author: By NICHOLS, PJ. By GRIFFITH. J.

text:
    WILLIAMSON, Plaintiff-Appellant, v. RUBICH et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3949.
    Decided November 14, 1957.

      Robert S. Hartford, East Palestine, Brooks, Lynch & MacDonald, East Liverpool, for plaintiff-appellant.
    Harrington, Huxley & Smith, Youngstown, for defendants-appellees.
   OPINION

By NICHOLS, PJ.

A history of the litigation leading up to the action which comes to this court on appeal upon questions of law is succinctly stated in the journal entry of the Court of Common Pleas of Columbiana County, which journal entry is attached to and made a part of the bill of exceptions now before this court. That entry reads as follows:—

“This day this cause came on to be heard on the motion of the defendant, Janet Williamson, made under §2339.54 R, C., asking the court to issue an order to the Clerk directing the Clerk that in recording the judgment he certify that Janet Williamson was surety and Robert Williamson, Louis Rubich and Kathryn Rubich are principal debtors on the judgment taken in this action, and the testimony and arguments of counsel. Whereupon, the Court finds that judgment was taken on the cognovit note which is the subject of this action, on the 19th day of May, 1954; that defendant, Janet Williamson, has admitted that she first learned of the judgment in August of 1954; that defendant, Janet Williamson, on the 21st day of April, 1955, filed a petition in this court to vacate and set aside the judgment of May 19, 1954 claiming that her signature on said note was a forgery; that this cause came on to be heard upon the issue of the genuineness of her said signature and was tried to a jury, which jury returned a verdict finding the signature to be genuine on the 21st day of December, 1955; that on January 6, 1955, this court filed a decree lifting the suspension of the previous judgment and dissolved the injunction against execution on said judgment; and that following this action of the court the defendant, Janet Williamson, filed a motion for new trial on January 18, 1956, and following the overruling of said motion, to wit, on the 25th day of February, 1956, defendant, Janet Williamson, for the first time raised the issue of surety-ship by filing the motion now before the court.
“The court further finds .that the defendant, Janet Williamson, has had a year and a half within which to raise the issue of suretyship, and at no time within this period was such issue brought before the court; that defendant could have elected to contend that she was a surety in April of 1955, but did not, but rather elected to contend that her signature was not genuine; that an examination of the face of the note reveals that Robert Williamson and Louis Rubich signed as partners, and that Kathryn Rubich and Janet Williamson did not sign as partners, placing Janet Williamson in no better position from the evidence on the face of the note than Kathryn Rubich; and that in her relationship to Louis Rubich and Kathryn Rubich, Janet Williamson is not in position of surety on the note in question.
“It is therefore ordered, adjudged and decreed that the motion herein filed by defendant, Janet Williamson, on February 25, 1956, be and the same is hereby denied with exceptions to the defendant, Janet Williamson.”

Subsequent to the entry above quoted Janet Williamson filed her chancery action in the Court of Common Pleas of Mahoning County in which she alleged:—

“* * * that no part of the proceeds of said loan ever accrued to her or her benefit; that the money, thus borrowed was borrowed by a partnership known as Williamson Farm Equipment, was credited to the account of said partnership and used solely by said partnership. Plaintiff says she is not and never has been a member of such partnership but that Louis Rubich and Robert Williamson were members thereof at the time said partnership received the proceeds of such loan; and that Kathryn Rubich became a partner sometime thereafter and remains as a partner therein.
“Plaintiff says that execution has been levied upon her property to sell same at judicial sale to satisfy said judgment, and that such forced sale of her property will result in irreparable damage to the plaintiff.
“Plaintiff therefore prays that the defendants be compelled to pay The New Waterford Bank the amount of said judgment and interest and costs thereon, and save harmless this plaintiff from the effects thereof, and for the costs herein, and for such other and further relief to which she may be entitled.”

In the Common Pleas Court of Mahoning County the defendants, Louis Rubich and Kathryn Rubich were on several occasions granted leave to move or plead and finally on February 19, 1957, they were granted leave to file answer instanter. No .answer was ever filed in the office of the Clerk of Courts of Mahoning County in accordance with the leave granted and the transcript of the original papers and the docket and journal entries does not contain any such answer although we have ascertained that an unfiled answer is actually in the files of the Clerk of Courts. We may assume that the trial court considered such answer as having been actually filed, and that therein was raised the issue of res judicata since the journal entry of the court of common pleas of Mahoning County states that the cause came on to be heard “on the petition of the plaintiff, Janet Williamson, the separate answer of defendants, Louis Rubich and Kathryn Rubich, the evidence and arguments of counsel and was submitted to the court with briefs and reply briefs of both parties.”

An examination of the journal entry subscribed by the honorable judge of the Mahoning County Common Pleas Court shows that the sole ground upon which the action of plaintiff, Janet Williamson, was decided against her and her petition dismissed was that the judgment of the common pleas court of Columbiana County established the defense of res judicata as is definitely shown by the entry of the common pleas court of Mahoning County as follows:—

“Whereupon the court finds that this is an action under §1341.9 R. C., by plaintiff as surety to compel the defendants as principal debtors to discharge the debt for which the plaintiff has become bound; that in Case No. 41110 of the Common Pleas Court of Columbiana County, Ohio, judgment was rendered upon a promissory note against all of the parties hereto; that in said case, after judgment, the plaintiff herein under §2329.54 R. C., by motion, sought to secure certification as surety; that the court denied the motion finding that ‘in her relationship to Louis Rubich and Kathryn Rubich, Janet Williamson is not in position of surety on the note in question’; that in said previous case before a court of competent jurisdiction in which all of the parties herein were also parties, an issue of suretyship was raised by plaintiff herein, as between herself and the defendants herein, Louis Rubich and Kathryn Rubich, as to which issue the parties were adversary; that the court directly determined that issue adversely to plaintiff herein; and that plaintiff, Janet Williamson, was conclusively bound by that determination and cannot again litigate the same issue in this action where her whole claim is based upon a suretyship position.
“It is therefore ordered, adjudged and decreed that judgment be entered on the issue joined for the defendants, Louis Rubich and Kathryn Rubich; that the petition heretofore filed herein be dismissed; that the defendants, Louis Rubich and Kathryn Rubich go hence without day and recover from the plaintiff, Janet Williamson, their costs herein expended.”

While the journal entry last above quoted says that plaintiff’s action was brought under authority of §1341.9 R. C., it is probable that the court Intended to say that the action was brought under §1341.19 R. C., which provides:—

“A surety may maintain an action against his principal to compel . him to discharge the debt or liability for which the surety is bound, after it becomes due.”

It is settled law however that a surety’s suit to compel the principal to pay is an equity case and exists independently of and prior to the statute. Barbour v. National Exchange Bank, 45 Oh St 133, 12 N. E. 5; and Horst v. Dague, 34 Oh St 371.

The action in the Common Pleas Court of Mahoning County being a chancery action was properly submitted to and determined by the chancellor.

The sole issue before this court of appeals is whether the chancellor was correct in holding that the journal entry of the Common Pleas Court of Columbiana County is such as to conclusively establish that the issues between the parties hereto have been previously adjudicated.

I will not, therefore, determine whether in law or in fact Janet Williamson was surety only for the defendants, Louis Rubich and Kathryn Rubich.

Since I arrive at the conclusion that the decision in the Common Pleas Court of Mahoning County was not authorized, and that the court committed prejudicial error in its determination, I will proceed to give reasons for my conclusion that the judgment or decree of the Common Pleas Court of Mahoning County should be reversed and the cause remanded for such further proceedings as may be authorized.

I first call attention to the case of Gatch v. Simkins, 25 Oh St 89, wherein the syllabi are as follows:—

“In an action on a written instrument against two or more persons jointly and severally bound, the finding by the court, under section 449 of the code, that one or more of the makers signed the same as surety or bail for his or their co-defendant, and the certificate in the judgment showing which is principal and which are sureties, do not conclude the parties as to the facts so found and certified, in an action subsequently instituted for contribution.
“The effect of such finding and certificate is not changed by the fact that the defendants at the trial, appeared, and filed answers in which each alleged that the others were principal debtors.”

In the cited case as shown by the language of the court on pages 90 and 91 we find that in the original action upon the note the court:—

“* * * rendered judgment in favor of Weyland against all the defendants, and further found, upon the issues joined between the defendants, that Simkins was principal debtor, and that Gatch and Shaw were his sureties, and thereupon it was ordered that execution first issue against Simkins, etc.
“To the introduction of this record in evidence the plaintiff below objected.
“Afterward, the court charged the jury to the effect, that the finding of the court in Weyland’s case, that the plaintiff, Simkins, was principal debtor in said action, and that the defendant and Shaw were his sureties only, was conclusive of the fact so found, and constituted a bar to the action for contribution. To this charge the plaintiff excepted. Verdict and judgment having been rendered in favor of the defendant, the plaintiff filed his petition in error in the District Court, which resulted in a reversal of the judgment for error in the charge of the court.”

In the opinion by the court at page 91 I find:—

“We think there was error in the charge of the Court of Common Pleas to the jury. The finding of the court in Weyland’s case, that Simkins was principal and that Gatch and Shaw were his sureties, has no other effect than that prescribed in section 449 of the code. It does not conclude the parties in an action for contribution afterward instituted. The supposed issue joined in the case does not change the effect of the finding. The same order might have been made upon a claim presented orally. The supposed pleadings were unauthorized and conferred no jurisdiction upon the court, other than that conferred by said section 449 of the Code.”

So, in the case now under consideration. The only effect of the motion filed in the Common Pleas Court of Columbiana County by Janet Williamson, had the motion been granted, was to cause an execution to be levied upon the lands of the principal debtor located in Columbiana County.

