author: By MILLER, J:

text:
    SMITH, Plaintiff-Appellee, v. McCAIN, Defendant-Appellant.
    Ohio Appeals, Second Distx-ict, Montgomery County.
    No. 2188.
    Decided April 10, 1952.
    Floyd F. Koogler, Dayton, for plaintiff-appellee.
    Jack W. Hutton, Dayton, for defendant-appellant.
   OPINION

By MILLER, J:

This is a law appeal from the judgment of the Common Pleas Court affirming that of the Municipal Court for the city of Dayton, Ohio.

The petition sets forth two causes of action: (1) That the defendant unlawfully and forcibly detains from the plaintiff certain residential property which is fully described; (2) That a recovery is sought for the value of the use and occupation of the premises by the defendant.

Upon a hearing being had the Court found for the plaintiff on both causes of action. All of the errors assigned relate to the judgment for the restitution of the premises, urging that the judgment is contrary to law and against the manifest weight of the evidence.

The petition alleges in the first cause of action that Herbert McCain entered into the possession of the premises as a tenant of the plaintiff, and that he voluntarily relinquished all of his right of possession to the same prior to May 20, 1951, but that the defendant Sophie E. McCain unlawfully and forcibly remains in possession. The judgment entry recites that the Court finds all of the allegations of the petition to be true and with which findings we must agree as there is substantial evidence in the record to support the same, although the defendant denied that Herbert McCain was the exclusive tenant of the plaintiff.

The record reveals that the premises were rented in 1941 at which time Herbert McCain and the defendant were living together as man and wife and having a family of two children; that all of the rent receipts were made out in the name of Herbert McCain; that in 1942 the property was registered with the Office of Price Administration which listed Herbert McCain as being the tenant; that in January, 1951, an action for divorce was instituted, the husband leaving the premises and taking up his residence elsewhere; that in May, 1951 Herbert McCain advised this plaintiff that he would not return to live in the property; that soon thereafter this action was instituted against the wife. No attempt was made to comply with Section 825.6 of the Rent Regulations issued under the Housing and Rent Act of 1947, as amended, and which the appellant urges was erroneous. It will be noted that this section has application only when a tenant is sought to be dispossessed. The trial court found from the evidence, and we think properly so, that Herbert McCain was the tenant and not this defendant. This being true she was not entitled to the benefits of the Regulation. It is urged that under the facts presented she is a tenant as defined by the said Rent Regulations which defines a tenant as follows:

“ ‘Tenant’ includes a subtenant, lessee, sublessee, or other person entitled to the possession or to the use or occupancy of any housing accommodations.”

But is the defendant entitled to the use or occupancy of the premises after the husband surrenders them? We do not think so. Her rights accrue through the husband who is the head of the household and her home is where the husband provides the same. Having terminated his right of possession here, her right must also terminate.

We find a parallel factual situation in the case of Harker v. Levy, 322 Ill. App., 677, 54 N. E. 2d 642, wherein the Court says at page 644:

“It is Mrs. Levy’s contention that she is a ‘person entitled to possession’ under section 13, and, therefore, a tenant under Section 6 (a). A person entitled to possession is one to whom the right of possession has been given. Webster’s New Int’l. Diet., 2d Ed. The lease which expired April 30, 1943, was between plaintiff and Dr. Levy. There was no contract between plaintiff and Mrs. Levy covering the premises. Any right she had in the premises was derived from her husband, Dr. Levy. When his right under the lease was extinguished by his refusal of the new lease [Sec. 6 (a-1) ] whatever right Mrs. Levy had was extinguished. She was not, therefore, a ‘person entitled to possession, * * *’ and accordingly, not a tenant under Sec. 6 (a) of the Regulations and not within their protection.”

The appellant urges that she sent two money orders to the appellee in payment of the rent.which have not been returned and which constitutes a creation of a tenancy, citing Pace v. Buck, 82 Oh Ap 25. The appellee testified that the same was held subject to the order of the court, and that the same was never accepted as rent. The facts here are distinguishable from those in the Pace case in that in the cited case the payment was made by one who was a tenant but here, this appellant never was a tenant of the appellee. The mailing of the money orders under these circumstances could not create the relationship of landlord and tenant.

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

WISEMAN, J, concurs.

HORNBECK, PJ, dissents.


source: Caselaw Access Project

author: By THE COURT.

license: Public Domain

text:
    STATE, ex rel. SHERRICK, d. b. a. FREMONT ENGINEERING COMPANY, Relator, v. PECK, Tax Commr., Respondent.
    Ohio Appeals, Second District, Franklin County.
    No. 4687.
    Decided November 13, 1951.
    Dale D. Rapp, Columbus, for relator.
    C. William O’Neill, Atty. Geni., Thomas R. Lloyd, Asst. Atty. Geni., Columbus, for respondent.
   OPINION

By THE COURT.

This is an action in mandamus in which the relator is seeking an order directing the respondent to receive and accept his petition for reassessment and to grant him a hearing as provided by law. In his petition the relator states that the respondent, Tax Commissioner, has made a certain assessment against him; that notice of the same was mailed to him by respondent by registered mail on the 16th day of April, 1951; that subsequent thereto the relator prepared a petition for reassessment in the form prescribed by statute and mailed the petition to the respondent on the 16th day of May, 1951, by registered mail with the return receipt requested; that said return receipt indicated that the petition for reassessment was received by the respondent on the 18th day of May, 1951. The respondent has filed a demurrer to the petition alleging noncompliance with §5546-9a GC, which is in part as follows:

“In such cases the commissioner shall have power to make an assessment against such vendor or consumer, based upon any information within his possession, or that shall come into his possession. The commissioner shall give to the vendor or consumer, written notice of such assessment. Such notice may be served upon the vendor or consumer personally or by registered mail.

* * >k * * *

“Unless the vendor or consumer, to whom said notice of assessment is directed, shall, within thirty days after service thereof, either personally or by registered mail, file a petition in writing, verified under oath by said vendor, consumer, or his duly authorized agent, having knowledge of the facts, setting forth with definiteness and particularity the items of said assessment objected to, together with the reason for such objections, said assessment shall become and be deemed conclusive and the amount thereof shall be due and payable, from the vendor or consumer so assessed, to the treasurer of state. In every case where a petition for reassessment as above described, shall be filed, the commissioner shall assign a time and place for the hearing of same and shall notify the petitioner thereof by registered mail, but the commissioner shall have the power to continue the same from time to time as may be necessary.

The relator urges that the demurrer should be overruled for two reasons: First, that under §5546-9a GC, relator is entitled to actual notice of the order making the assessment: that he is entitled to be served personally with a registered letter and not some member of his family; second, that by mailing his petition for reassessment by registered mail he complied with the statute as of the day and hour that he deposited said registered letter in the United States Post Office.

We are of the opinion that the second ground amply supports the relator’s position; that his petition was seasonably filed with the respondent. Sec. 10216 GC provides that the time within which an act required by law to be done shall oe computed by excluding the first day and including the last. In construing §5546-9a GC it will be noted that the real question presented is the date of the filing of the petition with the respondent. Was this on May 16th, the date of the mailing of the registered letter, or was it on May 18th, the date of its receipt by the respondent? We are of the opinion that the Legislature gave the vendor two methods of filing his petition: One, by filing it personally in the office of the Tax Commissioner; and the other, by depositing it in the United States Post Office; that the Legislature by giving the vendor the latter method thereby made the United States Post Office their agent for receiving the petition and that when the petition was once deposited in the mail it must be considered filed as provided by this statute. It is stated in 30 O. Jur., page 256:

“Notice may be given merely by the proper mailing of a written notice where it is so stipulated; and in such case the failure of the letter to reach its destination will be immaterial.”

Also, in 42 Amer. Jur., page 48, we find the following:

"Service of process by mail, when authorized, is deemed complete when the return is deposited in the Post Office properly addressed, and with the proper amount of postage. And it is sufficient if it is deposited in the mail on the last day allowed for service, although it is not received by the other party until after that date.”

It is therefore our conclusion that under §5546-9a GC the petition was filed with the respondent on May 16, 1951, and was therefore seasonably filed.

The demurrer will be overruled.

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


author: By THE COURT: By THE COURT:

text:
    MENCSIK et, Plaintiffs-Appellees, v. MENCSIK et, Defendants-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    No. 2199.
    Decided December 3, 1952.
    Coolidge, Becker, Wall & Wood, Dayton, for plaintiffs-appellees.
    Nolan, Boesch & Wolff, Dayton, for defendants-appellants.
   OPINION

By THE COURT:

This is a law appeal from the judgment of the Common Pleas Court entered on March 20, 1952, wherein the holder of certain liquor permits was ordered to execute the necessary forms as prescribed by the Department of Liquor Control to effect their transfer to John C. Smith, Receiver for Frank L. Mencsik, defendant.

