00 and in favor of respondent insurance company for $784.50. The Court of Appeals for the Tenth Circuit affirmed.

Nos. 37 and 38 present the situation in which two insurance companies, each of which has paid part of a claim of loss occasioned by the negligence of an employee of the United States, bring suit in their own names, each asking recovery of the amount it has paid to the assured. The District Court dismissed the complaint on motion of the Government, but the Court of Appeals for the Third Circuit reversed and remanded the cause. We granted certiorari in these eases, 336 U. S. 960, because of a conflict of decisions in the circuits and the manifest importance of the question.

The Federal Tort Claims Act provides in pertinent part that

“•* * ⅝ united. States district court for the district wherein the plaintiff is resident or wherein the act or omission complained of occurred, * * * sitting without a jury, shall have exclusive jurisdiction to hear, determine, and render judgment on any claim against the United States, for money only, * * * on account of damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act of omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant for such damage, loss, injury, or death in accordance with the law of the place where the act or omission occurred. Subject to the provisions of this chapter, the United States shall be liable in respect of such claims to the same claimants, in the same manner, and to the same extent as a private individual under like circumstances * * *.”

While the language of the Act indicates a congressional purpose that the United States be treated as if it were a private person in respect of torts committed by its employees, except for certain specific exceptions enumerated in the Act, neither the terms of the Act nor its legislative history preclude the application of R. S. 3477 in this situation.

It is the Government’s position that R. S. 3477, which in terms makes “All transfers and assignments * * * of any claim upon the United States, or any part or share thereof, or interest therein * * ⅜ absolutely null and void * * *” except for assignments made after payment of the claim and in accordance with certain prescribed safeguards, includes assignments by operation of law and prohibits suit by the sub-rogee in its own name. Petitioner reads R. S. 3477 not as prohibiting transfer of a claimant’s substantive rights to an insurer-subrogee and ultimate recovery by the insurer but as a procedural requirement that the insurance carrier sue and recover judgment in the name of the original claimant. American Tobacco Co. v. United States, 166 U. S. 468 (1897). Its purpose in invoking the Anti-Assignment statute is said to be two-fold: “(1) to insure that the United States may avoid involvement in any litigation as to the existence or extent of subrogation or other assignment of such claims; and (2) to insure that the suits and any judgment against the United States will he in the names of the original claimants so that the United States will be able to avail itself of its statutory rights in respect of venue, and of counterclaim and offset on account of any cross-claims it may have against the original claimants.” It is pointed out that “the provisions of the statute making void an assignment or power of attorney by a Government contractor are for the protection of the Government. Hobbs v. McLean, 117 U. S. 567, 576; McGowan v. Parish, 237 U. S. 285, 294, 295. In the absence of such a rule, the Government would be in danger of becoming embroiled in conflicting claims, with delay and embarrassment and the chance of multiple liability.” Martin v. National Surety Co., 300 U. S. 588, 594 (1937). The Government contends that the inconvenience administrative and accounting difficulties, and procedural problems which, it is apprehended, may involve the Government if subrogees are permitted to bring suits under the Tort Claims Act in their own names make this an apt situation for application of R. S. 3477, and that that was the congressional intent.

It should be noted at the outset, however, that in the courts below and until argument in this Court (and even in its petition for certiorari) the Government contended that R. S. 3477 was a complete bar to recovery by a subrogee. Only in brief and argument here was it suggested that the insurance carrier could recover if suit was brought in the name of the insured to the use of the insurer, citing for the first time American Tobacco Co. v. United States, supra, a decision reflecting common-law procedure, upon which reliance is now placed. It is for that reason that the opinions below were focused upon whether R. S. 3477 is an absolute bar to recovery by the subrogee rather than merely á bar to recovery in the name of the subrogee. We think, however, that even this limited, and somewhat anomalous, reliance upon R. S. 3477 is untenable, first, because of the uniform interpretation given that statute by this Court for the past 75 years, and, second, because of many affirmative indications of congressional intent that subrogation claims should not be excluded from suit in the name of the subrogee under the Tort Claims Act.

R. S. 3477 was enacted in 1853 as part of a statute entitled “An Act to prevent frauds upon the treasury of the United States.” Its primary purpose was undoubtedly to prevent persons of influence from buying up claims against the United States, which might then be improperly urged upon officers of the Government. Spofford v. Kirk, 97 U. S. 484, 490 (1878). Another purpose, that upon which the Government now relies, has been inferred by this Court from the language of the statute. That purpose was to prevent possible multiple payment of claims to make unnecessary the investigation of alleged assignments, and to enable the Government to deal only with the original claimant. Spofford v. Kirk, supra; Goodman v. Niblack, 102 U. S. 556, 560 (1880). Most of the early cases construed the statute strictly, holding that all assignments were included within the statute and that such assignments conferred no rights of any kind upon the assignee; that R. S. 3477 “incapacitates every claimant upon the Government from creating an interest in the claim in any other than himself.” Spofford v. Kirk, supra, pp. 488-89. See also National Bank of Commerce v. Downie, 218 U. S. 345 (1910); Nutt v. Knut, 200 U. S. 12 (1906); St. Paul & Duluth R. Co. v. United States, 112 U. S. 733 (1885).

The rigor of this rule was very early relaxed in cases which were thought not to be productive of the evils which the statute was designed to obviate. And one of the first such exceptions was to transfers by operation of law. In United States v. Gillis, 95 U. S. 407 (1877), the Court held that a provision in the Act creating the Court of Claims that suits on assignments may be brought in the name of the assignee did not mean that R. S. 3477 was inapplicable to suits in the Court of Claims, but referred to claims which were excepted from the prohibition of that statute, such as “devolutions of title by force of law, without any act of the parties, or involuntary assignments, compelled by law.” During the following term a case was presented in which an assignee in bankruptcy had sued the United States on a claim of the bankrupt. This Court held the suit maintainable despite R. S. 3477, on the ground that

“The act of Congress of Feb. 26, 1853, to prevent frauds on the treasury of the United States, which was the subject of consideration in the Gillis case, applies only to cases of voluntary assignment of demands against the government. It does not embrace cases where there has been a transfer of title by operation of law. The passing of claims to heirs, devisees, or assignees in bankruptcy are not within the evil at which the statute aimed; nor does the construction given by this court deny to such parties a standing in the Court of Claims.” Erwin v. United States, 97 U. S. 392, 397 (1878).

This construction of R. S. 3477 — that assignments by operation of law are not within the prohibition of the statute — was recognized as settled law in Goodman v. Niblack, supra, and has been repeated with approval in a great many subsequent cases.