Sec. 2329.54 R. C., reads as follows:—

“When judgment is rendered in a court of record in this state upon an instrument in writing in which two or more persons are jointly or severally bound, and it appears to the court, by parol or other testimony, that one or more of the persons so bound signed it as surety or bail for his codefendants, the clerk of such court, in recording the judgment thereon, must certify which of the defendants is principal debtor and which is the surety or bail. Such clerk shall issue execution on such judgment, commanding the officer to levy on the goods, chattels, lands, and tenements, of the principal debtor, or, for want of sufficient property of his to make it, to levy on the goods, chattels, lands, and tenements, of the surety or bail. The property, personal and real, of the. principal debtor, within the jurisdiction of the court, shall be exhausted before any of the property of the surety or bail is taken in execution.”

This section specifically provides only that the “property, personal and real, of the' principal debtor within the jurisdiction of the court, shall be exhausted before any of the property of the surety or bail is taken in execution.”

From the record it is disclosed that there was no property of Louis Rubich and Kathryn Rubich in Columbiana County upon which execution could issue.

The decision in Gatch v. Simkins, supra, is followed in Hill v. King, Ex’r., 48 Oh St 75, wherein the syllabi are as follows:—

“Where a surety pays a judgment rendered against him and his principal, he has the right, though not certified as such in the record of the judgment, to be subrogated to the place of the judgment creditor, against the principal and all others standing in his shoes.
“This right is not affected by the provisions of §5836 R. C. The object of this section is to enlarge, not to limit, the rights the surety had for his indemnity against his principal, on payment of the debt.”

In the opinion the court at page 80 states:—

“The rule is that so soon as the surety pays the debt of his principal there arises in his favor an equity to be subrogated to all the rights, remedies and securities of the creditor, and has the right to enforce them against the principal for the purpose of his indemnification. * * *
“The doctrine, in its application to the relation of principal and surety, is so equitable and just, that there seems to be an entire consensus in the views of authors and courts upon the subject. And in no court has it been more fully recognized and applied than in our own. Neilson v. Fry, 16 Oh St 552; Dempsey v. Bush, 18 Oh St 376; Neal v. Nash, 23 Oh St 483.”

In the opinion in Crawford v. Turnbaugh, Trustee, 86 Oh St 43 at page 47 I find:—

“Nevertheless a guarantor or a surety, who is not so certified, who pays the judgment has the right to be subrogated to the place of the judgment creditor against the principal and all others standing in his shoes. This right is not affected by the statutes providing for the certificate of suretyship. The statutes are merely in addition to those equitable rights. Hill v. King, Exr., 48 Oh St 75.” (Emphasis ours.)

It is noted that in the journal entry of the Common Pleas Court of Columbiana County it seems apparent that the judge of that court was considering only the delay which Janet Williamson had allowed to intervene between the judgment against her and the time of filing her motion under §2329.54 R. C., and held that such delay precluded her from occupying the position of surety as claimed by her.

Certainly the proceedings in the common pleas court Columbiana County were merely ancillary and not conclusive upon Janet Williamson so as to bar her action in the Court of Common Pleas of Mahoning County.

The judgment and decree of the Common Pleas Court of Mahoning County is reversed as contrary to law and the cause remanded to that court for further proceedings.

GRIFFITH, J, concurs.

PHILLIPS, J, concurs in judgment.

CONCURRING OPINION

By GRIFFITH. J.

In the case before us for review, the plaintiff’s whole claim is based upon a suretyship position. She filed the present suit in Mahoning County to compel the defendants, Louis Rubich and Kathryn Rubich, to discharge the debt for which she was bound.

The sole question is whether the Common Pleas Court was justified in holding that the present action is barred by the judgment in the former action in Columbiana County under the doctrine of res judicata.

It seems necessary to relate somewhat in detail just what transpired in Columbiana County giving rise to this proceeding in equity in Mahoning . County. In the former case in Columbiana County, the journal reads:—

“This day this cause came on to be heard on the motion of the defendant, Janet Williamson, made under §2329.54 R. C., asking the court to issue an order to the Clerk directing the Clerk that in recording the judgment he certify that Janet Williamson was surety and Robert Williamson, Louis Rubich and Kathryn Rubich are principal debtors on the judgment taken in this action, and the testimony and arguments of counsel. Whereupon, the Court finds that judgment was taken on the cognovit note which is the subject of this action, on the 19th day of May, 1954; that defendant, Janet Williamson, has admitted that she first learned of the judgment in August of 1954; that defendant, Janet Williamson, on the 21st day of April, 1955, filed a petition in this court to vacate and set aside the judgment of May 19, 1954 claiming that her signature on said note was a forgery; that this cause came on to be heard upon the issue of the genuineness of her said signature and was tried to a jury, which jury returned a verdict finding the signature to be genuine on the 21st day of December, 1955; that on January 6, 1955, this court filed a decree lifting the suspension of the previous judgment and dissolved the injunction against execution on said judgment; and that following this action of the court the defendant, Janet Williamson, filed a motion for new trial on January 16, 1956, and following the overruling of said motion, to wit, on the 25th day of February, 1956, defendant, Janet Williamson, for the first time raised the issue of suretyship by filing the motion now before the 'court.
“The court further finds that the defendant, Janet Williamson, has had a year and a half within which to raise the issue of suretyship, and at no time within this period was such issue brought before the court; that defendant could have elected to contend that she was a surety in April of 1955, but did not, but rather elected to contend that her signature was not genuine; that an examination of the face of the note reveals that Robert Williamson and Louis Rubich signed as partners, and that Kathryn Rubich and Janet Williamson did not sign as partners, placing Janet Williamson in no better position from the evidence on the face of the note than Kathryn Rubich; and that in her relationship to Louis Rubich and Kathryn Rubich, Janet Williamson is not in position of surety on the note in question.
“It is therefore ordered, adjudged and decreed that the motion herein filed by defendant, Janet Williamson, on February 25, 1956, be and the same is hereby denied with exceptions to the defendant, Janet Williamson.”

We are not concerned with the correctness of the former case in Columbiana County for the reason that no appeal was ever taken therefrom, and that judgment stands undisturbed.

What is the effect of the determination of the Columbiana County Court “that in her relationship to Louis Rubich and Kathryn Rubich, Janet Williamson is not in position of surety on the note in question”?

In the case before us, the Trial Court held that Janet Williamson was conclusively bound by that determination and cannot again litigate the same issue in this case. The answer to the question is clearly indicated by an examination of the authorities.

At Page 305 of 142 Oh St, in the case of Norwood v. McDonald, we find that the court, on December 8, 1943, said:—

“A comprehensive definition of res judicata is as follows: ‘The doctrine of res judicata is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions and facts in issue, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.’ 30 American Jurisprudence, 908, Section 161. See also, Hinton, Admr., v. McNeil, 5 Ohio 509, 511, 24 Am. Dec., 315; Stein v. Steamboat Prairie Rose, 17 Oh St 471, 93 Am. Dec., 631; James v. Allen County, 44 Oh St 226, 6 N. E., 246, 58 Am. Rep. 821; State v. Cincinnati Tin & Japan Co., 66 Oh St 182, 64 N. E., 68.
“ ‘If, however, the two suits do not involve the same claim, demand, and cause of action, such effect will not be ordinarily given to the prior judgment.’ * * * To constitute a bar there must be identity not only of subject matter but also of the cause of action. In other words, a judgment in a former action does not bar a subsequent action where the cause of action prosecuted is not the same, even though each action relates to the same subject matter. * *

Can it be said that the Columbiana County Court in passing on the motion of plaintiff to be certified a surety under the statute (§2329.54 R. C.), and its overruling of the same, is an existing final judgment rendered upon the merits and, therefore, conclusive of the rights of the parties in the case before us?

In the first place, the two suits do not involve the same claim, demand and cause of action. The cause of action in the former case is an action at law on a promissory note signed by all parties involved in this dispute. The cause of action in the instant case, is a question in chancery on the subject of whether the plaintiff stands in relation to the other defendants as surety or as a principal debtor with the other two.

“Where a judgment or decree is relied on by way of evidence, as conclusive per se, between the parties in a subsequent suit, it must appear by the record of the former suit that the particular controversy sought to be precluded was therein necessarily tried and determined.” The Lessee of John Lore and others v. John Truman, 10 Oh St 45, syllabus 1.

This determination in Columbiana County was incidentally cognizable by the court there, and it was the duty of the court to pass upon the motion therein filed but, in so doing, the court did not render a judgment which is conclusive per se, between the parties, nor was it necessarily tried and determined in the former trial. It was incidental thereto.

The New Waterford Bank did not find it necessary to have this matter litigated and determined in its action in Columbiana County.

“In an action on a written instrument against two or more persons jointly and severally bound, the finding by the court, under section 449 of the code (§5419 R. S.), that one or more of the makers signed the same as surety or bail for his or their co-defendant, and the certificate in the judgment showing which is principal and which are sureties, do not conclude the parties as to the facts so found and certified, in an action subsequently instituted for contribution.

“The effect of such finding and certificate is not changed by the fact that the defendants at the trial appeared, and filed answers in which each alleged that the others were principal debtors.” Gatch v. Simkins, 35 Oh St 89, syllabi 1 and 2.

In the Columbiana County case, the court took the position that the plaintiff should have elected whether she would contend that her signature was a forgery, or whether she would contend that she was merely a surety on the instrument.

We think the fact that she challenged the validity of her signature in no wise bars her from later claiming that she is not a principal, but surety only. 15 O. Jur. 252, Section 30.

In the light of the authorities quoted, and many others examined, as applied to the facts in this case, our conclusion on the proposition stated must be contrary to that of the Court of Common Pleas. By the plaintiff having filed her motion in Columbiana County Court asking to be certified a surety, no one has been injured by that former proceeding except the plaintiff herself, and the defendants are exactly in the same position that they were before the motion was overruled. Therefore, the plaintiff has created against herself no estoppel. No estoppel by judgpignt has arisen as between the co-defendants in the former case.

