author: By DAVIES, J.

text:
    ROTHSCHILD, Estate of, In re.
    Probate Court, Hamilton County.
    No. 158641.
    Decided March 1, 1948.

      Nichols, Wood, Marx & Ginter, Cincinnati, for applicants.
    Clark & Robinson, Cincinnati, for James R. Clark, executor of estate of Rose Rothschild, deceased.
   OPINION

By DAVIES, J.

In this case the court is asked to determine under what circumstances a legatee in an estate in Ohio is entitled to interest on a pecuniary bequest. The following questions are presented for consideration:

1. When, and from what date, is a legatee entitled to interest on a general pecuniary legacy?

2. When, and from what date, is interest payable on a testamentary annuity?

3. In those cases in which interest is payable on pecuniary bequests or annunities, does the bringing of a suit to contest a will, either by a legatee or some other interested party, which delays distribution by a personal representative to a legatee, stay the running of interest on such bequest or annuity during the pendency of said suit?

The parties have agreed upon the following facts:

“It is hereby stipulated between James R. Clark, executor of the estate of Rese Rothschild, deceased, and the applicants, Gertrude Ehrman, Myra Young, Helen Young Pollock, Pearl Rothschild Schwab, Milford E. Abel, administrator of the estate of Jane Schwab Abel, and James Clemenger, administrator of the estate of Elise Schwab Clemenger, that in connection with the application heretofore filed by said applicants for an order requiring said executor to pay their legacies together with interest, the following facts may be considered to be true. All parties reserve the right, however, to object to the relevancy or materiality of any said statements:
“1. Rose Rothschild died April 23, 1945.
“2. On May 10, 1945, the will and codicils of Rose Rothschild were admitted to probate by this court, and on said date James R. Clark was appointed and qualified as executor of her estate.
“3. Under said will and codicils said applicants were bequeathed legacies as follows:
“ ‘Gertrude Ehrman, $100.00 per month during her life.
“ ‘Myra Young, $5000.00.
“ ‘Helen Young Pollock, referred to in the will as Helen Young, $5000.00.
“ ‘Pearl Rothschild Schwab, $10,000.00.
“ ‘Jane Schwab Abel, who was referred to in said will as Jane Schwab, and who is now deceased, the applicant, Milford E. Abel, being administrator of her estate, $5,000.00
“ ‘Elise Schwab Clemenger, who was referred to in said will as Elise Schwab, and who is now deceased, the applicant, James Clemenger, being the administrator of her estate, $5,000.00.’
“4. The heirs-at-law of Rose Rothschild, consisted of a brother and the descendants of four sisters. The applicants, Gertrude Ehrman and Myra Young, are both daughters of one of said deceased sisters, and in the event of intestacy, each of them would have been entitled to a one-fifteenth (l/15th) share of the estate of Rose Rothschild.
“5. Helen Young Pollock is the daughter of Myra Young, and grandniece of Rose Rothschild, but was not an heir-at-law of Rose Rothschild, and in the event of the intestacy would not have been entitled to any share of her estate.
“6. Pearl Rothschild Schwab is the stepdaughter of Rose Rothschild, though referred to in the will as a daughter, but was not an heir-at-law, and, in the event of intestacy, would not have been entitled to any share of the estate of Rose Rothschild.
“Jane Schwab Abel and Elise Schwab Clemenger, both now deceased, were the daughters of Pearl Rothschild Schwab, and hence were not heirs-at-law of Rose Rothschild, and in the event of her intestacy, would not have been entitled to any share of her estate.
“7. On November 5, 1945, an action was commenced in the Common Pleas Court of Hamilton County, Ohio, Case No. A-95251, to contest the will of Rose Rothschild. The action was brought, as plaintiffs, by all of the heirs-at-law who had not been given legacies under the will. The attorneys for the plaintiffs, were the firms of Kunkel and Kunkel, and Paxton and Seasongood. Subsequently, one of the heirs-at-law who had been given a legacy, Milton Ullman, joined in said suit as a party plaintiff, being represented by the firm of Rendigs and Pry.
“8. None of the applicants were parties plaintiff in said will contest suit. All of them were named as defendants. None of them filed an Entry of Appearance or other pleading.
“9. The said Pearl Rothschild Schwab, who was represented by the firm of Nichols, Wood, Marx & Ginter, had filed an action in the Common Pleas Court of said county against James R. Clark as executor oí the estate of Rose Rothschild in the sum of One hundred thousand ($100,000.00) dollars, which she claimed to be due her from the estate for services rendered the decedent.
“10. Said will contest case was postponed several times at the request of the attorneys for the plaintiff. The attorneys for Pearl Schwab, in her action against the estate of Rose Rothschild, had requested the executor of the estate of Rose Rothschild to permit her case for services on behalf of Pearl Schwab to be tried after the will contest case, and the executor had agreed to this request and had consented that the will contest action be tried first.
“The attorneys for Pearl Schwab were notified each time that the attorneys for the plaintiffs in the will contest action requested continuances; were notified of the respective dates set for the trial of the will contest action, and did not object to said continuances. Said will contest action finally came"to trial on March 31, 1947.
“11. In the course of said trial the applicants, Pearl Rothschild Schwab and Helen Young Pollock were called to the witness stand by the attorneys for the plaintiffs, who stated that they wished to cross-examine them. The attorneys for the executor objected to this on the ground that if counsel for plaintiffs called these witnesses, they were his own witnesses. This objection was overruled by the trial judge who ruled that since Pearl Rothschild Schwab and Helen Young Pollock were defendants, they could be cross-examined, to which ruling counsel for the executor excepted. These parties were also questioned by James R. Clark, attorney for the executor. None of the other applicants were in Cincinnati during the course of the trial.
“12. At the time of the trial and at the present time, all of the applicants were and are represented by the firm of Nichols, Wood, Marx & Ginter as attorneys, and said attorneys were present in the court room throughout substantially all of said will contest action, and the attorneys for the applicants sat at counsel table next to, and at times conferred and consulted with, the attorneys for plaintiffs.
“13. On April 11, 1947, the plaintiffs and the defendants in said will contest agreed upon a compromise settlement, and a consent verdict was thereafter entered upholding the will. The plaintiffs filed a motion for a new trial, but when the settlement was consummated, their attorneys endorsed an entry overruling said motion. Said entry was placed of record on April — 1947, and no appeal was ever taken therefrom.
“14. With the consent of the attorneys for the applicants, the amount of the agreed settlement was paid by'the executor to Kunkel and Kunkel, the attorneys for the plaintiffs in the will contest action, and was by them divided among"all of- the heirs-at-law, other than Robert Ullman, a'nephew-of said decedent, whb waived any part of the amount paid 'in' settlement, said payments to the other heirs-at-law b'eing made in the proportions agreed upon among them.
“The applicants, Helen Young Pollock, Pearl Rothschild Schwab, Milford E. Abel, administrator of the estate of Jane Schwab Abel, and James Clemenger, administrator -of "tlié estate of Elise Schwab Clemenger, if permitted- to testify, would testify that they received no part of said settleñient money.
“If permitted to testify, the applicants Gertrudé Ehrman and Myra Young would testify that they received suéh shares of .the settlement money as they would have received if Rosé Rothschild had died intestate as to said money, except as-their shares were increased by the aforesaid waiver of Robert Ullman.
“15. As of September 25, 1947, the executor paid • to' -the applicants the principal amount of their legacies, less Ohio inheritance tax. The executor paid to Milford E. Ab'él, -and James Clemenger, as administrators, interest on the legacies of Jane Schwab Abel and Elise Schwab Clemenger, computéd from May 10, 1946 (one year after the appointment of -tfíé executor) to said September 25, 1947. No interest has been paid on the legacies of any of the other applicants.
“The legacies of the applicants were paid as aforesaid,'with the agreement of the executor that such payment and thé receipt thereof, should be without prejudice to the right's of the applicants to such interest as the Court might find them entitled to receive for time prior to September 25, 1947.”

The rule adopted by the ecclesiastical courts, which became the settled rule of the common law, requires the payment of interest after one year from the death of the testator. But in states in which a statute allows one year from the granting of letters it is generally held that legacies draw interest only after the expiration of a year from the -issuance of the letters. Woodward’s Estate v. Holton, 78 Vt. 254, 62 Atl. 718. In this case the court reasoned that it was the intention of the testator that settlement of his estate would be* made in the usual course, and that the value' of a bequest would be lessened by a postponement of payment without interest, on the .happening of a great variety of contingencies -which the testator cannot be supposed to have in contemplation. *Whe'n this takes place, the scheme of the ordinary will is- reversed and the more favored bequests are lessened in-valué-to'-increase the remainder. The court held that pecuniary legacies draw interest after one year from the death of the testator, unless the will provides otherwise, regardless of the pendency of a contest delaying the settlement of the estate and the participation in that contest by the legatees claiming interest. The same rule is found in O’Leary, et al. v. Smock, 95 N. J. Eq. 276, 119 Atl. 23.

In Kent, Adm. v. Dunham, et al., 106 Mass. 586, the court held that a pecuniary legacy carries interest from the time when it is due by the terms of the will or the rules of law, although the executor has not at that time assets available for the administration of the estate and is prevented from administering by impediments interposed by the legatee, and although the legatee has made no demand for the legacy. See also Welch, et al. v. Adams, et al., 152 Mass. 74, 25 N. E. 34, and Evelyn M. D. Claflin v. Artemas H. Holmes, executor and trustee, 202 Mass. 157, 88 N. E. 664.