The Government now contends, contrary' to the statements in all of the cases approving Erwin v. United States, supra, that an assignment by operation of law is not always exempt from the bar of R. S. 3477, but that in addition the assignment must be of a kind that will not involve the Government in the procedural difficulties previously referred to. All of the eases in which R. S. 3477 has been held inapplicable on the ground of assignment by operation of law are explained as presenting situations in which the Government could suffer no such procedural embarrassments. In cases of transfer by descent (Erwin v. United States, supra), consolidation of corporations (Seaboard Air Line R. Co. v. United States, 256 U. S. 655 [1921]), and purchase at a judicial sale in a corporate reorganization (Western Pacific R. Co. v. United States, 268 U. S. 271 [1925]) it is pointed out that the Government may deal with the substituted representative as it would have dealt with the claimant if there had been no substitution. Rights of counterclaim and set-off are said to be retained against the universal successor, while such universal assignments by operation of law can give rise to no controversies as to the existence and extent of the transfer for adjudication between the United States and.the original claimant and his trustee, receiver, or administrator.

Without considering whether some of the cases are not comprehended within this rationale, we do not think that it explains the exception made for transfers by operation of law in the cases referred to. In the first place, the Court has always stated the flat exception or all transfers by operation of law, as distinguished from voluntary transfers. If the cases rest upon the premise advanced by the Government, it has never been articulated in the opinions. In the second place, and consistent with the exception of all transfers by operation of law, this Court has a number of times indicated that neither of the purposes of R. S. 3477 is contravened by transfers by operation of law. In Goodman v. Niblack, supra, it was held that

“The language of the statute, ‘all transfers and assignments of any claim upon the United States, or any part thereof, or any interest therein,’ is broad enough (if such were the purpose of Congress) to include transfers by operation of law, or by will. Yet we held it did not include a transfer by operation of law, or in bankruptcy, and we said it did not include one by will. The obvious reason for this is that there can be no purpose in such cases to harass the government by multiplying the number of persons with whom it has to deal, nor any danger of enlisting improper influence in advocacy of the claim, and that the exigencies of the party who held it justified and required the transfer that was made.” (102 U. S. at 560; emphasis added.) (See also Hager v. Swayne, 149 U. S. 242, 247-48 [1893].)

The fact that some administrative problems may be the unintended byproducts of an involuntary assignment was not thought to be an evil within the scope of a statute aimed at fraud and harassment. That interpretation has, for nearly a century, exempted all transfers by operation of law from the prohibition of R. S. 3477.

That it was the understanding of Congress that subrogation claims were not within the bar of R. S. 3477 when it passed the Tort Claims Act is abundantly clear from a number of different particulars:

1. The Small Tort Claims Act of 1922 provides that heads of departments “may consider, ascertain, adjust, and determine any claim * * * on account of damages to or loss of privately owned property where the amount of the claim does not exceed $1,000, caused by the negligence of any officer or employee of the Government acting within the scope of his employment.” Such claims as were found due were certified to Congress for payment. A question was directed to the Attorney General in 1932 as to “whether such a claim, which if made by the owner of the property damaged could have been certified, may properly be certified if made by an insurance company which has become subrogated to the rights of the owner to receive compensation for the damage suffered.” Attorney General Mitchell’s opinion was: (1) that subrogation is a transfer by operation of law of the right to receive payment of the amount due; and (2) that R. S. 3477 applies only to cases of voluntary assignment of demands against the Government. He thought, however, that inasmuch as the question was one concerning the purpose and intent of Congress in enacting the Small Tort Claims Act, that body should be asked to interpret the statute by passing upon subrogation claims certified to it and expressly called to its attention. Thereafter subrogation claims in the names of insurance carriers were regularly submitted to Congress and were consistently approved until the Act was repealed by the present Tort Claims Act. The Attorney General’s opinion was approved and congressional acquiescence noted by the Comptroller General in opinions in 19 Compt. Gen. 504, 21 Compt. Gen. 341, and 22 Compt. Gen. 611. A unique interpretation by Congress of its own statute thus settled the question whether R. S. 3477 was a bar to subrogation claims under the Small Tort Claims Act, which, in language nearly identical with that of the present Tort Claims Act, permitted recovery “on account of damage to or loss of privately owned property * *

2. That specific reference in the statute was necessary to preclude recovery by subrogees in their own names (i. e., that R. S. 3477 is inapplicable to subrogees) was clearly the view of Congress when it enacted the Tort Claims Act. For in foreign claims legislation where it intended that result, Congress explicitly provided that Claims Officers should consider, ascertain, determine, and pay claims on account of injury or death, or property loss or damage to claimants in foreign countries, “including claims of insured but excluding claims of subrogees.” The purpose of this 'provision, which was enacted in 1943, was to fulfill the very office which petitioner now contends is performed by R. S. 3477. No such exception is found in the Tort Claims Act, although other exceptions are spelled out with great particularity. The significance of this provision in the foreign claims statute is, first, that when Congress wished to exclude claims by sub-rogees it said so; and second, that Congress did not think R. S. 3477 performed that function. For a similar provision, see 49 Stat. 2194.

3. Nor did executive departments themselves interpret R. S. 3477 as applicable to subrogation claims, as the report of the hearings on H. R. 6442, 77th Cong., 2d Sess. (1942) makes plain. That bill, which was drafted by the Treasury Department, would have required subrogees to institute actions against their subrogors in some court of competent jurisdiction, which would then restrain the original claimant from receiving any funds from the Government until final decision was reached as to who was to receive the money. The Assistant General Counsel of the Treasury, in explaining the bill, stated:

“In 1877 the Supreme Court, in the case of U. S. v. Gillis (95 U. S. 407), after stating in effect that section 3477 was of universal application and covered all claims against the United States in every tribunal in which they might be asserted, indicated in language not necessary to the decision that transfers or assignments compelled by law or resulting from the operation of law might not have been within the purview of Section 3477.
“Now from that time on one exception after another has been carved from section 3477, until now the courts recognize many types of adverse claims as the basis for what in effect are third-party suits based upon assignments by operation of law, subrogation, and equitable liens.”

It cannot therefore be seriously contended that Congress and the executive departments were not cognizant of the exemption of subrogation claims from R. S. 3477 when the Tort Claims Act was passed. The broad sweep of its language assuming the liability of a private person, the purpose of Congress to relieve itself of consideration of private claims, and the fact that subrogation claims made up a substantial part of that burden are also persuasive that Congress did not intend that such claims should be barred.