The court was in error in entering judgment for the defendant and dismissing the plaintiff’s petition.. The plaintiff is not conclusively bound nor barred by the determination in the former case in Columbiana County, and the judgment is reversed and cause remanded to the Common Pleas Court for further proceedings of that court to determine the issues raised.

Judgment reversed.

NICHOLS, PJ, concurs.

PHILLIPS, J, concurs in judgment.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    STATE v. WONDER.
    Municipal Court, Findlay.
    No. 462.
    Decided March 2, 1957.
    R. J. Rinebolt, Asst. Solicitor, Findlay.
    Harry Roebke, Bowling Green, for defendant.
   OPINION

By THE COURT:

A review of our cases for the year 1956 reveals that this case was laid aside by the Court and remains to be disposed of.

Defendant was arrested by the Findlay Police Department April 6, 1956, on a “John Doe” warrant issued by the Clerk of this court pursuant to an affidavit of April 4, 1956, signed by Urban L. Steinmetz, charging malicious destruction of property in violation of §2909.01 R. C. He was arraigned here the same day, pleaded Not Guilty and requested a continuance to obtain counsel,, which was granted. Trial was set for April 9th at 2 P. M., at which time defendant reappeared with counsel and, the State being ready, the case proceeded.

The following witnesses were sworn and examined on behalf of the State: Urban L. Steinmetz, Findlay garbage removal contractor; Steven Elchert, driver for Steinmetz; and Police Captain Wayne F. Ethell. At the conclusion of their testimony defendant’s counsel moved to dismiss the complaint, urging that there had been no showing as to whose property was injured or destroyed, that the injury had been trifling, and no malice had been shown.

The complaint charges that defendant, in this venue, on March 27, 28, 29, 30 and 31, 1956,

“being an employee of Robert Zeigman, did unlawfully, wilfully and maliciously remove from various garbage containers located in the city of Findlay, Ohio, blue cardboard identification tags placed on said containers by the owners thereof, said tags being the property of the complainant and having a value of two cents each, and further the destruction of said identification tags impairs and prevents the collection of garbage and is against the welfare of the citizens of Findlay, Ohio”

contrary to the form of the statute, §2909.01 R. C.

The statute cited simply provides:

“No person shall maliciously destroy or injure property not his own.”

There is no reference in the statute to the collection of garbage in or the welfare of the citizens of Findlay, Ohio. It seems scarcely necessary to observe that penal statutes are strictly construed, and cannot be extended to cases not falling within their terms. 12 O. Jur., p. 55. Hence the charge that defendant impaired the collection of garbage, against the welfare, etc., is surplusage and meaningless in this complaint.

The elements of the offense charged are:

1. Maliciously destroying or

2. Injuring property

3. Of another

4. Having some substantial value

5. Venue

The penalty attached makes the offense a felony if the value of the property destroyed, or the injury done, is one hundred dollars or more; if the value is less, it is a misdemeanor. In taking the case under advisement, the Court was initially concerned with his jurisdiction to make final disposition, but has long since found the answer, in favor of final jurisdiction, given by the Court of Appeals of Lucas .County, reversing the Court of Common Pleas, in State v. Wening, 81 Oh Ap 174, 36 O. O. 487, where the third paragraph of the syllabus reads:

“In a prosecution for malicious destruction of property, the value of which is alleged in the affidavit to be less than $100, the Municipal Court of Toledo has the power to determine the guilt or innocence of the accused and is not limited to a preliminary examination.”

The Court of Appeals announced that this section (§2909.01 R. C.), defines two offenses, a felony and a misdemeanor, which are distinguished solely by the value of the property involved, and the final jurisdiction of a Municipal Court over the lesser offense is clear.

From the testimony given and evidence proffered, without objection, in this case, the Court finds: The complainant, Steinmetz, held and still holds a long-term contract with the City of Findlay for the exclusive right, for hire, to collect and remove garbage therein. From April 1, 1954, to March 31, 1956, by sub-contract he assigned the territory north of the Blanchard River to one Robert Zeigman. Defendant was an employee of Zeigman. During March, 1956, Steinmetz mailed cardboard tags to the customers in Zeigman’s territory with instructions to affix them to their containers, so that his drivers could readily identify these containers when they took over Zeigman’s routes on April 1st. Zeigman instructed his drivers to remove the tags, and defendant removed some 40 to 50, having a value of two cents each.

It may be conjectured that Zeigman was motivated by pique or resentment at Steinmetz for not renewing his sub-contract, and there is ground for inferring some spite or petty malice on his part. But Zeigman was not on trial in this case, and there appears to be no ground for transfering his mental attitude to the defendant, Wonder. Hence there is no showing of express malice. Constructive malice might be found in the mere doing of a wrongful act to the injury or another without any just cause or excuse (25 O. Jur. 840, Section 5), but this principle is offset by the principle that intent to do a mere civil wrong cannot be a foundation for a presumption of criminal intent (Regina v. Franklin, Sussex Assizes 1883). There was a civil wrong done here, consisting of the destruction of property worth from eighty cents to one dollar. But to constitute crime there must be a criminal act plus criminal intent, concurring at the time of commission. For the reasons given above the Court finds there was no showing of criminal intent, either actual or constructive, in this case, and holds the defendant Not Guilty of the offense with which he was charged.

Case dismissed at costs of the State.


author: By GREEN, J.

text:
    GALLAGHER, Plaintiff, v. BILLMAIER et, Defendants.
    Sixth District County Court, Lucas County.
    No. 33.
    Decided July 14, 1958.

      Weber & Haulund, Toledo, Alvin N. Haulund and James W. Proctor, of Counsel, for plaintiff.
    Francis X. Pilliod, Maumee, for defendants.
   OPINION

By GREEN, J.

On the 19th day of May, 1958, the plaintiff herein filed her Bill of Particulars before the Sixth District County Court of Lucas County stating two causes of action. The first cause of action asked for restitution of Lots Number 1 and No. 19 in CARLL’S SECOND SUBDIVISION in the CITY of MAUMEE, LUCAS COUNTY, OHIO, together with the vacated alley between said lots. The statement of the first cause of action was couched in terms of.the statute. The second cause of action prayed for judgment in the amount of Three Hundred Dollars ($300.00) as rent for the above premises for the months of December, 1957; January, February and March of 1958.

The defendants filed a “Bill of Particulars and a Demurrer” to plaintiff’s Bill which alleged that they had obtained possession pursuant to a written purchase agreement; that the issue before the Court would require the determination of equitable rights and interests which divested this Court of jurisdiction. The contract of purchase was submitted with defendants’ pleading.

The defendants' demurrer was overruled and the cause heard at the beginning of which, throughout, and upon conclusion the attorney for the defendants contested the right of this Court to entertain jurisdiction.

At the hearing of the cause the following facts were adduced:

Some time prior to the 1st of November, 1957, the defendants and Mr. Otto Rectenwald, a real estate agent engaged by the plaintiff to sell the premises located at 705 Sachett Street, Maumee, Ohio, began negotiations for the sale and purchase of the property located at the last mentioned address. Several purchase agreements were prepared by Mr. Rectenwald but rejected by defendants’ attorney. Evidence indicated that one of these agreements stipulated that closing would be held on or before the 30th day of November, 1957. Thereafter the defendants’ attorney prepared the following purchase agreement:

“PURCHASE AGREEMENT
Leonard A. Billmaier and Nancy J. Billmaier, husband and wife, hereby agree to purchase the premises hereinafter described subject to the conditions hereinafter set forth:
The Premises
The premises at 705 Sackett Street, Maumee, Ohio. Said premises consists of a residence and the lot on which same is located. A survey of said premises has been submitted to this purchaser. Said survey was prepared by the G. M. Barton Survey Company, Survey No. 847-52. In said survey the premises are shown as Lot No. 1. Card's Second Addition in City of Maumee, Lucas County, Ohio and in said survey the rear of the residence is shown as being 8.63 feet from the northwesterly line of said Lot 1, and the front of the residence as being 8.85 feet from the northwesterly line of said Lot 1.
Conditions
The owner shall furnish a survey of said premises, which survey shall tie in with the monuments of the original recorded plat of said Card’s Second Addition which is recorded in Volume ll, Page 3, Lucas County, Ohio Records of plats; and in said survey any discrepancies from said original plat must be explained and justified.
If discrepancies appear in the survey which cannot be explained and justified, but the certificate of title and the survey nevertheless show that the premises are the property of the owner herein, then the owner shall convey by proper deed the property on which the residence is situated, that is, the legal description of the property conveyed shall include Lot No. 1 together with other property on which the residence is situated and adjacent thereto.
Price
The purchase price of said property is Ten Thousand ($10,000.00) Dollars, payable Two Hundred ($200.00) Dollars in cash, balance to be paid as follows: Additional $2800.00 cash at date of closing; purchaser to give seller first mortgage for balance of $7000.00 to be paid in payments of $70.00 or more per month, payments to apply first to interest and the balance to apply to principal; interest six (6%) percent.
Other Conditions
Any delinquent taxes and assessments to be paid by seller and the next tax payment due at date of closing to be pro-rated.
Warranty deed is to be furnished, together with certificate of title to date showing said property free from all material defects.
Any water meter, screens, shades, storm doors and windows, or any other permanent fixtures including shubbery on lot are to remain on the premises without additional charge.
Possession
Possession of the premises shall be given to the purchaser on or before December 1, 1957.
When this agreement is accepted and signed by both the sellers and the purchasers, it will constitute a definite agreement for the purchase and sale of said premises.
SELLER (Owner): PURCHASER:
Leona N. Gallagher Leonard A. Billmaier
Nancy Billmaier
Nov. 14, 1957 Nove. 12, 1957”

This Agreement was executed according to law.

All parties agreed that at the date of the execution of the agreement they fully intended and expected the deal to be closed prior to defendants’ occupancy.