The question presented concerns the jurisdiction the Court acquired over the liquor permits in possession of the defendant at the time of the appointment of the receiver for the business. It is urged by the appellant that such permits are not property but merely a right or privilege granted by the State and subject to the exclusive control of the Board of Liquor Control. We do not think it necessary to elaborate at length on the question for subsequent to the judgment in this case our Supreme Court had occasion to pass upon this identical question in the case of Abraham v. Fioramonte, 158 Oh St 213. In that case the permit holder was ordered to execute such applications and forms as may be necessary or required to transfer the interest in the licenses to the receiver. Discussing the issue in the case Judge Middleton says at page 226:

“It is uncontrovertable that the saie of intoxicating liquors is a business completely controlled in Ohio by legislation. It is not an ordinary business in which individuals may freely engage.
“As previously stated by this court in the case of State, ex rel. Zugravu, v. O’Brien, 130 Oh St, 23, 196 N. E., 664:
“ ‘Permits to carry on the liquor business which are issued under the provisions of the Liquor Control Act are mere licenses, revocable as therein provided, and create no contract or property right.’
“See, also, State v. Hipp, 38 Oh St, 199; Frankenstein v. Leonard, et al., Board of Liquor Control, 134 Oh St, 251, 16 N. E. (2d), 424; Board of Liquor Control v. Tsantles, 156 Oh St, 512, 103 N. E. (2d), 749.
“The courts of some states have held that liquor licenses or permits are property which may be subjected to claims of creditors, but such decisions were rendered with respect to statutes essentially different from those in force in Ohio. In fact, some of those decisions specifically state that the conclusion would be different, under laws not permitting the transfer of permits from one person to another. For example, In Degginger, Recr., v. Seattle Brewing & Malting Co., 41 Wash., 385, 83 P., 898, which held such licenses to be more than a personal privilege, the court said:
“ ‘Under statutes which do not permit transfers of the license from one person to another, and where the right is a personal privilege only, we think the rule stated (that the permit is not such property as is subject to the debts of the licensee and that none of the rights secured thereby can be enjoyed by the receiver) is undoubtedly correct.’
“This principle is well stated as follows in the annotation appearing in 148 A. L. R., 495:
“ ‘Wherever the courts consider a license to sell intoxicating liquors primarily as a privilege, and not a property right, they will hold it not subject to execution or attachment. Barnard v. State (1909), 158 Ala., 35, 48 So., 483; Semple v. Flynn (1887) N. J. Eq., 10 A., 177; Walsh v. Bradley (1937), 121 N. J. Eq., 359, 190 A., 88; Re Summa (1893), 2 Pa. Dist. R., 651; Re Breen (1893), 2 Pa. Dist. R., 652; Re Ulrich (1897), 6 Pa. Dist. R., 408; Walsh v. Walper (1901), 3 Ont. L. Rep., 158 — Div. Ct.’
“It is our conclusion that permits to engage in the business of selling intoxicating liquors in Ohio are not property such as can be validly covered by a mortgage, that the mortgage given by Fioramonte did not cover such permits held by him, and that liquor permits are not property which can be reached in a proceeding under §11104 GC.” (Emphasis ours.)

Decided December 18, 1952.

Since the permits are not property which may be reached under §11104 GC, the summary proceedings against Frank L. Henderson to recover the same were not authorized and the error assigned to this procedure is also well taken. We have carefully examined all remaining errors complained of and find none of which to be well made.

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

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

ON APPLICATION FOR REHEARING

No. 2199.

OPINION

By THE COURT:

The application for rehearing will be denied.

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


author: By BURNS, J.

text:
    BEACON MUTUAL INDEMNITY CO. et v OSTROVECKY.
    Municipal Court, Euclid.
    No. 84.
    Decided November 3, 1952.

      Fred J. Livingstone, Cleveland, for plaintiff.
    Paul Mancino, Cleveland, for defendant.
   OPINION

By BURNS, J.

Plaintiffs, residents of Cleveland, Ohio, filed their petition in Euclid Municipal Court against defendant, a resident of South Euclid, Ohio.

Plaintiff’s petition alleged that a collision occurred between the automobiles of the parties at the intersection of East 55th Street and Memorial Highway in the City of Cleveland, Ohio, and prayed for judgment, in the sum of $383.52 and costs.

Summons was issued and mail service was had upon the defendant at his residence in South Euclid, Ohio. Motion to quash service of summons, with supporting brief, was filed by defendant on the following grounds:

1. That this court has no jurisdiction over the subject matter of this action.

2. That this court has no jurisdiction over any of the parties of this action.

To the motion to quash service of summons, plaintiff filed their answer brief.

Supplemental brief in support of motion to quash summons was subsequently filed by defendant and thereafter the following pleadings were timely filed:

Answer to defendant’s supplemental brief.

Reply brief to answer brief of plaintiff.

Answer to defendant’s reply brief.

To support his contention “That this court has no jurisdiction over the subject matter of this action” and “that this court has no jurisdiction over any of the parties of this action,” defendant cites §1582 GC which provides as follows:

“The municipal courts, established by §1581 GC, shall have jurisdiction within the corporate limits of their respective municipal corporations * * *.”

Bailiff’s return of service showing summons served by mail at the residence of the defendant in South Euclid, Ohio, is not in dispute, nor is it disputed that Cleveland, Euclid and South Euclid ar.e municipalities within Cuyahoga County, Ohio. Plaintiff contends that jurisdiction of this court over nonresidents is conferred by virtue of §1595 subsections (E) and (H) GC, and §6398 GC which provides as follows:

Sec. 1595 GC.

“Subject to §1593 GC a municipal court shall have jurisdiction within the limits of the county or counties in which its territory is situated: * * *.
“(E) * * * and in all civil actions for the recovery of money only where the amount claimed by the plaintiff exceeds the exclusive jurisdiction of justices of the peace;
“(H) In any action for injury to person or property caused by the negligent operation of a motor vehicle, as provided by §§6308 and 6308-1 GC.”

Sec. 6308 GC.

“Actions for injury to a person or property, caused by the negligence of the owner or operator of a motor vehicle, may be brought, by the person injured, against such owner or operator in the county wherein such injury occurs.”

Sec. 1593 GC referred to in §1595 GC reads as follows:

“A municipal court shall have original jurisdiction only in those cases where the amount claimed by any party, or the appraised value of the personal property sought to be recovered, does not exceed two thousand dollars; * *

The jurisdiction of justices of the peace as to amount referred to in §1595 (E) GC above is governed by §16226 GC.

Sec. 10226 GC.

“Under the restrictions and limitations provided in this chapter, justices of the peace shall have exclusive original jurisdiction in civil actions for the recovery of sums not exceeding one hundred dollars * *

This court is called upon to interpret §1582, §1595 (E) and (H), §6308 GC, and the effect of these sections on the jurisdiction of this court:

1. Over parties who are admittedly residents of Cuyahoga County, Ohio, but not residents of nor served with summons within the territorial limits of the court and

2. Over a cause of action which arose outside of the territorial limits but within the county wherein the court is located and

3. In the issuance and service of summons beyond the territorial limits of the court.

For a determination of these questions, we must consider legislative enactment. The power of the legislature to establish inferior courts of record and to define their jurisdiction is contained in Articles 4, Section 1, of the Ohio Constitution;

Article IV, Section 1, of the Ohio Constitution.

“The judicial power of the state is vested in a supreme court, courts of appeals, courts of common pleas, courts of probate, and such other courts inferior to the courts of appeals as may from time to time be established by law.”

The courts of Ohio have consistently held that the legislature has the power to create these courts and to define jurisdiction over defendants and subject matter. See Miller v. Eagle, 96 Oh St 106, 117 N. E. 23, wherein it was held;

The legislature may provide for the creation of Municipal Courts in Municipal Corporations and may prescribe the procedure and practice before each of these courts.

See also Mendelson v. Miller, 11 Ohio N. P., N. S., 586, wherein it was held:

“The General Assembly establishes a court when it enacts that there shall be a court, fixes the number of judges, defines the jurisdiction and prescribes the procedure to be followed therein.”

The Euclid Municipal Court was established by act of legislature on June 13, 1951. The act which created this court, among others, is generally referred to as the Uniform Municipal Court Act. Uniformity in procedure and jurisdiction in the various municipal courts of the state was the apparent objective of the legislature. This difficult undertaking was accomplished with commendable results. In many instances the legislature was compelled to designate the jurisdictional boundaries of the court beyond the territorial limits of the court. If the legislature wished to create a court and confine its jurisdiction over persons and subject matter to the City of Euclid, it could have done so. On the other hand, if the legislature wished to create a court and give the jurisdiction over person and subject matter within the county, it could have done so. It was solely a question of legislative desire and intent. And since uniformity was the apparent objective of the legislature the Uniform Municipal Court Act, §§1581 and 1617 GC, was passed establishing the following classes of jurisdiction (only those parts are set forth herein that are deemed pertinent and applicable to the questions involved in the motion to quash):

Original jurisdiction: amount involved: §1593 GC,

“A municipal court shall have original jurisdiction only in those cases where the amount claimed by any party, or the appraised value of the personal property sought to be recovered, does not exceed two thousand dollars;”

Original jurisdiction: type of action: §1594 GC,

“Subject to §1593 GC, a municipal court shall have original jurisdiction within its territory:
“(B) In any action or proceeding at law for the recovery of money or personal property of which the court of common pleas has or may be given jurisdiction.”

Jurisdiction within the limits of county or counties: §1595 GC,

“Subject to §1593 GC, a municipal court shall have jurisdiction within the limits of the county or counties in which its territory is situated: * * *.
“(E) * * * and in all civil actions for the recovery of money only where the amount claimed by the plaintiff exceeds the exclusive jurisdiction of justices of the peace;
“(H) In any action for injury to person or property caused by the negligent operation of a motor vehicle, as provided by §§6308 and 6308-1 GC.”

The territory referred to in §1594 GC is defined in §1583 GC, the pertinent parts of which provide as follows: §1583 GC,

“ ‘Territory’ as used in §§1584 to 1617, inclusive, GC, means the geographical areas within which municipal courts have jurisdiction as provided in §§1581 and 1582 GC.”

It is further provided in §1582 GC that “The municipal courts, established by §1581 GC, shall have jurisdiction within the corporate limits of their respective municipal corporations and shall be courts of records. * * * The following named municipal courts shall also have jurisdiction as herein designated”;

A study of §1582 GC reveals that the legislature provided that certain designated courts should have jurisdiction beyond their municipal boundary lines extending into various adjoining towns and villages; and in extending county and adjoining county jurisdiction to Fostoria Municipal Court, the legislature provided that “The Fostoria municipal court shall have jurisdiction within Loudon and Jackson townships in Seneca county, Washington township in Hancock county, and Perry township in Wood county.”