A legacy bears interest from the end of the first year after qualification of the personal representative, although the fund out of which the legacy is payable is wholly unproductive, or there is delay in payment of the legacy due to litigation over validity of will, or obstacles are imposed by a legatee, or assets are insufficient for payment of interest. Domestic and Foreign Mission Society v. Crippled Children’s Hospital, et al., 176 S. E. 193, 163 Va. 114. An unconditional general pecuniary legacy is a gift of both principal and interest, and interest is not given as a penalty for the executor’s negligence, but as an incident to the legacy. State Bk. of Chicago v. Gross, 344 Ill. 512, 176 N. E. 739. One bequeathed a money legacy is in the same position as a creditor and is entitled to interest for such time as he is kept out of his payment, interest not depending upon demand or default; and even if the delay is caused by the legatee’s contest of the will, it does not affect the payment of the interest as of one year from the death of the testator. In re Brandon’s Estate, 164 Wis. 387, 160 N. W. 177. Interest is payable on a general pecuniary legacy from the time when the same is due and payable until the payment is made, although the delay is caused by suit of a legatee to contest, the will. A residuary legatee is postponed until specific legacies are paid and the loss which the residuary legatee suffers is no more than the testator expressly provided for by preferring the general pecuniary legatees to the residuary legatees. Kostires, et al. v. Alemis, et al., 328 Ill. App 389, 66 N. E. 2nd 183.

The weight of authority in this country also supports the view that interest upon arrearages of annunities is recoverable from the time the installments of the annuity become due and payable. 2 Am. Jur. 829. Ohio, in the case of Gray, et al., executors v. Case School of Applied Science, 62 Oh St 1, 56 N. E. 484, recognized the general rule outlined above that a general legacy should bear interest at the legal rate from the end of the first year from the testator’s death unless it should be apparent that the testator did not so intend, or unless the Legislature has provided for some such payment of interest from a different time. The court held that Ohio had provided under revised statutes, §§6062, 6040, 6106 and 6109 GC, for a different time, namely, that under the provision of those statutes, a general legacy bears interest at the legal rate from the end of the first year from the date of the notice of the appointment of the executor, unless it be clearly apparent that testator did not so intend. See also Webster v. Bible Society, 50 Oh St, 1, 33 N. E. 297.

While the contest of a will, pending its determination, is an impediment to payment of a legacy thereunder,. it does not stop the running of interest on the legacy from the date it would otherwise have become payable. Myra A. Ebersole v. David Cole, executor, 19 N. P., N. S. 507. A pecuniary legacy bears interest from the end of the first year from the granting of letters testamentary unless it be clearly apparent that the testator did not so intend. Gudger, executor v. McKim, et al., 9 O. O. 329. Sec. 10509-85 GC, provides that so far as he is able, the executor or administrator shall collect the assets of the estate within nine months after the date of his appointment. Sec. 10509-138 GC, provides that, except actions on certain claims, no executor or administrator shall be held to answer to the suit of a creditor of the deceased or other interested party until after the expiration of nine months following his appointment or the further time allowed by the court for the collection of the assets of the estate. Sec. 10504-55 GC, provides that the election of a surviving spouse shall be made within one month after the service of the citation to elect, or if no citation is issued, within nine months of the appointment of the executor or administrator.

We conclude that in Ohio a general legacy bears interest at the legal rate from the end of nine months from the date of the issuance of letters of appointment from the Probate Court to the executor, unless it be clearly apparent that the testator did not so intend, and that a legatee is entitled to such interest from said date, unless the will provides otherwise, regardless of the pendency of a contest delaying the settlement of an estate and the participation in that contest by the legatees claiming interest. Interest upon arrearages of annuities is recoverable from the time the installment of annuities became, due and payable, which time shall be determined from the intent of the testator as shown by the terms of the will which created the annuity.

The following beneficiaries referred to in the above stipulation of facts, therefore, are entitled to simple interest at the rate of 6% per annum from February 10, 1946, upon,the sums following their respective names: •

Myra Young, $5,000.00.

Helen Young Pollock, also known as Helen Young, $5,000,00.

Pearl Rothschild Schwab, $10,000.00. ,

¡.Milford E. Abel, administrator of the estate of Jane Schwab Abel, also known as Jane Schwab, $5,000.00.

James Clemenger, administrator of the estate of Elise Schwab Clemenger, also known as Elise Schwab, $5,000.00.

.In the instant.case, the testatrix, by a codicil to her will, provided an annuity for Gertrude Ehrman in the following language:

“I give and bequeath to my niece Gertrude Ehrman the sum of Ome Hundred ($100.00) Dollars per month to be paid to her by the trustee named in my original will dated February, 11, 1936, and said $100.00 per month payments to be paid by said trustee to. the said Gertrude Ehrman each and every month during her life, payments to cease upon her becoming deceas.ed.”

We find it to have been the intention of said testatrix that the payments of $100:00 per month to Gertrude Ehrman were to be made by the trustee named in the will and not by the exec.utor of the estate. Under the Ohio law, the executor was not- required to make distribution to the trustee until nine months after the date of his appointment, and the beneficiary was not; therefore, entitled to interest upon arrearages of the annuities of $100.00. per month until on and after February 10, 1946.

Gertrude.Ehrman, therefore, is entitled to recover from, the executor simple interest at the rate of 6% per annum upon each monthly installment of $100.00 beginning on February 10, 1946, from the time it is due and payable to her until such payment is made to her.


source: Caselaw Access Project

author: By MILLER, J:

license: Public Domain

text:
    EISENBERGER et, Plaintiff-Appellant, v. ZIEHLER et, Defendants-Appellees.
    Ohio Appeals, Second District, Montgomery County.
    No. 2156.
    Decided November 21, 1951
    Kusworm & Kusworm, Dayton, for plaintiff-appellant.
    Clarence J. Stoecklein, Robert J. Stoecklein, Dayton, for defendants-appellees.
   OPINION

By MILLER, J:

This is a law appeal from a judgment of the Common Pleas Court finding on the issues joined in favor of the defendants. The action was one wherein the plaintiff sought to recover $10,000.00 commission for the alleged procuring of a purchaser ready, willing and able to purchase the defendants’ business and real properties, upon the terms and conditions stipulated in the defendants’ written offer.

To the petition the defendants filed a general denial. A jury trial was waived and the cause was submitted to the Court. The judgment entry recites that the court “* * * finds on the issues joined for the defendants. * * *” It will be noted that the Court’s finding is general, there being no separate finding of conclusions of law and fact. Such a general finding connotes that the trial court found for the defendants on all disputed factual questions. The only error urged is that the judgment is against the manifest weight of the evidence.

The record discloses a conflict in the testimony as to the terms of the plaintiff’s parol contract of employment, that is, whether he was required only to procure a ready, willing and able purchaser or whether he was to secure an enforceable sales contract. If the employment was to procure a contract for the sale of the property the plaintiff must fail, for there is no evidence in the record that the plaintiff ever secured a written acceptance of the defendants’ written offer to sell said real estate. As the subject matter of the purported contract comes within the statute of frauds a parol acceptance of the defendants’ offer would not create a contract which is legal and enforceable. Under the defendants’ theory of the contract the commission would not be earned because of the plaintiff’s failure to procure a sale or the execution of ah enforceable sales contract.

In the case of Prencsil v. Golaska, 56 Abs, 90, the court held:

“1. In order that a real estate broker may recover a commission from his principal for the sale of real estate, where the sale is not consummated, such broker must not only procure a purchaser ready, willing and able to complete the purchase, but either procure the execution of an enforeible contract of purchase by the proposed purchaser; or bring the vendor and purchaser together so that the vendor may procure such a contract.
“2. Such a contract of purchase as above to be enforeible must be in writing.”

Also in the case of Patton v. Alessi, et al., 42 Oh Ap, 91, the Court held:

“In order that a real estate broker may recover a commission from his principal fqr the sale of real estate, which sale was not consummated, it is necessary that he should not only procure a purchaser ready, able and willing to complete the purchase but procure the execution of an enforeible contract.”

See also Hrovat v. Krall, 28 Oh Ap 46; Pfanz v. Hamburg, 82 Oh St 1; McKay v. Latimer, 3 Abs 23; Harris v. Manhattan Real Estate Co., 1 Abs 616.

In considering the plaintiff’s theory that he was only to procure a purchaser ready, willing and able to purchase the defendants’ property at the defendants’ offered price in order to have earned the commission, there is again a conflict in the testimony, the defendants’ agents testifying that they were never informed that the plaintiff’s client was ready, willing and able to purchase the property prior to the revocation of the defendants’ offer to sell. Under either theory of the plaintiff’s employment, by resolving the conflicting testimony in favor of the defendants and which we are required to do, the judgment of the trial court would have to be sustained. For us to discuss in detail the testimony of the various witnesses would serve no useful purpose here, as we are satisfied that the judgment must be sustained for the reasons heretofore given.

After carefully examining the entire record it is our conclusion that the judgment is neither contrary to law nor against the manifest weight of the evidence.

Finding no error in the record, the judgment will be affirmed.

HORNBECK, PJ, WISEMAN, J, concur.


author: By CROSSLAND, J:—

text:
    MOYER, In re claim of: MOSAIC TILE COMPANY, Appellant, v. BOARD OF REVIEW, BUREAU OF UNEMPLOYMENT COMPENSATION et, Appellees.
    Common Pleas Court, Muskingum County.
    No. 38621.
    Decided February 6, 1953.

      . Zinn & Tate, Zanesville, R. Donald Cultice, Columbus, for appellant.
    C. William O’Neill, Atty Geni., John W. Hardwick, Asst. Atty. Geni., Columbus, for appellees.
   OPINION

By CROSSLAND, J:—

The appeal to this Court from the decision of the Board of Review of the Ohio Bureau of Unemployment Compensation disallowing appellant’s appeal from the determination oí a referee’s decision affirming the administrator's determination favorable to the inclusion of wage credits of a former employe with her former employer by whom she was discharged for just cause involves no controversy of fact or reasonableness of order relating to established facts but solely a question of law, which was the question of law raised by the employer, appellant herein, as shown by the Transcript of Proceedings before the Referee, the employer’s contention being that “the base period, wages not previously used to pay benefits prior to this particular separation should be excluded.”

It is conceded by appellee that, in as much as said former employee, Dorothy Marie Moyer, was discharged by appellant with just cause May 18, 1952, she was disqualified thereby from unemployment compensation relative thereto.

It is conceded by appellant that the Administrator’s determination of maximum benefits of $598.00 for said employe’s benefit year beginning February 11, 1952, pursuant to §1346-4 GC, became final March 9, 1952.

The law question relates to the inclusion or exclusion of the discharging employer’s base period wage payments with relation to the discharged employe’s subsequent unemployment compensation payment eligibility after subsequent employment by another employer within the ensuing benefit year from February 11, 1952.