On or about the 30th day of November, 1957, when the former tenants vacated the premises, the defendants procured a key to the premises from sources other than the plaintiff or her agent. It is acknowledged that Mrs. Gallagher, the plaintiff herein, did not consent to the possession of the premises by the defendants. However, the defendants testified that although at first Mr. Rectenwald would not give his consent to their taking possession on the grounds that the plaintiff’s attorney as well as the plaintiff was very much opposed to such a move, he later told the defendants that he had things arranged and they could move in. Mr. Rectenwald, on the other hand, vigorously denied making such statements or commitments on behalf of the plaintiff and further stated that his contract with the plaintiff was only for the purpose of selling the property and did not extend to the management thereof giving him authority to allow the defendants to enter the premises.

Once confronted with the fact of defendants’ possession, all parties concerned attempted to effect a closing of the sale which at the time of the filing of this action was not consummated. Plaintiff therefore filed this action in forcible entry and detainer asking for possession' of the said premises.

Legal counsel for the parties at the hearing of this cause were in general agreement that this cause was not brought upon a contract involving real estate nor was there any contention that the legal title in said premises resided in persons other than the plaintiff. Defendants did, however, at all stages of the proceedings argue that equitable rights and interest must necessarily be involved thereby divesting this Court of any jurisdiction over the subject matter herein.

We find the authorities in complete accord with the principles of law advanced by defendants’ counsel. The County Courts are creatures of statute and have only such powers as are vested to them by the legislature, and they are, as were the Justice of Peace Courts, which jurisdiction they absorbed, completely devoid of equitable jurisdiction.

Though the Supreme Court has never ruled upon the question, numerous opinions of other courts have confronted the issue of the jurisdiction of inferior courts in restitution actions where the question of possession must necessarily be determined by reference to the rights and interest of ¿he parties arising by virtue of an executory contract involving real estate. These authorities unanimously have held that a purchaser entering into possession of real estate under a purchase agreement, land contract, or lease becomes the equitable owner so long as that contract remains in force; consequently sufficient evidence of possession under such an instrument not providing for the vendor’s repossession upon the default of the vendee is a complete defense to an action in forcible entry and detainer instituted in the county court, and the court must enter a judgment for the defendant and remit the plaintiff to a court of general chancery powers to cancel or reform such instrument or pray for specific performance. Cowan v. McGowan, 12 OCR (N. S.) 431 (Contract of Purchases); State, ex rel. Morgan et al. v. Stevenson, 390 App. 335 (Land Contract); Kent v. Kent (Mun. Ct.), 12 O. O. 226 (Oral Lease), 27 Abs 254; Huddleson et al. v. Ward (Mun. Ct.), 33 O. O. 489 (Lease), 46 Abs 225.

As has been suggested above, the courts have made a sharp distinction where the agreement in question contains a specific forfeiture clause granting the right of the vendor, upon the purchasers default, to declare the contract null and void and re-enter the premises. Such agreements carry with them the instrument of their own abolishment and where the vendor chooses to exercise his option the equities of the parties are summarily extinguished. The only responsibility of the court in such an instance is to determine first whether such a forfeiture clause exists and secondly whether one or more of the conditions in the agreement has been breached by the defendant.

As to land contracts and purchase agreements, see: Hughes v. Kline, (C. P.) 16 ONP (N. S.) 493 (Oral Contract); Felger v. Thompson, 27 Oh Ap 310; State, ex rel. Kennelly, et al. v. Miller, 430 App. 173; Martin v. Bircher, 46 Oh Ap 239 (The scope of this decision has been oft-criticized); Maxen v. Brogle (App.), 16 Abs 555; Holley v. Bradley (App.), 24 Abs 132; McGriff v. Hayes (App), 29 Abs 534; State, ex rel. Everson, et al. v. Mun. Ct. of Barberton, et al., 98 Oh Ap 177; 57 O. O. 226. The case of Burrow v. Miller, 24 NP (N. S.) 152, though in contradiction to the above authorities, has been seriously questioned in subsequent cases.

As to lease agreements see: Poulous v. Toledo Labor Bldg., 22 Oh Ap 426; Fields v. Ingalls Bldg. Co., 31 NP (N. S.) 149; Raab v. Guest, 48 Abs 29; Adair v. Crepps, 81 Oh Ap 136; 36 O. O. 446. (Leases in the latter two cases contained clauses permitting an option to purchase in the future.) Smith v. Etling, 96 Oh Ap 417; 54 O. O. 406.

In light of the above principles of law we turn our attention to the problems confronted in the case at bar.

As to the ruling of the Court against defendants’ demurrer: In the first instance it should be noted that the pleading filed by the defendants was styled “Bill of Particulars and Demurrer.” We assume that' it was to constitute a demurrer on the one hand, request for a judgment on the pleadings on the other, and at the same time stand as defendants’ answer.

If a demurrer was in fact intended, it would nevertheless not strike at. the validity of the complaint. Sec. 1923.05 R. C., merely requires thát the complaint describe the premises entered upon and set forth either a lawful or unlawful entry and a forcible detention. The plaintiff’s first cause of action reads as follows:

“FIRST CAUSE OF ACTION
“1. Plaintiff says that on or about the 1st day of December, 1957, defendants unlawfully and forcibly entered, and have ever since unlawfully detained, and now do unlawfully and by force detain, from the possession of plaintiff, the following described premises, to the possession of which plaintiff is entitled:
“Lots Numbers One (1) and Nineteen (19) in CARLL’S SECOND SUBDIVISION in the City of Maumee, Lucas County, Ohio, together with the vacated alley between said lots.
“2. That on the 24th day of April, 1958, plaintiff served a written notice on defendants to leave said premises.”

Such a statement of fact complies with the statute, and is sufficient; nor does it state facts which on their face would deprive this court of jurisdiction.

Another and more difficult question, however, is raised by defendants’ pleadings. That is, when the defendants, by answer, raise a jurisdictional defense to a complaint, more specifically, when the defense raised is that the defendants assumed possession under an executory contract not containing a forfeiture clause thereby creating equitable rights and interests, must the county court immediately abandon all consideration of the cause?

This question has been somewhat complicated by several earlier cases which opinioned that inasmuch as the justice of peace courts did not have equitable jurisdiction an equitable title could not be availed of defensively unless it was discernible from the averments of the complaint or from the facts shown by the complainant at the trial, nor was proof thereof competent before the justice. Carey v. Richards, 2 Dec. Rep. 630; State, ex rel. v. Paul, 9 Dec. Rep. 226; Schmidt v. Schmidt, 1 N. P. (N. S.) 177, and the cases cited therein. We believe, however, that later cases, though they do not refer to the above opinions, affirm the right of the defendants in a forcible entry and detainer action to offer evidence of an equitable defense. Note the language of the first and second syllabus of Cowan v. McGowan supra:

“1. In an action in forcible detainer before a justice of the peace, it it competent for the defendant to offer in evidence a contract of purchase for the purpose of showing the nature of his possession.
“2. A showing of possession under a contract of purchase is a complete defense to an action in forcible detainer; and for failure to perform some of the conditions of the contract the plaintiff must have resort to a suit in ejectment.”

In our opinion the instant question has been satisfactorily reviewed and settled in Ohio. The following excerpt is from the case of Olds v. Morse, 98 Oh Ap 382; 57 O. O. 419:

“[387] In our examination of the question of: ‘When is the title to real estate drawn in question?’ We have examined with interest the following two cases: Lynam v. Schueler, 79 Oh Ap 101, 33 O. O. 562, 68 N. E. (2d), 114, and Warner v. Matthews, 79 Oh Ap 111, 34 O. O. 482, 69 N. E. (2d), 59. We agree with the pronouncements therein contained, in respect to the legal effect of the statute in question, and we declare, as did the court in those cases, that, if the factual development in the trial of a cause of forcible entry and detainer raises any issue to support a denial of the title in the plaintiff, then the court should refuse to determine the issue of title and dismiss the case for lack of jurisdiction. If, however, in spite of a defendant’s denial of title in the plaintiff, the proof discloses no issue of fact respecting title to the property, the question of title is not involved, and the Municipal Court, as would the justice of the peace court, have jurisdiction to determine a cause of the kind here under consideration.
“We adopt for this opinion a statement taken from Warner v. Matthews, supra (at p. 115):
“ ‘* * * It would be a harsh and unjust rule to hold that in a forcible entry and detainer suit or in any action wherein it is incumbent upon plaintiff to plead and prove his title, a defendant may by the mere act of setting up a denial of such an averment deprive the court of its jurisdiction to hear the cause. The test must be whether the factual development affords any support for the issue made on the question of title. If it does, then the statute must be given application.’ ”

It will be noted that the above cited cases did not involve equitable defenses but rather the drawing in issue of the title to real estate. Nevertheless, it is our belief that the logic of the cited opinion is analogous.

We believe, therefore, that it was incumbent upon this court to permit a full hearing, if necessary, to determine whether or not the defendants did in fact take possession of the premises under an executory contract not containing a forfeiture clause, and if, upon consideration of all the competent and relevant evidence, it appeared that defendants’ contention was true, to render a judgment accordingly, without prejudice; if not, then to proceed to the determination of the respective rights of the parties to possession.

It was argued by the plaintiff, in brief and at the hearing, that the omission of the specific date of closing in the contract left unwritten an essential element of the agreement of the parties and therefore voided the contract as not sufficient to satisfy the statute of frauds. Though we do not feel that the resolution of this argument is necessary to the determination of the cause before us, we observe in passing that under the circumstances it is our understanding that unless a “time is of the essence” clause appears in the contract, the closing date, not otherwise specified, will be construed to be within a reasonable time. If a reasonable time has passed, then recourse must be obtained by cancellation in a court of chancery.

As to the major issue involved in this case, we feel, upon consideration of the facts surrounding the defendants’ occupation of the premises in question, that the determination of the respective rights of the parties to possession may be resolved without reference to the contract itself.