And in §§1593, 1594 and 1595 GC the legislature provided an exception in the case of the municipal court of Cleveland, in jurisdictional amount, real property proceedings, execution proceedings and proceedings for the marshaling of liens. The power of the court to issue summons outside of its territory is conferred by §1596 GC, in the following language:

Sec. 1596 GC,

“Powers of court. In any action or proceeding of which a municipal court has jurisdiction, the court or any judge thereoi shall also have power:
“(A) To issue process, * * * and to exercise such other powers as may be necessary to give effect to the jurisdiction of the court and to enforce its judgments, orders, or decrees;”

The original jurisdiction, in money only cases, provided in §1593 GC (referred to in §1595 [E] GC), limits the amount claimed to $2,000. The original jurisdiction of the Justice of the Peace (referred to in §1595 [E] GC), is one hundred dollars as provided in §10226 GC.

The Uniform Municipal Court Act, by virtue of §1595 (E) and (H) GC, gives this court jurisdiction within the limits of the county in money only cases, where the amount claimed exceeds $100, but does not exceed $2,000 and in actions for damages to persons or property arising through the negligent operation of a motor vehicle within the county.

Defendant contends that §§1582, 1595 and 1603 GC, the jurisdiction sections of the Uniform Municipal Court Act, are inconsistent. It is the judgment of this court, however, that these .sections are in pari materia.

1. In §1582 GC, geographical boundaries of a territory are defined for one class of jurisdiction to be exercised by a municipal court within its boundaries.

2. In §1595 GC, additional classes of jurisdiction are conferred on a municipal court to be exercised by it within a county or counties wherein its territory is located.

3. In §1603 GC, the manner in which “Writs and process in a municipal court- shall be served” is provided for.

Defendant is a resident of the City of South Euclid, which is within Cuyahoga County, Ohio. Euclid Municipal Court is also within Cuyahoga County. The action brought is for money only and the amount claimed, namely, $383.52, is in excess of the exclusive jurisdiction of the Justice of the Peace, but within the $2,000 jurisdictional maximum of Euclid Municipal Court. It is the judgment of this court that Euclid Municipal Court does have jurisdiction over the subject matter, as well as the parties to this action.

Defendant’s motion to quash service of summons is overruled.

Defendant given leave to plead by November 13, 1952.


author: By HORNBECK, PJ.

text:
    STATE, ex rel. DREXEL, Petitioner, v. ALVIS, Warden, Respondent.
    Ohio Appeals, Second District, Franklin County.
    No. 4698.
    Decided November 12, 1952.
    Cecile J. Shapiro, Columbus, for petitioner.
    C. William O’Neill, "Atty. Geni., Larry H. Snyder, Asst. Atty. Geni., Columbus, for respondent.
   OPINION

By HORNBECK, PJ.

Petitioner, a prisoner in the Ohio Penitentiary, seeks a writ of habeas corpus by which he may be released.

The briefs in this case affirm that the prisoner is held under a sentence of conviction as an habitual criminal under §13744-1 GC, the term of which sentence under the statute would be fifteen years. However, the writ of respondent discloses that relator is held on a mittimus upon a conviction and sentence of burglary.

Appellant in his brief asserts that although the sentence on the conviction for burglary was pronounced in September, 1946, it was not until 1950 that it was vacated as required by §13744-3 GC and it is further stated that as a part of the entry vacating the previous sentence the Court “also ruled that the time served from October 28, 1946, until December, 1950, should not apply toward the sentence of October 23, 1946,” the habitual criminal sentence.

It is also asserted that one of the prior convictions set up in the indictment under the Habitual Criminal Act, for stealing a motor vehicle, was not in accord with the fact which was that the defendant was merely “joy riding” with other young men in an automobile without the owner’s consent. It is further stated that the relator was the first person to be convicted in Hamilton County under the Habitual Criminal Act although it had at the time of the conviction been effective for more than fifteen years.

It is also urged that the last part of §13744-3 GC has not been observed. This provision of the section provides that,

“Whenever it shall become known to any warden, * * *, that any person charged with or convicted of a felony has been previously convicted within the meaning of the two preceding sections it shall be his duty to forthwith report the facts to the prosecuting attorney of the county in which such person is charged or was convicted.”

We observe that there is no proof whatever respecting the vacation of the sentence or the conditions attached thereto, nor is there any testimony or stipulation whatever which would tend to prove that the relator was not guilty of stealing a motor vehicle as set up in the Habitual Criminal indictment. Even if it were true that the relator had a complete defense to this charge it could not be asserted in this proceeding. State, ex rel. Drexel v. Alvis, Warden, 153 Oh St 246.

Respondent properly epitomizes relator’s claim as (11 The Habitual Act * * * is unconstitutional. (2) The petitioner is not an habitual criminal as defined in this Act.

In the case of State, ex rel. Drexel v. Alvis, Warden, supra, which was instituted by the relator here, the Court held the Habitual Criminal Act to be constitutional and all questions now urged were, or could have been, set up in the case in the Supreme Court.

Upon the second contention, if the briefs of counsel are correct, it is manifest that the relator was indicted, tried, convicted and sentenced upon a valid indictment under the Habitual Criminal Act. It is not contended that any of the convictions set out in the indictment was not established upon the trial of relator.

If the judge who vacated the previous conviction in the indictment in the habitual criminal case attached as a condition thereto that the term served from October 28, 1946, until December, 1950, should not apply toward the sentence in the habitual criminal case there is presented a very serious question which, if appropriately urged, might be of advantage to the relator. But, conceding that this condition in the sentence was void, it would not support a release of the relator at this time.

The failure of the trial judge to vacate the sentence in the previous conviction at the time of the sentence under the habitual criminal charge would not, in our judgment, invalidate the conviction and sentence under the latter charge. Nor could the failure of the Warden to report the facts, as required by the last paragraph of §13744-3 GO, affect either the constitutionality of the Act or the validity of a sentence properly pronounced upon conviction. Upon the Warden’s testimony it is apparent that the spirit of the section is being observed by reason of the fact that prosecuting attorneys are now afforded from other sources the information which they would receive from the Warden had he complied with the section.

There is no showing upon the record or upon the statements in the briefs, not supported by the record, which would require this Court to issue the writ prayed for.

It will be denied.

WISEMAN and MILLER, JJ, concur.


author: By HORNBECK, J:

text:
    WILLS, Plaintiff-Appellant, v. INDUSTRIAL COMMISSION, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2083.
    Decided April 28, 1950.
    Robert Dow Hamilton, Robert D. Holmes, Columbus, for plaintiff-appellant.
    Herbert S. Duffy, Atty. Geni., T. Vincent Martin, Hugh P. Brennan, Columbus, for defendant-appellee.
   OPINION

By HORNBECK, J:

This is an appeal from a judgment of the Common Pleas Court in favor of defendant-appellee.

Plaintiff’s decedent, Eugene Wills, in his lifetime was in the employ of the National Malleable Iron Works, Dayton, Ohio, a contributor to the Workmen’s Compensation Insurance Fund. Eugene Wills died on May 28, 1944 of active miliary tuberculosis. It was the claim of plaintiff that his death was caused by an accidental injury received in the course of his employment which either directly produced the affliction from which he died or lighted up a latent condition in the system which accelerated the trend of the disease and hastened his death.

The claimant produced two witnesses who testified that plaintiff’s decedent suffered an injury by being struck in the region of the chest by a sand slinger which caused him to double up, to suffer pain, to cough and expectorate and that, he began to fail in health, gradually grew worse and died in a tuberculosis sanitarium. It was testified that he was in good health and did very heavy work prior to the accident.

Emmett Jackson, a witness for the plaintiff, testified to observing the accident when it occurred and fixed the date as June 15, 1943. Another eye witness to the accident testified and fixed the time as on or about June 15, 1943. Two medical witnesses who qualified as experts, testified that there was causal relation between the injury, if it occurred as testified, and the death of plaintiff’s decedent. This was contradicted by a doctor who testified for the defendant.

The following form of verdict was submitted to the jury:

“We, the jury, upon the issues joined between the parties, in this case, do find that the death of Eugene' Wills was not a result of injury which he received on the 15th day of June, 1943, and that the plaintiff is not entitled to an award to be paid out of the Insurance Fund Provided by the Workmen’s Compensation Act of the State of Ohio.”

The defense, as.a part of its case, offered several witnesses who testified that the sand slinger which it was claimed caused Eugene Wills’ injury was not in use on June 15, 1943 and had not been used since the first week of July, 1942. The effect of their testimony was to require the inference that it could not have happened on June 15, 1943.'

In view of the form of the verdict submitted to the jury, it was made a prerequisite to its finding for the plaintiff that it determine that Engene Wills suffered an injury on the 15th day of June, 1943. In our judgment, this placed an undue burden upon the plaintiff and required him to establish, as an essential of his case, a fact which was not controlling. No explanation was made to the jury that the date when the injury occurred was not decisive of the right of the plaintiff to recover. The Commission did not mention the claimed date of the injury of plaintiff’s decedent originally or upon the application for rehearing when it found “That proof of record fails to establish that decedent’s death was the result of an injury received in the course of and arising out of his employment.” This was the test that should have been submitted to the jury uninfluenced by the obligation to fix definitely any date upon which the injury occurred, and the verdict should have found that the plaintiff was, or was not entitled to participate in the State Insurance Fund.

Ordinarily the form of the verdict as signed by this jury would not be prejudicial to a plaintiff. But here, when the defense undertook to meet the claim of plaintiff by the testimony that the accident could not have occurred on the date claimed the jury may have been misled by the form of the verdict to believe that it was essential to her recovery that it appear that the injury occurred on the 15th of June, 1943. As we have said, this is especially true because the time element was not explained to the jury. The trial judge may not be held responsible for this failure because according to the record counsel did not at any time call his attention to the situation.

This injury may have occurred, if at all, in 1942 or 1943. The witnesses testified on and after Feb. 18, 1948, five or six years after the accident, if it occurred. It is common knowledge that witnesses entirely truthful may be mistaken in fixing a definite date of occurrence and yet be correct as to the happening of the event. Here the issue was sharply drawn on the question of date and the plaintiff put the witness, Jackson, on the stand in rebuttal to re-inforce his testimony that the accident occurred on June 15, ’43. To accentuate this conflict the jury was presented a verdict wherein the date of the injury was made an essential of its finding.