This question involves the intended application of §1345-8(e) GC, which, in effect, provides that any wages paid to an employe during his base period, who is discharged with cause, shall be excluded from the computation in determining total benefits payable and that no benefits shall thereafter be paid based thereon, excepting for the general purposes otherwise of determining the validity of benefit rights and the statutory computation of weekly benefit amounts.

As this Court understands the foregoing provision of law it appears to express clearly the legislative intent that, while, on the one hand, base period wage payments of a discharging employer to a former employe who was discharged with cause will not affect the mode or manner by which to consider eligibility to unemployment compensation or the amount otherwise due, on the other hand, in so doing account cannot be taken or benefit had against the credit of such wages paid by a faultless former employer.

It is a familiar and well settled principle of law that related sections of statutory law should be construed together in order to give full effect to legislative intent in their enactment.

Relating the provisions and purpose of §1346-4 GC to more than a dependence upon compliance by a claimant with the equally effective provisions of other sections, such as §1345-6(c) and §1345-8(e) GC, is to undertake to ascribe legislative intent to thereby negate other express statutory enactment equally determinative of the benefit status of a particular claimant and to give controlling finality to the creation of a merely conditional base wage payment period, wholly unwarranted by any declaratory language of that sort relative to any such intended effect of said §1346-4 GC.

“A code of statutes relating to one subject is presumed to be governed by one spirit and policy, and intended to be consistent and harmonious, and all of the several sections are to be considered in order to arrive at the meaning of any part, unless a contrary intent is clearly manifest.” (City of Cincinnati v. Guckenberger, 60 Oh St, 353, 1st syllabus.)

Sec. 1346-4 GC merely sets up the base for consideration, not final determination, of an employe’s subsequent benefit determination. Otherwise, there would have been no occasion at all for admitted legislative recognition of employe ineligibilities and there would be no purpose in other related statutory modifying provisions.

The sense of what this Court considers the legislature plainly provided and intended is well illustrated in the example of the facts of the instant case. Excepting for the fact that Dorothy Marie Moyer failed to apprise her employer, The Mosaic Tile Company, at the time of her continuing absence that it was unavoidable and presumably thereby inevitably was discharged — at any rate, she was discharged with just cause, excepting for which there was no known or shown occasion otherwise for her employment to terminate — it is a reasonable inference that in the normal and natural course of events of satisfactory service she would have continued to work there and been paid for her services as theretofore by her former employer, The Mosaic Tile Company. Why, then, should said Company later be charged for her not working as a result of some possible later unemployment on her part elsewhere, beyond its control, even though it may very likely have had available work itself for her had she merited continued employment by it?

.“The burden of proof is upon the claimant to establish the right to unemployment benefits under the unemployment

compensation law of Ohio.” (Shannon v. Bureau, 155 Oh St, 53, 1st syllabus.)

And when Judge Middleton, on page 59 of his opinion, supra, said that:

“The claimant must act in good faith and make reasonable effort to find suitable employment,”

he might very well in this situation have said:

“The employee must act in good faith and make reasonable effort to retain suitable employment,” thereby obviating attempted recourse to benefit payments unintended at the expense of a faultless and otherwise possibly continuing employer.

In short, this Court does not consider that the legislature intended, without language so stating, that a faultless employer should afterward be liable for the unemployment of a faulty former employe, discharged with cause, but that, on the contrary, it plainly intended, as it accordingly provided, that where the fault was that of the employe “no benefits shall thereafter be paid based upon such wages” formerly “paid to such individual during his base period by the employer,” and that is why the legislature in its enactment of §1345-8(e) GC expressly and specifically provided that “any wages” so paid “shall be excluded from the computation in determining total benefits payable.”

Accordingly, the determination of the administrator and the affirming decision of the Referee and disallowing appeal therefrom of the Board of Review were each and all unlawful and against the manifest weight of the evidence with respect to the effect of §1346-4 GC and the application of §1345-8(e) GC, and final judgment is entered for appellant in accordance with the modification that no benefits shall be paid to claimant-appellee, Dorothy Marie Moyer, on or after June 1, 1952, based upon wages paid by appellant, The Mosaic Tile Company, during her base period ending February 8, 1952, or thereabouts.

Exceptions are granted to all appellees.


author: Per CURIAM:

text:
    ATLAS METAL COMPANY, Plaintiff-Appellee, v. NICKEL PLATE ROAD et al, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21918.
    Decided December 4, 1950.

      H. P. Fetterman, Cleveland, for plaintiff-appellee.
    Miller & Hornbeck, Cleveland, for defendants-appellants.
    (PHILLIPS, J, of the Seventh District; GUERNSEY, J, and MIDDLETON, J, of the Third District, sitting by designation in Eighth District.)
   OPINION

Per CURIAM:

Plaintiff’s petition failed to state a cause of action against the initial carrier under the provisions of §8994-1 GC, in that there was no allegation that plaintiff was the holder of a receipt or Bill of Lading; that the carrier received the shipment at a point within the state of Ohio for transportation to another point therein. Therefore, the Court erred in not sustaining the motion of defendant, Nickel Plate Railroad Company, for judgment upon the pleadings.

However, such defendant waived that error by not objecting to the admission of testimony by the plaintiff tending to prove that plaintiff was the holder of a receipt furnished it by the initial carrier and that such shipment was received by the carrier at one point in Ohio for transportation to another point therein curing such deficiencies in the allegations of the petition.

The fact that plaintiff filed its petition for recovery of damages against both the initial carrier and the terminal carrier which was permissible only at Common Law and not permissible under the provisions of §8994-1 GC. did not constitute an election of remedies by plaintiff precluding it from dismissing its petition as to the terminal carrier and seeking relief from the initial carrier pursuant to the provisions of that section. An election of remedies in cases of this character precluding plaintiff from proceeding under the provisions of §8994-1 GC, against the initial carrier would become effective only when relief by way of the original remedy sought i's on trial either granted or denied by the Court. ..

There is competent, credible and substantial- evidence supporting the finding and judgment of trial court; in¡ favor of plaintiff and such finding and judgment is neither contrary to law nor against the-manifest weight of the -evidence.

The judgment of the trial court is affirmed. -Exc. O; S. J.


author: By BELL, J.

text:
    BROWN, Plaintiff, v. POLLARD, Sr. et, Defendants.
    Common Pleas Court, Madison County.
    No. 19528.
    Decided May 27, 1953.
    Dale D. Rapp, Columbus, for plaintiff.
    Benoy- & Sebastian, Columbus, for defendant.
   OPINION

By BELL, J.

This, cause came, on to be heard, on the defendant’s motiop to strike the first, third and fourth specifications, of negligence from plaintiff’s petition. The matter was submitted on the memoranda of counsel!. ..

.This question of “specifications of negligence”.is, one of considerable interest to this Court and .a questi.on on .which it has expressed itself on several occasions. . . . ' f....

Counsel for plaintiff has stated in his memorandum that “it has long been a form of good pleading .to separately, state and number different specifications of negligence.” This Court cannot.agree that it constitutes good pleading. I reálize that due to the tolerance by courts, both trial and review,' of .'the practice of setting out specifications of negligence they nave received some measure of respectability in pleading, to the extent even that they are included in some of the form books. But I am also firmly convinced that in the vast majority of cases in which they are used they are unnecessary and in many cases improper. Such specifications can be intended for but one of two reasons: either they are designed to influence, perhaps prejudice, a jury; or they are intended to inform the Court of what he is expected to charge. If for the former reason, they are improper; if for the latter, they are in most cases unnecessary.

This Court is gratified to learn that his crusade to confine pleadings to a statement of facts “constituting a cause of action .... in ordinary and concise language” has been joined by Judge G. H. Birrell of the Common Pleas Court of Trumbull County, who said in the case of Capron v. Frost, Trumbull County case No. 51067:

“I have been interested in this opportunity to search the cases in text books and determine, for myself, the value of specifications of negligence, and have come to the conclusion that while the Court very definitely should appreciate the thoughtfulness of the plaintiff in detailing the manner in which the defendant is alleged to have been negligent, and in referring to the statutes which it may be claimed the defendant has violated, yet such detail is unnecessary, and may be stricken from the pleading at the request of the defendant. A statement of fact constituting the cause of action in ordinary and concise language is sufficient.”

What do the specifications add to the petition in this case? Plaintiff, after alleging that he had stopped at an intersection in response to a stop sign, alleges that the defendant ran into and collided with the rear end of the plaintiff’s automobile. Then his first specification of negligence is that the defendant did so without giving the plaintiff any warning of his intention to do so? Is the plaintiff alleging a wilful tort? If so, it certainly should not be labelled a specification of “negligence.” The ultimate question of negligence here is whether or not the defendant was driving at such speed that he could stop within the assured clear distance ahead. If he could not do so, all the signals or warnings in the world would not have prevented the accident and the failure to warn is not the ultimate fact of negligence.

The third and four specifications are that defendant did not have his automobile under control and did not keep a look-out ahead. After alleging that the defendant ran into and collided with the rear of plaintiff’s automobile, is it not obvious that he did not have his car under control and that he did not keep a look-out ahead? The fact of collision alone should be sufficient answer to such interrogatories, unless again it is contended that the defendant acted wilfully.

Specifications of negligence such as appear in this petition (although no more so here than in the vast majority of cases) are an open invitation to opposing counsel to move to strike them. And thus they become a gateway through which enters much of the criticism of “too much delay” that is often directed, with considerable justification, at the legal profession.

The motion to strike will be sustained.

Counsel for defendant may prepare an entry accordingly, noting plaintiff's exceptions and leave to amend within thirty days, and submit the same to counsel for plaintiff and to the Court for approval.


author: By THE COURT.

text:
    HALLAM, Plaintiff-Appellant, v. KAUFFMAN, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4367.
    Decided February 9, 1950.
    B. F. Hughes, Columbus, for plaintiff-appellant.
    Lucas & Lucas, Columbus, for defendant-appellee.
   OPINION

By THE COURT.

The appeal is on questions of law from a judgment of the Common Pleas Court dismissing appellant’s petition which judgment was entered on a verdict of a jury. Motion for new trial was filed and overruled.