It is our belief that the defendants did not take possession under the contract, but rather by entering upon the premises without consent of the plaintiff and with a Key obtained from strangers to this action, have resorted to self help, a remedy which our courts have traditionally frowned upon.

It is true that the contract provides for defendants’ possession on a specific date, but the parties fully expected all outstanding issues to be settled prior to that time. Had the plaintiff consented to the defendants’ possession, our decision would have been different; however, short of this the defendants’ recourse should have been through the legal processes rather than by a surreptitious entry, however void of actual violence. The defendants were well aware that all the conditions of the contract had not been met and that until these matters were settled, it was likely that the vendor would object to their occupancy. The remedy elected by these defendants have placed them in the clothes of a trespasser rather than a vendee.

We therefore hold that the defendants are in possession of the described premises unlawfully and that the plaintiff herein is entitled to possession. We emphasize, however, that we are in no way disturbing or interpreting the rights of the respective parties under the contract. Either party may, upon conclusion of this judgment, petition the proper court for a determination of their rights under this contract.

Plaintiff, in her second cause of action, asks for a judgment in the amount of Three Hundred Dollars ($300.00) in the nature of rent for the first four months of defendants’ occupancy. Sufficient evidence was introduced to establish a fair and reasonable rental value of Seventy-five Dollars ($75.00) per month. The defendants, on the other hand, argue that the parties to this action had at no time entered into an agreement, either oral or written, for the payment of rent during the period in question and further, that the purchase agreement signed by the parties, which does not provide for rent until the closing date, contains the entire agreement of the parties.

The facts stated by the defendants are correct, but we cannot agree that in the absence of an express contract for rent that the plaintiff is precluded from recovering the reasonable value of the use and occupancy of the premises. That a contract may be implied in law is a doctrine firmly established in Ohio. Such a quasi-contract imposes a civil obligation upon one who has received benefits which, if accepted without recompense, will manifest an inequitable burden upon another party. Without the necessity of mutual consent the court will impose an obligation cut from the fabric of justice to prevent an obligor from enjoying benefits which in good conscience he is not entitled to receive or retain. See Rice v. Wheeling Dollar Savings & Trust Co., 155 Oh St 391, 44 O. O. 374; Hughes v. Oberholtzer, 162 Oh St 330, 55 O. O. 199.

We could not imagine a more explicit or appealing example of unjust enrichment than is presented by the circumstances of this case. Had the defendants taken possession pursuant to the above agreement, we would have little hesitancy in holding that they have received increments for which they did not bargain and which they could not, by the wildest stretch of the imagination, have expected at the time of entering into the agreement. An unexpected impossibility of arriving at a satisfactory closing agreement, not the terms of the contract, has resulted in this hollow occupancy. The fact that we have already held, as a matter of fact, that the defendants did not assume possession under the agreement makes our decision clear. We conclude, therefore, that an ex contractu agreement establishing a month to month tenancy has arisen entitling the plaintiff to restitution for the value of the use and occupancy of the premises.

The plaintiff has by sufficient evidence established the reasonable rental value of the premises at Seventy-five Dollars ($75.00) per month. It is obvious that she has asked for only four months rent due to the $300.00 monetary limit upon the court’s jurisdiction. We do not feel, however, that the authorities will allow the separation of a vested cause of action. Public policy has dictated, and the courts have made it' necessary, that the entire obligation due and owing and the date of the filing of an action be prayed for. To allow a vested cause to be split at the convenience of the plaintiff, even to accommodate a jurisdictional requirement, can invite only an unnecessary multiplicity of suits, taking up the time and resources of the courts and defendants. This is particularly true when the action is one based upon rents due. Fox v. Althorp, 40 Oh St 322. It is the opinion of this Court that though a judgment, be rendered for the full amount prayed for, it must satisfy the entire amount due at the time of the filing of this action May 19, 1958.

In the absence of an agreement of a contrary intent, rents are not due in advance but at the end of each period, Parks v. Dunn, 46 Abs 6: Huddleson v. Ward, 33 O. O. 489, 46 Abs 225. We conclude, therefore, that a judgment must be rendered for the period ending April 31, 1958.

On the basis of the above conclusions of fact and law, the court renders a judgment for restitution for the plaintiff and against the defendants as prayed for in plaintiff’s first cau'se of action; and, further, orders a judgment for the plaintiff in the amount of Three Hundred Dollars ($300.00) for rent of the described premises for the months of December, 1957 through April, 1958, and for his costs herein expended.


author: By LEIS, J.:

text:
    CINCINNATI (City), Plaintiff-Appellee, v. KING, Defendant-Appellant.
    Common Pleas Court, Hamilton County.
    No. A-160166.
    Decided June 25, 1958.
    Lyle Castle, City Solicitor, for appellee.
    Harry H. McIlwain, for appellant.
   OPINION

By LEIS, J.:

This is an appeal from the Cincinnati Municipal Court arising out of the defendant’s conviction for violation of Section 901-Í3 of the Code of Ordinances of the City of Cincinnati.

Code Section 901-Í3 of which the defendant stands convicted, in full force and effect at the time of the violation, reads as follows:

“Whoever shall print, engrave, sell, offer for sale, give away, exhibit or publish, or exhibit as for sale or other purpose, or have in his possession or under his control, any obscene, lewd, lascivious, indecent, or immodest book, pamphlet, paper picture, image, cast, statuary, drawing or representation, or any other article of an indecedent or immoral nature, or book, paper, print, circular or writing made up principally of pictures or stories of immodest deeds, lust or crime, or shall exhibit upon the public street or highway, any of the articles or papers, prints, publications, as aforesaid, within the view of passersby upon said street or highway, shall be fined not more than one hundred ($100.00) dollars, or imprisoned not more than sixty (60) days, or both.” (Emphasis by Court.)

The case was tried to the Court, a jury being waived by the defendant. The City, in support of its case, introduced two expert witnesses: Gordon J. Wedig, a member of the Cincinnati Police Department, Youth Aid Bureau, and Clair Hubert, Associate Professor of Psychology at the University of Cincinnati. The defense offered no oral testimony, but moved for dismissal of the action on the grounds of failure of proof beyond a reasonable doubt and unconstitutionality of the ordinance in question. The trial court overruled the motion to dismiss. After due consideration, the Court found defendant guilty of violation of the ordinance.

First, let us turn to the issue of constitutionality which has been raised. It is well settled that legislation of this type does not violate the constitutional provisions of free speech and free press. Nor does such legislation deprive an accused of due process of law. The Supreme Court of the U. S. in 1925, in the case of Gitlow v. N. Y., 268 U. S. 652, held that the guarantees of the First Amendment are incorporated in the due process clause of Amendment XIV.

Amendment I of our Constitution reads that—

“Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of. the press; * * *.”

This First Amendment, according to the well established law, is incorporated into Amendment XIV which reads in part:

“* * * no state shall make or enforce any law which shall abridge the privileges or immunities of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law, * * *.”

The Supreme Court of the United States in Roth v. United States, 354 U. S. 476, 77 S. Ct. 1304, speaking through Mr. Justice Brennan, said that—

“* * * it is apparent that the unconditional phrasing of the Frist Amendment was not intended to protect every utterance.”

And again:

“The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people. * * * All ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection for that reason is mirrored in the universal judgment that obscenity should be restrained, reflected in the international agreement of over fifty nations, in the obscenity laws of all of the forty-eight States, and in the twenty obscenity laws enacted by the Congress from 1842 to 1956.”

The Constitution of these United States of America has endured since its adoption, and among the rights 'most sacredly protected are those of free speech and free press. The Preamble is the key to the scope and purposes of this document, and is taught to every school boy and girl in this nation.

By the largest stretch of imagination, due process was never intended to protect forces which tend to destroy the domestic tranquility and the general welfare referred to in the Preamble. One can not flaunt the Constitution and then seek refuge in due process of law and demand its protection. The Constitution is meant not as a weapon to enable those individuals of weak moral fibre to inflict upon the populace types of publications left better unpublished. There is a majesty to the law that was ordained to subserve the ends of justice; not to be used as a bastille to corrupt the morals of the very citizens for whom this law is designed to protect.

In State of Ohio v. Kassay, 126 Oh St 177 (not followed as to certain holdings in regard to appellate jurisdiction, but still the law as to the point in issue in the instant case), Chief Justice Marshall, speaking for a majority of the Court in upholding the constitutionality of a criminal syndicalism statute, cited with approval People v. Most, 171 N. Y. 423, 64 N. E. 175, concerning abuse of the constitutional guarantee of freedom of the press:

“While the right to publish is thus sanctioned and secured, the abuse of that right is excepted from the protection of the constitution, and authority to provide for and punish such abuse is left to the legislature. The punishment of those who publish articles which tend to corrupt morals, induce crime or destroy organized society, is essential to the security of freedom and the stability of the state.” (Emphasis added.)

Accordingly, the Court finds appellant’s plea of unconstitutionality without merit.

There remains the question as to whether the exhibits in this case are obscene or indecedent to come within the terms of Section 901-13. Now, what test is to be applied in determining a violation? Paragraph 6 of the syllabus of Roth v. U. S., supra, states:

“Obscene material is material which deals with sex in a manner appealing to prurient interest.”

Paragraph 8 of the syllabus reads:

“Standard for judging obscenity is whether the average person, applying contemporary community standards, dominant theme of material taken as a whole appeals to prurient interest.”
“Prurient. 1. Inclined to or characterized by lascivious thought.”
“Lascivious. 1. Inclined to lust; Wanton or lewd. 2. Inciting to lust or wantonness.” (The American College Dictionary.)

To answer this question, as to whether or not these publications meet the test laid down by the Supreme Court, one needs only to turn to the back cover of Exhibit 6, “Cabaret Yearbook,” contents seventy-two pages, price $1.00. Use this back cover as a guide to the intellectual and wholesome materiaj inside:

“Who has performed nude before ten million people?
What strip tease club was inspired by Bing Crosby?
When did students riot to see girls naked on the stage?
Why are English girls favorites as Paris nudes?
Where can a girl be undressed by answers to a quiz game?
Read the answers inside.”