If, then, R. S. 3477 is inapplicable, the Government must defend suits by subrogees as if it were a private person. Rule 17 (a) of the Federal Rules, which were specifically made applicable to Tort Claims litigation provides that “Every action shall be prosecuted in the name of the real party in interest,” and of course an insurer-subrogee, who has substantive equitable rights, qualifies as such. If the subrogee has paid an entire loss suffered by the insured, it is the only real party in interest and must sue in its own name. 3 Moore, Federal Practice (2d ed.) p. 1339. If it has paid only part of the loss, both the insured and insurer (and other insurers, if any, who have also paid portions of the loss) have substantive rights against the tortfeasor which qualify them as real parties in interest.

In cases of partial subrogation the question arises whether suit may be brought by the insurer alone, whether suit must be brought in the name of the insured for his own use and for the use of the insurance company, or whether all parties in interest must join in the action. Under the common law practice rights acquired by subrogation could be enforced in an action at law only in the name of the insured to the insurer’s use, Hall & Long v. Railroad Companies, 13 Wall. 367 (1871); United States v. American Tobacco Co., supra, as was also true of suits on assignments. Glenn v. Marbury, 145 U. S. 499 (1892). Mr. Justice Stone characterized this rule as “a vestige of the common law’s reluctance to admit that a chose in action may be assigned, [which] is today but a formality which has been widely abolished by legislation.” Aetna Life Ins. Co. v. Moses, 287 U. S. 530, 540 (1933). Under the Federal Rules, the “use” practice is obviously unnecessary, as has long been true in equity, Garrison v. Memphis Insurance Co., 19 How. 312 (1856), and admiralty, Liverpool & Great Western Steam Co. v. Phenix Insurance Co., 129 U. S. 397, 462 (1889). Rule 17 (a) was taken almost verbatim from Equity Rule 37. No reason appears why such a practice should now be required in cases of partial subrogation, since both insured and insurer “own” portions of the substantive right and should appear in the litigation in their own names.

Although either party may sue, the United States, upon timely motion, may compel their joinder. Delaware County v. Diebold Safe & Lock Co., 133 U. S. 473, 488 (1890) (applying a state code under the Conformity Act). 3 Moore, Federal Practice (2d. ed.), p. 1348. Both are “necessary” parties. Rule 19 (b), Federal Rules of Civil Procedure. The pleadings should be made to reveal and assert the actual interest of the plaintiff, and to indicate the interests of any others in the claim. Additional parties may be added at any stage of the proceedings, on motion of the United States, upon such terms as may be just. Rule 21.

It is true that under this rationale, there will be cases in which all parties cannot be joined because one or more are outside the jurisdiction, and the court may nevertheless proceed in the action under Rule 19 (b). In such cases the United States, like other tortfeasors, may have to defend two or more actions on the same tort and may be unable to assert counterclaims and offsets against the original claimant upon unrelated transactions.

If R. S. 3477 is inapplicable, as we think is clearly the case, these objections have no legal foundation upon which to rest. In argument before a number of District Courts and Courts of Appeals, the Government relied upon the doctrine that statutes waiving sovereign immunity must be strictly construed. We think that the congressional attitude in passing the Tort Claims Act is more accurately reflected by Judge Cardozo’s statement in Anderson v. Hayes Construction Co., 243 N. Y. 140, 147: “The exemption of the sovereign from suit involves hardship enough where consent has been withheld. We are not to add to its rigor by refinement of construction where consent has been announced.”

The decisions of the Courts of Appeals in each of these cases is affirmed.

Mr. JUSTICE BLACK dissents.

Mr. JUSTICE DOUGLAS took no part in the consideration or decision of this case.

      . 60 Stat. 842; formerly codified as 28 U. S. C. §931 et seq. The new Judicial Code became effective on Sept. 1, 1948, while these actions were pending on appeal, and the provisions formerly embodied in the Tort Claims Act are now distributed through various chapters of the new Code.

      . 10 Stat. 170 as amended; 31 U. S. C. §203.

      . When this action was brought, §29 of the New York Workmen’s Compensation Act provided that if an injured employee has taken compensation but has failed to commence action against the tortfeasor within one year after the cause of action accrued, “such failure shall operate as an assignment of the cause of action against such other * * * to the person, association, corporation, or insurance carrier liable for the payment of such compensation.”

      . Courts of Appeals in seven circuits have upheld the right of subrogees to sue under the Tort Claims Act. State Farm Mutual Liability Insurance Co. v. United States, 1st Cir., 172 F. 2d 737; Aetna Casualty & Surety Co. v. United States, 2d Cir., 170 F. 2d 469; Yorkshire Insurance Co. v. United States, 3d Cir., 171 F. 2d 374; United States v. South Carolina State Highway Dept., 4th Cir., 171 F. 2d 893; Old Colony Insurance Co. v. United States, 6th Cir., 168 F. 2d 931; National American Fire Insurance Co. v. United States, 9th Cir., 171 F. 2d 206; United States v. Chicago, R. I. & P. R. Co., 171 F. 2d 377.
      The Court of Appeals for the Fifth Circuit reached a contrary conclusion, United States v. Hill, 171 F. 2d 404, Judge Hutcheson dissenting. Reargument was ordered before the full bench and, upon reconsideration, the original opinion was modified, 174 F. 2d 61, Judge Hutcheson concurring in the result “as in substantial accordance with the views the dissent expressed.”

      . Formerly 28 U. S. C. §931. This section is now divided and, with immaterial changes, appears in 28 U. S. C. §§1346 (b) and 2674.

      . See 28 U. S. C. §2680.

      . This contention was also made in reargument of United States v. Hill, before the Court of Appeals for the Fifth Circuit, which took place after certiorari was granted by this Court. See note 4.

      . Petitioner’s argument is, in effect, that R. S. 3477 does not prevent the assignment of substantive rights against the United States but merely controls the method of procedure by which the assignee may recover. This position is in square conflict with Spofford v. Kirk, 97 U. S. 484, and is not justified by anything said in Martin v. National Surety Co., 300 U. S. 588. Furthermore, it would require that the real party in interest provisions of the Federal Rules, Rule 17(a), be disregarded, despite the fact that they are made specifically applicable to suits under the Tort Claims Act, and that suits against the Government. in which a subrogee owns the substantive right be conducted according to the old common-law procedures in effect prior to the promulgation of the Federal Rules. Petitioner admits as much by its reliance upon American Tobacco Co. v. United States, 166 U. S. 468. This is not to say that R. S. 3477 was “repealed” by the Federal Rules, but that a new interpretation of the statute which is incompatible with the Rules, as expressly incorporated in the Tort Claims Act, must be clearly justified.