This Court held in Industrial Commission v. Motts, 17 Abs 642, that a verdict for the plaintiff would be affirmed where it appeared that plaintiff had sustained an injury during the course of his employment which injury he claimed had occurred on a certain Sunday while serving as a night watchman. Two very credible witnesses testified that he was not so employed on the date named. We supported the verdict upon the theory that the testimony did not cover other Sundays, before or after the date of the claimed injury, and therefore did not rule out the .probability that the plaintiff was injured as claimed, although he may have been mistaken as to the date.

Upon the whole record in view of the fact that there is substantial evidence on behalf of the plaintiff to support a verdict for her, it was in our judgment erroneous and prejudicial to plaintiff to submit the verdict in the form in which it was presented to the jury.

The judgment will be reversed and cause remanded for new trial.

MILLER, PJ, WISEMAN, J, concur.


author: By WOESTE, J.

text:
    ALMS & DOEPKE COMPANY, an Ohio corporation, Plaintiff, v. JOHNSON; OHIO FARMERS INDEMNITY COMPANY, an Ohio corporation; BRIGHT, Defendants.
    Common Pleas Court, Hamilton County.
    No. A-133850.
    Decided July 1, 1953.

      Anthony J. DeCenso, Julius R. Samuels, Cincinnati, for plaintiff.
    Edward J. Utz, Cincinnati, for Ohio Farmers Indemnity Company, defendant.
   OPINION

By WOESTE, J.

The within action is brought under authority of §11760 GC (§2333.01 R. C.), authorizing a civil action to reach “equitable and certain other assets” belonging to a judgment debtor.

The petition contains the following averments:

“At the October term of the Municipal Court of Cincinnati, Hamilton county, Ohio, plaintiff recovered a judgment against the defendant, Marian C. Johnson in the sum of three hundred and forty five dollars and fifty cents ($345.50), seventy dollars and eighty four cents ($70.84) interest, and twenty seven dollars and twenty five cents ($27.25) court costs. Said judgment was obtained November 6th, 1948, and is known and numbered as No. 455641, Municipal Court of Cincinnati, state of Ohio.
“On the 21st day of November, 1948, plaintiff filed a certificate of judgment in the Court of Common Pleas and also caused an execution to issue on said judgment, being execution No. 57221, which was duly returned wholly unsatisfied and there is now due the plaintiff on said judgment the sum of $443.59 including interest from the 6th day of November, 1948.
“Said Marian C. Johnson has not personal or real property subject to levy on execution sufficient to satisfy said judgment.
“The defendants, Ohio Farmers Indemnity Company, a corporation of Ohio and Lester W. Bright have property and money and credits in their possessions belonging to the said defendant, Marian C. Johnson, and more particularly any settlement due or to become due arising out of auto accident in which said defendant, Lester W. Bright was insured by defendant, Ohio Farmers Indemnity Company, a corporation of Ohio, or any other money that may be due him from any claim whatsoever.
“Wherefore plaintiff prays that said defendants, Ohio Farmers Indemnity Company, a corporation of Ohio and Lester W. Bright be enjoined respectively from paying over any money due said defendant, Marian C. Johnson, and that the same be applied to the satisfaction of said judgment.”

The Ohio Farmers Indemnity Company challenged the legality of the service of summons, and pleaded a general denial to the petition in its other content.

The defendant, Lester W. Bright, filed a general denial.

The evidence in the case is, in substance, that:

On February 1, 1952, the defendant, Lester W. Bright, while driving his automobile struck and injured the defendant, Marian C. Johnson. At the time of this accident Bright was insured by the defendant, Ohio Farmers Indemnity Company, by a policy which indemnified him from any loss resulting from liability, on his part, arising from the operation of his automobile. The policy was in full force and effect on the date of the accident.

The defendant, Marian C. Johnson, filed suit against the defendant Bright in the Court of Common Pleas for this county to recover for the injuries she suffered by reason of the accident. That suit was later dismissed, as it will hereinafter appear.

One Dean Brenton was in charge of the Cincinnati office of the defendant, Ohio Farmers Indemnity Company who corroborated the existence of the policy and that it was in full force and effect, and added that the limits of liability were ten thousand dollars for one person, and twenty thousand dollars for more than one person. Formal service of the suit against the assured was given to this company representative. That suit was dismissed and according to the company representative such dismissal was on the basis that all claims and controversies had been settled by his company and that it paid Marian C. Johnson, through her attorney, the sum of four thousand dollars in full settlement of the case against the defendant Bright. This settlement was effected on September 25, 1952. However, on August 15, 1952, and before the date of the settlement of the aforesaid case he was served with formal notice of the pendency of the within action. There was a frank admission by the company representative that notwithstanding the fact that the suit of the plaintiff in this case was pending and that he had notice, he nevertheless, did not withhold any moneys to secure the present plaintiff to the extent of its judgment.

It is the conclusion of this court that Syllabus I in Cincinnati v. Hafer, 49 Oh St, 60, contains the prevailing law on the subject at issue.

Section 5464, Revised Statutes provided in part that:

“When a judgment debtor has not personal or real property subject to levy on execution sufficient to satisfy the judgment * * * an interest he has in * * * any money, contract, claim or chose in acction, due or to become due to him, or any judgment or order, or any money, goods, or effects which he has in the possession of any person * * * shall be subject to the payment of the judgment, by action.”

. Present §11760 GC (§2333.01 R. C.) is in pari materia with former Section 5464 of the Revised Statutes.

Sec. 11760 GC (§2333.01 R. C.): “Equitable and certain other assets. When a judgment debtor has not personal or real property subject to levy on execution sufficient to satisfy the judgment, any equitable interest which he has in real estate, as mortgagor, mortgagee, or otherwise, or any interest he has in a banking, turnpike, bridge, or other joint stock company, or in a money contract, claim or chose in action, due or to become due to him, or in a judgment or order, or money, goods, or effects which he has in the possession of any person, or body politic or corporate, shall be subject to the payment of the judgment, by action.”

This court adopts the syllabus of Cincinnati v. Hafer, supra as the law of this ease.

Historically, that case was grounded upon the following situation: George Hafer recovered a judgment on May 31, 1880 for $301.01, against one Sarah Teetor. At the time of recovery of this judgment a suit was pending in the Court of Common Pleas in which Mrs. Teetor, as plaintiff, claimed damages from the city of Cincinnati. On November 20, 1880, Hafer commenced a suit in the nature of a creditor’s bill in the Common Pleas Court against Mrs. Teetor and the city of Cincinnati to subject any judgment in favor of Mrs. Teetor to the payment of Hafer’s claim. In October of 1886, Mrs. Teetor recovered a judgment against the city of Cincinnati in the sum of $1,002.00 and shortly thereafter, the city solicitor paid the full amount of this judgment to the plaintiff. Upon discovery of this action by the city solicitor’s office, Hafer asked the Court of Common Pleas to render a judgment against the city on grounds that the city of Cincinnati paid the judgment in full when it had notice by service of a copy of the creditor’s bill that the plaintiff, Hafer, had recovered a judgment earlier against Mrs. Teetor. The court ruled in favor of Hafer and rendered a judgment in his favor against the city of Cincinnati in the sum of $449.15. This was the full amount due Hafer from Mrs. Tetor, including interest and court costs.

The court, in that case, projected the issue in the following language:

“The main question arising on the record is whether Mrs. Teetor’s demand against the city of Cincinnati for unliquidated damages was of such a nature that before it was reduced to judgment, Hafer, the judgment creditor, could, by a suit in the nature of a creditor’s bill against her and the city of Cincinnati, acquire a lien in equity on her interest in such demand, and become entitled to payment of the same in the event of succeeding in her suit.”

It was upon this query that the enunciation in Syllabus I was elicited as follows:

“Where a judgment debtor has commenced an action against another, for unliquidated damages arising out of an injury to his real estate, and the judgment creditor of such debtor, thereafter, and while his judgment is alive, commences a suit under Section 5464 of the Revised Statutes, in the nature of a creditor’s bill, against such debtor and the wrongdoer, to subject to the payment of his judgment, the debtor’s interest in the chose in action or claim for damages, the judgment creditor'may acquire a lien in equity upon such interest of the debtor, from the commencement of his suit, where the demand of the judgment debtor for unliquidated damages is reduced to judgment during the pendency of the creditor’s bill.”

In commenting on the nature of this statute, the United States Circuit Court of Appeals in an opinion by the Honorable Judge Lurton, in the case of Brooks v. Raynolds, 16 U. S. App. 713, said:

“This Ohio Statute ought not to be construed as relating to or dealing with the substantive laws of property. It is found in the Code of Civil Procedure, and it should be regarded as extending phe remedy to creditors of property and property interest not subject to seizure by execution at common law on account of the narrowness of the common law writ. At common law the writ of execution was limited in its operation, and was, in addition, confined to those estates recognized by the law as legal estates. Choses in action, and equitable interest, were not subject to common law writs. On account of this the jurisdiction of equity to entertain suits in aid of a creditor had its origin. 3 Pom. Eq. Jur. No. 1415.
“Statutes had been enacted in many states extending common law remedies and enlarging equitable jurisdiction in creditor’s suits. This Ohio Statute is one of this class.”

The defendant, Ohio Farmers Indemnity Company, insists that it owed no duty to Lester W. Bright, in this case until he became legally liable to pay the sum, and point out their policy provision:

“Coverage H — Bodily Injury Liability.
“To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident arising out of the ownership, maintenance or use of the automobile.”

Surely the position of the company in this regard cannot be held to be tenable. The mere fact that there has been no judgment against their assured in no way alters their policy to indemnify the assured against liability, and such legal duty arises under their policy from the very inception of the accident caused by the operation of the automobile by the assured.