Five sentences — each one with a key word indicating the same thought: “nude,” “strip tease,” “naked,” “undressed.”

Let us examine more of this scholarly literature. The pages are replete with words like “nude,” “naked,” “rape” and with photographs of scantily clad females. Refer to City’s Exhibit 5, “Continental,” contents sixty-four pages, price $2.00. Including the covers there are thirty pictures of women briefly dressed, plus various sketches of women’s undergarments. There is not one solitary picture of a woman in normal street dress. Suffice to say that the pictures depicting the physical positions of these women in their state of dress — or undress — and the pictures accentuating parts of the women’s anatomy are not those usually found displayed above the fireplace in the average American home.

Let us continue this examination of the exhibits themselves. Exhibit 4 is a copy of “GALlery,” contents thirty-two pages, price $1.50. Thirty-two pages, thirty-two pictures. Thirty-two pictures, that is, of full page nudity in different poses.

In view of the foregoing can anyone entertain a reasonable doubt that, using the test laid down by the Supreme Court, these publications are obscene, or, more tersely, that these publications are smut for smut’s sake?

Among these exhibits is found ample evidence to sustain the conviction of defendant-appellant. These publications not only come within the test of prurient interest using contemporary community standards, but parts of these exhibits are designed for consumption by the sexual pervert. The testimony of Dr. Hubert clearly bears this out. An even more compelling piece of evidence as to this fact can be found on page twenty-nine of Exhibit 2, the actual copy of which the Court will not stoop to print. These publications are trashy, improper, immodest, immoral,- filthy and the Court condemns their publication and sale.

Eighty years ago in a case involving publication of obscene matter the Court, in upholding a Cleveland ordinance prohibiting the publication of such matter, had this appropriate statement to make:

“The law. possesses the power to maintain its own dignity, and to protect the public in its purity, we think, as against those who seek to resist and destroy both.” (O’Brien v. City of Cleveland, 4 Ohio Dec. Rep. 189.)

Today every American citizen needs a clear and alert mind to meet intelligently the problems that consistently face this nation. Worthless publications of this type undermine our society and work to break down our moral standards.

“I have in the past few years come to the belief that our destiny as a nation depends upon our spiritual strength rather than upon bombs, production, and material wealth.” (Judge Harold R. Medina, introduction to “The Art of Advocacy.”)

From whence comes this ambition to the high calling of disseminator of filth? Not for one fleeting moment does this Court rise in defense of the appellant or to others in like positions. That he is guilty beyond a reasonable doubt is not to be denied. But such a defendant can not possess for sale such literature unless there is a source or a supplier. Is it possible that such persons as the defendant-appellant are forced to take these types of publications in order to secure the conventional and socially acceptable publications?

In passing, the Court must note that those who organize and publish such worthless material are those who should bear the greater burden of this sin. Publishers of this trash procure the destruction of the healthy mind the same as the narcotics peddler procures the destruction of the healthy body. Is there any sound reason for this base occupation other than to drag others into the mire of immorality? Are these exhibits representative of modern American literature? If the answer be in the affirmative, then such situation is cause for alarm and the American citizen should take inventory of his moral habits and inform his legislators and law enforcement officers that he desires more stringent measures to curtail this bombardment of feculence.

The price for these base publications? There is extorted from the purchaser for these carriers of lewdness a price that amply covers cost of printing plus comfortable profit for material of this quality. For the same amount of money that will buy sixty-four pages of 5 Vz" by 8Vz” low grade paper packed with high grade obscenity, carnality and perversity, the purchaser can obtain at prevailing supermarket prices one loaf of bread, one quart of homogenized milk, a pound of ground beef, one dozen eggs, a can of tomato soup, two cans of vegetables, a pound of sugar and one package of flavored gelatine. Where, then, is the proper standard of value?

God has created man in His own image; thus there is a sanctity about the human body that was never intended by man’s Creator to be the subject of defilement, abuse or mockery. (The Book of Genesis, Chapter 1, Verse 27.)

These are the publications that are available to those who can muster the exorbitant purchase price, be he man, woman or child. This is the modern American literature that infiltrates into the American home and finds its way to the schools for the perusal and digestion of American children. It must be of great satisfaction to anyone who performs any link in this chain of indecency to ponder upon his superb contribution to our culture base to have a hand in the enlightenment of American youth to the ways of filth and sex perversion.

If these base creatures of low moral calibre wish to wallow in the muck of immorality, then this Court serves notice to all such offenders that it will enforce the letter and spirit of the law to the fullest extent in every case brought within its jurisdiction, and will use its powers to prevent the extension, flourishment and permeation of this sinful and loathsome march of obscenity. If the laws of man are insufficient to punish with the proper degree of force those who are responsible for the abandonment of moral standards and the destruction of clean minds, then we must let these disseminators of filth to their own consciences and to an accounting with One higher than we.

The finding of the Municipal Court should be and is affirmed.


author: By PETREE, PJ.

text:
    CATTARUZA, d. b. a. PAPPY’s PLACE, Appellant, v. BOARD OF LIQUOR CONTROL, Appellees.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5848.
    Decided February 18, 1958.
    Karas & McDonnell, Gregory C. Karas, of Counsel, Dayton, Charles T. Kaps, Columbus, for appellant.
    William Saxbe, Atty. Geni., Chester Hummell, John Leibold and Paul W. Dixon, Asst. Attys. Geni., Columbus, for appellees.
    (HORNBECK, J, of the Second District, sitting by designation in the Tenth District.)
   OPINION

By PETREE, PJ.

This is an appeal on questions of law from the Common Pleas Court of Franklin County, Ohio.

The assignment of error before us is as follows:

The Common Pleas Court and the Board of Liquor Control erred in failing to remand the case to the Department of Liquor Control for further consideration when the record showed that the decision of the Department of Liquor Control was based upon incorrect facts.

The rejection order of the Director of the Department of Liquor Control, as set out in the opinion of the Common Pleas Court, is as follows:

“Pursuant to the provisions of §4303.26 R. C., a hearing was conducted on September 14, 1956 at 1 P. M„ in Room No. 3 of the County Commissioner’s Office, Montgomery County Court House, Dayton, Ohio, at which time the authorities in control of the Franklin Elementary School objected to the issuance of subject permit. The Department found that said objections were well founded, and finds it inadvisable to issue said permit.”

Exhibit A, after reciting that due notice had been sent to the Franklin Elementary School, that said school objected to the issuance of said permit, that said applicant had been served with notice of hearing and had appeared to show cause why the objection of the authorities in charge of the said school were not well taken, and that the authorities of said school offered evidence supporting their contention of the inadvisability of said issuance, recited, among other things, the following:

“Whereas the matter being submitted to the duly authorized agent of the Director of the Department of Liquor Control on the evidence and the Department of Liquor Control in consideration thereof, found:
“1. The Franklin Elementary School is a school within the contemplation and meaning of §4303.26 R. C.
“2. The Franklin Elementary School is within 500 feet, to wit: 160 feet of the proposed location of the said class D-3 permit.”

Then the Director decided that the objections of the authorities in charge of the Franklin Elementary School were well founded and supported by the evidence and denied the application for a permit.

The Board of Liquor Control heard the evidence, including evidence submitted by the applicant, which purported to show that the distance was actually 361 feet, dismissed the appeal of the applicant, and in its order found that the location of the premises for which the permit was applied for therein was within a distance of 500 feet from the boundaries of a parcel of real estate having situated thereon the Franklin Elementary School. No other reference to the number of feet is contained in the order of the Board of Liquor Control dismissing Elio Cattaruza’s appeal. The burden is upon the applicant, the appellant herein, to show that the Director relied upon the distance of 164 feet (later mentioned as approximately 160 feet) in arriving at his conclusion in denying the permit or whether as a matter of fact he relied upon the fact that it was within 500 feet of the Franklin Elementary School and upon the objections of said school under §4303.26 R. C.

We feel that this burden has not been met and that the judgment of the Common Pleas Court in affirming the order of the Board is supported by reliable, probative, and substantial evidence. We find that the assignment of error is not well taken, and the judgment of the Court of Common Pleas will, therefore, be affirmed.

Judgment affirmed.

MILLER and HORNBECK, JJ, concur.


author: By BOPE, J.

text:
    SWISHER, Plaintiff, v. LEATHERS, Jr., Defendant.
    Municipal Court, Findlay.
    No. 1.
    Decided July 3, 1957.
    M. E. Monroe, for plaintiff.
    G. G. Oxley, for defendant.
   OPINION

By BOPE, J.

On January 5, 1956, plaintiff’s petition was filed in this court, setting forth a cause of action alleged to have accrued on January 6, 1954, growing out of the collision of an automobile operated by the defendant with one driven by the plaintiff on West Crawford Street, Findlay, opposite the freight entrance of Woolworth’s store. Plaintiff claimed negligence, and that his damages were $83.95, for which amount he asked judgment, and costs.

Summons was issued and served the same day by the bailiff on the defendant personally, notifying him to appear and answer by January 17th.

On January 11th defendant appeared specially by his attorney and moved to quash the service of summons, on two grounds:

(1) That the affidavit verifying the petition, which was signed by the plaintiff’s attorney, was not made in compliance with §2309.53 R. C.

(2) That no precipe for summons was filed herein.

Taking up these grounds in inverse order, the court finds:

First, as to the lack of a precipe: Rule 17 of the Tentative Rules of Practice of this court requires a precipe. And Section 21 of the Uniform Municipal Court Act (§1901.21 R. C.), in prescribing generally the criminal and civil procedures for Municipal Courts provides:

“In any civil case or proceeding if no special provision is made in §§1901.01 to 1901.38, inclusive, R. C., the practice and procedure shall be the same as in courts of common pleas. . .”