      . 10 Stat. 170.

      . Other sections of the Act made it unlawful for officers of the United States or Members of Congress to have any interest in claims against the Government or to act for claimants, penalized bribery or undue influencing of Members of Congress, and prohibited the destruction or withdrawal of public records.

      . See, e. g., St. Paul & Duluth R. Co. v. United States, 112 U. S. 733, 736; Butler v. Gorley, 146 U. S. 303, 311; Hager v. Swayne, 149 U. S. 242; Ball v. Halsell, 161 U. S. 72, 79; Price v. Forrest, 173 U. S. 410, 421; National Bank of Commerce v. Downie, 218 U. S. 345, 356; Western Pacific Co. v. United States, 268 U. S. 271, 275.

      . For example, transfers by will or intestacy, which are not within the prohibition of R. S. 3477 under the cases, would obviously multiply the persons with whom the United States must deal and might very well embroil it in conflicting claims.

      . 42 Stat. 1066; 31 U. S. C. §215.

      . Reported at 36 Ops. Atty. Gen. 553. See Holtzoff, Tort Claims Against the Federal Government, 9 Law & Contemp. Prob. 311, 318; The Federal Tort Claims Act, 42 Ill. L. Rev. 344, 349.

      . 57 Stat. 66; 31 U. S. C. §224d.

      . The House Committee Report states that “Such a provision of law leaves undisturbed, as between the parties, the rights of the insured and of insurance companies and others who have become subrogated to the rights of the owners of the property or of the person who is injured or whose death results, but permits the Government to settle with a single claimant and without the necessity of inquiry into, or determination of, the relative rights of the parties.” H. R. Rep. No. 312, 78th Cong., 1st Sess., p. 2.

      . That members of the House Committee on Claims were aware of the problem of recovery by insurance carrier-subrogees at the time the Tort Claims Act was passed is demonstrated by that Committee’s report, submitted less than two weeks prior to passage of the Act, on subrogation claims presented by insurance companies in connection with the crash of an army airplane into the Empire State Building. The War Department had recommended to Congress that Empire State, Inc., and other private claimants be paid their uninsured losses (which was done) but refused to recommend payment of insured losses. H. R. 6683 was introduced “to appropriate the sum of $143,279.94 to 22 fire-insurance companies in full satisfaction of their subrogation claims against the United States ⅜ * *” The Committee made specific reference to Attorney General Mitchell’s opinion, noted that since that time the War Department had paid subrogation claims of less than $1,000 under the Military Claims Act, 31 U. S. C. §223, and disapproved that department’s refusal to certify claims of over $1,000. To the assertion that Congress had consistently refused to recognize subrogation claims as barred by R. S. 3477, the Committee report contains the flat denial: “That statement is not in accordance with the fact” and cites a number of subrogation claims favorably acted upon by Congress. The bill was favorably reported, H. R. Rep. No. 2655, 79th Cong., 2d Sess., but nine days later the Tort Claims Act was passed, §131 of which provided that no private bill should authorize payment of money for claims for which suit might be brought under that Act, extending retroactively to claims accruing after January 1, 1945. Since the claims involved had accrued subsequent to that date, the insurance company subrogees brought suit in a federal district court, where the Government once more interposed a defense based on R. S. 3477, despite the Committee’s specific approval of payment directly to the subrogees. The defense was rejected. 76 P. Supp. 850.

      . Formerly 28 U. S. C. §932. See note 7, supra.

      . They are clearly not “indispensable” parties under the familiar test of Shields v. Barrow, 17 How. 130 (1854), that such parties have “an interest of such a nature that a final decree cannot be made without affecting that interest or leaving the controversy in such a condition that its final termination may be wholely inconsistent with equity and good conscience.” See Delaware County v. Diebold Safe & Lock Co., 133 U. S. 473, 488 (1890); Hubbard v. Manhattan Trust Co., 87 F. 51; Rogers v. Penobscott Mining Co., 154 F. 606; 3 Moore, Federal Practice (2d ed.) p. 2178.

      . The counterclaim statute, 28 U. S. C. §1346(c) confers jurisdiction on district courts over any “counterclaim, claim or demand on the part of the United States against any plaintiff commencing an action.” The offset statute, 31 U. S. C. §§71, 227„ directs the deduction from judgment and allowed claims against the United States of debts as to which “the plaintiff therein shall be indebted to the United States.” (Emphasis added.) We need not and do not consider what rights of counterclaim and set-off may-lie in the United States in suits brought by insurer-subrogees. Cf. United States v. Munsey Trust Co., 332 U. S. 234 (1947); Defense Supplies Corp. v. United States Lines Co., 148 F. 2d 311.


text:
    DAVIS, Plaintiff-Appellee, v. DAVIS, Defendant-Appellant.
    Ohio Appeals, Second District, Madison County.
    No. 170.
    Decided October 25, 1949.
    Gale R. King, Columbus, for plaintiff-appellee.
    Binns & Tresemer, Columbus, H. H. Crabbe, London, for Eagleton F. Dunn, Guardian of the person and estate of Robert Bridgman Davis, defendant-appellant.
   OPINION

By THE COURT:

Submitted on motion of appellee consisting of two branches.

The first branch, to strike the bill of exceptions from the files because not filed within the time fixed by §11564 GC. The second branch to dismiss the appeal.

The first branch of the motion will be sustained.

The appeal is on questions of law. The decree was filed on August 1,1949, the bill of exceptions on the 12th of September, 1949. The provisions of §11564 GC, that the bill of exceptions be filed in the trial court “not later than 40 days after the decision of the court” has been held without exception to be mandatory by the Supreme Court and many times by this court.

Tenesy v. City of Cleveland, 133 Oh St 251; Robinson v. City of South Euclid, 146 Oh St 589; Gallagher v. Bexley, 30 Abs. 539; State v. Bond, 30 Abs. 592; Kennedy v. Mancini, 22 Abs. 60; Bulen v. Moody, 43 Abs. 608.

The second branch of the motion will be overruled.

It may be that some error to be assigned will be exempli-fled upon the record independent of the bill of exceptions.

MILLER, PJ, HORNBECK and WISEMAN, JJ.


text:
    SNODERLY, Appellant, v. BROWN AND FIRESTONE BANK, Appellees.
    Ohio Appeals, Ninth District, Summit County.
    No. 4023.
    Decided October 12, 1949.

      C. B. McRae, Akron, for appellant.
    Carl M. Myers, Akron, for appellees.
   OPINION

By HUNSICKER, J.