The action was for a breach of a contract whereby the defendant agreed to make certain repairs on the roof and guaranteed all plumbing to be in repair in a dwelling which defendant had sold to the plaintiff and also for damages claimed to hgve resulted by the failure of the defendant to remove certain of his personal property from a garage- from the premises which was sold. The answer was a general denial and a special defense that the plaintiff had by. written receipt .released., the defendant from any liability under the contract to repair the premises.

Ño reply was filed to the answer.

The first assignment asserts that the defendant did not prove that Mrs. Hallam, who signed the receipt set up in the special defense, was the agent of the plaintiff and authorized to act for him. This contention fails because the contract to purchase the real estate in question was signed jointly by the plaintiff and Margaret A. Hallam, his wife. Further, all the-facts were developed respecting the conduct of the parties to the action in the real estate transaction. The court did not charge specifically on the question of agency and at no time during the trial was it claimed that Mrs.' Hallam was not-authorized to act for the purchaser. •

---The second assignment is that the plaintiff was surprised in the production of receipt by the defendant in settlement of any claim that the plaintiff might have by reason of the failure of the defendant to make the repairs.. None of the elements of surprise is found in the developments respecting this receipt. It was pleaded in the answer which put the plaintiff on notice that it would be asserted as a- defense at the time of trial. If there was any doubt in the mind of the plaintiff as to any essential particulars relative to the receipt it could have been reached by a motion, to make the special defense definite and certain.

The third assignment is misconduct of juror No. 1. There is nothing whatever set out in the brief of plaintiff to support this assignment. We learn from the proceedings in the trial court that the -conduct objected to was not in any manner' brought onto the record and, therefore, could not be the basis for a new trial in the trial court, nor, for review here.

We have read this record in its entirety and are satisfied that Judge King accorded to the plaintiff every consideration to which he was entitled in the trial of the cause and that no;error intervened to his prejudice.

The judgment will be affirmed.

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


author: By THE COURT. By THE COURT.

text:
    BUTLER, Plaintiff-Appellee, v. CORNUTE, d. b. a. CORNUTE SERVICE STATION, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4633.
    Decided September 11, 1951.
    Decided September 25, 1951.
    Hamilton &¡ Kramer, Joseph R. Hague, Columbus, for plaintiff-appellee.
    Edmund B. Paxton, Asst. Pros. Atty., Columbus, for defendant-appellant.
   OPINION

By THE COURT.

We have examined the record in this case and carefully considered the law applicable thereto. In our opinion there was evidence of sufficient probative force to support the judgment. Finding no error in the record prejudicial to the rights of the appellant the judgment is affirmed.

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

ON APPLICATION FOR REHEARING

No. 4633.

OPINION

By THE COURT.

Submitted on application for rehearing. Counsel for appellant request the court to specifically pass on the assignment of error, which is:

Did the court err in overruling the motion to dismiss at the conclusion of plaintiff’s case?

This particular assignment of error is not well made because the defendant-appellant after the motion to dismiss was overruled proceeded to and did present evidence in defense. Thus the defendant-appellant waived his right to predicate error on the ruling of the court on the motion. The motion to dismiss being renewed at the end of the case raised the question as to whether upon all the evidence introduced there was sufficient evidence to sustain plaintiff’s case. See Vol. 39 O. Jur., pgs 872 and 873 and cases cited in support of the text, particularly Traction Co. v. Durack, 78 Oh St 243, and Halkias v. Wilkoff Co., 141 Oh St 139.

The application will be denied.

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


text:
    STEWART, Petitioner, v. ALVIS, Warden, Respondents.
    Ohio Appeals, Second District, Franklin County.
    No. 4796.
    Decided June 10, 1952.
    Walter Stewart, Columbus, for himself.
    C. William O’Neill, Atty. Geni., L. H. Snyder, Asst. Atty Geni., Columbus, for respondents.
   OPINION

By THE COURT.

Submitted on motion of the petitioner seeking an order requiring that a writ of Habeas Corpus be served upon the respondent. This motion was filed on June 2,1952. The record reveals that the action was dismissed on May 14, 1952, by the following entry:

“This cause came on to be heard on the petition of Walter Stewart, petitioner herein, for a writ of habeas corpus.

It appearing that this Court has entertained previous cases, No. 4472 filed June 6, 1950, and dismissed October 20, 1950, No. 4544 filed December 5, 1950, and dismissed February 27, 1951, No. 4656 filed July 13, 1951, and dismissed October 4, 1951, No. 4726 filed December 11, 1951, and dismissed January 10, 1952, wherein the release of this petitioner from the custody of this respondent by way of habeas corpus was denied, and it further appearing that the said petitioner has at all times since such finding and dismissal been incarcerated in the penitentiary and no change has occurred in his circumstance or condition, it is therefore ordered, adjudged and decreed by the Court on its own motion, that the petition in this cause be and the same is hereby dismissed, and that the said Walter Stewart be remanded to the custody of Ralph W. Alvis, as Warden of the Ohio State Penitentiary, to remain there until the expiration of his sentence or until he shall be otherwise released according to law.

“It is further ordered that the petitioner pay the costs of this proceeding. To all of which the petitioner excepts.”

Since there is no action pending at this time, the motion will be overruled.

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


text:
    BRENT, Plaintiff-Appellee, v. ADVANCE SCALE MANUFACTURING COMPANY et, Defendants-Appellees, HOWARD, d. b. a. JESS HOWARD ELECTRIC CO., Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4712.
    Decided January 25, 1952.

      Richard G. Clark, L. P. Henderson, Columbus, for Milton L. Farber, Receiver, defendant-appellee.
    William N. Postlewaite, Columbus, for Brown Steel Co., General Creditor.
    Hale & Kincaid, Columbus, for Jesse E-. Howard, defendant-appellant.
   OPINION

By THE COURT.

Submitted upon motion of Milton L. Farber, Receiver, and defendant-appellee herein, seeking an order dismissing the appeal upon law and fact for the reason that the Court is without jurisdiction to entertain such an appeal.

The record reveals that Milton L. Farber is the duly appointed, qualified and acting receiver of the Advance Scale Manufacturing Company of Columbus, a corporation; that the defendant-appellant is a creditor and claims his preference over other creditors by reason of a certain chattel mortgage allegedly executed by certain officers of the corporation and delivered to him on certain equipment belonging to said corporation. The order appealed from arose as the result of an application filed by the receiver in the Court below, in which he prayed for instructions relative to the allowance or dis-allowance of the claim of defendant-appellant as a preferred creditor under his chattel mortgage. Upon motion of the defendant-appellant the Court ordered him to be made a party defendant and he then proceeded to set up his claim as a preferred creditor under the mortgage by way of answer and cross-petition. The issues raised thereupon were tried to the Court, which found the mortgage to be invalid as against the receiver and general creditors and ordered the receiver to allow the claim of defendant-appellant only as a general claimant. It is from this order that the defendant-appellant now prosecutes this appeal.

The law seems to be well established in this state that ancillary orders in a receivership, if appealable, are appealable only on questions of law. Corwin v. Automatic Gas & Stoker Company, 37 Abs 293; Hudson v. Hoster, 37 Abs 240; Roberts v. Hall, 10 Abs 713. The question, therefore, presented is the nature of the order from which the appeal was taken, that is, whether or not it was merely incidental or ancillary in character. It appears to us that the issues of the case here presented are distinguishable from those cited supra. In the Corwin case, supra, the question presented was for the allowance or disallowance of an unsecured claim. In the Hudson case the order was one made in a partition action allowing attorney fees, which was held to be incidental to the proceeding and reviewable only on questions of law.

In the case of Roberts v. Hall, supra, the question presented involved the rights of intervening parties making claim to specific property held by the receiver. The facts of each of these cases are distinguishable from the facts of the case under review in that in the case at bar the issue before the Court was the determination of the validity and priority of a mortgage on property held by the receiver. Before and since the amendment of 1912 of Section 6, Article IV, Ohio Constitution, the appealable character of a case on questions of law and fact has been held determinable from the pleadings and issues made thereby. 2 O. Jur. Appellate Review, Sec. 38, p. 101. It is the nature of the action and not the form of the judgment rendered that determines whether a case is appeal-able on law and fact. The issues in the trial court were made by the application of the receiver and the answer and cross-petition of the defendant-appellant. The case was one in equity and neither party had a right to demand a jury trial. Webb, Receiver, v. Stasel, Receiver, 80 Oh St, 122, syllabus:

“An action brought by leave of court against a receiver for the allowance of a claim to be paid in due course of administration of the property in his hands is not an action for money only, and neither party is entitled to a jury for the trial of issues of fact arising therein. It being a civil action within the original jurisdiction of the court of common pleas either party may under favor of §5226 GC, Revised Statutes, appeal from the judgment of that court to the circuit court.”

The rights of the defendant-appellant in the property held by the receiver could be determined only in a separate action upon being given leave of court or by determination made in the case in which the receiver was appointed. The facts, issues and trial in a separate case would have been the same as those presented in this appeal. The defendant-appellant should not be penalized for the procedure adopted in this matter.

We find that the question presented here was passed upon several times by the courts of this state prior to the constitutional amendment of 1912.

In Strass et al., v. The Lambs Inn Co., et al., 16 O. C. C. (N. S.) 486, the syllabus provides:

“A claim to recover property in the hands of a receiver, made and determined in an equitable action in which the receiver was appointed, is appealable.”

Also, in the case of Windhurst v. Ford, 22 Abs 71, the fifth syllabus provides:

“A suit in Common Pleas Court to compel the allowance of a preferential claim on property in the hands of an assignee for the benefit of creditors is an action in chancery and appealable.”

In Le Maistre, Admr. v. Clark, 142 Oh St 1, the Court lays down the following primary tests for an appeal on law and fact:

(1) There must be a final order.

(2) The case must be one in chancery.

(3) There must be a trial of factual issues in the court below.

We believe these requisites have been met in the case at bar and the motion will be overruled.

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

LAW APPEAL FROM COMMON PLEAS COURT

No. 4712.

Decided November 25, 1952.

Richard G. Clark, L. P. Henderson, Columbus, for Milton L. Farber, Receiver, defendant-appellee, and for plaintiff-appellee.

