author: By PHILLIPS, J.

text:
    CORNELL, ADM. BUREAU OF UNEMPLOYMENT COMPENSATION, Plaintiff-Appellant, v. DALPIAZ, BOARD OF REVIEW, BUREAU OF UNEMPLOYMENT COMPENSATION, Defendants-Appellees.
    Ohio Appeals, Seventh District, Belmont County.
    No. 883.
    Decided December 11, 1952.

      C. William O’Neill, Attorney General, and William M. Gemmill, Assistant Attorney General, Columbus, for plaintiff-appellant.
    C. William O’Neill, Attorney General, and John W. Hardwick, Assistant Attorney General, Columbus, for defendant-appellee Board of Review, Bureau of Unemployment Compensation.
    Paul Waddell, St. Clairsville, for defendant-appellee, Ernest Albert Dalpiaz.
   OPINION

By PHILLIPS, J.

The administrator, Bureau Unemployment Compensation of the State of Ohio, appealed to this court on questions of law from a judgment of the court of common pleas of Belmont county, entered upon a finding of a judge thereof for, and affirming a decision of the Board of Review of that Bureau, which reversed the decision of a referee thereof affirming suspension of benefit rights to appellee, Ernest Albert Dalpiaz.

The administrator contends by assignments of error that “the court erred in finding that the decision of the Board of Review was not unreasonable, unlawful, and against the manifest weight of the evidence, when the Board of Review reversed the decision of the administrator, Bureau of Unemployment Compensation”: and “exceeded its authority, by reason of the jurisdiction imposed upon such court by §1346-4 GC.”

Applicant Dalpiaz, who was working regularly for his employer at the time the latter quit business, subsequently applied for but was unable to obtain employment elsewhere. While unemployed he enrolled under the provisions of the Service Men’s Readjustment Act in a course on the science of refrigeration taught at the Tri-State Institute, a trade school set up by the Veteran’s Administration at Wheeling, West Virginia.

The board based its finding upon the following facts:—

“Prior to entry into the armed forces claimant was employed in coal mines in the vicinity of his home in Lafferty, Ohio, and just prior to filing the present application he was employed as a ‘stone man’ by Wheeling Township Mining Co., Adena, Ohio. He became unemployed on June 24, 1949, when employer abandoned the operation on which he was working.
“On August 3, 1949, claimant began to attend vocational classes in a course on ‘refrigeration’ at Tri-State Institute, Wheeling, W. Va., under the provisions of the Servicemen’s Readjustment Act, and he was still attending classes at the time of the Board hearing. During this period he was paid a subsistence allowance of $105 a month.
“Attendance at five class sessions a week was required, but schedules were so set up that claimant could attend either day sessions from 8:00 a. m. to 1:00 p. m., or night sessions from 6:00 p. m. to 11:00 p. m., and he testified that during his course of study he had changed his schedules at least four times.
“Apparently claimant stopped claiming unemployment benefits when he began his course of instructions as aforesaid, but on February 9, 1950, he filed a statement expressing his desire to reopen his claim. It was then that the Administrator suspended benefit rights as of August 3, 1949, the date on which claimant began said course of instruction.
“For a long time prior to filing original application, and at all times since, claimant has resided with his mother, two sisters and 10-year-old brother on a 17 acre farm about ten miles from St. Clairsville, Ohio, and approximately two miles from Wheeling, W. Va., where he attends classes. He testified that he was not engaged in operating said farm, and that the few livestock (two cows and approximately 30 chickens) were cared for by his brother. Originally claimant had no car, and rode to and from his classes with a neighbor who had a car and made a daily trip to Wheeling. Later claimant acquired a car for his own use.
“The aggregate of claimant’s undisputed testimony at the two hearings was that during the period in which he was attending classes he was actively seeking work, on either day or night shifts, and that he could arrange his class schedule so as not to conflict with the hours of any work he might secure. He listed nine potential employers he contacted in search of work, and testified that most of these employers were contacted several times. One of said employers (Hanna Coal Co.) submitted a letter stating that claimant had made frequent contacts over a period of a year, seeking employment in its mines, but that no work had been available. He testified that during the time he was attending classes he made at least two work contacts every week, even though the prospective employers (coal mines) were located at widely separated points in southern Ohio.
“About a week prior to the Board hearing claimant secured work through a referral by the employment service. At the time of said hearing-he was working full daytime shifts on said job and was attending his regular classes at night.”

Sec. 1345-6d, par. 6, GC, provides:

“Notwithstanding the provisions of subsection (a) of this Section, no individual may serve a waiting period or be paid benefits for the duration of any period of unemployment with respect to which the administrator finds that such individual:
“(6) has left his most recent work for the purpose of attending an established educational institution, or if he is a student regularly attending an established educational institution during the school term or customary vacation periods within the school term.”

Sec. 1346-8a, par. 4, GC, provides:—

“No individual shall be entitled to any benefits unless he or she
“(4) is able to work and available for work in his usual trade or occupation, or in any other trade or occupation for which he is reasonably fitted.”

The referee and one member of the Board of Review held that paragraph 6 of §1345-6d GC, controlled. A majority of the Board of Review held that paragraph 4 of §1345-6a GC, controls; that applicant was able and available for work, and therefore should be paid unemployment benefits.

As stated by the trial judge in his opinion, the question presented to us for consideration and determination “is whether or not these Trade Schools (such as the one in which applicant enrolled) established by the Veteran’s Administration come under the classification mentioned in paragraph 6. Are such trade schools established educational institutions?”

The word “established” as used in §1345-6d, paragraph 6, GC, connotes some degree of permanency. For definition of the word “established” see Muskegon Traction & Lighting Co. v. City of Muskegon, 132 N. W. 1060, 1063, 167 Mich. 331; Hart v. Hart, 110 S. W. 91; State ex rel v. Board of Trust of Vanderbilt University, 164 S. W. 1151; Egan v. Finney, 72 Pacific 133.

Most of the so-called “trade schools” set up by the Veteran’s Administration have been discontinued. They lacked the permanency of “established educational institutions,” and were not such institutions in any sense.

We conclude, as did the trial judge, as indicated in his opinion, “that the legislature in using the language referred to in paragraph 6 did not have in contemplation the kind of school which the applicant herein was attending”; that the applicant was able to and available for work during this period (the period during which he made application for payment to him of unemployment compensation); and that “the holding of the Board of Review was neither unreasonable or unlawful.”

Further, we conclude that the trial judge did not exceed his authority “by reason of the jurisdiction imposed upon such court by §1345-6a, (4) GC.” Further, we conclude, as the trial judge found, that the applicant was able and available for work during the period in question.

The judgment of the court of common pleas is affirmed.

NICHOLS, PJ, GRIFFITH, J concur.


source: Caselaw Access Project

author: By SKEEL, J: By HURD, PJ

license: Public Domain

text:
    RUSSELL, Plaintiff-Appellee, v. DRAKE, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23222.
    Decided January 12, 1955.

      Davis, Davis & Handelman, Cleveland, for plaintiff-appellee.
    James R. Ugan, Cleveland, for defendant-appellant
   OPINION

By SKEEL, J:

This appeal comes to this court on questions of law from a judgment entered against the defendant in the Common Pleas Court of Cuyahoga County. The plaintiff was a passenger in an automobile then being driven by her husband in a northerly direction on East 105th Street in the City of Cleveland at about 2:30 A.M. March 16, 1952. The automobile in wnich plaintiff was a passenger came to a stop behind an automobile also headed north at the intersection of Ashbury Avenue, because the traffic signal at that intersection showed red, or “stop” for East 105th Street traffic and green or “go” for Ashbury Avenue traffic.

The defendant was at said time and place driving his mother’s Oldsmobile in a northerly direction and failed to stop in time to avoid crashing into the rear of the automobile in which plaintiff was a passenger whereby she claims to have sustained certain injuries.

As above indicated, the collision occurred about 2:30 A.M. on the morning of March 16, 1952. The plaintiff filed her petition seeking judgment against the defendant on May 21, 1952. Residence service was had on the defendant on May 23, 1952 and service returned by the sheriff May 26, 1952. After two consents to plead were granted, defendant filed an answer on July 24, 1952 putting in issue all of the material allegations of plaintiff’s petition, except the fact that a collision did take place as pleaded by the plaintiff. At the time of the service of summons (residence service) on the defendant he was a minor, twenty years of age, and did not attain his majority until September 24, 1952. The return of residence service shows that §2703.13 R. C. providing the manner in which service may be made upon a minor, was not complied with and ,no alias summons was issued after the defendant reached twenty-one years of age.

The questions presented are, first, did the court obtain jurisdiction over the person of the defendant, and second did the statute of limitations run before plaintiff’s action was “commenced?”

On March 19, 1954, which was two years and three days after the accident occurred, the defendant filed a motion seeking a continuance which motion was granted. Such conduct on his part entered his appearance in the case.

In the case of Long v. Newhouse, 57 Oh St 348, it was held by the Supreme Court:

“2. In order to enable a defendant to object to the jurisdiction of the court over his person, the objection must be made at the earliest opportunity of the party. If before making such objection, the party appears and makes a motion that the plaintiff be required to attach an account of the items of his claim to his petition, or that he be required to separately state and number his causes of action, or that he be required to strike certain matters from his petition, in either of these cases, the party voluntarily submits himself to the jurisdiction of the court and he cannot afterwards be heard to object thereto.

Also, in the case of Robert v. Francis, 40 Oh Ap 491, it was held that a defendant in an action for wrongful death, not being properly served as a minor waived such service by appearing with his attorney for trial after reaching his majority.

See, also, Clippinger v. Sturgeon, 5 Oh Ap 233.