Therefore, in the present instance their payment of four thousand ($4,000.00) dollars to their assured’s creditor was done at their peril after having received notice and service of summons in the pending action.

The specific challenge of the legality of the service of summons made by the defendant in its answer has not been sustained.

The court holds, therefore, that the plaintiff herein is entitled to judgment against the defendant, Ohio Farmers Indemnity Company, in the sum of four hundred sixteen dollars ($416.34) thirty-four cents, plus the cost of this action.


author: By KLOEB, District Judge.

text:
    VANN et v. TOLEDO METROPOLITAN HOUSING AUTHORITY.
    United States District Court, N. D. Ohio, W. D.
    Civ. No. 6989.
    Decided June 23, 1953.
    Jas. Slater Gibson, Robert V. Franklin, Jr., Toledo, for plaintiffs.
    Morton C. Seeley, Richard A. McClure, Toledo, for defendant.
   OPINION

By KLOEB, District Judge.

This action was brought by the plaintiffs to obtain a mandatory injunction against the defendant to compel it to accept their applications and to admit them to occupancy as tenants in public housing facilities located in what is known as the East Side in the city of Toledo, which are managed and controlled by the defendant.

Plaintiffs are members of the Negro race and allege denial of their applications and discrimination against them because of their race, in violation of their civil rights under Title 8, §§41, 42 and 43, Title, 28 §1343(3), of the United States Code Annotated. Section 42 reads as follows:

“Property rights of citizens
“All citizens of the United States shall have the same right, in every state and territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.”

The plaintiffs are members of a large class and this case was presented and is being considered as a class action.

The defendant is a public housing agency, as defined in Title 42, §1402 (11) of the United States Code Annotated, and is an instrumentality of the state of Ohio, as provided in §1078-29 et seq, GC.

Under the applicable law, the proper management and operation of the public housing facilities under the jurisdiction of the defendant are entirely within the authority and judgment of the defendant, with which the courts will not interfere, when operated according to law.

Whatever question there may have been at the time of the commencement of this action as to whether the civil rights of the plaintiffs and others of the same class were being violated by a policy of segregation in screening eligible applicants to said housing projects by the defendant, that has been removed by the action of the defendant since the filing of the complaint herein, in adopting its Resolution No. 1871, relating to the subject, and reading as follows:

“Resolution No. 1871
“Whereas, the Toledo Metropolitan Housing Authority did on January 8, 1953, adopt Resolution No. 1838 providing for adopting a policy of non-segregation or integration in the low-income projects operated by it and ordered its director to immediately put said policy into effect, and
“Whereas, thereafter said authority did on January 23, 1953 adopt Resolution No. 1846 providing for the withholding of putting into effect its policy of non-segregation or integration until a special committee of the Board of Community Relations could make a study and survey of said policy and also make such recommendations to the authority as from its study and survey it deemed advisable as to the time and manner of putting said policy into effect in the light of protests by East Toledo residents, and
“Whereas, thereafter on March 17, 1953, a suit was filed against the authority in the District Court of the United States for the Northern District of Ohio, Western Division, being case No. 6989 on the docket of said court, seeking a mandatory injunction against the authority requiring it to carry out said policy of non-segregation and which action is now pending before said court, and
“Whereas, since the filing of said suit, and shortly before the trial, said Board of Community Relations, through its special committee, did complete its study and submit its report of the same approving said program of non-segregation, but failing to make recommendations as to how and when said policy should be put into effect because of the reasons stated in said report, and
“Whereas, since said trial, disapproval of the policy of non-segregation has been voiced by organized groups in East Toledo, both on television and radio by certain members of the council of the city of Toledo, and
“Whereas, after a careful study of the report of the Board of Community Relations, the complaints of the people opposed to the policy of non-segregation, and the continued vacancies in the projects, and after consulting with our counsel, the authority still feels that said policy of non-segregation is legally, morally and economically sound and that the authority would be derelict in its duty if it failed to adopt and carry out said policy as soon as it is wise and proper to do so in the fight of all the existing facts and circumstances,
“Now, Therefore, Be It Resolved That Resolution No. 1838 and Resolution No. 1846 be repealed.
“Be It Further Resolved, This 28th day of April, 1953, that the Toledo Metropolitan Housing Authority adopt a policy of non-segregation, commonly known as integration, in the operation and management of all of its low-rent housing projects.
“Said director is hereby ordered to start putting into effect and carrying out said policy of non-segregation or integration, as soon after the adoption of this resolution as he deems it proper and advisable to do so in the light of all the events and circumstances that have occurred since the adoption of Resolution No. 1838.
“Upon putting said policy into effect, said director is hereby ordered to assign and house eligible families whenever and wherever vacancies occur on the basis of need, and without regard to race, religion, or national origin.”

It appears that the plaintiffs, at the time of the commencement of this action, were eligible applicants for available space in the public housing facilities under control of defendant in which they desired accommodations for themselves' and their families, and under the resolution above set forth, and under the provisions of the civil rights statutes above enumerated, the Fourteenth Amendment to the Constitution of the United States, and numerous controlling decisions of the courts, they are entitled to and will be given equal consideration with all other eligible applicants.

At the time of the presentation of this case the court observed “You must bear in mind here that we have projects erected with public funds, erected by the government of the United States, and the government does not segregate its tax receipts.” The court had in mind then, as now, that we are here dealing with property rights as distinguished from the mere right to a public service. The trend of all of the later cases involving property rights is to conform strictly with the requirements of the Fourteenth Amendment and of the civil rights statutes.

The case of Banks v. San Francisco Housing Authority, being case No. 420534 of the San Francisco Superior Court, decided October 1, 1952, is a case identical with the case before us. This case is unreported but a copy of the court’s opinion has been obtained from the housing authority in San Francisco. The case is also valuable because of the citations that it refers to and relies upon. The opinion reads in part as follows:

“The main question posed, then, at this stage by demurrer, is whether or not this public agency can exclude Negro persons solely because they are Negroes, from five of these projects and segregate them into the sixth. Is such segregation unlawful discrimination?

The Fourteenth Amendment to- the Constitution of the United States has uniformly been held to protect all persons, white or colored, against discriminatory legislation or action by the states or its agencies. It is the contention of the housing authority that they comply with this basic law in offering Negroes equal accommodations and facilities separately at Westside, even though- they deprive them of the right to admission at the five other developments.

“However, it is clear to the court that although at one time the ‘separate but equal’ doctrine was upheld as not being discriminatory treatment and followed in certain types of activities, nevertheless, since it was first enunciated in the Plessy v. Ferguson case (163 U. S., 537, 16 S. Ct. 1138, 41 L. Ed. 256) — (1895), it has in later years lost its force by reason of the holdings in many other cases showing that it has no application to ownership or occupancy of real property. Discrimination by segregation of housing facilities and attempts to control the same by restrictive covenants have been outlawed by our Supreme Court. (Shelley v. Kraemer, 334 U. S., 1, 68 S. Ct. 836, 92 L. Ed. 1161.)
“(See also, Buchanan v. Warley (1917), 245 U. S., 60, 38 S. Ct. 16, 62 L. Ed. 149: Harmon v. Tyler (1926), 273 U. S., 668, 47 S. Ct. 471, 71 L. Ed. 831; City of Birmingham v. Monk, 5 Cir., 185 F. 2d 859.)
“By extension of the logic and reason of these cases, it is apparent that that doctrine should not apply to a public housing project, financed by public funds and supervised and controlled by a public agency.”

The case of Seawell v. MacWithey, 2 N. J. Super. 255, 63 A. 2d 542, decided by the Superior Court of the state of New Jersey on January 10, 1949, is also directly in point. Paragraph 2 of the syllabus reads as follows:

“Municipality charged with management of public housing projects being erected with public funds furnished in part by state and in part by municipality could not exclude persons of colored race from three of projects and segregate them within a fourth in face of privileges and immunities clause, due process clause of Federal Constitution and provision in istatute authorizing such public housing units and prohibiting discrimination because of race, creed or color, notwithstanding housing project made available to colored applicants was of like character and equal quality as other three projects. N. J. S. A. 55: 14G-21; U. S. C. A. Const. Amend. 14 §1.”

In view of the foregoing the only question remaining before the court is as to when the policy of integration should- be made effective.

As action to implement the resolution of the defendant is apparently being delayed because of the pendency of this action, it would seem to the court that a reasonable time limit should be fixed for the defendant to carry out its resolution, as was done in Thompson v. Gibbs, D. C., 60 F. Supp. 872, but should that not be done for any reason the matter may again be brought to the attention of the court for appropriate action.That time is fixed at, on or before four months from the date of the entry of the order in this case.

A journal entry, drawn in accordance with this memorandum opinion, and reciting in greater detail the findings and order of the court, is filed herewith.


author: By CASE, J.

text:
    NEFF, Plaintiff, v. PALMER AND OHIO CASUALTY COMPANY, A Corporation, Defendants.
    Common Pleas Court, Fayette County.
    No. 21649.
    Decided December 11, 1953.
    Winston W. Hill, Hill & Hill, Washington C. H., for plaintiff.
    W. S. Paxson, Washington C. H., for defendants.
   OPINION

By CASE, J.