In this appeal on questions of law and fact, the plaintiff (appellant), William E. Snoderly, seeks to rescind a contract which he entered into with the defendant (appellee) Margaret C. Brown, for the purchase of a dry cleaning business located on South Arlington Street in the City of Akron, Ohio. .

Snoderly executed the contract of purchase on January 19, 1948, and took possession of the business on February 1, 1948. The contract purchase price of $19,000 provided for a payment of $10,000 cash and a note for $9,000, bearing interest at 6% per annum, with monthly payments of $200, beginning March 1, 1948. This note was secured by a chattel mortgage on the property sold.

Snoderly claims that, through the fraud and deception of Mrs. Brown, he was induced to enter into this contract. In his petition he alleges:

“* * * that said defendant falsely, fraudulently and deceptively represented to the plaintiff that the operation of said business and the building wherein said business is located complied with the laws of the State of Ohio governing the operation of a dry cleaning and dry dyeing plant using-flammable liquids; that the defendant, Margaret C. Brown, had a permit from the State Fire Marshall for the operation of said business, and that the plaintiff would have no trouble in getting an assignment of the permit or getting a new permit from the Ohio State Fire Marshall; that said representations were false and fraudulently made by the defendant, Margaret C. Brown, and that said defendant knew said representations were false and untrue; that the plaintiff relied upon said representations and entered into said contract of sale and purchase of said business; that thereafter, to-wit on or about April 26, 1948, the plaintiff received from the State Fire Marshal an order to cease operation of said cleaning plant for the reason that the same did not comply with the laws of the State of Ohio governing the operation of dry cleaning and dry dyeing plants and refusing the plaintiff a permit for the operation of said dry cleaning business.”

Mrs. Brown admits the execution of the contract, the cash payment, the note and chattel mortgage, and that Snoderly began the operation of the business on February 1, 1948. Mrs. Brown denies that any false and fraudulent representations were made to induce Snoderly to enter into the agreement, and says that Snoderly continued to operate the business and make payments on the unpaid purchase price for a period of time after taking possession of said business.

Mrs. Brown, by way of cross-petition, alleges a default in the monthly payments on the $9,000 note, and asks for judgment for the balance due on this note.

Snoderly, by way of reply, denies the claim that he operated the business for a period of time after discovering his lack of. permit to operate a dry cleaning establishment, and says that, by reason of the fraud practiced upon him, the $9,000 note is void.

From a careful reading of the transcript of testimony, we are unable to find that actionable fraud was engaged in by Mrs. Brown, unless it shall be found that the statements made concerning the transfer of “fire permits” are sufficient to establish such fraud.

The contract of sale, executed January 19, 1948, contained, among other things, the follówing statement;

“* * * and seller further agrees to transfer all permits, including fire permits.”

There had been some discussion between the parties concerning the transfer of a permit to engage in this type of business, of the necessity to have such a permit, and of the fact that the business did have such a permit. Mrs. Brown denies that she ever said the business had such a permit, but it is agreed that the business had been in operation at the same location for more than four years.

Sec. 843-19, et seq., GC, govern the establishment and operation of a dry 'cleaning and dyeing business.

These sections of the General Code set forth; a definition of dry cleaning; the necessity of submitting plans of construction, erection or alteration of, or additions to, dry cleaning plants, to the state fire marshal for approval; the requirement for a permit from the state fire marshal to conduct such business; the necessity for the renewal of such permit; a requirement for the exhibition “at all times in a conspicuous place in the plant” of such permit, and a provision that “no one except the person, persons or corporation to whom such permits are issued shall have the right to operate any dry cleaning or dry dyeing business under any such permits”; a provision for refusal, suspension or revocation of permits by the state fire marshal; and a provision for the grouping of dry cleaning plants into four classes.

Before Snoderly could operate this dry cleaning business, it became incumbent upon him to obtain a permit. The permit, if any, which Mrs. Brown had, could not be the permit under which Snoderly could operate the business.

Such permit to operate this business was required to be “exhibited in a conspicuous place in the plant.” If such permit, then, was in the possession of, and being carried around by, Mr. Brown (the former husband of Mrs. Brown), as Snoderly says Mrs. Brown informed him, it was in direct violation of this provision of the law.

Can we, then, have fraud in the inducement of the contract in the instant case, predicated upon a failure to transfer a permit, which, under the statutes, was required to be issued to Snoderly?

A misrepresentation of the law as to the right to transfer “fire permits” cannot form the basis of an action for fraud in the inducement to enter into this contract. Snoderly was presumed to know that a dry cleaning establishment is required to display a permit from the state fire marshal in such a place of business and of his need to personally secure such a permit. The maxim “ignorantia legis neminem excusat” is universally recognized as applicable to civil jurisprudence.

The law is well settled as it is stated in the first paragraph of the syllabus in the case of Yappel v. Mozina, 33 Oh Ap 371:

“1. Generally, mere misrepresentations of what the law is cannot form basis for an action of deceit, even though representation was meant to be acted on and believed by parties to whom it was made and is acted on, since every man is supposed to know the law, and one believing statements made by another in that regard does so at his peril.”

See also: Yendes v. Shaw, et al., 52 Abs 154.

We therefore find that the alleged misrepresentation of matters of law does not form a basis for rescission of the contract in the instant case.

Coming now to the cross-petition of the defendant (appel-lee) Mrs. Brown, we find that the conditions of her note have not been complied with, and that Mrs. Brown is entitled to a judgment for the amount now due thereon. This judgment shall be reduced by the amount of money counsel for Snoderly has in his possession, which, by agreement of the parties, was paid to counsel pending a final determination of the instant cause.

A journal entry may be prepared dismissing the petition of the appellant and awarding judgment to the appellee Margaret C. Brown as indicated herein.

STEVENS, PJ, and DOYLE, J, concur.


author: By McClelland, pj.

text:
    SCHLOEFFEL, Plaintiff, v. KIETZMAN, et al., Defendants.
    Probate Court, Franklin County.
    No. 68206.
    Decided November 14, 1949.

      David E. Evans, Columbus, for plaintiff.
    Carl G. Nappi, Columbus, for defendants.
   OPINION

By McClelland, pj.

This matter comes before the Court upon the application of Henry A. Schloeffel for a Declaratory Judgment, the Construction of Will, and for other relief, therein referred to. It is to be noted that.the petitioner asks for a construction of the will; a Declaratory Judgment that the devisees under the will had a fee simple title to the premises; that a certain contract be declared a valid contract; and that in the event the Court finds that the contract is not a valid contract that the estate be opened up and said contract of settlement be set aside and that the plaintiff be ordered to sell all the real estate to pay her debts and costs of administration.