The second question, whether plaintiff’s action is barred by the statute of limitations and whether or not that question was properly presented to the court, will now be considered. The time in which an action must be brought seeking damages for personal injury due to negligence is two years. Sec. 2305.10 R. C. After the defendant entered his appearance by filing his motion to continue he filed a motion to dismiss, basing the motion on two grounds; first, for the reason defendant was not properly served with process, and second, because the face of the record discloses that the action was not brought within two years after the plaintiff’s cause of action arose, which motion the court overruled. (This motion was filed on March 31, 1954). The first of these grounds was not well taken and the court was correct in overruling that part of the motion on the authorities above cited. After the motion to dismiss was overruled the case went to trial on April 22, 1954, on the pleadings originally filed in the case and judgment entered for the plaintiff on the verdict of the jury. The answer filed by the defendant while he was a minor and before proper service was had upon him, was not amended to set up the defense of the statute of limitations.

It is clear from the record that the court did not have jurisdiction over the defendant until he entered his appearance more than two years after the accident and at no time was a legal summons ever issued seeking to obtain such jurisdiction.

In the case of Templeman v. Hester, 65 Oh Ap 62, the court had for consideration almost the identical question upon facts similar to those here presented. The court held:

“1. Upon the filing of a petition and causing summons to be issued thereon an action is pending and continues to pend for service until dismissed voluntarily or for failure to prosecute.
2. Until summons is served in the manner and within the time prescribed by statute, the statute of limitations does not cease to run.
3. To obtain jurisdiction over a minor defendant, service of summons must be made in conformity to Sec. 11291 GC.
4. Where a petition is filed against an infant and summons issued, the action is pending and if it has not been dismissed when the defendant reaches 21 years of age, alias summons may be served upon him as an adult.
5. The fact that the action may have become barred by the statute of limitations is no ground for quashing service of summons.
6. The spirit of §11233 GC, is that when an action would fail otherwise than on its merits, the plaintiff shall have one year in which to reassert it, and if the original action is still pending and there is no reason for not asserting it in that action, it may be so asserted just as effectually as it could in a new action.”

It is to be noted that the court clearly states that the filing of an action and issuing summons without service does not toll the statute of limitations. Under the facts of the case now being considered, a summons legally sufficient to bring the defendant into court was never issued or served. '

Sec. 2305.17 R. C. provides:

“An action is commenced within the meaning of §§2305.03 to 2305.22 inclusive, and §1307.08 R. C. as to each defendant, at the date of the summons which is served on him or on a co-defendant who is a joint contractor or otherwise united in interest with him. When service by publication is proper, the action is commenced at the date of the first publication, if it is regularly made.

Within the meaning of such sections, an attempt to commence an action is equivalent to its commencement when the party diligently endeavors to procure a service, if such attempt is followed by service within sixty days ” In the case Of Kossuth v. Bear, 161 Oh St 383, the court said:

“1. Where a petition to recover damages for personal injuries received in an automobile accident is filed within two years from the date when the alleged injuries were received and summons is issued for the defendant but service of the summons is never obtained, and, after the expiratoin of two years from the date of the accrual of the cause of action, the court orders the petition to be ‘dismissed’ for the reason that there had been no service of summons, the plaintiff can not be considered as having failed ‘otherwise than upon the merits,’ in an action commenced or attempted to be commenced so as to authorize the plaintiff to commence an action within one year after the date of such ‘dismissal’ under §11233 GC (2305.19 R. C).
2. Under the provisions of §11231 GC (§2305.17 R. C.) the filing of a petition and praecipe for summons upon the defendant does not constitute ‘an attempt to commence an action’ which ‘shall be deemed to be equivalent to its commencement’ where such attempt to procure service of summons is not followed by service at any time.”

And at page 383 the court said:

“Although under §11279 an action must be commenced by the filing of a petition and causing a summons to be issued thereon, the effectiveness of such filing in order that the action may be deemed commenced is governed. by §11230. That section provides in clear language that the action shall be deemed to be commenced only at the date of the summons which is served on the defendant.”

From the foregoing authorities, and the undisputed facts here presented, the only conclusion that could be reached is that the plaintiff’s action was not commenced within two years from the date the cause of action accrued. and unless the statute of limitations was tolled for some reason not pleaded the right to prosecute such action is now barred.

The court, therefore, in dealing with the defendant’s motion to dismiss, for the reason that the action was barred by the statute of limitations, should have treated such motion as a demurrer and because the action was not commenced within two years from the date it accrued, the court should have sustained such demurrer and granted plaintiff leave to plead.

For the foregoing reasons, the judgment is reversed and the cause is remanded to the point in the proceeding where prejudicial error occurred, with instructions to treat the defendant’s motion to dismiss as a demurrer and grant the same and for further proceedings acording to law.

Eceptions noted. Order see journal.

HURD, PJ, dissents.

KOVACHY, J, concurs.

DISSENTING OPINION

By HURD, PJ

(Dissenting):

The defendant is a man now aged twenty years and four months. At the time of the accident, March 16. 1952, he was regularly employed and was living with his wife and child in his own home and lacked six months of becoming 21 years of age. When the action was filed on May 21, 1952, he lacked four months of becoming of age. Thereafter, he applied for and secured two leaves to plead and then on July 24, 1952 filed his answer in which he did not raise the issue of his minority or any defect as to service.

On March 19, 1954, two years and three days after the cause of action arose, he entered his appearance as an adult by filing a motion to continue the cause. It was only when the case was selected to be sent to a trial room, more than a year and a half after defendant had become of age, that he filed his motion to dismiss which was overruled. Thereafter the cause went to trial and judgment was rendered on a jury verdict in favor of plaintiff.

Under the circumstances, the defendant by his course of conduct waived service of summons upon him as a minor and entered his appearance. See Miller v. Smith, 18 Abs 386; Hebert v. Francis, 40 Oh Ap 491.

In Templeman v. Hester, 65 Oh Ap 62, a case in many respects factually similar to the instant case, the court said:

“Ordinarily, the allegations of the answer determine the defense available to the defendant and if any defense is not pleaded it cannot be used, and frequently if it is not pleaded it is waived. That is true of the defense of the statute of limitations by express statutory provisions. ' If it appears on the face of the petition that the cause is barred, the defendant may demur on that ground. Sec. 11309 GC But a demurrer based on that defect in the pleading must be specific. Sec. 11310 GC. If it does not appear on the face of the petition that the cause is barred by lapse of time, the objection may be made by answer, but if it is not made in either way it is waived. Sec. 11311 GC.”

Sec. 11311 GC (now §2309.10 R. C.) reads as follows:

“When, on the face of a petition, no ground of demurrer appears, the objection may be taken by answer. If the objection is not made in either way, the defendant has waived it, except only that the court has no jurisdiction of the subject of the action and that the petition does not state facts which show a cause of action.”

The case of Kossuth v. Bear, 161 Oh St 378, relied upon by the defendant is not in any respect analogous to the instant case.

Upon trial the defendant admitted liability and judgment was entered upon a jury verdict in favor of plaintiff. There being no errors prejudicial to the rights of the defendant, the judgment for plaintiff should be affirmed.


text:
    BENCHWICK, Plaintff-Appellee, v. YOUNGSTOWN SHEET And TUBE COMPANY, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3517.
    Decided September 30, 1952.

      Traxler & Beil, Youngstown, for plaintiff-appellee.
    Manchester, Bennett, Powers & Ullman, Youngstown, for defendant-appellant.
   OPINION

By PHILLIPS, J.

Defendant, a corporation, appeals to this court on questions of law from a judgment of the court of common pleas entered upon a jury verdict returned for plaintiff in his action on appeal to that court from a ruling of the Industrial Commission of Ohio disallowing, upon rehearing, adjustment of his claim for compensation from defendant, a self-insurer under the Workmen’s Compensation Act of Ohio, on the ground that plaintiff’s disability was not sustained in the course of and arising out of his employment by defendant.

The sole question presented to this court by defendant’s sole assignment of error is whether “the court erred in overruling defendant’s motion for judgment notwithstanding the verdict”.

In discharge of his duties as a bender in defendant’s tube mill from 1912 to November 27, 1947, plaintiff was required to drop a steel ball on hot steel sheets over which water flowed and which process generated steam, which plaintiff inhaled during such 35 year period.

While in discharge of his regular duties in the regular way on November 27, 1947, plaintiff, aged 61 years, suffered from a cardiac condition and from a coughing attack and shortness of breath, has not worked since, and is suffering, and for ten years he has suffered, from emphysema, a progressive lung disease characterized by an enlargement and lack of elasticity of lung cells, which pathological condition his physician testified would not be caused by inhaling steam, but which would cause temporary irritation of lung cells.

The jury unanimously answered affirmatively the following interrogatory submitted to it by defendant’s counsel:

“Is plaintiff Benchwick’s disability, if any he has, due to and caused by exposure to steam and smoke in connection with his work at Youngstown Sheet and Tube Company over a period of years?”

Defendant contends “it is the law of Ohio that a trial court must upon motion set aside a general verdict and enter judgment for the party against whom the general verdict is rendered, when the answer of the jury to a special interrogatory cannot be reconciled with the general- verdict”: that:

“By the general verdict the jury said in effect ‘Benchwick received an injury on November 27, 1947, which injury aggravated a pre-existing condition’, but by answering the interrogatory ‘yes’ the jury says specifically that Benchwick’s disability is the result of years of exposeure to steam at his work, and is not the result of the alleged injury of November 27, 1947.
“Thus clearly the answer to the interrogatory is absolutely irreconcilable with the general verdict, and under law the general verdict cannot stand.”