On August 4, 1953, Plaintiff filed his petition herein which reads as follows:

“Plaintiff states that defendant, The Ohio Casualty Insurance Company, is a corporation organized under the laws of the State of Ohio, and as such is and was at all times hereinafter mentioned, authorized to do a general surety business within said state; that on the 13th day of July, 1953, said defendant, Robert C. Palmer, was a policeman and patrolman of the city of Washington, Fayette County, Ohio; that on the 25th day of August, 1950, as well as on said 13th day of July, 1953, Sections 42 and 43 of the General Ordinances of said city were in full force and effect and read, in part, as follows to wit:
“Section 42 ‘* * * That the following officers and employees of said City shall give bond in the amount set out herein; that surety thereon, except on the bond of the City Manager shall be approved by the City Manager; * * *’
“Policeman _______________________________________$1,000.00
“Section 43 <* * * a surety company authorized to do business in this state shall be sufficient surety on the bond of any officer or employee above described * * *’
“Plaintiff further states that on said 25th day of August, 1950, said defendant, Robert C. Palmer, duly qualified as said policeman and patrolman for an indefinite term by giving bond in the sum of $1,000.00 as required by said ordinance with said defendant, The Ohio Casualty Insurance Company, as surety thereon; that said bond was thereupon approved by the City Manager of said city; that said bond was and is expressly conditioned that said defendant, Robert C. Palmer, would well, truly, and faithfully perform all official duties required of him by law; that on said 13th day of July, 1953, said defendant, Robert C. Palmer, in his official capacity as said policeman and patrolman, and by virtue of said office, falsely, maliciously, and without reason or probable cause charged said defendant in the Municipal Court of said city with unlawfully and feloniously carrying about his person a dangerous weapon, to wit; a Colt, .38 Detective Special Revolver No. 583,054; that said defendant, Robert C. Palmer, caused a warrant to be issued for the arrest of said plaintiff on said charge; that defendant, Robert C. Palmer, arrested said plaintiff under said warrant; that thereupon said plaintiff was imprisoned for three hours, and to secure his release was compelled to give bond; that on the 15th day of July, 1953, at the trial of said cause said plaintiff was acquitted of said charge and said prosecution is wholly ended and determined; that said charge, arrest, and trial, was reported by the newspaper of said city; that by reason thereof said plaintiff has been greatly injured in his credit and reputation; that he incurred an expense of Fifty Dollars ($50.00) for counsel fees in defending himself; and that by reason of the facts herein set forth said plaintiff has been and now is damaged in the sum of Five Thousand Dollars ($5,000.00).
“Wherefore, plaintiff prays judgment against said defendants for said sum of Five Thousand Dollars ($5,000.00) together with the costs of this action.”

On August 4, 1953, summons was issued thereon; and the Sheriff’s Return thereof was filed on August 7, 1953, which reads, in part, as follows:

“The State of Ohio, Fayette County.
“Received this writ August 5th, 1953, at 2:30 o’clock P. M. And on August 7th 1953, I served the within named Robert C. Palmer and The Ohio Casualty Co., Mac Dews Agent by personally handing to each of them a true and certified copy thereof * with all the endorsement thereon”

On September 4, 1953, Defendants filed their demurrer to the aforesaid petition which reads as follows:

“Defendants demur to the petition because it appears on its face;
“1. That there is a misjoinder of parties defendant;
“2. That several causes of action are improperly joined;
“3. That separate causes of action against several defendants are improperly joined.”

Said demurrer was accompanied by a memorandum which reads as follows:

“MEMORANDUM.
“Secs. 11309, 11255 GC
“30 O. Jur. 765
“Reidy v. Deitsch 7 O. N. P. 620, 10 O. D. n. p. 382
“32 O. Jur. 1002
“Solomon v. Allaback 26 N. P. n. s. 145.”

It is noted that no memorandum or brief contra said demurrer has been filed on behalf of Plaintiff herein.

The first case cited by Defendants in support of their demurrer herein is Reidy v. Deitsch, 7 O. N. P. 620, 10 O. D. n. p. 382, decided by the Superior Court of Cincinnati, Special Term, May, 1900, and the first headnote thereto reads as follows:

“Sureties on a bond of a member of the police force, under Sec. 1882, Rev. Stat., can be subjected to liability only upon judgment against such officer. They cannot, therefore, be joined in the original action against the officer for damages.” (10 O. D. n. p. 382.)

The reasoning by which that court reached such determination appears on page 383 (10 O. D.) and reads as follows:

“Upon motion of counsel for Caleb Dodsworth and Herman P. Goebel, defendants in this case, the court has ordered a judgment in favor of those defendants, Caleb Dodsworth and Herman P. Goebel, because it appears that they were bonds-' men upon Colonel Deitsch’s bond, and the statute in such case seems to provide that the bondsmen are liable to answer only for a judgment, which has been rendered against a police officer, and as no judgment has yet been rendered, they are properly dismissed from this action. Any verdict, therefore, that you may render in favor of the plaintiff against the defendant, will be against Philip Deitsch only.” (Emphasis by the court.)

This Court has emphasized that portion of the above quoted decision which appears to explain the reasoning by which said court arrived at its holding that sureties on a police officer’s bond could not be joined in the original action against such officer for damages.

We must now look to the provisions of the statute referred to by said court concerning that language whereof that court stated “the statute in such case seems to provide that the bondsmen are liable to answer only for a judgment, which has been rendered against a police officer, and as no judgment has yet been rendered, they” (the bondsmen) “are properly dismissed from this action.”

The pertinent portion of Section 1882, Revised Statutes of Ohio, as in effect at the time of said decision, reads as follows:

“* * * and each patrolman shall give a bond in the sum of one thousand dollars; said bonds shall each have two sureties, and shall be conditioned on the faithful discharge of the duties of the principal, and for the payment of any damages that may be adjudged against such principal by any competent tribunal for the illegal arrest or imprisonment, or injury by him, of any person; * * (Emphasis by the Court.)
And, although said section was amended by an act passed April 16, 1900 (Senate Bill No. 357, Volume 94, Ohio Laws, pages 292 and 293), the pertinent language used therein provided “and for the payment of any damages that may be adjudged against them by any tribunal for the illegal arrest, imprisonment or injury by them of any person.”

As to causes which could be joined under the statutory laws of Ohio in force and effect in 1900, we note with interest Judge Spiegel’s decision in the case of Murphy v. Cincinnati, 10 O. D. 541, which held, according to the headnote thereto, as follows:

“It is proper to unite legal and equitable causes of action, or one sounding in tort and another in contract, if included in the same transaction, and connected with the same subject matter.”

The law and facts by which Judge Spiegel arrived at that decision are clearly and fully stated in the opinion as follows:

“Defendant, the city of Cincinnati, demurs to the petition in this cause filed because several causes of action stated therein are improperly joined.
“Plaintiff, in his first cause of action, alleges that the city wrongfully, without notice to him, appropriated a certain part of his real estate for street purposes, for which he asks damages in the sum of $500. In his second cause of action plaintiff alleges that the city, after making said street, levied an assessment upon the abutting real property, wrongfully, as he claims, which he paid, in the sum of $34.09, and for which sum he asks judgment. In his third cause of action plaintiff alleges the same state of facts as to a second assessment for $71.83, for which he also asks judgment and a restraining order against all further assessments.
“Old sec. 5019, now sec. 502, Rev. Stat., provides that the plaintiff may unite several causes of action in the same petition, whether they are legal or equitable, when they are included in the same transaction or transactions connected with the same subject of action. Judge Swan, in Sturges v. Burton, 8 Oh St 15, 18, lays down the following rule, which has been followed in all code states:
“ ‘By the provisions of the code, the plaintiff may unite “in one action all causes of action arising from “the same transaction or transactions connected with the same subject of action;” and this includes causes of action legal and equitable, ex contractu and ex delicto. But if the causes of action do not arise from the same transaction or transactions connected with the same subject of action, then causes of action ex contractu can not, in general, be united with causes of action ex delicto.’
“The first question to be determined is, were these different causes of action included in the same transaction or transactions connected with the same subject of action?
“Plaintiff claims that a part of his real property is illegally appropriated by the city for street purposes, and that thereafter the remainder of his real property is assessed for the making of this same street. There are clearly several causes of action included in transactions connected with the same subject of action. It is true that the first cause of action sounds in tort, but I doubt whether the assessments levied by the city upon plaintiff, which he complains are illegal, establish a contractual relation between him and the city. At the most plaintiff has united legal and equitable causes of action in his petition, which is clearly permissible under the statute, when they are included in the same transaction, connected with the same subject of action. But even were different causes of action, one sounding in tort and the other in contract, united, if included in the same transaction, as in this case this would be proper pleading.
“Upon either proposition the demurrer must be overruled, and leave is granted defendant to plead further.”

In the case of Drolesbaugh v. Hill et al, 64 Oh St, 257, decided March 12, 1901, the Supreme Court of Ohio held:

“The sureties on the bond of an officer, conditioned for the faithful discharge of his duties, are liable thereon to the party injured, where under color of his office in making an arrest with or without warrant, and without probable cause, he uses more force and violence than is necessary.”

Chief Justice Minshall wrote the court’s opinion in said case and, concerning the joinder and liability of a police officer and his sureties under the facts therein set forth, stated in part as follows, beginning at page 6 thereof:

“The action below was a suit against Hill, the city marshal of Bucyrus, and his sureties on his bond. To the petition as amended the court sustained a demurrer, and rendered judgment for the defendants. The judgment was affirmed on error, by the circuit court, and the ruling is brought here for review.” (Emphasis by the court.)

The above quoted portion, emphasized by this Court, indicates that the joinder of parties therein was similar to the joinder of the Defendants in the instant case at bar; and that the lower courts, in ruling upon the demurrer filed therein, sustained such a demurrer as has been filed in this case at bar.

While the grounds of said demurrer are not detailed in Judge Minshall’s opinion, the allegations contained in plaintiff Drolesbaugh’s petition are set forth in detail, including quotations therefrom, and such detailed allegations thereof are clearly similar to the allegations set forth in Plaintiff Neff’s petition in the instant proceeding.

At page 263 (Drolesbaugh v. Hill, 64 Oh St), immediately following the history of the case and such detailed review of the allegations set forth in Drolesbaugh’s petition, including the judgment asked for, Judge Minshall states the question to be determined by the Supreme Court in the following language:

“The question then presented is, whether the averments of the petition show a breach of the condition of the bond.”