It is to be noted first, that the applicant asks for a Declaratory Judgment. It is a fundamental principle in the application of the law pertaining to Declaratory Judgments that the Court will decline to enter a Declaratory Judgment in cases' where the Court feels that it will not terminate the controversy. The Court in this case feels that it cannot determine whether the controversy will be terminated by the Declaratory Judgment until it construes the will. We will therefore proceed to construe the will and then determine whether or not the controversy will be terminated by a Declaratory Judgment.

The testatrix Anna Maria Schloeffel died on December 24, 1932, leaving a last will and testament, which was admitted to probate by this Court and her estate administered thereunder. We are only concerned with the interpretation of Item Five of that will, which contains the following language:

“Item Five: Subject to the payment of my debts and funeral expenses and the expenses of administering my estate and the charges hereinbefore in Item 2 of this Will made in favor of my son, Henry Schloeffel, and daughter, Alice Schloeffel, and also subject to the bequests heretofore made in Items 3 and 4, 1 give and devise all the rest and residue of my estate, real, personal and mixed and wherever situated now in my possession or hereafter acquired, to my four children, Anna Schaefer, Nellie Carson, Alice Schloeffel and Henry Schloeffel, share and share alike. If either of my four children shall have died before my death without ieaving issue surviving, then I give and devise all said remainder of my property, real and personal, to those of my children named above who shall survive me, but if any of my said four children shall die before my death leaving issue surviving then such surviving issue of the child so dying before my death shall take the part and portion of my estate which the parent of such issue would have taken under this will if such parent had survived me.
It is also my will that if either of my said four children shall die after my death, leaving no issue surviving, that the part and portion of my estate devised and bequeathed to the child so dying by this item of my Will shall go to the surviving brothers and sisters of the one of my said children so dying and to the surviving issue of any of them that may have previously died, the issue of any child taking only such share as the parent of such issue would have taken if living.”

The testimony discloses that one of the daughters of the testatrix, Alice Schloeffel, predeceased the testatrix unmarried and leaving no issue. Therefore, under the will, her portion would be divided equally between Henry Schloeffel, Anna Schaefer, and Nellie Carson. In 1935 the estate of the testatrix was in process of administration. The three children having learned that the personal property was insufficient to pay the debts and costs of administration entered into an agreement by the terms of which they made provision for the payment of the debts and costs of administration, and also by the terms of which agreement Anna Schaefer and Nellie Carson, two of the three legatees or devisees deeded their portions of the property devised to their brother Henry Schloeffel. A copy of the deed has been introduced in evidence and contains the following language:

“*J * ⅜ in consideration of divers good and valuable considerations to them paid by Henry A. Schloeffel of Bexley, Ohio, the receipt thereof is hereby acknowledged, do grant, bargain, sell and convey unto said Henry A. Schloeffel, one of the three devisees under the Last Will and Testament of said Anna Maria Schloeffel and also one of the heirs at law of said decedent, his heirs and assigns forever, the following described real estate (here follows a description of the real estate in question)
And all the estate title and interest of the said grantors, either in law or in equity of, to and in said premises; together with all the privileges and appurtenances to the same belonging:
To have and to hold the same to the use of said grantee, Henry A. Schloeffel, his heirs and assigns forever”

Then follows the warranty clause in which the grantors use the following language:

“* * * do hereby covenant with said grantee, Henry A. Schloeffel, his heirs and assigns, that they are the true and lawful owners of said premises, and have full power to convey the same; that the title so conveyed is clear, free and unencumbered, and that they do warrant and will defend the same against all claims of all persons whomsoever, * * *”

. It is to be noted that two of the three devisees above named were the grantors in this deed, and that the other devisee Henry Schloeffel, was the grantee. This deed was executed and delivered during the year 1935.

It is to be noted that by the terms of the will each one of the devisees received an undivided one-third interest in fee simple in the property of the testatrix, subject however, to being divested if either of them died leaving no issue. In that event, the portion belonging to the deceased devisee would go to the surviving devisees.

Anna Schaefer, one of the three devisees and one of the grantors in the deed dated in 1935, died in the year 1938, unmarried and leaving no issue. By the terms of the will her' interest in the property became devested at her death and passed to the survivors Henry Schloeffel and Nellie Carson. Nellie Carson one of the grantors in the deed of 1935, died in October, 1945, leaving two children surviving her, and also grandchildren. Inasmuch as Nellie Carson died leaving issue, her fee simple title was perfected, and the contingency of divestation became impossible.

The situation however is different with respect to the portion which passed to Anna Schaefer. It will be noted how-«ver, that she conveyed her interest in 1935. The deed was one of general warranty. Her interest became divested upon her death, and, by the terms of the will, passed to Henry and Nellie. They however, had conveyed the property three years prior thereto. The question then is presented as to who are entitled to her one-third under the circumstances? It is contended by the guardian ad litem of the minor defendants in this case that the one-half of the one-third would pass to the surviving issue of Nellie Carson inasmuch as it came to her after she deeded to her brother Henry one-third of the property which came to her directly from her mother. With this contention this Court cannot agree.

It is the policy in construing wills to see that the property vests at the earliest possible time, and therefore when it was divested by the death of Anna Schaefer in 1938, it vested in some person at that time. Nellie Carson was living at that time, and the one-half of the share of Anna Schaefer vested in Nellie Carson, and the other one-half in Henry Schloeifel.

The next question presented is whether or not the deed of Anna Schaefer and Nellie Carson executed in 1935 carried their contingent interest in the property under investigation. It is a generally accepted rule of law that a person owning a contingent interest in real estate may alienate that contingent interest in his or her favor, but they cannot alienate a contingent interest in someone else. When Anna Schaefer gave her deed in 1935, she had a contingent interest in the portion of Henry Schloeffel and Nellie Carson in case either of them should die not leaving issue. Anna Schaefer therefore could deed her contingent interest in the portion of the other two. Nellie Carson likewise could deed her interest in the portion of the other two devisees. This proposition • is supported by the author of the subject of Deeds contained in 13 O. Jur., Section 104, page 919. The author uses the following language:

“It is a well-established rule in Ohio that if a grantor having no title, a defective title, or an estate less than that which he assumes to grant, conveys with warranty or covenant of like import, and subsequently acquires the title or estate which he purports to convey, or perfects his title, such after acquired title or after-perfected title will inure to the benefit of the grantee by way of estoppel.”

The author then discusses various other circumstances under which this doctrine is applied, and cites many cases in support of that proposition.