Sec. 2703.02 R. C., of the Civil Procedure Act requires a precipe, and there is no question that it applies in the Common Pleas Court. But a special provision is found in Section 22 of the Municipal Court Act (§1901.22 R. C.), in the following words:

“Civil actions and proceedings in the municipal court shall be commenced by filing a petition upon which summons or writ shall be issued by the clerk of the municipal court. . .”

Under the well known rule of statutory construction that specific provisions prevail over general provisions, this has been interpreted as imposing on the clerk a duty to issue summons, and therefore, in most situations, a precipe is unnecessary. Zimmerman: Ohio Municipal Court Practice, page 12. Hence our rule must be modified in deference to the statute, and will be so amended.

Second, as to verification of the petition by the attorney:

This question was passed upon by the Supreme Court in 76 Oh St 91, and by the Hamilton Common Pleas in 18 O. D. 449, In the latter case the syllabus reads:

“The verification of a pleading by an attorney or agent must set out specifically one of the grounds for his doing so specified in §5109 R. S.” (now §2309.53 R. C.).

These grounds are:

(1) That the facts are within the personal knowledge of the agent or attorney;

(2) That the party is an infant, or of unsound mind, or imprisoned;

(3) That the pleading to be verified is founded upon a written instrument for the payment of money, which is in the possession of the agent or attorney;

(4) That the party is a corporation, or is not a resident of, or is absent from the county.

Since none of these grounds is stated in the affidavit of verification in this case, such verification is legally insufficient, and the petition defective.

The motion to quash the service of summons will be allowed and the petition will be stricken from the files for insufficient verification, at plaintiff’s costs. The case will be dismissed.


author: By GRIFFITH, J.

text:
    LAWRENCE, A Minor, Plaintiff-Appellant, v. GOYNES, Defendant, SYNOWKA, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3882.
    Decided March 21, 1957.
    Leo Waldman, Youngstown, for plaintiff-appellant.
    William E. Pfau, William E. Pfau, Jr., Youngstown, for defendant-appellee, George R. Goynes.
    Stephens & Stephens, Youngstown, for defendant-appellee, Joseph Synowka.
   OPINION

By GRIFFITH, J.

It is conceded that in so far as the two defendants are concerned the action was rightfully brought against them in Mahoning County, each having filed answers to plaintiff’s petition, which alleged joint and concurrent negligence against defendants.

Syllabus 2 in the case of Maloney v. Callahan, 127 Oh St 387, reads:—

“In such action, a reviewing court is unwarranted in holding that the dismissal from the suit of the resident defendant in and of itself deprives the trial court of jurisdiction over the nonresident defendant, when there is no affirmative showing that such dismissal was on account of non-liability or misjoinder.”

Jurisdiction may not be established by agreement of the parties. Once conferred it may not be removed by agreement of the parties. Once jurisdiction is established it remains until the facts warrant the court in determining otherwise.

The settlement of the claim by the plaintiff with the resident defendant does not indicate that the claimant has no valid claim against him; it does not indicate that the action was not rightfully brought in Mahoning County.

Judgment reversed and cause remanded for further proceedings.

NICHOLS, PJ, concurs.

PHILLIPS, J, dissents.


text:
    OHIO HARDWARE ASSOCIATION, Appellant, v. BOWERS, Tax Commr., Appellee.
    The Board of Tax Appeals, Department of Taxation, State of Ohio.
    No. 33942.
    Decided August 26, 1957.
    R. W. Kilbourne, Columbus, for appellant.
    William Saxbe, Atty. Genl., By John M. Tobin, Asst. Atty. Genl., for appellee.
   OPINION

The Ohio Hardware Association is a domestic corporation organized as a nonprofit trade association. Its purpose is to advance the interests of its members consisting “of about 1860 (Ohio) retail hardware stores who are active members of the association; about 550 traveling salesmen of the association; and about 375 honorary, members, who are manufacturers and suppliers in the hardware industry.”

The issue in this case is whether or not the appellant is engaged in business and its personal property is so used and is taxable as such under the provisions of §§5709.01 and 5701.08 R. C., for the tax year 1956. The appellant contends that its personal property is exempt from taxation. The Commissioner found, upon review and redetermination, that under these statutes the Association was engaged in business and that such property was taxable.

The cause now comes on for further and final consideration upon appellant’s notice of appeal, the order made, the record of a hearing had before this board on June 12, 1957, with exhibits attached, and briefs of counsel.

We have carefully read and examined the transcript, record and briefs, and have come to the conclusion that the facts and issues now made are on all fours with those found in American Jersey Cattle Club v. Glander, 152 Oh St 506, 41 O. O. 44. Were the Board of Tax Appeals to engage in a lengthy dissertation as to the facts and law herein applicable, it could biit repeat practically everything said by Judge Taft, speaking for the court in the Jersey Cattle Club case, supra. There is nothing we might add. The matter is determinable only on interpretation of the provisions of the Ohio law.

We must and do, therefore, now conclude that this cause be affirmed upon authority of the Jersey Cattle Club case, supra.


author: By BRYANT, J.

text:
    COLUMBUS (City), Plaintiff-Appellee, v. HALL, Jr., Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5885.
    Decided May 13, 1958.
    Russell Leach, City Atty., Bernard T. Chupka, City Pros., Columbus, for plaintiff-appellee.
    Joseph Ducey, Columbus, for defendant-appellant.
   OPINION

By BRYANT, J.

While this case has but one number in our court, it is an appeal on questions of law from the judgment of conviction upon two separate charges in the Columbus Municipal Court. William Hall, Jr., defendant-appellant herein, had been charged with three separate violations of the traffic code of the City of Columbus Cone dismissed before trial) arising out of his operation of an automobile in a westerly direction on Collins Avenue just east of Harrison Avenue in Columbus on August 4, 1957.

It appears that Collins Avenue runs east and west and Harrison Avenue runs north and south in the northwest part of the City of Columbus. It further appears that one Joseph Williams was the owner of an automobile which was parked on the north side of Collins Avenue a short distance east of the intersection with Harrison Avenue. It further appears that Hall, after quitting work, stopped on the way home to consume beer. According to the officer, who investigated the accident, Hall said he had consumed four or five beers, while at the time of the trial Hall testified that he had told the officer he had only two beers on the way home.

In any event it appears that Hall, at the time of the accident, fixed at or near the hour of midnight, had obtained an additional supply of beer and that twelve bottles of beer, unopened, were on the back seat of his car and that as he passed the parked car of Joseph Williams he sideswiped it damaging both cars and making considerable noise.

Hall says that he pulled up and stopped and got out of his car and that he remained in the vicinity for what he estimated was three minutes. He said he departed because he had misplaced his driver’s license and was afraid it would work to his disadvantage.

The police officer who made the investigation quoted Hall as saying he stopped for only a matter of seconds. A man who was visiting in a house close by testified that he heard the crash, thought it might be his own car, stepped outside in time to see Hall get out and look at his car, then get back in and drive away. As this witness at first thought the crash involved his own automobile, it is reasonable to assume that he proceeded to the street expeditiously.

A stop of a few seconds is not a reasonable compliance with the statute.

It may well be that the trial court, sitting as a jury, accepted as true the account of what happened allegedly given by defendant at the time of the investigation, according to the police officer, rather than the much more favorable account given by the defendant from the witness stand at the time of the trial. Certainly the defendant could not have remained there very long if the crash, the so-called inspection and the departure all occurred in but little more time than it took a man in a neighboring house to open his door and come out on the street.

Conflicts in evidence are for the jury, or where a jury is waived, for the trial court to determine. There was evidence upon which the trial court could find as it appears to have done that while there was a stop, it was so brief as to make it impossible for anyone to ask for or obtain the name of the driver.

In Hall’s defense or by way of explanation it is suggested that he found he did not have his driver’s license along and thought that fact might be held against him, hence his anxiety to get away from the scene. That is neither excuse nor justification. A mere instantaneous stop is not enough. It must continue long enough to permit the request to be made. The trial court held that it was insufficient for that purpose.

The first assignment of error in this case relates to the admission and exclusion of evidence and in our judgment is not well taken and must, therefore, be overruled.

The second assignment of error is that the judgment is against the weight of the evidence and is contrary to law. For the reasons above set forth, this assignment will be overruled in Case No. 18,148, Columbus Municipal Court, being the charge of violating Ordinance 27-139, failure to stop after an accident. However, this second assignment of error will be sustained in Case No. 18,150, Columbus Municipal Court, being the charge of violating Ordinance 27-310, changing course without safety. Not a single witness testified either that Hall did or did not change his course, either with or without safety. There is not one word or scintilla of evidence in the entire record relating to the charge. So far as appears to the contrary, Hall may have driven in a straight line and merely failed to change his course sufficiently to avoid striking the parked automobile, of Joseph Williams.

For the reasons above set forth the first assignment of error will be overruled as to both cases and the second assignment of error will be overruled as to the charge of failing to stop after an accident and sustained as to the charge of changing course without safety.

PETREE, PJ, MILLER, J, concur.


author: By GOLDMAN, J.

text:
    WALLACE, Plaintiff, v. BONDED OIL COMPANY et, Defendants.
    Common Pleas Court, Clark County.
    No. 49438.
    Decided March 26, 1958.
    Rush & Henderson, Springfield, for appellant.
    Wm. Saxbe, Atty. Genl., Eugene P. Everhart, John W. Hardwick, Asst. Attys. Genl., for the Administrator and Board of Review, Bureau of Unemployment Compensation,
   OPINION

By GOLDMAN, J.

This matter'was submitted to the Court on the transcript, and briefs, and without oral argument.

At issue is appellant’s right to receive Unemployment Compensation benefits for the week ending September 18, 1954. His application for unemployment benefits was originally allowed by the Administrator and confirmed by him upon reconsideration. Thereafter, the employer, Appellee herein, appealed from said decision and a hearing was held before a Referee in accordance with law. A transcript of the proceedings before the Referee was made and is a part of the record herein.