At pages 264, 265 and 266, Judge Minshall concludes the reasoning of the court with the following language:

“It is not difficult to distinguish between an act done by an officer in his capacity as an individual, and one done in his capacity as an officer; for the former his sureties are not liable in any case, for the latter they generally are when the act is wrongful and results in injury to another. Constables and marshals are clothed with very considerable power over the citizen. They may without a warrant make an arrest on view for an offense committed in their presence, as well as on a warrant. The peace and good order of society requires that they should have such powers; but the protection of the individual requires that the same should be exercised in a reasonable and prudent manner; and to secure this, a bond with sureties is exacted for the faithful discharge of their duties. An officer in making an arrest has the right to use such force as may be necessary to overcome any resistance to the execution of his office, offered by the person to be arrested; but he must use no more force or violence than is reasonably necessary for the purpose; and if he does he makes himself and his sureties liable upon his bond to the party injured. The averments of the petition are quite specific. It is averred that by virtue of his office, the marshal unlawfully arrested the plaintiff, struck, bruised and ill-treated him, dragged him through the streets, confined him in the jail and exacted five dollars for his release. It is true that it is averred that this was done without any warrant or probable cause. It does not follow from this that it was not done in his capacity as marshal. If he had no warrant, he had the right to arrest upon view of what he deemed an offense. The fact that it is averred that he acted by virtue of his office precludes the idea that he acted as an individual and of his own wrong. From the petition it appears that what he did, he did as an officer and not as an individual, and the averments of the petition are consistent with such having been the fact. H® may have made the arrest upon view, and have used no more force than was necessary. If such is the case, he and his sureties may defend themselves by setting up the facts in an answer. The petition therefore makes a case.
“In the case of Clancy v. Kenworthy, 74 Iowa, 740, the facts were much the same as in this case, and the same argument was made against the sufficiency of the petition. In answer to the argument the court said:
“ ‘If in exercising the functions of his office, defendant is not liable for acts because they are illegal or forbidden by law, and for that reason are trespasses or wrongs, he cannot be held liable on the bond at all, for the reason that all violations of duty and acts of oppression result in trespasses or wrongs. For lawful acts in the discharge of his duty he of course is not liable. It follows that if defendant’s position be sound, no action can be maintained on the bond in any case.’
“It would seem that the public have as much interest, if not more, in the duty of an officer not to colorably exercise the powers with which he is clothed, as not to use unnecessary violence, where he is otherwise clearly within the duties of his office. It is by virtue of the office he holds that he may exercise its duties to the injury of another. It is not probable that any individual, not an officer, would have attempted to do what the marshal is charged with doing.
“Our attention is called to the case of Carpenter v. Sloane, 20 Ohio, 327, as practically determining this one. A clerk and his sureties were sued on his official bond, for having issued letter to a guardian, without having taken a bond. The court held that he was not liable on his bond for the reason that it was not his official duty to see that a bond had been given. Manifestly the case has no application here.
“However the law may be in some of the other states, in this, and many of the others, where an officer acting under color of his official duties, commits a wrong to the injury of another, he, with his sureties, is liable on his bond to the party injured. The wrongful making of an arrest by an officer colore officii is an unfaithful discharge of his duties, and therefore a breach of his bond.
“Judgment reversed and cause remanded for further proceedings.” (Emphasis by the court.)

The emphasized portions of the above quoted opinion, as emphasized by this Court, indicate reasoning of the Supreme Court in that case which this Court deems applicable to the case at bar and to which this Court should subscribe in disposing of Defendants’ demurrer herein.

A case more directly in point with each of the issues raised by Defendants’ demurrer herein appears to be Gravell v. Speakman, 8 O. N. P. N. S. 246, which was decided by Judge Kinkead in the Common Pleas Court of Franklin County, March 8, 1909, and of which the headnotes read as follows:

“1. A cause of action against an officer may be joined with one jointly against the officer and his surety on his official bond.
“2. The cause of action against the officer is the subject of the action, and the joint cause of action against both on the official bond is a transaction connected with the subject of action, both causes affecting all parties to the action, therefore being properly joined.”

In his opinion, Judge Kinkead clearly analyses the issues and supplies the law to the facts therein with enviable precision and brevity as follows: (Gravell v. Speakman, 8 O. N. P. N. S., pages 247 and 248):

“This is an action by plaintiff for false imprisonment against a police officer.
“The defendant, the Title Guaranty & Trust Company, interposes a demurrer, claiming that there is a misjoinder of parties defendant, in that the defendant, The Title Guaranty & Trust Company, is wrongfully joined with the defendant police officer, and that the separate .causes of action against several defendants are improperly joined, and that the petition does not state facts sufficient to constitute a cause of action against the defendant, the Title Guaranty & Trust Company.
“It has been repeatedly held by this court that a complainant in false imprisonment may properly join the principal and surety in such cases as this in one action, and that the cause against the officer may appropriately be joined with the cause on the bond against the surety. There is occasion, however, for giving the reasons for the rule, some of which have perhaps not been given.
“The grounds for such joinder may be found in Sections 4994, 5058 and 5059.
“The causes of action in this case are not separately stated and numbered, but are run together. There are, in fact, two separate causes, one against the police officer for breach of - duty, the due performance of which is guaranteed by the surety on his official bond. This cause is primarily against the officer, but it affects the surety on the bond, who is liable if there has been a breach. The surety is as much interested in resisting the liability on the cause against the officer as is the latter himself, so that it meets the requirements of Section 5059, Revised Statutes, that the causes so united must affect all parties to the action.
“The subject of the cause of action against the officer is the tort constituting breach of official duty, the wrongful act being the transaction giving rise to such cause of action.
“The first cause of action is against the officer alone; and the second is against the officer and the surety on his bond guaranteeing the official duty.
“The execution and delivery of the bond is a transaction connected with the same subject of action, which consists of the operative facts showing a breach of official duty.
“Though the cause against the officer constitutes a separate cause against him alone, still the joint cause against the principal and surety may be united by virtue of Sections 5058 and 5059, the transaction of the execution of the bond being connected with the subject of the first cause against the officer and both causes affecting both parties.
“It is claimed that there are not sufficient facts stated to constitute a cause of action on the bond against the surety; that there is no breach alleged; and that there is no allegation that the principal has failed to pay.
“A breach of official duty is alleged, and this constitutes a breach of the bond. Failure to pay the damages is not essential, since Section 4994, Revised Statutes, authorizes the action to be brought on the bond against the principal and the sureties.
“The demurrer is overruled.” (Emphasis by the court.)

The emphasized portions of Judge Kinkead’s opinion, as emphasized by this Court, indicate reasoning of the common pleas court in that case which this Court deems applicable to the case at bar and to which this Court should subscribe in disposing of Defendants’ demurrer herein.

Comparison of the language, of the statutes referred to in Judge Kinkead’s aforesaid opinion and the statutes in effect and applicable to the case at bar, is deemed appropriate to a full and complete consideration and disposition of the issues in the instant proceeding.

Section 4994, referred to in Gravell v. Speakman, supra, reads as follows:

“The rule prescribed in the preceding section may be so applied, when a person forfeits his bond, or renders his sureties liable, that any person injured thereby, or who is by law entitled to the benefit of the security, may bring an action thereon, in his own name, against the person and his sureties, to recover the amount to which he is entitled by reason of the delinquency, which action may be prosecuted on a certified copy of the bond; and the custodian of the bond shall deliver such copy to any person claiming to be so injured, on tender of the proper fee; but the provisions of this section as to the -form of the action shall not be imperative if provision is otherwise made by law; nor shall a judgment for one delinquency preclude the same or another party from an action on the same instrument for another delinquency. (51 v. 57, Nos. 566, 567; S. & C. 1123, 1124; [675].)”

See. 11242 GC, as in force and effect at the time of the commencement of the within action, reads as follows:

“When a person forfeits his bond, or renders his sureties liable thereon, a person injured thereby, or who is entitled to the benefit of the security, may bring an action thereon, in his own name, against the person and his sureties, to recover the amount to which he is entitled by reason of the delinquency, which action may be prosecuted on a certified copy of the bond; and a judgment for one delinquency shall not preclude the same or another person from bringing an action on the instrument for another delinquency. (Sec. 4994 R. S.)”

The similarity of legislative purpose and intent appearing in the express terms and provisions of the above quoted sections clearly eliminates the application of Reidy v. Deitsch, 7 O. N. P. 620, 10 O. D. n. p. 382, cited by Defendants’ memorandum in support of their demurrer herein, and clearly precludes any doubt as to the applicability of Gravell v. Speakman, 8 O. N. P. N. S. 246, to the case at bar.

Section 5058, referred to in Gravell v. Speakman, supra, reads as follows:

“The plaintiff may unite several causes of action in the same petition, whether they are such as have heretofore been denominated legal or equitable, or both, when they are included in either of the following classes:
“1. The same transaction.
“2. Transactions connected with the same subject of action.
“3. Contracts, express or implied.
“4. Injuries to person and property, or to either.
“5. Injuries to character.
“6. Claims to recover the possession of personal property, with or without damages for the withholding thereof.
“7. Claims to recover real property, with or without damages for the withholding thereof, the rents and profits of the same, and the partition thereof.
“8. Claims to foreclose a mortgage given to secure the payment of money or to enforce a specific lien for money, and to recover a personal judgment for the debt secured by such mortgage or lien.
“9. Claims against a trustee, by virtue of a contract, or by operation of law.”

Sec. 11306 GC, as in force and effect at the time of the commencement of the within action, reads as follows:

“The plaintiff may unite several causes of action in the same petition, whether they are legal or equitable, or both, when they are included in any of the following classes:
“1. The same transaction;
“2. Transactions connected with the same subject for action;
“3. Contracts, express or implied;
“4. Injuries to person and property, or to either;
“5. Injuries to character;
“6. Claims to recover possession of personal property, with or without damages for withholding it;
“7. Claims to recover real property, with or without damages for withholding it, its rent and profits, and the partition thereof.
“8. Claims to recover possession of real property in forcible entry and detainer, and claims for rent, with or without damages for breach of any condition of the tenancy.
“9. Claims to foreclose a mortgage given to secure the payment of money or to enforce a specific lien for money, and to recover a personal judgment for the debt secured by such mortgage or lien;
“10. Claims against a trustee by virtue of a contract, or by operation of law.”