The author in the article discussing Deeds, in 16 American Jurisprudence, at Section 338, page 629, uses the following language:

“It is well established that a deed may have the effect passing to the grantee a title subsequently acquired by the grantor. In other words, a grantor who executes a deed before purporting to convey land to which he has no title or to which he has a defective title at the time of the conveyance will not be permitted, when he afterwards acquires a good title to the land, to claim in opposition to his deed from the grantee or from any person claiming title under him.” * * *

The author then discusses at length circumstances under which the rule is applied, and we will not take the time to discuss the authorities quoted.

Counsel for the complainant has called our attention to a number of authorities, one of which is the case of Jeffers v. Lampson, reported in 10 Oh St page 102. This case supports the proposition set forth by the two authors herein-before quoted. That case holds that one having a contingent interest in land may deed away the contingency in his favor and he is precluded from setting up any claim to that property when the contingency is passed and after he has deeded away his contingent interest.

Without discussing the matter further it is the holding of this Court that by the will of Anna Maria Schloeffel each of the three surviving children took a fee simple estate in one-third of her property. This fee simple estate was subject to being divested upon the death, without issue, of any of the three devisees. Nellie Carson died with issue. That removed the possibility of the contingency arising by which her interest would be divested. Anna Schaefer died without issue, and therefore her interest passed one-half to Henry Schloeffel, and one-half .to Nellie Carson.

The Court further finds that the deed dated in 1935, by which Anna Schaefer .and Nellie Carson deeded their present interest, carried with it the contingent interests in their favor respectively. By the deed of 1935, and by virtue of the doctrine of after acquired interests as hereinbefore set forth, Henry Schloeffel acquired a fee simple estate in two-third’s of the property. The one-third interest in the property which came direct to him from his mother is subject to being divested if he should die without issue. Upon the death of Henry, without issue, the property would go to the issue of Nellie Carson, under the last paragraph of Item Five of the will of the testatrix.

Inasmuch as the plaintiff has asked for a Declaratory Judgment, we have found it necessary to construe the will of the decedent, and, inasmuch as we find that there is still some defect in the title of Henry Schloeffel we are unable to enter a Declaratory Judgment as prayed for.

The estate is closed and Henry Schloeffel became the owner as hereinbefore set forth. It has passed now to subsequent purchaser; the subsequent purchaser has agreed to sell it to another purchaser, and the controversy is one between individuals and not between an individual and an officer of this Court. The Court therefore has no jurisdiction to make any finding with reference to the contract.

The Court will therefore decline to enter a Declaratory Judgment as prayed for.


author: By HORNBECK, J.

text:
    CORRIVEAU, Plaintiff-Appellant, v. DEFENBAUGH et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4299.
    Decided October 21, 1949.
    Clifford L. Rose, Columbus, for plaintiff-appellant.
    Benoy & Sebastian, Columbus, for defendants-appellees.
   OPINION

By HORNBECK, J.

The appeal is on questions of law from a judgment dismissing plaintiff’s petition on the verdict of a jury.

On.the 14th of November, 1944, plaintiff, a passenger for hire, was with her child being transported from University Hospital, where she had been confined due to childbirth, to Circleville. The ambulance, operated by an employee of defendants, was travelling south on Rt. 23 in the daytime on a highway that was wet. Plaintiff, lying on a cot and her newborn baby in a bassinet, were riding in the rear compartment of the ambulance. When the ambulance reached a place in the highway in front of the Hartman farms, where there is an S curve, it left the highway as it entered the first turn, skidded, turned around and came to a stop on the west side of the highway facing east, the back part against an elm tree.

The petition set out two specific charges of negligence against the defendant:

(1) Failure to keep the ambulance under control.

(2) Speed that was greater than reasonable and proper, namely, 50 to 60 miles per hour.

The petition also charged negligence generally upon the doctrine of res ipsa loquitur. The nature and extent of the injuries were set out. The answer denied any negligence and averred that because of the condition existing in the highway the occurrence complained of in the petition was wholly accidental. There was also a denial that the plaintiff received injuries as alleged in her petition or any injuries. There was proof of some injuries for which we are required to say that the plaintiff would be entitled to some damages if it conclusively appeared that she had a right to a verdict. There was evidence tending to support both averments of the petition as to negligence and the defense including the theory of unavoidable accident.

The court submitted the cause to the jury on the two specific averments of negligence but refused to charge upon res ipsa loquitur, although requested so to do by counsel for plaintiff.

Both parties requested certain special charges before argument, some of which were given and some refused. The jury returned a verdict for the defendants.

Nine errors are assigned which we will state as we consider them.

The 2nd, 3rd and 4th assignments of error relate to the refusal of the trial judge to present to the jury by special charge or in the general charge the law as to the inference in favor of the plaintiff arising from the res ipsa loquitur rule and it is urged at length that inasmuch as the petition charged and the evidence supported res ipsa loquitur the court erred to the prejudice of plaintiff in refusing to submit it to the jury. This doctrine has been recently the subject of much oral, as well as written dissertation, including an opinion released by this court October 17, 1949, Pierce v. The Gooding Amusement Co., No. 4244, Franklin County. (55 Abs 556.) Without extended discussion we are satisfied to say that if the doctrine could be given application to the facts developed the question here presented has been determined by our own Supreme Court in the late case of Winslow v. The Ohio Bus Line Company, et al., 148 Oh St 101, and the first syllabus thereof, which reads:

“The doctrine of res ipsa loquitur is not applicable in a case where the petition and proof disclose that plaintiff had knowledge of the facts and circumstances showing the claimed negligence of defendant.”

To like effect are other cases cited in the opinion, particularly Loomis v. Toledo Rys. & Light Company, 107 Oh St 161, and the opinion of Judge Jones in this case, citing with approval 29 Cyc. 624:

“The maxim res ipsa loquitur relates merely to negligence prima facie and is available without excluding all other possibilities, but it does not apply where there is direct evidence as to the cause, or where facts are such that an inference that the accident was due to a cause other than defendant’s negligence could be drawn as reasonable as that it was due to his negligence.”

Also, Weller, Exrx., v. Worstall, 129 Oh St 596, 600.

A consideration of the testimony in this case is convincing that all the possible causes of the accident have been explored and developed upon the respective theories of the parties as so out in the pleadings. There is no necessity for invoking the benefit of an inference of the negligence of the defendants when the facts are available upon which the jury had the requisite information to make determination of the issue whether or not the defendants were negligent, thereby causing plaintiff’s injuries.