William N. Postlewaite, Columbus, for Brown Steel Co., General Creditor.

Hale & Kincaid, Columbus, for Jesse E. Howard, defendant-appellant.

OPINION

By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court finding the chattel mortgage in issue herein to be void and also constituting a preference against the rights and interests of the creditors of the corporation.

The record discloses the Advance Scale Manufacturing Company, a corporation, is in receivership; that it has outstanding a chattel mortgage on two of its pieces of machinery given to a Mr. Howard, doing business as the Jess Howard Electric Company. The receiver has filed a motion for instructions as to the legality of the mortgage, it appearing to have been given without the approval of the board of directors of the corporation.

The case comes to us on the record as made in the Common Pleas Court which reveals the corporation has 190 shares of stock outstanding, 118 being owned by Otto Brent who is the president and general manager, and 36, by R. F. Otto, treasurer: that the president entered into a contract with Mr. Howard for the installation of certain electrical equipment; that as part payment for the same a company note was given on February 26, 1951, in the sum of $1590.63. When the same became due three months later it was not paid, and further work having been done full payment was demanded by Mr. Howard, for his protection, threatening court action if his demands were not met. After several weeks of discussion it was decided by the president and treasurer to issue the company’s note for the full amount and secure the same by chattel mortgage on the two pieces of machinery. This was done on June 9, 1951, without action being taken by the board of directors, which counsel for Howard urges was not necessary, asserting that the officers acted within their implied powers; that the corporation ratified the act and also that the corporation or its successors was estopped to deny the validity of the mortgage. The mortgage was signed for the company by the two previously mentioned officers.

For a determination of the issues a further examination of the evidence becomes necessary. We find that at the time the mortgage was given there had been a course of dealing between these officers and Howard for approximátely six months, but this was the first one in which a chattel mortgage was involved; that there had been no holding out to Howard by the corporation, its officers, directors or shareholders, which might have indicated they had authority to execute a mortgage on behalf of the corporation other than that of the two officers whose acts are now questioned.

We find further that these officers knew they had no such authority for action was sought from the board to issue a chattel mortgage to one Irving and Gilbert Echt, the resolution having been adopted on May 24, 1951, only several weeks prior to the issuing of the mortgage in question. Under these facts we think the case of Miller v. Wick Building Co., 154 Oh St 93, is controlling, paragraphs 4 and 5 of the syllabus providing:

“Where a party seeks to hold a principal on a contract made by an agent and, to establish the power of the agent to make the contract, relies entirely on the implied authority of the agent and shows no express authority or reliance on the agent’s apparent authority, there can be no recovery against the principal if the agent knew that he had no authority to make the contract for the principal.
“Ordinarily, the question of whether such agent believed that he had authority to make the contract is a question of fact for determination by the jury. However, where the evidence is- such that reasonable minds could not conclude that the agent so believed, the court must decide, as a matter of law, that the agent did not so believe.”

We therefore hold the officers did not have implied authority to issue the mortgage.

It is next urged the corporation received the benefit of their acts by securing additional time in which to make payment, and therefore it may be said to have ratified the same, but ratification cannot take place until after knowledge of the act has become known to the corporation, after which it has reasonable time within which to disaffirm. Indemnity Co. v. Shovel Co., 112 Oh St 136. We are of the opinion the corporation did not-acquire knowledge of the unlawful act because of the fact that Brent and Otto knew of it, for this knowledge was not acquired by them while acting as directors or acting within the scope of their employment. On the subject of knowledge of directors which will bind the corporation, 10 O. Jur., 765, Sec. 564 provides:

“The directors are the ones charged with the conduct and management of the business of the corporation, but they ordinarily can only bind the corporation when acting as a board, unless the board has delegated special authority to one of its members to act for the corporation. The question then arises as to how far notice to a single director, or to the directors as individuals, affects the corporation. No doubt the knowledge of a single director, obtained by him while acting for the corporation, will be imputed to the corporation. But it is necessary, in the absence of statutory provision, in order to affect the corporation with knowledge of a fact on the part of one of its directors, that the director should have acquired such knowledge while acting officially in the business of the corporation — under some special authority conferred on him, other than that which he would possess as merely one of the directors. In other words, knowledge acquired by a single director, when not officially engaged for the corporation, is not notice to the corporation.”

Mr. Stubbs, the third and only other director of the corporation, testified he did not know of the mortgage until about the time of the appointment of the receiver. We think that the doctrine of equitable estoppel can have no application for the same reasons applicable to ratification, supra. We must concur also with the conclusion of the trial court that the mortgage was issued to Howard in an attempt to prefer him as a creditor in violation of §11104-5 GC. These sections provide:

“* * * mortgage * * * made in trust or otherwise, by a debtor or debtors, * * * and every judgment suffered by him or them against himself or themselves in contemplation of insolvency and with a design to prefer one or more creditors to the exclusion in whole or in part of others, and a sale, conveyance, transfer, mortgage or assignment made, or judgment procured by him or them to be rendered, in any manner, with intent to hinder, delay or defraud creditors, shall be void as to creditors of such debtor, or debtors at the suit of any creditor or creditors.”

Sec. 11105 GC:

“The provisions of the next preceding section shall not apply unless the person or persons to whom such sale, conveyance, transfer, mortgage or assignment is made, knew of such fraudulent intent on the part of such debtor or debtors, * *

Our examination of all the testimony discloses, we think, that Howard knew of the condition of the corporation at the time the demands were being made, Mr. Otto having testified as follows at page 15 of the record:

“Q. Now, Mr. Otto, on that date when Mr. Howard was out there, was there any discussion either that day or prior to that with Mr. Howard with reference to the financial condition of the company?
“A. Yes; Mr. Howard knew that we were in bad shape financially. It was obvious because we couldn’t pay his bill.
“Q. Did you talk with Mr. Howard with reference to the company possibly folding up or going out of business?
“A. I think it was generally understood that there was a possibility. However, we did have some dealings going on, which I stated before, that we might be able to sell the corporation.
“Q. Did you discuss with Mr. Howard the proposition of taking care of him rather than all creditors, or any other creditors in the event the company did go out of business?
“A. Well, we did feel that Mr. Howard, inasmuch as he did put all this work in, and he had a lot of material in, that he should as much as possible be preferred as to in case something happened he could be taken care of.
“Q. And was that the reason, or at least one of the reasons, why you executed this chattel mortgage to him?
“A. Yes, sir.”

The condition of the corporation is further exemplified by the fact that on June 13, only four days after the execution of the mortgage, Otto Brent, president and general manager, walked out thereby abandoning his duties and position therein which resulted in the appointment of a receiver several weeks later.

Under the facts presented we hold the mortgage to be void, having been given in violation of §11104-5 GC. Counsel for the appellant have cited numerous cases to support their views, but the facts of none, we feel, are on all fours with those in the case at bar. Our judgment will be the same as that of the Common Pleas Court.

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


text:
    STATE, Appellee, v. DOGGETT, Appellant.
    Ohio Appeals, First District, Hamilton County.
    No. 7491.
    Decided January 28, 1952.
    C. Watson Hover, Robert N. Ziegler, Cincinnati, for appellee.
    Harry H. Mcllwain, for appellant.
   OPINION

Per CURIAM:

Upon careful examination of the entire record, this Court is unanimously of the opinion that proof of the identity of the defendant is so inconclusive as to render the verdict of the jury manifestly against the weight of the evidence.

It further appears that through the witness Mugavain (Record 60, et seq.) the defendant attempted to offer evidence of his reputation for peace and quiet, which it was within his prerogatives to do. This Court finds that a sufficient foundation for the admission of such evidence appears in the record, and it was, therefore, error to exclude it.

For these reasons given, the judgment is hereby reversed, and the cause remanded for a new trial according to law.

HILDEBRANT, PJ, MATTHEWS & ROSS, JJ, concur.


author: By SKEEL, PJ.

text:
    CLEVELAND (City), Plaintiff-Appellee, v. KAUFMAN, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22576.
    Decided November 10, 1952.
    Joseph H. Crowley, Director of Law, Bernard J. Conway, Vatro J. Grill, Cleveland, for plaintiff-appellee.
    Harvey E. Elliott, Cleveland, for defendant-appellant.
   OPINION

By SKEEL, PJ.

This appeal comes to this court from a judgment of guilty entered against the defendant who was charged in the Municipal Court of Cleveland with violating Section 2417-1 of the Traffic Code of the City of Cleveland.

Section 2417-1 of the Traffic Code provides:

“Pedestrians Right of Way at Crosswalks:
“(a) It shall be the duty of the operator of any vehicle, street car or trackless trolley, to yield the right of way to a pedestrian lawfully crossing the roadway within any crosswalk.”

On the 7th of March, 1952, at 8:45 A. M. two school girls were attempting to cross over Pulton Road and West 41st Street at the intersection of said streets with Bush Avenue. The intersection is controlled by a traffic control signal light. At the time the girls were attempting to cross from east to west over the north crosswalk of Bush Avenue, the defendant was driving north on Pulton Road and as he came into the intersection his automobile struck one of the girls on the crosswalk. It is the claim of the state that as the little girls started across Pulton Road they were moving with the traffic signal that is, it was green for east and west traffic over Bush Avenue and red for north and south traffic over Pulton Road and West 41st Street.

It is the claim of the defendant that just as he came into the intersection, the traffic light which had been green for north and south traffic on Fulton Road, turned to yellow or caution, as it went out of his vision and as he passed through the intersection the little girl ran into the side of the car.

Prom the judgment of guilty the defendant claims the following errors:

1. The court erred in finding the defendant guilty of a misdemeanor under Cleveland city ordinance No. 2417-1 without the city having first showed that the complainant had complied with Cleveland city ordinance No. 2417-5.

2. The court erred in finding the defendant guilty without any evidence of the commission of any act, contrary to the provisions of any statute of the State of Ohio or ordinance of the City of Cleveland.