Obviously, the similarity of legislative purpose and intent appearing in the express terms and provisions of the above quoted sections precludes the necessity of further comment by this Court.

Section 5059, referred to in Gravell v. Speakman, supra, reads as follows:

“The causes of action so united must not require different places of trial, and, except as otherwise provided, must affect all the parties to the action.”

Sec. 11307 GC, as in force and effect at the time of the commencement of the within action, reads as follows:

“The causes of action so united must not require different places of trial, and, except as otherwise provided, must affect all the parties to the action.”

Since the language of said sections is identical, no further comment by this Court is required.

The provisions of the aforesaid §§11342, 11306 and 11307 GC, were so construed and applied by Judge Spiegel of the Superior Court of Cincinnati, August 4, 1913, in the case of Warren v. Howard, 2 O. D. N. P. 32, wherein, according to the headnote thereof, said court held:

“Sureties of a patrolman may be joined with him in an action for damages for maliciously and unlawfully imprisoning plaintiff; a breach of duty as patrolman and execution and delivery of a bond for faithful performance are transactions connected with bond for faithful performance are transactions connected with the same subject of action within the meaning of §§11306, 11307 GC, nor is an award of judgment against the patrolman a condition precedent to bringing an action against the sureties on his bond.”

Beginning at page 33 thereof, Judge Spiegel stated in part as follows:

“Counsel for defendant, Somhorst, contends that as a condition precedent to bringing an action against the bonding company there must first be an award by way of judgment by a competent tribunal against Somhorst, and second that in an action sounding in tort the bonding company can not be made a party defendant on its bond because it can be liable only ‘ex contractu.’
“These questions must be determined in the light of the statutes in force in this state. Sec. 11242 GC provides:
“ ‘When a person forfeits his bond, or renders his sureties liable thereon, a person injured thereby, or who is entitled to the benefit of the security, may bring an action thereon, in his own name, against the person and his sureties, to recover the amount to which he is entitled by reason of the delinquency, which action may be prosecuted on a certified copy of the bond.’

“Sec. 11306 GC provides:

“ ‘The plaintiff may unite several causes of action in the same petition, whether they are legal or equitable, or both, when they are included in any of the following classes:
“ T. The same transaction.’
“ ‘2. Transactions connected with the same subject of action.’
“ ‘3. Contracts, express or implied.’
“ ‘4. Injuries to person and property, or to either.’
“Sec. 11307 GC provides:
“ ‘The causes of action so united must not require different places of trial, and, except as otherwise provided, must affect all the parties to the action.’
“It will be seen that the condition of the bond embraces more than the payment of a judgment, for it includes the faithful discharge and performance all and singular of the several duties pertaining to the position of patrolman in addition to the former.
“A breach of his duty as patrolman is alleged, and the execution and delivery of the bond is a transaction connected with the same subject of action, out of which it arises, and although the cause of action is alleged against the patrolman alone, yet both causes of action against him and the bonding company may be united by virtue of §§11306 and 11307 GC, both parties being affected by the same cause of action. Besides, under this ruling the bonding company may be represented by counsel in the prosecution of the suit against the patrolman.
“Upon the question that in an action sounding in tort, the bonding company can not be made a party defendant on its bond, because it can be liable only ‘ex contractu,’ I passed while on the common pleas bench in the case of Murphy v. Cincinnati, 10 Dec. 541 (8 N. P. 106), wherein the syllabus holds:
“ ‘It is good pleading to unite legal and equitable causes of action or one sounding in tort and another in contract, if included in the same action, and connected with the same subject of action.’
“And which is still the law of Ohio.
“The demurrer is overruled. Entries may be made accordingly.”

Again, the emphasized portions of Judge Spiegel’s above quoted opinion, so emphasized by this Court, indicate reasoning of said court in that case which this Court deems applicable to the instant proceeding and to which this Court subscribes in disposing of Defendant’s demurrer herein.

To the contrary, and in support of their demurrer herein filed, Defendants have cited the decision of Judge McCray of the Common Pleas Court of Montgomery County in the case of Solomon v. Allaback, 26 O. N. P. N. S. 145, wherein, according to the headnotes thereof, it was held:

“Where a charge based upon negligence is made against the principal and surety on a bond conditioned that the principal would ‘honestly, faithfully, and impartially discharge the duties’ of police officer; and the first cause of action asks for $5,000.00 against both principal and surety,- and the second cause of action asks for $600.00 against the surety only. Held—
“1. That the surety is not thereby made liable for the negligence of the principal.
“2. That the separate causes of action against the several defendants are improperly joined; for the reason that the causes of action so united do not affect all the parties to the action as required by §11307 GO.”

This Court has read and reread Judge McCray’s opinion in that case in order to discover and understand the essential elements of law and fact by reason of which said court could conclude, as it did, that there were certain variances of law and fact upon which said case could be distinguished from previous decisions of other courts of equal or greater magnitude involving application of identical statutes and reasonably similar factual situations.

At page 146 (Solomon v. Allaback, 26 O. N. P. N. S.), the court states in part as follows:

“The plaintiff alleges that the condition of the bond has been broken and defendants have become liable thereon. In the prayer of the petition the plaintiff prays judgment against Herbert A. Allaback for $5000 and costs and ‘further prays judgment against The Metropolitan Casualty Insurance Company in the sum of six hundred ($600) dollars and costs.’
“There is a general demurrer before us, filed by The Metropolitan Casualty Insurance Company, in which it is urged: (1) There is a misjoinder of parties defendant; (2) Several causes of action are improperly joined; (3) Separate causes of action are improperly joined; and (4) The petition does not state facts which show a cause of action against this defendant.”

And, beginning at the bottom of said page 146, Judge McCray proceeds to dispose of the legal pronouncements of the Supreme Court of Ohio, as declared in two recognized leading cases, with the following language:

“The purposes for which bonds are required to be given by police officers are fully set forth in the language of our Supreme Court in passing upon a bond given by such an officer. In that case the officer was a city marshal, but we do not find any distinction in their respective duties. The court say in Drolesbaugh v. Hill, 64 Oh St, 257 at 264:
“ ‘They may without a warrant make an arrest on view for an offense committed in their presence, as well as on a warrant. The peace and good order of society requires that they should have such power; but the protection of the individual requires that the same should be exercised in a reasonable and prudent manner; and to Secure this, a bond with sureties is exacted for the faithful discharge of their duties.’ (Emphasis ours.)
“This language disposes of the meaning of the word ‘faithful’ and we have no difficulty in determining the meaning of the word ‘honesty’ and ‘impartially;’ for in neither case can the broadest stretch of imagination imply that these words can be associated with a negligent act.

“We are referred to the syllabus in the case of American Guaranty Company v. McNiece, 111 Oh St, 532, in which the Supreme Court recently said:

“ ‘The sureties on a bond of an officer, conditioned upon the faithful performance of his duties, are liable to all persons unlawfully injured by the nonfeasance, misfeasance, or malfeasance perpetrated by such officer, either by virtue of his office or under color of his office.’ (Emphasis ours.)
“It is claimed that this syllabus, being the law of the case, gives a cause of action against a surety for negligence. This syllabus must be read in the light of the more recent decision of the Supreme Court in B. & O. R. R. Co. v. Baillie, 112 Oh St 567, in which the court say: ‘The syllabus of a decision of the Supreme Court of Ohio definitely states the law of Ohio with reference to the facts upon which it is predicated, and must be read in view of the facts found in such case.’ A casual reading of the opinion in the case of American. Guaranty Company v. McNiece will show at once that it was an action ‘for the unlawful assaulting and shooting of plaintiff.’ No claim of negligence is to be found.
“Our opinion is that the petition does not state a cause of action against this defendant; and that the demurrer should be sustained upon this ground. The first and second grounds do not appear to be well taken.”

Although this Court must admit that it has been unable to follow with assurance and to subscribe with confidence to the fine lines of distinction so drawn by Judge McCray in the Solomon case, which clearly appears to be buttressed upon whether or not a “claim of negligence is to be found” in plaintiff’s petition; therefore, this Court may, with equal logic, dispose of the issues raised by Defendants’ demurrer in the case at bar by simply pointing out that no allegations of such negligence can be found in Plaintiff’s petition herein.

The absence of such alleged negligence clearly and unequivocally removes the application of Solomon v. Allaback, supra, to the case at bar and leaves Plaintiff’s petition solely within the scope and application of those principles of law so clearly .established and repeatedly pronounced by the vast majority and controlling decisions of our state courts at all levels.

In its decision in the case of United States Fid. & Guar. Co. v. Green, 18 Abs 525, decided on December 21, 1934, the Second District Court of Appeals for Franklin County, at page 526 thereof, cited the case of Gravell v. Speakman, supra, with approval in the following language:

“The case of Gravell v. Speakman et, 8 N. P., N. S., 246, contains a well considered opinion by the late Judge Kinkead, of the Franklin County Common Pleas Court. The first syllabus in this case announces the now well recognized principle that an officer may be joined with his surety in an action on the official bond. The 'question was raised that the petition did not negative payment. On page 248, the able jurist said that such allegations are unnecessary.”

Since said appellate court is also the Court of Appeals for Fayette County, such repeated recognition and acceptance of said established legal principle, “that an officer may be joined with his surety in an action on the official bond,” cannot be ignored by this Court under the facts and circumstances of record in the instant proceeding. Therefore, upon consideration of all of the law and facts hereinabove set forth and discussed, this Court finds:

1. That, in the light of the allegations contained in Plaintiff’s petition herein, said police officer and surety company may be and are properly joined as parties defendant to the within action; and

2. That each and all of the grounds urged and relied on in said Defendants’ demurrer herein are not well taken and should be overruled.