There are other reasons which could be advanced to support the action of the trial judge, the most cogent of which is that in probability the res ipsa loquitur doctrine had no application to the evidence developed. The mere fact standing alone, that an automobile skids on a highway and as a result thereof the plaintiff is injured does not require the inference that the accident would have occurred if ordinary care had been observed. Fink v. N. Y. Central Ry. Co., 144 Oh St 1; Ashbrook v. Cleveland Ry. Co., 33 Abs. 497; Glenny v. Wright, 53 Oh Ap 1.

The first assignment of error is,

“The refusal of the trial judge to withdraw from the consideration of the jury that part of the answer which set up unavoidable accident as a cause for the skidding and impact of the ambulance against the tree.”

The claim of defendants was that there was oil and mud on the highway at the place where the automobile began to skid which was the cause thereof. There was some testimony that there were little pieces of sod and some scattered spots of oil on the west side of the highway near the place where the automobile skidded, about 150 feet north of and at the approach to the curve. The driver also testified that after the accident he saw the pieces of sod and the drops of oil which were in his lane of travel at the skidding point. It is true that one witness said that he did not observe any marks of any kind in the dirt which he observed on the highway and this is strong probative testimony that no wheel of the ambulance passed through the sod and oil. However, the trial judge would not have been justified in denying to the defendant the right to go to the jury on the averments of the answer that the material in the highway was a causative factor in the skidding of the ambulance. It may not be said that it had no probative effect whatever. Its weight for the jury.

The eighth assignment of error is that,

“The court erred in the exclusion of evidence.”

This relates to the denial to plaintiff’s counsel to have answer made to two of certain questions propounded to the witness, Stonerock. These related to the manner in which counsel secured the name of Mr. Stonerock as a witness and his age at the time of certain convictions of criminal offenses which the record had developed. The former was of little consequence and the court could have accepted or denied the testimony without any prejudice to the cause of the plaintiff and the same may be said of the refusal to permit an answer to the last question. There was enough factual development in the testimony which was received to give the plaintiff the benefit which she would have obtained had the answer been made and had it appeared that Stonerock was a young man when he was convicted of the offenses. This fact had been developed and could have been presented to the jury in argument just as effectively as if the witness had been permitted to answer the specific question.

The 5th and 6th assignments are directed to the weight or sufficiency of the evidence. The 7th, to the effect that the verdict appears to have been returned under influence of passion and prejudice, and the 9th that,

“The court by comment during the trial of the cause abused his discretion.”

We are satisfied to hold generally that no one of these assignments is well made. There was evidence from which the jury had the right to conclude that the defendant was not negligent in either particular asserted by the plaintiff and that the collision occurred by reason of unavoidable accident. There is nothing in the record, nor in the verdict of itself, to indicate passion or prejudice on the part of the jury and the questions of the trial judge were not improper nor do they indicate any favoritism for the defendants or prejudice against the plaintiff.

The judgment will be affirmed.

MILLER, PJ, and WISEMAN, J, concur.


author: Per CURIAM:

text:
    HINSMAN, Plaintiff-Appellee, v. UTHOFF, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21553.
    Decided December 5, 1949.
    Schaefer & Schaefer, Cleveland, for plaintiff-appellee.
    Frank, Gering & Gering, Cleveland, for defendant-appellant.
    (GUERNSEY, PJ, MIDDLETON, J, of 3rd district: DOYLE, J, of 9th district sitting by designation in 8th district.)
   OPINION

Per CURIAM:

In Case No. 429875 in the Court of Common Pleas of Cuyahoga County a judgment was rendered against Gilbert Uthoff in the sum of $990.12, and judgment in the same amount was rendered against Ruth R. Hinsman. There is a recital in the judgment entry therein:

“That as to the judgments rendered against Gilbert Uthoff and Ruth R. Hinsman, the said Gilbert Uthoff is as between himself and the said Ruth R. Hinsman the principal, and Ruth R. Hinsman, the surety.”

It will be noted that separate judgments in the same amount were rendered against Uthoff and Hinsman, and that it is prescribed in the judgment entry that it is as to them, and not as between them and the Superintendent of Banks, that the relationship of principal and surety exists as between them.

Under the provisions of §710-75 GC, in effect at the time said judgment was rendered. Hinsman was liable upon the claim .for which said judgments were rendered for such an amount as Uthoff failed to meet on such liability.

Separate judgments having been rendered for such liability payment by Uthoff of the entire amount owing on such liability was the only manner or method by which Hins-man could be relieved of liability.

The court had jurisdiction of the subject-matter and the parties in the action in which said judgments were rendered so it is immaterial whether the court had authority to render separate judgments, as above set forth, as error proceedings were not prosecuted from the judgments.

Under the judgments as rendered, the Superintendent of Banks had authority to enter satisfaction of, and release and discharge either of the separate judgments without releasing or discharging the other, either in terms or by operation of law. The only duty imposed, upon the Superintendent, in such a case was to allow credit on the liability to the extent of the payment made for the release and discharge of such judgment.

This judgment fixed the rights of the parties thereto.

Ruth R. Hinsman was not a party to the compromise agreement thereafter entered into between Gilbert Uthoff and the Superintendent of Banks and said agreement does not purport to and did not have the effect of releasing Ruth R. Hins-man from the operation of said judgment or of changing in any way the relationship of principal and surety existing between Uthoff and her as to the said judgment. The written instrument of satisfaction of judgment executed pursuant to said compromise agreement and entered upon the journal of the common pleas court in case No. 429875 does not purport to and does not release Ruth R. Hinsman from the operation of said judgment or in any manner affect the relationship of Uthoff and her as principal and surety to said judgment as prescribed therein.

Said instrument of satisfaction of judgment contains a provision:

“That this satisfaction shall not in any way be considered as waiving, releasing or affecting the liability of any person or persons arising out of the ownership of the stock which is the subject matter of the action.”

This provision had the effect of preserving in every respect the judgment against Ruth R. Hinsman which she was thereafter compelled to pay in her capacity as surety to Uthoff as principal.

Even if said compromise agreement and/or said instrument of satisfaction had prescribed that Uthoff was thereby released from reimbursing Ruth R. Hinsman for any amount she might pay on said judgment in her capacity as surety, said provision would have been ineffective to accomplish that purpose as she was not a party thereto.

Having paid said judgment in her capacity as surety Ruth R. Hinsman is entitled to reimbursement as prayed for in her petition.

For the reasons mentioned the judgment of common pleas court is affirmed. Exceptions noted.

GUERNSEY, PJ, MIDDLETON, J, DOYLE, J, concur.*