Defendant further contends that the case of McNees v. Street Ry. Co., 152 Oh St 269, on authority of which the trial judge overruled defendant’s motion, clearly “supports in a negative way what defendant is contending for in a positive way”.

The first and second syllabi of McNees v. Street Railway, supra, provide:

“The answers of a jury to special interrogatories will not authorize a judgment different from that authorized by a general verdict, where such answers can be reconciled with the general verdict. (Davis v. Turner, 69 Oh St 101, and Ohio Fuel Gas Co. v. Ringler, 126 Oh St 409, approved and followed.)
“Ordinarily, in order to sustain a motion for judgment notwithstanding a general verdict, the evidence received upon the trial and the facts established by admissions in the pleadings and in the record must be such that the court would have been required, upon a proper motion therefor, to direct a verdict for the party seeking such judgment. Even if, on such a motion for judgment, a court may also consider the answer of a jury to an interrogatory as establishing facts found by such answer, such motion must be overruled if the evidence, received upon the trial, and the facts, established by admissions in the pleadings and in the record and by answers of the jury to interrogatories, do not, as a matter of law require a finding for the party making such a motion on some issue, which should have been found in his favor in order to justify a general verdict for him. In passing upon such a motion, neither the trial court, the court of appeals nor this court may weigh the evidence. Sec. 11601 GC.”

Reviewing the record, which includes the interrogatory, and the law we conclude that the answer of the jury to the interrogatory is irreconcilable with the general verdict of the jury, and conclude that the trial judge erred “in overruling defendant’s motion for judgment notwithstanding the verdict”.

Further, we are of opinion that there is no evidence that the plaintiff received a compensable injury on November 27, 1947, as a compensable injury is defined by the supreme court in the first paragraph of the syllabi in the case of Malone v. Industrial Commission, 140 Oh St 292, which reads as follows:

“The term ‘injury’ as used in the Constitution and in §1465-68 GC (117 Ohio Laws, 109), as amended effective July 10, 1937, comprehends a physical or traumatic damage or harm, accidental in its character in the sense of being the result of a sudden mishap occurring by chance, unexpectedly and not in the usual course of events, at a particular time and place.”

The judgment of the court of common pleas is reversed, and coming now to enter the judgment which that court should have rendered enters final judgment for defendant.

NICHOLS, PJ, and GRIFFITH, J, concur.


author: By STEVENS J:

text:
    CLEVELAND TRUST CO., Plaintiff-Appellee, v. FORKAPA et, Defendant-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22985.
    Decided February 24, 1954.
    Sylvester Marx and Samuel B. Tilles, Cleveland, for plaintiff-appellee.
    Roudebush, Adrion, Sanborn, Brown & Corlett, Cleveland, for defendant-appellant.
    (HUNSICKER, J, STEVENS, J, of the Ninth District: COLLIER, J, of the Fourth District sitting by designation.)
   OPINION

By STEVENS J:

In the Court of Common Pleas of Cuyahoga County an action was filed on July 7, 1930, wherein, in the first cause of action, a claim for a money judgment on a cognovit promissory note signed by the M & F Land Company and M. R. Forkapa was made; the second cause of action sought the foreclosure of the mortgage securing said note.

An answer was filed, wherein, pursuant to the warrant of attorney contained in said note a judgment against M & F Land Company and M. R. Forkapa was confessed.

On July 7, 1930, an entry which appears only in the transcript of docket and journal entries (the original being missing from the file) was spread upon the journal as follows:

“The parties, by their attorneys, come and file their pleadings whereby the defendant, M & F Land Company confesses that they do owe the plaintiff, as damages, on the first cause of action the sum of $1599.58 It is therefore considered that said plaintiff recover of said defendant said damages, with interest thereon, at the rate of 8% from date, and also its costs of this suit, for all of which judgment is rendered against the defendant.”

M & F Land Company, M. R. Forkapa and L. G. Collister, County Treasurer, were named as parties defendant and all were duly served with summons on July 8, 1930.

On April 6, 1932, by journal entry, the second cause of action of plaintiff’s petition and the cross-petition of L. G. Collister, Treasurer, previously filed, were dismissed without prejudice at defendant’s costs. On July 1, 1935, an execution against M & F Land Company and M. R. Forkapa was issued and on August 3, 1935, returned “No Money Made.”

On May 13, 1953, plaintiff filed a motion for revivor of judgment and on the same day the Court of Common Pleas issued an order requiring said defendant M & F Land Company and M. R. Forkapa to show cause on or before June 13, 1953, why said judgment should not be revived.

On May 22, 1953, a motion for the entry of a judgment nunc pro tunc as of July 7, 1930, against M. R. Forkapa, was filed with the alternative request that the court render judgment against M. R. Forkapa for $1500.00 and interest.

On July 27, 1953, the court entered judgment nunc pro tunc as of July 7, 1930, against M. R. Forkapa for the full amount claimed and ordered said judgment revived.

An appeal on questions of law brings before this court the questions of the propriety of the entry of the nunc pro tunc judgment and it revivor.

We first address ourselves to the question of the nunc pro tunc judgment.

In National Life Insurance Co. v. Kohn, 133 Oh St 111, the second syllabus states:

“2. The power to enter such judgments or orders” (nunc pro tunc judgments) “is restricted ordinarily to the subsequent recording of judicial action previously and actually taken.”

The opinion at page 113 states:

“It is a simple device by which a court may make its journal speak the truth. Reinholdt v. Reinholdt, 112 Oh St 526, 147 N. E. 808

The law requires the production of clear and convincing evidence estabishing that the judment sought to be entered nunc pro tunc was in fact rendered by the court as of the prior date. Reinholdt v. Reinholdt, supra.

The evidence contained in this record shows that although the petition sought and the answer confessed judgment against M & F Land Company and M. R. Forkapa and that both signed the note upon which judgment was confessed, the judgment entry provided for the entry of a judgment against M & F Land Company.

No evidence was offered showing that the court actually ordered judgment against Forkapa, which it failed or neglected to include in the journal entry, and we are left to conjecture only to discover what the court did order, if anything, other than as shown by the journal entry

It is our unanimous conclusion that the evidence herein fails by a wide margin to attain the stature of clear and convincing evidence.

There was a failure of proof establishing the right to a nunc pro tunc judgment and the trial court prejudicially erred in ordering the entry of such judgment.

If the nunc pro tunc judgment entered falls, the order of revivor must fall because there would then be no judgment to be revived. The judgment mine pro tunc is reversed as is the order of revivor because contrary to law.

The cause is remanded to the Court of Common Pleas for further proceedings according to law.

Reversed and remanded.

HUNSICKER, J, COLLIER, J, concur.


author: By CASE, J.

text:
    GOOLEY, Plaintiff, v. DEWITT, Defendant.
    Common Pleas Court, Fayette County.
    No. 21600.
    Decided October 23, 1954.
    Richard P. Rankin, Washington C H., on behalf of plaintiff.
    William Junk, Junk & Junk, Washington C. H., on behalf of defendant.
   OPINION

By CASE, J.

This case is before the court upon Plaintiff’s petition, Defendant’s anwer, Plaintiff’s reply thereto, certain stipulations, testimony, exhibits, oral motions by Defendant for dismissal of Plaintiff’s petition, and arguments of counsel with respect thereto.

The pertinent allegations of Plaintiff’s petition read as follows: (Page one)

“The plaintiff avers that on or about the 1st day of September 1950, she provided funds to Willard DeWitt, to be used by the said Willard DeWitt to purchase for the plaintiff, but in the name of said Willard DeWitt. all of the interest of one Hazel DeWitt Lough in the following described real estate:
“Situate in the State of Ohio, County of Fayette and in the township of Wayne:
“First Tract:
“* * * containing 140 acres of land, more or less.
“Second Tract:
“* * * containing Thirty-eight and sixty-seven one-hundredths (38.67) acres of land, * * *
“such interest consisting of a life estate.

(Page two)

“The plaintiff further avers that said Willard DeWitt did so purchase the land as intended, using the provided funds, and did receive a quit-claim deed for the life estate of Hazel DeWitt Lough on or about the 2nd day of September, 1950.
“The plaintiff further avers that the said Willard DeWitt died on or about the 21st day of October, 1952 and that his widow, Willa DeWitt, was named Executrix and sole beneficiary by his will. Said Willa DeWitt, as executrix, has filed an inventory of the estate of Willard DeWitt in which is included the afore-said described land. Plaintiff says that such land should not be included in the estate of Willard DeWitt since said Willard DeWitt was holding as trustee for the plaintiff. Plaintiff further says that the said defendant claims said premises by virtue of the will of Willard DeWitt and refuses to deliver possession of the same to plaintiff.
“WHEREFORE, plaintiff prays that she be adjudged and decreed to have the beneficial interest in said land and that the defendant be declared trustee for her benefit and the defendant as trustee, be ordered to convey the said land to the plaintiff, and that the plaintiff be granted such other and further relief as she may be entitled to in law or equity, together with her costs herein.”

Defendant’s answer thereto reads as follows:

“Now comes the defendant, Willa DeWitt, and for answer to Plaintiff’s petition admits that on or about the 1st day of September, 1950, certain funds were turned over to Willard DeWitt by the Plaintiff and that thereafter said Willard DeWitt purchased certain premises from Hazel DeWitt Lough. However, defendant denies that said funds were turned over to Willard DeWitt for the purpose as contained in paragraph one of Plaintiff’s petition, but says that said funds were a gift to Willard DeWitt by the Plaintiff.
“The Defendant, by way of answer also admits all those allegations contained in the first two sentences of the second paragraph on page 2 of Plaintiff’s petition except the date of death of Willard DeWitt, which was on October 11, 1952 rather than on October 21, 1952, as stated in Plaintiff’s petition.
“Further answering, Defendant denies each and every, all and singular statements and allegations contained in said petition, save and except such as are herein expressly admitted to be true.
“WHEREFORE, Defendant prays that Plaintiff’s petition be dismissed and that she may go hence and recover her costs herein.”