The Referee in his decision made certain findings of fact and reversed the decision of the Administrator hereinbefore referred to and disallowed appellant’s claim for benefits.

The Referee found that “claimant was attending an established educational institution and is not eligible for benefits * * * benefit rights for week ending September 18, 1954, heretofore allowed are disallowed.”

Appellant applied for leave to appeal from the Referee’s decision to the Board of Review, Bureau of Unemployment Compensation. The Board of Review upon examination and consideration of the entire record found the following to be in issue; “suspension of benefit rights” (student regularly attending an established educational institution); and upon consideration of the entire record disallowed the application for further appeal, with one member of the Board, however, dissenting.

Thereafter Appellant filed his appeal to this Court claiming that the decision of the Board of Review was against the manifest weight of evidence and contrary to law.

In the decision appealed from the following sections of the Revised Code were considered to be applicable; §4141.29 (A) (4), and §4141.29 (C) (8) R. C.

The first of these sections deals with the subject of availability for work, and the latter section, insofar as it is applicable here, deals with the denial of benefits to a student regularly attending an established educational institution.

The Court has given careful consideration to the record and the authorities cited by the respective parties in support of their contentions.

The record discloses that the Appellant was employed by Bonded Oil Company, at night-time, from October to September 7, 1954. He was a graduate of Wittenberg College but during the time of his employment now under consideration was enrolled at Hamma Divinity School located on the Wittenberg Campus. The record discloses that his attendance at the Divinity School was on a part-time basis and suggests that the records of the school would indicate and support his uncontradicted contention that he was not a full-time student carrying a full-time course; that whatever courses he did carry were with the understanding that they would not interfere with his availability for work; and that these courses could be and frequently were taken without actual attendance at lectures.

The record fails to disclose any information contradicting this testimony. Hamma Divinity College is located in Springfield where the hearings before the Referee took place. An examination of the college records was evidently made (see Appellee’s brief, page 7) and revealed that the Appellant completed his three-year course in four years and is now a pastor in the State of Indiana, but significantly no further reference is made in the briefs or in the record with regard to the flexible nature of Appellant’s enrollment or the part-time schedule of his attendance while at school, all of which the school records would disclose.

The record also overwhelmingly establishes that the Appellant was laid off from his employment because of lack of work and a force reduction. The record further amply discloses that the Appellant thereafter zealously and continuously looked for work as he was required to do by law.

In the light of this record, the Court is of the opinion that at the time under consideration, Appellant was “able to work and available for suitable work and actively seeking such work” §4141.29 (A)(4) R. C., and that a finding to the contrary is against the manifest weight of evidence, unreasonable, and contrary to law.

There remains the question, however, as to whether or not Appellant was unavailable for work and is barred from benefits because he “is a student regularly attending an established educational institution during the school term, etc.” §4141.29 (C) (8) R. C. (Emphasis by the Court.)

The most recent and compelling authority on this question is the case of Acierno v. General Fireproofing Company, et al. (166 Oh St 538), decided July 10, 1957, the syllabus of which reads as follows:

“1. Where a workman, employed on a full-time schedule and attending an established educational institution on a part-time schedule arranged so that such attendance does not conflict with such employment, is then laid off for lack of work, he is not thereby ineligible for unemployment benefits as a ‘student regularly attending’ such institution within the meaning of subdivision (C) (8) of §4141.29 R. C.
“2. In such a case, the words, ‘regularly attending,’ are intended to connote such attendance at such educational institution as would normally be required to complete the prescribed courses for graduation on the customary and usual schedule of such institution.”

In the instant case, Appellant’s attendance at Hamma Divinity College obviously was not of such character as would normally be required to complete the prescribed course for graduation on the customary and usual schedule of such institution, as admittedly, it took him four years to complete a normal three year course.

Appellee urges that the Acierno case is not applicable because in that case the employee was “a married man with dependent children and it was undisputed that his primary occupation is that of a workman rather than a student.” (See Appellee’s brief, page 7.) But the record discloses that Appellant is in fact also a married man with a dependent cnud for whose support and maintenance he was responsible. (See Page 2, Transcript of Proceedings.)

Tms leaves for final consideration the question as to whether or not a person who depends on “employment,” as defined in the act — §4141.01 K. C., for his livelihood and sustenance loses his rights to the benefits provided by the Unemployment Compensation Law, because he aspires to enter another calling or profession even while so employed and spends his free and available time in studying for such calling by enrollment in an educational institution on a part-time schedule which does not prevent him, however, from continuing his regular employment or changing the hours or conditions of such employment if that should be required.

This Court finds no persuasive authority, precedent or logic that would compel such a conclusion. To do so would result in unreasonable or aosurd consequences and would require that little or no meaning be given to the qualifying words “regularly attending” as used in §4141.29 (C)(8) R. C.

It seems to this Court to so hold would be tantamount to clothing the Administrators of the law with authority to investigate and inquire into the mind of any workman to ascertain whether such workman entertains ambitions or intentions at some time in the immediate or distant future to advance himself, or to abandon or change his present job or trade and for that reason disqualify him from receiving benefits under the law, even though his preparation for such eventuality did not interfere in any way with his immediate employment as is clearly the situation in the instant case.

To illustrate further the unreasonable consequences of such a holding let us assume that Appellant had changed his mind about becoming a pastor before he completed his college course and continued instead in industrial or business employment as a means of livelihood. What then? Would he thereafter and retroactively have become eligible for benefits previously denied on the theory that it is now demonstrated that his primary objective was after all that of a workman rather than a student?

The Court is of the opinion that the letter and the spirit of §4141.46 R. C., which reads, “§4141.01 to §4141.46, inclusive, B. C., shall be liberally construed,” require it to reach an opposite conclusion.

“The purpose of the unemployment compensation act is not only to avoid the serious conditions of economic insecurity suffered by the individual, but likewise is part of a plan to assist in the stabilization of unemployment conditions in the interests of the general welfare, and such legislation is entitled to a fair and liberal interpretation not only by virtue of the express declaration of the legislature but also to effect the plain purpose of the legislation itself.” (Yobe v. Sherwin-Williams Co., etc., 68 Abs 260.)

The Court finds that Appellant was not “a student regularly attending an established educational institution,” and that the decision below as to this issue as well as the other issues in this case is against the manifest weight of the evidence, unreasonable and contrary to law.

For the reasons above stated, the decision rendered by. the Board of Review is hereby reversed and ordered vacated.


author: Per CURIAM.

text:
    PARMELEE et, Appellants, v. ACKERMAN, a. k. a. ADA ACKERMAN, d. b. a. THE HOUSE OF CHARM STUDIOS, Appellee.
    United States Court of Appeals, Sixth Circuit.
    No. 13326.
    Decided February 28, 1958.
    Lawrence E. Broh-Kahn, Shaker Heights, for appellants.
    Hugh McNamee, of Ganger & Ganger, Cleveland, for appellee.
    Before SIMONS, Chief Judge, MARTIN, Circuit Judge, and MATHES, District Judge.
   OPINION

Per CURIAM.

Upon this appeal from an order dismissing their diversity action for lack of jurisdiction over the subject matter, appellants first urge that the district court should not have entertained appellee’s motion to dismiss because made after answer filed. This contention overlooks the provisions of Rule 12(h) that ‘“whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” Fed. R. Civ. P. 12(h), 28 U. S. C. A.

Two causes of action are asserted in appellants’ complaint: the first for damage of “not less than $2,500” arising from alleged breach of contract by appellee to furnish appellants’ residence in an agreed manner; and the second for damage of “not less than $2,000” for “embarrassment and mental suffering” resulting from failure to furnish the home in the manner agreed and, “in addition thereto,” for $2,000 by reason of “dire threats” allegedly made by appellee to appellants.

The damage demanded for claimed breach of contract is patently less than the jurisdictional minimum of “3,000 exclusive of interest and costs.” 28 U. S. C. §1332.

As to the second cause of action, there being no allegation that the emotional distress was intentionally caused, the $4,000 sought for “embarrassment and mental suffering” and “dire threats” is not recoverable in whole or in part under Ohio law where the alleged tortious acts are said to have occurred. Bartow v. Smith, 1948, 149 Oh St 301, 37 O. O. 10, 78 N. E. (2d), 735, 15 A. L. R. (2d), 94; cf. Grill v. Abele Funeral Home, 1940, 69 Oh Ap 51, 23 O. O. 379, 42 N. E. (2d), 788, and it is settled that, in ascertaining the amount in controversy for jurisdictional purposes, “where the law gives the rule, the legal cause of action, and not the plaintiff’s demand, must be regarded.” McNutt v. General Motors Acceptance Corp., 1936, 298 U. S„ 178, 182-183, 56 S. Ct., 780, 782, 80 L. Ed., 1135; Vance v. W. A. Vandercook Co. (No. 2), 1898, 170 U. S., 468, 481, 18 S. Ct., 645, 42 L. Ed., 1111; Hayward v. Nordberg Mfg. Co, 6 Cir., 1898, 85 F. 4; cf. Bell v. Preferred Life Society, 1943, 320 U. S., 238, 64 S. Ct., 5, 88 L. Ed., 15.

If then the claims as asserted in the complaint be combined and considered as one (Baltimore & O. S. W. R. Co. v. United States, 1911, 220 U. S., 94, 106, 31 S. Ct., 368, 371, 55 L. Ed., 384), “it is apparent to a legal certainty,” from the face of the complaint, that appellants can recover no more than $2,500 on the facts alleged (St. Paul Mercury Indemnity Co. v. Red Cab Co., 1938, 303 U. S., 283, 289, 58 S. Ct., 586, 590, 82 L. Ed., 845); and there has been no suggestion of any amendment (28 U. S. C. §1653).

Since the amount in controversy in the case does not equal the minimum requisite to federal jurisdiction, the order dismissing the action for lack of jurisdiction over the subject matter is affirmed.