3. The court erred in overruling the motion for a new trial filed by reason of newly discovered evidence.

4. The court’s finding and judgment were contrary to the weight of the evidence.

5. The finding and judgment of the court was contrary to law.

This is a criminal prosecution. Whether the pedestrian involved in the accident was negligent or not is no defense to the question of the guilt or innocence of the defendant. The question presented therefore, is, was there credible evidence that the little girl was crossing on a cross-walk with the green or “go” traffic signal in her favor, and if so, did the defendant fail to yield the right of way to her while thus rightfully crossing the street? The defendant’s claim is that there is no evidence to support the allegation of the affidavit upon which this prosecution is founded. The traffic guard gave the following testimony:

“A. There were two little girls standing on the curb, and the green light come on Bush Avenue for the children, and I went out and blowed the whistle and put my sign up, and a bus coming out Fulton Road to Crile Hospital stopped, but this fellow coming down Fulton Road — he put on his brakes and he couldn’t stop, and he swerved over and hit the little girl. She tried to get back on the curb.
“Q. Assuming Fulton Road runs north and south, where was the girl standing? On which corner?
“A. They were standing and the bus stopped. They come down Bush Avenue toward Fulton. That is, on the other side of Fulton. I live on the west side of Fulton.
“Q. Were they toward the lake?
“A. They were going to school and they was standing — you see I stand like this at Fulton Road and when the light comes green, I went out and put my sign up and blowed my whistle. It was green on Bush Avenue. A car coming out Fulton Road—
“Q. Which way were the girls crossing?
“A. They were coming across this way from Bush Avenue (indicating)
“The Court: So Bush Avenue and Fulton Road come at right angles?
“The Witness: And 41st Street, three blocks and that is what they call a Y. And when I went out and blowed my whistle there was a Crile bus coming out and there was a car coming and he was coming down so fast.
“The Court: What street was he coming down?
“The Witness: Down Fulton from Denison.
“The Court: The light was what color?
“The Witness: It was green on Bush Avenue. I watched it.
“The Court: What color was it for Fulton Road?
“The Witness: Red. The bus coming out from Fulton Avenue stopped and the car did too, because it was green, and he got through the light and swerved over and put on his brakes, and the one little girl got on the curb and the other one was trying to get up and he hit her.”

The testimony of the school guard with respect to his conduct is fully corroborated by the testimony of a transit system bus driver who was driving south on Fulton Road and had stopped at Bush Avenue because the signal light was red. According to the bus driver’s testimony, the traffic light turned red for north and south bound traffic when he was about forty feet from the center of the intersection and he stopped about 15 feet from the crosswalk and was at a standstill when he saw the two girls enter the crosswalk and saw one of them being struck by defendant’s automobile which came to a stop about fifteen feet north of and beyond the crosswalk. He further testified that the light indicated red or “stop” for Fulton Road north and south traffic at the time the little girl was struck by defendant’s automobile.

From the evidence quoted and cited, the defendant’s claim that there is no evidence that the defendant failed to yield the right of way to the little girl while on the Bush Avenue crosswalk with the green light in her favor, cannot be supported. A question of fact was presented to the trial court which the court resolved against him. With this conclusion, which is fully supported by credible evidence, we are bound.

A further claim is presented by the defendant that because there is no evidence that the little girl looked in both directions as provided by Sec. 2417-5 of the traffic ordinances, before she stepped into the street, she was not lawfully on the crosswalk Such a requirement is not provided for when the pedestrian is acting under the direction of a traffic control signal light.

The provisions of Sec. 2402-10 of the traffic code of the City of Cleveland provide:

“Whenever traffic is controlled by traffic-control signals exhibiting the word ‘go’ ‘caution’ or ‘stop’ or exhibiting different colored lights successively one at a time, or, with arrows, the following colors only shall be used and said terms and light shall indicate and apply to operators of vehicles, street cars and trackless trolleys and pedestrians as follows:
“(a) Green alone, or ‘go.’
“(1) Pedestrians facing the signal may proceed acro'ss the roadway within any marked or unmarked crosswalk.”

If this was a negligence action, circumstances could con-ceivably arise where failure to look might constitute contributory negligence. But here we have the simple question, was the little girl on the crosswalk with the green light in her favor, and did the defendant fail to yield to her the right of way? There being credible evidence to support the conclusion of the trial court, the judgment must be affirmed.

Judgment affirmed. Exceptions noted. Order see journal.

HURD, J, THOMPSON, J, concur.


author: By MCNEILL, J.

text:
    HIPSHER, Plaintiff, v. HUNTER et, Defendants.
    Common Pleas Court, Van Wert County.
    No. 19961.
    Decided. May 31, 1950.

      Perry Wise, Beard & Wise, Charles E. Baldwin, Van Wert, for plaintiff.
    Charles E. Drury, Kenneth Koch, Drury & Koch, Van Wert, for defendants.
   OPINION

By MCNEILL, J.

This is an action filed by plaintiff for a declaratory judgment. Briefly, the facts indicate that at one time plaintiff and defendant had entered into a contract for a farm lease, said lease expiring on the 1st day of March, 1945. Thereafter the same had been renewed from year to year orally, including the crop year of March 1, 1949 to March 1, 1950. Defendant claims that he and plaintiff, during the summer of 1949, entered into an oral agreement for the crop year commencing March 1, 1950. and in furtherance of such agreement he sowed wheat, cut stubble, and plowed ground during the fall of 1949. Thereafter in December of 1949 plaintiffs sent a letter to defendant stating he would not lease him the land for 1950. Later in December, plaintiff entered into another lease with another lessee, the lease to begin March 1, 1950. A directed verdict was rendered in favor of plaintiff. Since then plaintiff has filed a supplemental petition asking for coercive relief.

The agreement is within the statute of frauds. The court was unable to find a reported case on the direct question arising in Ohio. In 125 A. L. R. §5. page 1480, this question is discussed. Decisions in other jurisdictions are conflicting. These decisions are not controlling because the statute of frauds of the various states differs.

However, it is the opinion of the court that such an agreement is within the statute. In the case of Bumiller v. Walker, 95 Oh St 344, it was held that a tenant in possession did not have to leave and make a new entry to get a new possession to take an oral agreement out of the statute of frauds. However, the court stated either party could repudiate the agreement before the same has been validated by possession taken thereunder, that is, a carrying over for a new term.

In the case of The Buschman Co. v. The Garfield Realty Co., 97 Oh St 54, the court held as follows:

“A parol agreement made by a landlord and tenant in possession under an existing lease, prior to the expiration of such lease, for a tenancy in futuro from and after the original term, may be repudiated by either party before the same has been validated by possession taken thereunder.”

Thus, it would appear that the law of the state is that an agreement by a tenant in possession with his landlord for a new lease to commence after the end of the present term is within the statute of frauds and may be repudiated by either party prior to the commencement of the new term; only after the new term commences will there be a possession that will take the same out of the statute of frauds. This is the gist of the decision in the case of Roos v. The John Shillito Co., 52 Oh Ap 262, although the language therein used is somewhat different.

However, defendant claims that even though there cannot be a new possession until the old expires, that the part performance, that is, the tilling of the fields and planting of the wheat, is sufficient to take it out of the statute of frauds. In the case of Hodges v. Ettinger, 127 Oh St 460, the supreme court limited the doctrine of part performance. At page 467 the court stated:

“It is our holding in this case that the doctrine of part performance can be invoked in Ohio, to take a case out of the statute of frauds, only in cases involving the sale or leasing of real estate, wherein there has been a delivery of possession of the real estate, in question, and in settlements made upon consideration of marriage followed by actual marriage.”

Thus, it appears the supreme court limited the doctrine of part performance in cases' involving real estate exclusively to where possession has been given. The court held that other acts short of possession cannot constitute a part performance that takes a case out of the statute. The court in the Hodges case also stated:

“As heretofore stated, the courts of England and our own country have consistently held that the acts relied on to take a case out of the statute of frauds must be unequivocal, and because of the inducement to litigants in close cases to equivocate, the doctrine of part performance was restricted to cases involving the sale or leasing of real estate, wherein there had been delivery of possession and settlements made upon consideration of marriage, followed by actual marriage. Possession of real estate and actual marriage being so fixed and decidedly unequivocal as to practically admit of no denial, pleas of part performance in such cases were entertained.” .

Thus, the court must not only consider these parties but other parties to similar lawsuits. It is the court’s conclusion that there was a misunderstanding between the parties, and as a matter of moral right, certain equities would lay with the defendant. However, the statute states that such agreements must be in writing. If an exception were made here it would appear that an unscrupulous tenant could always plow or plant a few crops in the fall and come in and state that there was an oral agreement for a new lease for the coming year. Thus, the very purpose of the statute of frauds would be defeated.

The court also had available to it an unreported case decided in the Court of Common Pleas of Darke County, Ohio, Walker v. Sharp, in which, on a similar and almost identical state of facts, a similar conclusion was reached. The only difference in that case, from the opinion, is that it does not appear whether or not there has been any fall plowing. However, the question of who was entitled to crops planted in the fall was discussed at great length and it would appear that that was present in the case. This unreported decision was sustained by the Court of Appeals of Darke County.

For the above reasons mentioned, the court directed a verdict in favor of the plaintiff and ruled that the defendant had no right of possession to the premises.

Thus, we come to the next phase of the case. That is, coercive relief sought on the part of the plaintiff as provided by General Code.

From the review of authorities, it appears that if coercive relief would not be granted in similar cases at law or equity, such relief would not be granted where a breach occurs following a declaratory judgment, and conversely, if such relief would be granted in similar cases at law or equity, then such relief may be granted for a breach following a declaratory judgment. Thus, it becomes pertinent to decide whether or not coercive relief could be sought if the case had not originally been anticipatory. Defendant maintains that the execution of the lease by the plaintiff with a new tenant for this year bars him from any coercive relief as he, plaintiff, is not entitled to immediate possession and the rules of ejectment must be applied here.