Plaintiff’s reply to Defendant’s answer reads as follows:

“Now comes the plaintiff, a.nd for reply to defendant’s answer, does deny each and every allegation therein contained not previously alleged by plaintiff or admitted by her to be true.”

Upon the issues so joined, this cause came on to be heard by and tried to the court and thereupon the following stipulations were made by and between counsel for the respective parties, as they appear on pages 2, 3, and 4 of the Record:

“MR. RANKIN: If the court please, we desire to make certain stipulations with regard to the public records of Fayette County, Ohio.

First, it is stipulated by and between counsel for plaintiff and defendant that the last will and testament of Harry DeWitt was admitted into the record in the probate court on February 25, 1936 and is recorded in Will Record Book 10 at page 333.

I have here a certified copy of that will, which is stipulated, may be admitted solely for the purpose of showing that a life estate in the real estate described in the petition was devised to one Hazel DeWitt and for no other purpose.

“MR. JUNK: We are willing to stipulate. Make no objection whatever. The records do show recording of Harry DeWitt’s will and the contents thereof are correct records without having any introduction of evidence.
“THE COURT: The record may so show.
“MR. RANKIN: Second, it is stipulated by and between counsel for Plaintiff and Defendant that a certain deed from Hazel Lough, formerly Hazel DeWitt and her husband, Washington Lough, dated September 2, 1950, filed for record September 2, 1950, and recorded in Deed Record Book 82. page 469, which is witnessed by Ray R. Maddox and Charlotte D. Gooley, and is acknowledged before Ray R. Maddox, Notary Public for the state of Ohio, and which is a quit claim deed purporting to convey to Willard DeWitt and his heirs and assigns forever the real estate which is the subject of this cause of action, and that the original deed is hereby entered and stipulated to be the original deed of conveyance so described.
“THE COURT: Is there any objection?
“MR. JUNK: We have no objection.
“THE COURT: Let the record so show. Let the record also show that within a reasonable time a copy will be substituted in lieu of the original.
“MR. RANKIN: Third, it is stipulated by and between counsel for the plaintiff and defendant that by certificate of transfer, issued by the Fayette County Probate Court dated May 12, 1953, and filed for record May 12, 1953. and recorded in Deed Record Book 86 at page 189, the life estate which is the subject of this action was transferred from Willard DeWitt, deceased, to Willa DeWitt, together with other interests which are not germaine to this action.
“THE COURT: Are there any objections?
“MR. JUNK: No, we will stipulate that for the records.
“THE COURT: Let the record so show.
“MR. RANKIN: That is all the stipulations we have, your Honor.”

The last will and testament of Harry DeWitt, so stipulated and referred to, contained five specifically designated items, numbered one through five, and was executed on October 11, 1932, and a codicil, consisting of three unnumbered paragraphs, which-was executed on September 7, 1934.

The pertinent provisions of Harry DeWitt’s will relating to the life estate involved in this action read as follows:

“Item Three.
“I give and devise to my wife, Hazel DeWitt, for and during the term of her natural life, all of my real estate of which I may die seized.
“Item Four.
“After the death of my said wife, I give and devise said real estate to my brothers and sisters, in equal shares, and hereinafter named as follows: Minnie DeWitt, Carey Post, Lottie Gooley, Ada Burnett, Florence DeWitt, Dale DeWitt, Clay DeWitt, and Willard DeWitt.
“Should any of my said brothers or sisters predecease my said wife, leaving issue, then I direct that the share which such deceased brother or sister would have taken, if living shall pass to and vest in the issue of such one or more so dying.
“Should any of my said brothers or sisters predecease my said wife and without issue, the share of such one or more so dying shall pass to those surviving my said wife, or to their issue as herein provided.”

And in the codicil to said will, the first and second literary paragraphs thereof read as follows:

“I direct that my farm, which at the present time is rented to Burke Kearney, be leased to Willard DeWitt during the life time of my wife, Hazel Gillespie DeWitt, at 50% of the income.
“I will and direct that all my harness and farm implements, one horse, one-half the sheep, one cow and calf shall be vested in and passed to said Willard DeWitt for use and benefit during the life of my said wife.”

The quit claim deed so stipulated into the record was designated as Plaintiff’s Exhibit “A” and reads in part as follows:

“Know All Men by These Presents, That Hazel Lough, formerly Hazel DeWitt, and Washington Lough, her husband, in consideration of One Dollar and other valuable considerations, to her paid by Willard DeWitt whose address is Washington C. H., Ohio, RFD, the receipt whereof is hereby acknowledged, do hereby Remise, Release and Forever Quit Claim to the said Willard DeWitt his heirs and assigns forever, the following described REAL ESTATE, * * *”

The first witness called on behalf of Plaintiff was Hazel Gillespie DeWitt Lough who testified that she was the former Hazel DeWitt, widow of Harry DeWitt (R. 4); that Harry DeWitt’s will provided that Willard DeWitt was to farm the farm in which she was willed a life estate (R. 5); that she had discussed with Willard DeWitt, as early as 1945, the purchase and sale of her life estate (R. 5); that she had indicated to Willard DeWitt that she would like to sell her life estate and that maybe his sister might be interested in buying it (R. 7); that she and Willard DeWitt did not make an agreement or come to an agreement with regard to the sale of her life estate (R. 7); that she did agree to sell her life estate in the farm to Mrs. Gooley for the sum of $5,000 (R. 8); that she went to Attorney Ray Maddox for the preparation of the deed and the transaction was completed in his office (R. 8); that she, Mrs. Gooley, Willard DeWitt. Wash Lough (her husband) and Mr. Maddox were present in the office when the deed was drawn and her life estate sold (R. 8); that Plaintiff’s Exhibit “A” was the deed which transferred her life estate to Willard DeWitt (R. 8); that Plaintiff’s Exhibit “B” was the check that was given to her at the time (R. 8, 9); and her signature appeared on the back of said check as an endorser (R. 9).

Upon cross-examination, Hazel Lough testified that her conversations with Willard DeWitt concerning the purchase and sale o’f her life estate began about 1945 or 1946 (R. 9); that she finally decided to sell her life estate just before the 27th of August in 1950 (R. 10); that she telephoned Mrs. Willard DeWitt that week and Mrs. Willard DeWitt was to tell her when Mrs. Gooley came back to the DeWitt farm home (R. 10); that the money was to be furnished by Mrs. Gooley (R. 10); that, on the following Sunday, she and her husband were told that Mrs. Gooley was at the DeWitt farm home and wanted the Loughs to come over (R. 10); that she told them she was ready to sell to Mrs. Gooley (R. 11); that the deed was to be made to Willard DeWitt (R. 11); that Mrs. Gooley did not say why the deed was to be made to Willard DeWitt (R. 11); that she did not hear any explanation why it was to be in the name of Willard DeWitt (R. 11); that they planned to meet in Mr. Maddox’s office (R. 11); that she conferred with Mr. Maddox and asked him to prepare the deed (R. 11); that the transaction was concluded the following Saturday, September 2, 1950 (R. 12); that she read the deed on that date and saw Willard DeWitt’s name on it (R. 12); that there was no discussion that day as to why the title was made to Willard DeWitt (R. 12); that, after endorsing the check, Willard DeWitt actually turned it over to her (R. 12); that she did not at that time hear any conversation or have any knowledge as to why the deed was put in the name of Willard DeWitt (R. 12); and that Willard DeWitt continued to operate the farm from the time of transfer until the time of his death (R. 13).

Ray R. Maddox, Attorney-At-Law, testified on behalf of Plaintiff that he signed as a witness on the quit claim deed (R. 14); that he drew the deed (R. 14); that he closed the transaction in his office (R. 14); that Hazel Lough, Wash Lough, Mrs. Gooley and Willard DeWitt were present at the closing (R. 14); that he was acting as attorney on behalf of Mrs. Lough (R. 14); that instructions for preparing the deed were given to him by Mrs. Lough (R. 15); that the deed was prepared, executed and delivered while said parties were present in his office (R. 15); that he was not sure the deed was made out the same day the deal was closed (R. 15); that Mrs. Lough received $5,000 for her life estate (R. 15); that Mrs. Gooley laid the cashier’s check on his desk (R. 16); that Plaintiff’s Exhibit “B” was a photostatic copy of the cashier’s check that was delivered in payment for the life estate (R. 16); and that he had no knowledge of the reason for the drawing of the deed in the name of Wiilard DeWitt (R. 16).

Mr. Maddox testified, upon cross-examination, that he was present during all of the closing procedure on the sale of the life estate (R. 16): that the cashier’s check was made payable to Charlotte D. Gooley (R. 17); that Mr. Maddox had no recollection of any discussion as to why the cashier’s check was endorsed payable to the order of Willard DeWitt (R. 17, 18); that the deed was made out in the name of Willard DeWitt (R. 18); that there was a question raised in Mr, Maddox’s mind because he understood that Mrs. Gooley was producing the consideration (R. 18); that Mrs. Gooley originally had possession of the cashier’s check when they were in his office; but that he could not say whether Mrs Gooley actually handed it to Willard DeWitt who might then have handed it to Mr. Maddox (R. 18).

Charlotte D. Gooley, Plaintiff, testified on her own behalf that she resided in Dayton, Ohio (R. 19); that Willard DeWitt was her brother (R. 21); that she was the Lottie Gooley named in the will of Harry DeWitt (R. 21); that Plaintiff’s Exhibit “B” was the cashier’s check for $5,000 (R. 21); that she saw Willard DeWitt write his name twice on the back of said check in Mr. Maddox’s office on September 2, 1950 at the time the life estate of Mrs. Hazel Lough was transferred (R. 21); that she, Willard DeWitt, Mrs. Lough, Mr. Maddox, and Mr. Lough were present at that time (R. 22); that she provided the $5,000 which was the consideration paid for the life estate fR. 22); and that Plaintiff’s Exhibit “B” is evidence of the check which was used for that purpose (R. 22).

At this point in the trial, Plaintiff was not permitted to testify further in chief due to the provisions of §2317.03 R. C., and the Plaintiff rested; whereupon Defendant made the following motion and argument in support thereof:

“MR. JUNK: At this time I would like to make a motion on behalf of the defendant that Plaintiff’s petition be dismissed. The basis for that contention is that Plaintiff in this action has failed to introduce proof of a resulting trust and has certainly failed to produce clear, convincing and certain proof of such trust, which is required as set out in cases cited along lines of the case of Norwood v. O’Brien, 30 Abs 652, which I think is very applicable to the case we have here today. We also have the case of Hill v. Irons, 160 Oh St 21 where they were seeking to prove a trust in that case and the court in addition to saying that the evidence must be clear, certain and convincing said that you must establish the existence of the trust beyond a reasonable doubt.

And also in 64 Oh St 1, which sets out the same ruling and the further evidence and testimony that the plaintiff has presented this morning. Certainly the court could take judicial notice of any inference that it be one of gift rather than trust, so that it is our contention that there is a lack of proof of trust.” (R. 25, 26)

and, beginning at page 27 of the Record, Defendant further argued as follows:

“MR. JUNK: Your Honor, Mr. Rankin is right but up to this point, there has been nothing introduced actually, whether this is an absolute deed there has been nothing at all offered in the way of testimony which would as yet tend to show that a trust by agreement was engrafted on this deed. In other words you have to have some agreement. None is alleged.
“MR. JUNK: And I call attention to the use of the words, ‘his heirs and assigns forever.’ There was no cutting down on that conveyance of the quit claim deed.

Now admitted those things and they were undisputed. They are admitted by the pleadings in this case. It is counsel’s contention that there was a burden upon the plaintiff to engraft upon this transaction to show by competent evidence that there was engrafted on this real estate that was so conveyed and purchased, and that counsel admitted all those other things to be true, that there is not evidence or testimony in the record to show that there is a trust upon this transaction.

In 22 Abs 419, there the court points out that the burden of proof is still on the plaintiff. It is now our feeling that nothing was introduced here this morning to show that any evidence was forthcoming.

In fact the only evidence was that it was a gift rather than a resulting trust, because of the fact that Plaintiff’s Exhibit B is endorsed first over to Willard DeWitt and then endorsed by Willard DeWitt over to the seller.

“MR. JUNK: The burden of proof is still on the plaintiff to show by convincing evidence. That is our contention.
“MR. RANKIN: Mr. Junk is urging the court that it is necessary for the plaintiff to prove that there was an agreement. The plaintiff is of the opinion that the cases do not show or hold that it is necessary to show that, there is a presumption. Plaintiff’s proof is sufficient to establish the burden of proof.
“MR. JUNK: We contend that is not the law in Ohio because of the relationship.
MR. JUNK: I am relying on Trusts, page 280 Volume 40 of O. Jur., footnote 8 on page 281 in the first sentence. ‘The Ohio law is not clear on this point.’ ”

In considering Defendant’s motion for dismissal and the respective arguments relating thereto, the Court has reviewed the cases and authorities cited in an effort to determine the appropriate application of established principles of law to the facts of record herein.

In the case of Norwood v. O’Brien, Admr., 30 Abs 652, Ohio Appeals, 1st Dist., Hamilton Co., decided on December 18, 1939, the complete per curiam opinion of the court rendered in that case reads as follows:

“BY THE COURT:
“Heard on appeal on law and fact.
“Plaintiff seeks to engraft a resulting trust on a deed absolute, by parol evidence.
“The law is that a resulting trust may be proved by parol evidence, but the proof must be clear, certain, and convincing. Harvey v. Gardiner, 41 Oh St 642; Mannix v. Purcell et, 46 Oh St 102; Russell et v. Bruer et, 64 Oh St 1; Boughman v. Boughman 69 Oh St 273.
“The evidence in this case fails to meet the requirements under the rule, and a decree for the defendants, appellees here, dismissing appellant’s petition, at his costs, will be entered.”

Due to the appellate court’s brevity in rendering that decision, its opinion fails to reflect any detailed analysis of the pleadings or facts of record therein which would be particularly revealing or assist this Court in applying the law so stated to the pleadings and facts of record in the instant case at bar.

In the ease of Hill v. Irons et al., 160 Oh St 21, decided June 10, 1953, the Supreme Court of Ohio held:

“1. In order to engraft a trust upon an absolute deed, the declaration of such trust must be contemporaneous with the deed, and the evidence relied upon must be clear, certain and conclusive and must establish the existence of the trust beyond a reasonable doubt. (Russell v. Bruer, 64 Oh St 1, followed.)
“2. Where a written instrument which is executed concurrently with the execution of an absolute deed, and by the parties to the deed, is later relied upon by the grantor as evidence that the deed is in trust, the conduct of the parties with respect to property so conveyed over a period of years subsequent to the execution of the deed, is competent evidence as to the intent of the parties with respect to the creation of a trust.”

While there can be no controversy concerning the rule of law set forth in paragraph one of the syllabus in the Hill case, supra, however, the application of that rule to the facts of record in the ease at bar must be distinguished upon the principle of law declared and established by the Supreme Court of Ohio in Gordon v. Rhodes, 158 Oh St '129, decided June 25, 1952, in paragraph one of the syllabus thereof which reads as follows:

“1. A reported decision, although in a case where the question might have been raised, is entitled to no consideration whatever as settling, by judicial determination, a question not passed upon or raised at the time of the adjudication.”

And that rule of law so stated in Gordon v. Rhodes, supra, would be equally applicable in distinguishing the instant case from the factual situation under determination by the Supreme Court of Ohio in Russell et al. v. Bruer et al., 64 Oh St 1, cited by Defendant herein and followed by the Supreme Court in Hill v. Irons, supra.

In support of Defendant’s motion to dismiss Plaintiff’s petition at the close of Plaintiff’s evidence in chief, Defendant has cited the case of Alkire v. Alkire, 22 Abs 419, Ohio Appeals, 2nd Dist., Madison Co., decided May 18, 1936, and the headnotes thereto state the following principles and rules of law:

“1. A party who furnishes the purchase price of property to be bought by another in his name intends that the property will inure to his benefit, as between parties who are not closely related.
“2. The burden of proof to establish an express trust upon a deed absolute on its face rests upon the plaintiff and must be sustained by clear and convincing evidence.
“3. In an action to declare an express trust on property purchased by another with money alleged by the purchaser to have been given to him and accepted as a gift, and applied to the purchase of the real estate which he has occupied under a recorded deed since the purchase, the burden of proving the issues raised rests on the plaintiff, no burden being upon the defendant to prove the transaction a gift.
“4. The burden of establishing an express trust upon a deed absolute on its face for property purchased by another with money furnished by the plaintiff is sustained by testimony to the effect that the plaintiff positively controlled the disposition of the money and directed the defendant concerning the method and manner of its expenditure, rather than that the plaintiff intended to give the money to the defendant.”

In the Alkire case, supra, the opinion of the Court of Appeals discloses in detail the material allegations contained in the petition and the answer thereto, the evidence and testimony of record, and the relationship of the parties.

A part of the evidence recited therein is set forth at page 420 et seq. as follows:

“The evidence shows that prior to August 26, 1933 the plaintiff was the owner of an unencumbered piece of property situate in Sedalia, Madison County, Ohio, which was worth from $1,500.00 to $1,800.00, the same being known as the Peters property; that plaintiff was a widower and a second cousin of defendant; that plaintiff and defendant entered into an arrangement whereby the defendant and his wife would move into the Peters property and would make a home for plaintiff; that plaintiff was to pay therefor the sum of $5.00 per week; that this arrangement became effective in October, 1932; that on August 26, 1933 the property adjoining, known as the Dorn property, was offered for sale at public auction; that the defendant was the bidder for said property, having bid the price of $1,300.00; that defendant had no money; that plaintiff furnished to defendant the sum of $100.00 in cash on the day of sale as a down payment; that on January 28, 1933 a safety deposit box had been rented by plaintiff but taken in the name of defendant; that plaintiff had placed his valuable papers in said box; that on Sept. 11, 1933, plaintiff took out of said box a bond of the face value of $1,000.00, cashed it, added to it the sum of $200.00 ana directed the cashier of the London Exchange Bank to issue a certificate of deposit payable to defendant for the sum of $1200.00; that said certificate was issued, delivered to the defendant, and by him used to pay the balance upon the purchase of said Dorn real estate; that the deed for said property was made in the name of defendant and was recorded, plaintiff paying the fees therefor; that the parties then moved into the Dorn property where they continued to live until the latter part of August, 1934, at which time trouble arose and the plaintiff moved away; that prior to the purchase of the Dorn property the plaintiff had had some demands made upon him by Ida Kellar of Columbus, who claimed that he was the father of her child, which had been born on March 29, 1933; that on May 10, 1935 a complaint in bastardy was filed against plaintiff by said Ida Kellar and on September 13, 1935, a settlement of said proceedings was consummated, whereby plaintiff paid to Ida Kellar the sum of $175.00. None of the foregoing facts are in dispute.
“The evidence further discloses that the overtures concerning the purchase of the Dorn property were made by plaintiff and that the entire plan for the purchase and conveyance of the property was engineered by him The evidence shows that the plaintiff paid taxes for approximately two years upon the Dorn property and that the Defendant claims that he refunded to plaintiff the amount of these payments. Both of the parties contend that they paid insurance and repair bills on the property.
“It is claimed that plaintiff made certain admissions concerning the ownership of the Dorn property, but testimony to this effect is denied by the plaintiff. It is apparent from the testimony of defendant that no gift of the contents of the safety deposit box was effected prior to the date of the purchase of this property, as the defendant testifies on page 67 of the record that when the safety deposit box was rented plaintiff told him that the contents should be claimed by him in case of any trouble with the Columbus woman. In his testimony concerning the purchase of this property the defendant says at page 69:
“ ‘I was out in the back yard when he came out; he says, “Pete, how would you like to own that place, and live over there?” I said I would like to do a good many things, but money talks. He says, “if you want that go up there to the sale and buy it. I’ll give you the money to pay for it.” ’
“In his further testimony concerning the purchase of this property the defendant said at page 68:
“ ‘Q. Were there any other times when he made any statement to you in regard to protecting his property against the woman in Columbus?
“ ‘A. One other time after I bought this property.
“ ‘Q. That is the Dorn property?
“ ‘A. Yes.
“ ‘Q. All right?
“ ‘A. The first time was when we were sitting at the table, the first or second day after we moved there. He looked at me; he says: “Pete, this place is yours. You can go ahead and fix it the way you want it. You won’t have to worry. The reason I am giving you this property I would rather you would have every penny I got rather than that woman in Columbus.” Another time, a short time after that, I can’t recall how many days, we were out in the yard. He says: “Pete, this is all yours. I am giving you this. I always want you to have a home. You got this in your name and no danger of them taking it away from you.” ’ ”