The court agrees that the rules of ejectment must apply here, it being the relief that would be sought if this had not been an anticipatory action. It is true that generally in ejectment, the right of possession is one of the main incidents. However, this does not appear to be the rule where a landlord has made a lease and the new lessee has never been put into possession. This has been decided in two cases in actions of forcible entry and detainer. These cases hold that a landlord is not precluded from maintaining an action in forcible entry and detainer against the tenant by the fact that he has subsequently leased the property to a new tenant. Nassr v. Upton, 4 Oh Ap 202; Lee Cahn v. Hammon Building Co., 9 O. D. 656. Forcible entry and detainer, like ejectment, is a possessory action. However, the same has been held in an action of ejectment. In the case of The State of Ohio v. The Cincinnati Tin & Japan Company, 66 Oh St 182, at page 214 the court stated:

“There is another reason why the state could not recover, and why the admission of that record was not prejudicial. The lease by the state to Brown & Wood, of date of April 23, 1868, for ninety-nine years renewable forever, was introduced by the state, and the record shows that Brown & Wood accepted the lease without being put into possession, and assigned the lease to the Canal Elevator and Warehouse Company. The latter company waived the right it had to insist that the state should put it into possession, and undertook by action to recover the possession itself, and for that purpose plead and relied upon the lease from the state so that the state was treated as being out of the contest, and as having performed its duty toward its lessees as to possession, and the lessees assumed the burden of obtaining possession under the lease.”

Thus, it is clear that even if a landlord does not have the immediate right of possession, he may still maintain an action in ejectment to put a new lessee in possession who has never been in possession. This ruling is only natural as the landlord could be subject to an action by the lessee for the failure to give possession. Of course, the rule is different if a tenant has once been put into possession.

The next question raised is whether or not the new lessees waived their right to have plaintiff put them into possession by joining with the landlord in an action to recover possession on action in ejectment. This action was filed on the same date that plaintiff’s supplemental petition was filed herein. It is the opinion of the court that this was not a sufficient waiver. He did not attempt to take any action independent of that of the landlord but took action in conjunction with the landlord. Joining with the landlord does not show that he had waived his right to have the landlord put into possession. If he had maintained the suit alone, the ruling would be different.

It is therefore the court’s opinion that the plaintiff could have maintained coercive action in an action at law, if the case had been one in ejectment instead of one in-reference to a declaratory judgment.

Thus, we come to the question of relief. It is the court’s opinion that a writ of ejectment can only be used in an action of ejectment. That presents the question of whether or not an injunction is a proper remedy. Defendant has cited the cases of Harlan v. Veidt, 6 Oh Ap 45 and Turnbull v. City of Xenia, 80 Oh Ap 389, 36 O. O. 91, as holding that an injunction may not be used to oust a person of possession of property. However, this was not the basis of the decisions in those cases. The basis for both decisions is contained in Syllabi 5 of the Harlan case, which was recited in the Turnbull case, which reads:

“The question of title cannot be raised in an injunction case, and is one to be determined in a court of law.”

This is undoubtedly correct. However, in this case the defendant did have a jury and the question of title was decided by a jury. The only question now is, since title has been decided, whether or not the decision of the court must be unenforceable unless an action in ejectment is commenced, or whether it may be enforced by injunction. In the case of Kemp v. Feldman, 84 Oh Ap 154, 39 O. O. 173, the court held:

“A tenant in possession of land is entitled to a permanent injunction against the purchaser of the land who enters upon such land and put it to a use which deprives the tenant of his rights under the tenancy.”

In the case of Graham v. Burggraf, 10 C. C. (N. S.) 594. an injunction prohibiting acts of ownership was denied, but the court intimated that in a proper case that such remedy is proper.

It would be quite odd if a court could grant a declaratory judgment and then not be able to grant relief under this judgment when the proper time arrives. If such were true, a declaratory judgment would lose its effect. It would be necessary then to have two suits, one to declare future rights and then one to redetermine these rights when the time arrived for their enforcement.

Therefore, the injunction prayed for will be granted and the defendant will be enjoined from asserting acts of ownership on said premises.


author: Per CURIAM.

text:
    HIPSHER, Plaintiff-Appellee, v. HUNTER et al, Defendants-Appellants.
    Ohio Appeals, Third District, Van Wert County.
    No. 183.
    Decided December 21, 1950.
    Perry Wise, Beard & Wise, Charles E. Baldwin, Van Wert, for plaintiff.
    Charles E. Drury, Kenneth Koch, Drury & Koch, Van Wert, for defendants.
   OPINION

Per CURIAM.

The judgment is affirmed upon the reasoning set forth in the opinion of the trial court, plus the further reasoning:

The part performance relied upon by the appellants to take this case out of the statute of frauds is the doing of ordinary farm work of such a character that it is not impossible nor impracticable to compensate in damages, the awarding of which will place the parties in status quo.

Under the rule of law hereinafter mentioned, the doing of such work does not constitute part performance sufficient to take the case out of the statute of frauds.

The rule above referred to, which we approve as a correct statement of the law, is set forth in Volume 37 Corpus Juris Secundum, under the subject of “Frauds, Statute of,” Section 250, page 759, as follows:

“Part performance to be sufficient' to take a case out of the statute must consist of clear, definite and unequivocal acts of the party relying thereon, strictly referable to the contract, and of such character that it is impossible or impracticable to place the parties in status quo. See also, Mossholder v. Wiggins, 23 O. O. 1, 32 Abs 365, 33 Abs 50; and Potts v. Potts, 72 Oh Ap 268, 27 O. O. 114. Judgment affirmed.


author: By MILLER, J.

text:
    HOLDER, Plaintiff-Appellee, v. FARMAKIS, Defendant-Appellant.
    Ohio Appeals, Second District, Shelby County.
    No. 162.
    Decided November 2, 1951.

      Cummins & Boiler, Sidney, for plaintiff-appellee.
    Roland E. Berry, Sidney, for defendant-appellant.
   OPINION

By MILLER, J.

This is a law appeal from the judgment of the Common Pleas Court rendered upon the verdict of the jury in favor of the plaintiff-appellee. The action was brought to recover alleged overcharges for rent in violation of the “Rent Control Laws” under the Housing and Rent Act of 1947, Public Law 129, 80th Congress, as amended.

The record reveals that the defendant-appellant, the plaintiff’s landlord, acquired the property in question several months after the effective date of the Rent Control Act, which became effective on March 1, 1942; that he registered the apartment occupied by the plaintiff as required by the Act, listing the rent on March 1, 1942, as being $25.00 per month, and under the heading of “Equipment” furnished, “running water” was listed as not being furnished by the landlord. However, under the heading of “Services” furnished, both hot and cold water were marked with an “X” indicating it was furnished by the landlord. A conflict in the above listing is apparent. Payment for the water consumed was demanded by the defendant and paid for by the plaintiff, which forms the basis for one of the claims in this action. The certificate of registration is prima facie evidence of the ceiling rent and which may be modified by the proper degree of proof. The maximum rent allowable under the Act is the amount being charged on March 1, 1942. There was a conflict in the testimony concerning the payment of the water rent by the tenant prior to the effective date of the Act, and we therefore think the question was properly presented to the jury on this issue, and if it had not been paid by the tenant there would be a violation of the maximum rent to this extent.

The record reveals further that the certificate of registration provided that the landlord was to do the painting and decorating and to make all interior and exterior repairs. The plaintiff alleged and offered proof to establish that the defendant failed to make certain necessary repairs, which the plaintiff did at her own expense and which it is now claimed constitute overpayment under the terms of the Rent Control Act.

Concerning the obligations of the lalndlord to make repairs the defendant requested the Court to give to the jury the following special instructions before argument, each of which was refused and which is urged to be error:

No. 1. “I instruct you that as a matter of law a tenant has no legal right- to make any changes or alterations on the premises of the landlord without the consent of the landlord.”

No. 4. “I instruct you as a matter of law that if you find from the evidence that the plaintiff did expend any moneys for repairs or decorating and that such was done without the knowledge or consent of the defendant, that as to such items of repair or decorating the plaintiff is not entitled to recover.”

No. 5. “I instruct you as a matter of law that if you find from the evidence that the plaintiff has paid no money or other consideration to the defendant for repairs, decorating or painting, that in that event you can not make any finding for the plaintiff of any of such items.”

Since the foregoing instructions all are related to the same subject matter they will be considered together.

We hold that in the absence of statute, ordinance, express Stipulation or covenant, the lessor is not bound to make repairs or improvements; that there is no implied covenant to make repairs. Burdick v. Cheadle, 26 Oh St 393; Goodall v. Deters, 121 Oh St 432; Grace v. Williams, 36 Oh Ap 569; 24 O. Jur. 918, Sec. 185. The petition does not set forth any allegation which would require the landord to make any repairs or improvements. Under such conditions it is up to the landlord to decide what changes should be made and what repairing and decorating is necessary. However, under the Rent Control Act, the tenant has a remedy; if he feels that the services which existed on the “freeze date” have been decreased he can make complaint to the Housing Expediter who is authorized to investigate the matter and issue an appropriate order such as reducing the amount of the ceiling rent. Had the landlord demanded to be reimbursed for such repairs and received payment for the same, this would clearly be an overcharge. But we have no such facts in this case, the tenant making the repairs, paying for the same and now asking to be reimbursed by the landlord. This same question arose in the case of Penner v. Geller, 87 N. Y. S. (2d Series) p. 249. At page 250 the Court says:

“The maximum rent heretofore established for the dwelling space involved herein continues in effect until changed by the Housing Expediter, Controlled Housing Rent Regulations Sec. 4 as amended, 50 ü. S. C. A. Appendix, Sec. 1881 et seq. Where there is a decrease in the minimum services to which the tenant is entitled, his remedy is by appropriate application to the Expediter under sections 5 (b) 3 and 5 (c) 3 of the rent regulations for a corresponding reduction of the maximum rent. There can be no recovery for penalties or damages in the absence of a refund order. Cf. Woods v. Stone, 333 U. S. 472, 68 S. Ct. 624.”

But even if the landlord had agreed to make these repairs the measure of damages would not be the cost of repairs, but would be the difference in the rental value of the prop'erty before and after the repairs were made. Cochran v. Widra, 35 Abs 608, 41 N. E. (2d) 875. The same rule is pronounced under Section 5, Paragraph (b) of Rent Regulations under the Housing and Rent Act of 1947, it provides:

“(3) * * * Where a landlord decreased * * * services, or equipment * * * while the accommodations were occupied, * * * and * * * fails to file a petition or a written report as was required by the provisions of this paragraph (b) * * * the rent received by the landlord for any rental period commencing on or after such decrease * * * shall be received subject to refund to the tenant of any amount in excess of the maximum rent which may later be fixed by an order decreasing the maximum rent on account of such decrease in * * * services, * * * or equipment. Such amount shall be refunded to the tenant within 30 days after the date of issuance of the order, unless the refund is stayed * * *. If the Expediter finds that the landlord was not at fault in failing to comply with the provisions of this paragraph (b) in effect prior to April 1, 1948, the order may relieve the landlord of the duty to refund.”