In the case at bar it clearly appears that the following facts were undisputed at the close of Plaintiff’s evidence in chief:

1. That Harry DeWitt died testate and devised to Hazel DeWitt (his widow) a life estate in approximately 178 acres of land;

2. That said Hazel DeWitt became and was the owner of said life estate-from on or about February, 1936 to September 2, 1950;

3. That, on or about August 27, 1950, Hazel DeWitt (then remarried and known as Hazel Lough) agreed to sell and Charlotte D. Gooley agreed to buy said life estate for $5,000.00;

4. That the entire plan for the purchase', payment and conveyance of said life estate was controlled by Charlotte D. Gooley, the plaintiff herein;

5. That the entire purchase price paid for said life estate was furnished by Charlotte D. Gooley at the time and place of making, executing and delivering a quit claim deed therefor to her brother, Willard DeWitt, on September 2, 1950;

6. That said deed purported to convey said life estate to Willard DeWitt and to his heirs and assigns forever, was witnessed by Ray R. Maddox and Charlotte D. Gooley, and was recorded in the deed records of Fayette County in Deed Book 82, page 469;

7. That said Willard DeWitt died testate, on October 11, 1952, and that his widow, Willa DeWitt (the Defendant herein), was the sole beneficiary by his will; and

8. That the Probate Court of Fayette County issued a certificate of transfer which was recorded in Deed Record Book 86, at page 189, and which transferred said life estate, the subject of this action, from Willard DeWitt, deceased, to Willa D. DeWitt (the Defendant herein), together with other interests which are not germaine to this action.

Defendant’s motion for dismissal, at the close of Plaintiff’s evidence in chief, clearly raised the question of whether Plaintiff’s evidence of record at that point had sustained the burden of proof to establish a purchase-money resulting trust upon said deed which was absolute on its face.

By overruling Defendant’s motion, this Court determined that Plaintiff had established by clear and convincing evidence that Charlotte D. Gooley (the Plaintiff) positively controlled the disposition of the purchase money and directed the method and manner of its expenditure.

It is equally clear that Defendant’s answer did not claim there was a gift of said life estate to Willard DeWitt but claimed solely that the purchase money so paid was a gift to Willard DeWitt by the Plaintiff; however there was no evidence or testimony in the record to show that Plaintiff intended to give Willard DeWitt the $5,000.00 purchase money.

In overruling Defendant’s motion for dismissal at the close of Plaintiff’s evidence in chief, this Court determined that the brother and sister relationship between the Plaintiff (Charlotte D. Gooley) and Willard DeWitt comes within the classification of “parties who are not closely related” as referred to in the following rule of law set forth at page 421 in the Alkire case, supra:

“It is the law that, as between parties who are not closely related, the party who furnishes the purchase price intends that property bought with his money will inure to his benefit.” (Emphasis added by this Court.)
In reaching its determination with respect to such relationship, this Court was not unmindful of Defendant’s citation of 40 O. Jur,, 281, footnote 8, and the first sentence thereof which reads:
“8. The Ohio law is not clear on this point. * * *”

On the other hand, the Court was equally mindful of Plaintiff’s citation of 65 Corpus Juris 421, 422, Sec. 182, which reads as follows:

“Persons in the relationships of brothers, or brother and sister, are generally under no legal or moral obligation to support each other. Hence, such brother, or brother and sister, are strangers within the meaning of the general rule that where property is paid for with the money or assets of a person, and the title thereto is taken in the name of a stranger or person for whom he is under no legal or moral obligation to provide, a resulting trust in the property arises by operation of law in favor of the person furnishing the consideration, or persons claiming under him. It follows that the general rule that he who supplies the consideration is presumed to intend the purchase for his own benefit, rather than for the benefit of a stranger applies, and a resulting trust arises by implication or presumption of law, although rebuttable by parol evidence, and there is no presumption of advancement or gift. * * *”

In the light of the facts of record at the close of Plaintiff’s evidence in chief, and upon due consideration of the arguments made and authorities cited by respective counsel, this Court found that Defendant’s motion for dismissal of Plaintiff’s petition was not well mad'e (R 33).

The Defendant (Willa DeWitt) then took the stand and testified that her husband (Willard DeWitt) died on October 11, 1952 (R. 33, 34); that she had been in the DeWitt family for eleven years and had known Mrs. Gooley during that time (R. 34); that Defendant’s husband got the money from Mrs. Gooley to buy the life estate (R. 34); that, at different times, Defendant had heard Mrs. Gooley discuss the prospective purchase with Willard DeWitt (R. 34, 35); that, about a month after the transaction, Mrs. Gooley said she wanted Willard DeWitt to have it nice for himself in his old age (R. 35); and the record further shows that Defendant further testified as follows (R. 35, 36):—

“Q. What occurred that day?
“A. She was there, and there was Mrs. Hazel Jenkins and myself, and I said ‘wasn’t that nice what Lottie did for Willard’ and Mrs. Gooley said, T did that for Willard to make it nice for him in his old days and that is my share of the will.’
“Q. Now, this transfer to your husband is where you are living?
“A. Right where I am living.
“Q. Where is that?
“A. Red brick house on the Chillicothe Road.
“Q. How many acres in the farm?
“A. 178.
“Q. Did you continue to live there after your husband died?
“A. Yes.
“Q. Who farmed the farm?
“A. My husband.
“Q. What produce did he raise?
“A. Well he had his corn, soy beans, wheat and his hogs.
“Q. Who kept the income from the sale of these products?
“A. He did.
“Q. Did he ever give any to Mrs. Gooley?
“A. No.
“Q. Did you continue to live on the farm?
“A. Yes
“CROSS-EXAMINATION
“BY .MR. RANKIN:
“Q. Mrs. DeWitt nothing was expected from Willard DeWitt?
“A. That is right.
“Q. How do you know?
“A. Because he asked her one day.
“Q. How did you acquire that knowledge?
“A. It was what I over heard. I was there and he asked her, now what do you expect out of this and she said I don’t want anything, but when you make a million you can hand me a dollar.
“Q. Did she say anything further than that?
“A. No.
“That is all.”

Hester Jenkins was called as a witness on behalf of Defendant and testified in part as follows, beginning at page 37 of the Record:

“Q. I will ask you if you were at the home of. Mr. and Mrs DeWitt, southeast of Washington' Court House at any time during the month of September, 1950?
“A. Yes, I was.
“Q. Who else was present in Mr. and Mrs. DeWitt’s home?
“A. Mrs. Gooley.
“Q. Did you know Mrs. Gooley at that time?
“A. Yes.
“Q. Where did Mrs. Gooley live at that time?
“A. Dayton.
“Q. How long were you at Mr. and Mrs. DeWitt’s home?
“A. I think just for the day.
“Q. At any time while you were there did you hear any discussion by Mrs. Gooley with reference to a transfer of the farm interest there from a Mrs. Lough? Did you hear any discussion?
“A. Yes, Mrs. Gooley said I want to make it nice for Willard in his old days and that is my share of the will now.
“Q. Do you remember how that conversation came up? Was it in response to something said? How did it come up?
“A. Mrs. DeWitt ... we were standing in the kitchen just talking and Mrs. DeWitt, said Hester don’t you think its nice what Lottie is doing for Willard? I said Yes I think it was lovely. That brought up the subject.
“Q. Was anything further said?
“A. Not of any consequence.
“Q. Do you know that they have continued to live there and farm that farm?
“A. Yes sir.
“Q. Did you ever know whether Mrs. Gooley made her home there?
“A. Not during my acquaintance.”
In rebuttal, the Plaintiff, Mrs. Gooley, testified as follows beginning at page 42 of the Record:—
“Q. Mrs. Gooley prior to the time that the deed for the life estate of Mrs. Lough was given, did you have any conversation with your brother, Willard DeWitt relative to that transaction?
“A. Yes.
“Q. Where did these conversations take place, Mrs. Gooley?
“A. At his home.
“MR. JUNK: I object to all this line of questioning. Let the record show a continuing objection throughout the remaining portion of this line of questioning.
“Q. Now what was said in these conversations, Mrs. Gooley?
“A. I was to furnish the money to buy Hazel’s estate and to let him have it in his name and if anything happened to him, it was to be given to me. It was to be transferred to me and during his sickness he said he would anytime that this happened, I should get the papers and have them transferred to me.
“Q. During the sickness of Willard DeWitt, did you have any conversation with Willa DeWitt?
“A. Yes.
“Q. Where?
“A. At the hospital and out home.
“Q. What did Mrs. DeWitt say in regard to the transfer of the farm?
“A. She didn’t know how she would live on the money they had, as almost all of it was spent on hospital bills, doctors, and that sort of thing.
“Q. Did Mrs. DeWitt make the statement that Willard DeWitt knew that his interest was only for his lifetime?
“A. Well, yes, she understood it that way.
“OBJECTION BY MR. JUNK — Move that the answer be stricken.
“THE COURT: The answer may be stricken.
“Q. Mrs. Gooley, when was the first time that you knew that your brother or his wife was claiming this property for their own?
“A. Not until after his death. After she was told by her lawyers it was hers.
“CROSS-EXAMINATION BY MR. JUNK:
“Q. Mrs. Gooley, isn’t it a fact that in the presence of Mrs. Jenkins at the DeWitt farm on or about September 15, 1950, that at that time you made the statement in effect T did that to make it nice for Willard in his old age, that was my share of my will.’ Isn’t that true?
“A. I had no way of knowing.
“Q. Isn’t it a fact that you said T did that to make it nice for him in his old age. That was my share of my will that I want to give you?’
“A. I had no will or share of any will. If I said that, it was just conversation. How would I give him a share of my will.
“Q. You have a right to dispose of your share of the will? .
“A. I- have my will made long ago.
“Q. Isn’t it a fact you did say that? Isn’t it a fact that you made that statement?
“THE COURT: Mrs. Gooley, you must answer the question. The question asked you by Mr. Junk is in effect whether or not it is a fact that you made the statement. You may answer yes or no.
“Q. Is it a fact that you made that statement?
“A. Yes.
“Q. You did make that statement?
“A. Yes, I suppose I did, if they said so. I don’t remember.
“THE COURT: Now is the court to understand you have no further questions?
“MR. JUNK: That is right.
“BY MR. RANKIN:
“Q. When you made this statement with regard to being a nice tiling for Willard, what did you mean?
“A. That he was to receive the benefit of what he raised.
“Q. Did you intend by that statement that the property was to pass to his heirs at law?
“A. No.
“Q. Did you at any time during Willard’s lifetime ever ask or expect any share from the farm?
“A. I didn’t ask for anything and I never received a penny.
“That is all.”

Pauline Clark was also called as a rebuttal witness and her testimony appears on pages 45 to 48 of the Record. Upon reviewing that portion of the record, this Court is of the opinion that her testimony was not material to the issues involved herein.

At the close of all of the' evidence referred to above. Plaintiff and Defendant rested; and counsel for Defendant made the following motion which appears on page 48 of the Record:

“And at this time we renew our motion here for dismissal of this petition and we renew it now on the basis that she and I believe by her own statement states that on the witness stand, she intended to give this to Mr. DeWitt. She admitted that she did make the statement, that she wanted to do something for him in his old age and that was his share of her will, and she so testified. For that reason we feel that sufficient evidence has been presented here by the defendant in this case, and also by the defendant while on the witness stand that this petition should be dismissed.”

Thereupon, arguments were made and authorities cited by counsel for the respective parties, and the Court took said motion under advisement. The Court now finds that said motion was not well made and should be overruled.

Upon due consideration of all of the evidence adduced herein, the Court finds:

1. That Plaintiff has established by certain, clear and convincing evidence that Charlotte D. Gooley furnished and positively controlled the disposition of said purchase money;

2. That Plaintiff directed the method and manner of expending the $5,000 purchase money for said life estate;

3. That the evidence adduced by Plaintiff was sufficient to and did establish a purchase-money resulting trust upon said quit claim deed which was absolute on its face;

4. That the evidence adduced by Defendant fell far short of rebutting said purchase-money resulting trust;

5. That Defendant’s evidence completely failed to establish “that said funds were a gift to Willard DeWitt by the Plaintiff,” as alleged in Defendant’s answer; and

6. That Defendant’s evidence tended to show an inconsistent and ineffective attempt to claim a gift of the life estate so deeded at some time after the purchase-money resulting trust had been established.

The Court further finds that the burden of proof has been sustained by the Plaintiff and that she is entitled to the relief prayed for in her petition.

Therefore, the Court finds on the issues raised between the petition, the answer and reply thereto in favor of the Plaintiff and against the Defendant; and that Defendant should be ordered to convey said life estate in the real estate described in said petition to Plaintiff within ten (10> days of the journal entry to be made in conformity with this decision, and that upon refusal so to do, a certified copy of said entry judgment and decree shall be filed in the recorder’s office and snail operate as a transfer; and that the costs herein should be taxed against Defendant.

The Court further finds that Counsel for Plaintiff should prepare an entry in conformity herewith, with appropriate exceptions noted on behalf of Defendant, and submit same to Counsel for Defendant and to this Court for approval within five (5) days from the date of this decision.


author: By HUNSICKER, PJ.

text:
    STATE, Appellee, v. KOLLAR, Appellant.
    Ohio Appeals, Ninth District, Wayne County.
    No. 1122.
    Decided October 29, 1952.
    Jack H. Critchfleld, Pros. Atty., Wooster, for appellee.
    W. H. H. Wertz, Wooster, for appellant.
   OPINION

By HUNSICKER, PJ.

Andrew Kollar, the appellant, was found guilty after a jury trial of a violation of §13105-1 GC. The judgment was entered, and an appeal perfected to this court by the appellant, who says that:

1. The verdict is manifestly against the weight of the evidence.

2. The court erred in overruling defendant’s motion for a directed verdict.

3. The court committed prejudicial error in its charge to the jury.

4. The court committed prejudicial error in furnishing the wrong verdict blank to the jury.

This court has carefully read the bill or exceptions, and we And there was sufficient competent evidence introduced to justify the verdict and judgment. We therefore do not And that the verdict is manifestly against the weight of the evidence, and the court did not err to the prejudice of the appellant, Andrew Kollar. in overruling his motion for a directed verdict.

The trial court sent to the jury room, at the time the jury retired for their deliberations, two forms of verdict — one of “quilty” and the other of “not guilty.” After the jury had deliberated for forty minutes, the jury returned to the court room, and the foreman presented to the trial judge a written question. The bill of exceptions shows that the following proceedings then took place:

“The Court: I have a question here that is signed by your foreman: ‘What was Mr. Hilligas’ testimony as to whether he asked Mr. Kollar if he owned or operated the farm?’
“From my recollection, and I have checked with the court reporter and found it to be correct, the testimony pertaining to that was that he asked the questions on State’s Exhibit A, and that he wrote down the answers that the defendant, Andrew Kollar, gave him, and that is the way State’s Exhibit A was made up. Now that was my recollection and that is the way it is in the record.
“Now, ladies and gentlemen, I am going to exchange the verdict form marked ‘guilty,’ and give you this verdict form in place of the other for the reason that under the law if you find the defendant ‘guilty’ it is necessary that you ascertain and declare the amount of property or credit procured. Under the statute, if it is under $60 it is one offense and if it is more than $60 it is another. I will ask you to fix that amount.
“Now I take it that answers your question.”

Although the trial court read §13105-1 GC, as amended effective September 10, 1951, which section as amended was not in effect at the time the offense complained of was committed, yet the section before amendment was identical with the one which the court read except for the amount of money which differentiated the offense as a felony or a misdemeanor. The section as it read prior to the amendment made it a felony “if the value of the thing or amount of the loan, credit- or benefit procured is thirty - five dollars or more,” whereas, in reading the section as amended, the amount determining that the offense is a felony is fixed at sixty dollars or more.

The appellant, Kollar, was not prejudiced by such direction given to the jury, for they found the value to be $250. Under the terms of §13449-5 GC, no judgment of conviction shall be reversed “for any misdirection of the jury unless the accused was or may have been prejudiced thereby ”

The trial court discovered, after sending to the jury the forms of verdict, that the form of verdict in the event the jury found the defendant. Kollar, guilty, was not the proper form to be used. The trial court chen substituted the correct form for the incorrect form. In doing that, the trial court was acting in a proper manner, and no prejudice to the rights of the appellant occurred.

The trial judge also gave orally his recollection of the testimony of Mr. Hilligas concerning the question asked by the jury. An examination of the testimony as shown by the bill of exceptions, discloses that the court gave a correct summary of the evidence on the point raised by the question submitted by the jury.

The Code of Civil Procedure contains a provision (§11420-6 GC) for the court, after the jury retires to deliberate, to give its recollection of the testimony upon a disputed point, and to give additional instructions if the jury so desires. The Code of Criminal Procedure contains no corresponding provision, but an examination of the reported cases where a similar situation existed, indicates that the trial judge in a criminal case has such power as was exercised in the instant case.

Hulse v. State, 35 Oh St 421; Fites v. State, 13 Abs. 140; State v. Kennedy, 72 Oh Ap 462, at p. 468.

We therefore determine that the action of the trial judge in stating his recollection of the testimony of Mr. Hilligas, in answer to the question of the jury, was not prejudicial error.

We have examined all the claimed errors, and find none prejudicial to the substantial rights of the appellant.

The judgment is affirmed.