Also in the case of Johnson v. Pemberton, 97 N. Y. S. (2d series) 153, syllabus 6 provides:

“Under rent law and regulations, any decrease in essential services provided by landlord automatically lowers amount of rent which landlord is entitled to demand and receive, so that where apartment was extensively damaged by fire and landlord failed to exercise reasonable diligence in restoring services and repairing apartment, maximum rent payable was subject to reduction in amount to be determined by Federal Housing Expediter. * * *”

We therefore hold that special instructions Nos. 1, 4 and 5 were proper and should have been given.

The sixth assignment of error relates to the instruction given to the jury in the court’s general charge. This charge also relates to the cost of repairs, and for the reason heretofore given we think should not have been given and constituted prejudicial error.

In giving consideration to the law applicable to the facts presented we hold that the seventh assignment of error is well taken and that the judgment is against the manifest weight of the evidence.

The third assignment of error is well made in that the judgment was excessive.

We find no other errors in the record.

The judgment will be reversed and cause ordered remanded for further proceedings according to law.

HORNBECK, PJ, WISEMAN, J, concur.


author: By CRAMER, J.

text:
    STATE, Plaintiff-Appellee, v. SCHAEFFER, Defendant-Appellant. (Two cases.) STATE, Plaintiff-Appellee, v. BROWN, Defendant-Appellant.
    Common Pleas Court, Butler County.
    Nos. 68758, 68759 and 68822.
    Decided May 4, 1953.

      Jackson Bosch, Pros. Atty., Hamilton, for State of Ohio.
    William D. Schaeffer, Hamilton, for defendants.
   OPINION

By CRAMER, J.

These cases, involving the same legal question, will be considered together in this opinion.

They are before us on appeal on questions of law from judgments of conviction rendered in the Justice of the Peace courts.

In cause No. 68758 the defendant was charged with and convicted of violating §6307-20 GC, commonly referred to as the reckless operation statute. This cause, as well as cause No. 68759 (against the same defendant) wherein said defendant was charged with and convicted of violating §6296-4 GC (operating a motor vehicle without having a legal operator’s or chauffeur’s license)', was tried before Otto Grafner, Justice of the Peace in and for Hanover Township, Butler County, Ohio.

In cause No. 68822 the defendant-appellant was charged with and convicted of the violation of §6307-41 GC (requiring the operator of a motor vehicle, within an intersection intending to turn to the left, to yield the right of way to any vehicle approaching from the opposite direction). This cause was tried in the court of J. E. Jackson, Justice of the Peace in and for Lemon Township, Butler County, Ohio.

The affidavits, charging the offenses, were filed in all three cases by officers of the law who were not the “parties injured” (as that term is used in §13433-9 GC).

The defendants, before trial, entered pleas of not guilty and did not waive the right to a jury trial.

The sole question for our determination which is involved in these cases and which is presented in these appeals is: Did the Justice of the Peace have jurisdiction to render final judgment of conviction? If he did not, then the convictions must be set aside as nullities.

The determination of the question at issue involves a consideration of §§13433-2, 13424-1, 13433-9 and 13433-10 GC.

We commence this discussion with the assertion that a Justice’s court is a court of limited jurisdiction, possessing only such powers as are expressly conferred by statute. The office of Justice of the Peace is no longer constitutional; therefore the court over which he presides is a statutory one.

Generally the criminal jurisdiction of a justice of the peace, as to misdemeanors as well as to felonies, is limited to determining whether there is probable cause for binding the defendant over to a court of competent jurisdiction for trial. He does not have -final jurisdiction even in misdemeanor cases except in those in which final jurisdiction is specifically granted to him. Vol. 24, O. Jur., Section 4, pages 268-9; also Section 8, page 271.

Sec. 13422-2 GC, is the general statute which confers upon a Justice of the Peace his criminal jurisdiction, and therein are set out eighteen specified cases in which the Justice has such jurisdiction. There are other statutes which give the Justice final jurisdiction over many other offenses which constitute misdemeanors.

In those cases where final jurisdiction is properly conferred by statute upon a justice of the peace, then either §§13424-1, 13433-9 or 13433-10 GC governs the rendition of final judgment.

Sec. 13424-1 GC merely provides the method of procedure for obtaining a jury in cases in which the Justices; of the Peace do have final jurisdiction.

Sec. 13433-9 GC gives jurisdiction to the Justice to render final judgment when there is a plea of guilty to a misdemeanor which was brought on complaint of the party injured and also provides that if the complaint is not made by the party injured and the accused pleads guilty, the jurisdiction of the magistrate is to require the accused to enter into recognizance to appear before the proper court.

Since in the cases before us the pleas were “not guilty,” §13433-10 GC, which is quoted herein in full, is applicable:

“When the accused is brought before the magistrate and there is no plea of guilty, he shall inquire into the complaint in the presence of such accused. If it appear that an offense has been committed, and there is probable cause to believe the accused guilty, he shall order him to enter into recognizance with good and sufficient surety, in such amount as he deems reasonable, for his appearance at a proper time and before the proper court; otherwise he shall discharge him from custody. If the offense charged is a misdemeanor, and the accused in writing subscribed by him and filed before or during the examination, waive a jury and submit to be tried by the magistrate, he may render final judgment.”

It is our conclusion, by reason of the foregoing statute, that the Justice of the Peace had no jurisdiction to render final judgment in any of the three cases now before us.

This holding is arrived at by reason of the fact that the appellants herein entered pleas of not guilty and did not waive a jury and submit to be tried by the Justice of the Peace.

The penalty imposed by statute in each of these offenses does not provide for a fine in excess of $50.00, nor a jail sentence. Therefore, the defendants were not entitled to jury trials and could not waive a right which they did not have. Even if they had signed such waivers they would have been ineffectual to confer final jurisdiction upon the Justice of the Peace because they were not entitled to jury trials. Had these offenses carried penalties in excess of $50.00 or jail sentences, still the Justice would be without final jurisdiction. This, for the reason that no jury waivers were executed by the defendants, and §13433-10 GC makes the same a condition precedent to the rendition of final judgment.

Since under §13433-9 GC the Justice doesn’t have jurisdiction to render final judgment, even in the case where a plea of guilty is entered, and the complaint is not by the “party injured,” it would seem that there would be more reason to deny him jurisdiction where the plea is, as here, “jiot guilty.” At any rate, the statute so provides.

A most enlightening, and, we believe, authoritative article, and which has been most helpful to us, is that written by Mr. Edgar H. Hale of Portsmouth, entitled, “Jurisdiction of Justices of the Peace over Uniform Traffic Act Violations,” printed in the December 22,1952 issue of the Ohio Bar (Volume XXV, No. 49).

The Attorney General of Ohio, on November 9, 1935, rendered an opinion found in Opinions of the Attorney General, 1935, Volume 2, Opinion No. 4882, in which he discusses and renders an opinion upon the Jurisdiction of justices in cases of Traffic Act violations. His holding supports our conclusion.

The case of State, ex rel Overholster v. Fred Wolf, Sheriff, et al, 26 O. N. P., n. s., page 593, contains a dissertation upon this subject which we believe is still the law of Ohio.

The rather recent case entitled, “In Re Lockhart,” found in 150 Oh St, page 192, also 47 O. O., page 129, is authority for the proposition that a judgment of conviction is a nullity where the justice of the peace renders final judgment and he lacks such jurisdiction under §13433-9 GC. While that case was not one involving a violation of the Traffic Act, yet the principle involved is applicable here.

The judgment of conviction in each of the causes now before us must be reversed and the defendants discharged.

Entries may be accordingly prepared.


author: By THE COURT:

text:
    CROW, Plaintiff -Apellant, v. BUCKEYE UNION CASUALTY COMPANY, Defendant-Appellee.
    Ohio Appeals, Second District, Champaign County.
    No. 122.
    Decided October 20, 1951
    Leo E. Buroker, St. Paris, for plaintiff-appellant.
    Vorys, Sater, Seymour & Pease, Byron E. Ford, of Counsel, Columbus, for defendant-appellee.
   OPINION

By THE COURT:

This is an appeal on questions of law from the Common Pleas Court of Champaign County, Ohio, which rendered judgment for defendant.

Appellant does not specifically mention any claimed error but the tenor of his brief is that the judgment is against the manifest weight of the evidence.

On the sole determinative question of fact the evidence was in direct conflict. It was the duty of the Trial Court which tried the case without the intervention of a jury to weigh the evidence and determine whether the plaintiff sustained the burden of proof. The Trial Court in resolving the issue of fact against the plaintiff held that the plaintiff failed to prove by a preponderance of the evidence that the plaintiff’s trailer was covered by insurance at the time of the loss. There is sufficient evidence to support the judgment. We cannot conclude that the judgment is against the manifest weight of the evidence.

Judgment affirmed.

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


text:
    GREENWOOD et, Plaintiffs-Appellants, v. TILLES, Admr., Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22274.
    Decided December 3, 1951.
    David Perris, Cleveland, for plaintiffs-appellants.
    Sylvester Marx, Cleveland, for defendant-appellee.
   OPINION

Per CURIAM:

The matters complained of by appellant as the basis for removal of administrator have to do with the issues which are now pending in a petition to vacate a judgment in the Common Pleas Court.

The Probate Court cannot attack collaterally the judgment of the Common Pleas Court in passing upon the qualifications of one to be appointed administrator of an estate, and until the Common Pleas Court finally determines the issues in said cause the questions of fact therein contained may not be considered by the Probate Court in determining the qualifications or fitness to act of the person appointed as administrator.

We find no evidence that the court abused its discretion in the refusal to remove the administrator.

SKEEL, PJ, HURD, J, THOMPSON, J, concur.