DOYLE, J, and STEVENS, J, concur.


author: By THE COURT:

text:
    STATE, Plaintiff-Appellee, v. GEORGE, SR., Defendant-Appellant.
    Ohio Appeals, Second District, Greene County.
    No. 531.
    Decided October 23, 1953.
   OPINION

By THE COURT:

This is a law appeal from a judgment of the Common Pleas Court rendered upon the verdict of a jury finding the defendant-appellant guilty of manslaughter in the first degree. The indictment charged the defendant with murder in the second degree. Three assignments of error are set forth and urged in the appellant’s brief, but during the. course of the argument counsel conceded the first two were not well taken and waived any further consideration being given the same. The only remaining error urged by appellant concerns the Court’s refusal to give special charges 6, 7, 9 and 10. The law seems to be well established in this state that there is no mandatory duty upon the Court to give any instructions to the jury before argument in criminal cases, the only requirement being that the general charge fully and completely instruct the jury as to the law aplicable to the evidence as presented. Blackburn v. State, 23 Oh St 146; Wertenberger v. State, 90 Oh St 353; State v. Viola, 51 Abs, 577; Maranda v. State, 17 Oh Ap 479.

Special charges Nos. 6 and 7 relate to self-defense, which we find the Court adequately covered in its general charge at pages 286 and 287 of the bill of exceptions:

“The defendant has, also invoked the issue of self-defense, and on that the Court wants to charge you that a homicide is justifiable in this State on the ground of self-defense where the slayer in the careful and proper use of his faculties bona fidely believes and has reasonable ground to believe that he is in imminent danger of death or great bodily harm, and that his only means of escape from such danger will be the taking of the life of his assailant, although in fact he is mistaken as to the existence or imminence of the danger. You will observe from this language that before the defendant is entitled to the provisions thereof, it is essential that he in the careful and proper use of his faculties must have not only believed that he was in imminent danger of death or great bodily harm at the hands of the deceased and that his only means of escape from such danger was the taking of the life of the deceased, but he must have had reasonable grounds so to believe. If he in such use of his faculties in good faith believed and had reasonable grounds to believe that he was in imminent danger of great bodily harm and that his only means of escape was the taking of the life of the deceased, he would be justified though in fact he was mistaken as to the existence or imminence of the danger.

In connection with this phase of the case, some testimony was admitted tending to prove that the deceased was of a violent and dangerous character, and that such character was known to the defendant at the time of the happening of the matters stated in the indictment. This testimony was not permitted to justify the killing of the deceased. One person has no right to kill another because the other was a person of a violent and dangerous character, but such character if known to the defendant is permitted to be shown in the testimony so that you may use it in connection with the other evidence in the case in determining whether or not the defendant entertained an honest and reasonable belief in the immence (imminence) of bodily harm to himself.

If the defendant was not in any supposed or real imminent danger of his own life or of great bodily harm, and if you find that the defendant could not have apprehended from the deceased, and did not so apprehend, any danger of his life or of great bodily harm, then the killing is not excusable.”

Special charge No. 9 requested that the jury be instructed that before there could be a conviction on the charge of second degree murder the jury should be

“ * * * satisfied beyond a reasonable doubt that the death of Bud Crawford was the natural and probable consequence of the shooting of him by defendant and not the result of an independent intervening cáuse in which Andrew George, Sr., did not participate.” .

Special charge No. 10 is on the same subject as No. 9 and reads as follows:

“The Court charges you as the law in this case that if you find that the wound or wounds upon Bud Crawford were not necessarily fatal, but that his death was caused by his neglect in caring for himself after receiving the wound or wounds, Andrew George, Sr., cannot be convicted of murder in the second degree or manslaughter, and he should be acquitted.”

It is the position of the appellant that this charge should have been given because the record discloses that the decedent was very neglectful of himself. Even conceding this alleged fact to be true we think the jury was amply charged upon the law as to the cause of the death. In its general charge the Court said at page 285:

“In addition to the matters just heretofore set out, the State must, also, prove beyond a reasonable doubt that the bullet wound or wounds inflicted on Bernard Crawford by Andrew George was the proximate cause of the death. If you find under all the evidence submitted to you and the Court’s instructions beyond a reasonable doubt that the decedent, Bernard Crawford, came to his death from a bullet wound or wounds inflicted upon him by the defendant, Andrew M. George, Sr., in the manner and by the means charged in the indictment, and if you find further that the bullet wound or wounds was the proximate cause of death, then I say to you that under these circumstances you would be warranted in finding the defendant guilty under this indictment, unless the defendant has proved a case of self-defense by a preponderance of the evidence.

To say that the defendant’s act is the proximate cause means that in some way the influence of his act predominates over other influences in causing death, or at least is of equal importance in producing death.

So that, if you find under all the evidence submitted to you and the Court’s instructions beyond a reasonable doubt that the decedent, Bernard Crawford, came to his death from a bullet wound or wounds inflicted upon him by the defendant, Andrew M. George, Sr., in the manner and by the means charged in the indictment, and you find that the bullet wound or wounds was the primary cause of death, and that other causes were a secondary cause of death, then I say to you that under those circumstances you would be warranted in finding the defendant guilty under this indictment, unless the defendant has proved a case of self-defense by a preponderance of the evidence. However, if you find that other causes were the proximate and primary cause of the death of Bernard Crawford and the bullet wound or wounds was only a secondary contributing cause of death, then I charge you that the defendant should be acquitted under the indictment.”

It is therefore our conclusion that the Court properly instructed the jury on the subject matter contained in the special requests under consideration and the refusal to give the same did not constitute prejudicial error. We And the judgment is in accordance with law and the same will be affirmed.

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


author: By STEVENS, J:

text:
    CALL et, Plaintiff-Appellee, v. CAMERON, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23192.
    Decided October 27, 1954.
    Arthur J. Stern, Cleveland, for plaintiff-appellee.
    Albert R. Gamble, Cleveland, for defendant-appellant.
    (DOYLE, PJ, STEVENS, J, HUNSICKER, J, of the Ninth District sitting by designation.)
   OPINION

By STEVENS, J:

The action filed in the Municipal Court of Cleveland sought the recovery of damages arising from a collision between cars driven by the plaintiff, Call, and the defendant, Cameron.

The matter came on for hearing before a Judge of the Muncipal Court, whereupon plaintiff introduced his evidence and rested. Defendant’s counsel then arose and presented a motion (without specifying what kind of a motion) and plaintiff’s counsel joined therein.

Assuming that the motion was made one for judgment for defendant, and that plaintiff’s joining therein sought a judgment for plaintiff, as the trial court understood the intendment of the motion, the trial court then overruled defendant’s motion for judgment and sustained plaintiff’s motion.

The following entry was made:

“April 2, 1954: Case called, parties in court; trial had; defendant’s motion joined in by plaintiff for judgment at close of plaintiff’s case, is granted and judgment rendered in favor of plaintiff on the issues joined and against defendant for costs. Court finds and renders judgment for plaintiff against defendant for $363.62 and costs.”

It is apparent from the foregoing that the trial court, after overruling defendant’s motion for judgment, made at the conclusion of plaintiff’s evidence and joined in by plaintiff, entered a judgment for plaintiff on plaintiff’s motion, without giving the defendant any opportunity to present his defense, and without defendant having rested his case, despite the statement of defendant’s counsel that he wanted a ruling on his motion “before going forward with the defense.”

We hold the procedure adopted herein to be prejudicially erroneous to appellant, on the authority of City of Canton v. Pryke, 5 Oh Ap 365.

The judgment will be reversed and the cause remanded for further proceedings according to law. Exceptions noted. Order see journal.

DOYLE, PJ, HUNSICKER, J, concur.


author: PER CURIAM:

text:
    HOPKINS et, Plaintiff-Appellee, v. CLEVELAND TRUST CO. et, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22688.
    Decided January 19, 1953.
    Jones, Day, Cockley & Reavis and Luther Day, of counsel, Cleveland, for plaintiff-appellee.
    Arter, Hadden, Wykoff & Van Duzer and C. M. Horn, of counsel, Cleveland, for defendant-appellant.
   OPINION

PER CURIAM:

The motion to dismiss the appeal is granted on the ground that said appeal is prematurely filed and the court has no jurisdiction thereof for the reason that the order appealed from is not a final order, judgment or decree, but an interlocutory order only.

It appears on the face of the journal of the order from which the appeal is taken, that the trial court retained jurisdiction and reserved final judgment for the purpose of enabling the parties to make a determination as to whether and to what extent stock dividends received for the trust since the appointment of the successor trustee shall be treated as principal or income, as they may deem “just and equitable” for the purpose of entry of a final order or decree.

It further appears from the journal entry that counsel for the parties are instructed to notify the court if they have been able to make such a determination within a thirty-day period, in which event a further appropriate entry will be made. It is further provided that in the event the parties are unable to make such a determination, the court will proceed to determine whether and to what extent such stock dividends shall be treated as principal or income of the trust, as the court may deem “just and equitable,” and shall thereupon enter its judgment and decree embodying its determination and its instructions to the parties providing a pattern for future treatment of stock dividends received by the trust in the future. This is an order which does not determine the issues of law and fact with the finality necessary to constitute a final order, judgment or decree, as defined by §12223-2 GC.

We refrain from a discussion of the issues at this time, as we assume that when a final entry is made, the cause will come before us for decision on the merits, if either one or both of the parties should feel aggrieved by such final order, when entered. Exceptions noted.

SKEEL, PJ, HURD, J, KOVACHY, J, concur.


author: By CECIL, District Judge.

text:
    GRANT et, Plaintiffs, v. BUSEY, COLLECTOR OF INTERNAL REVENUE, Defendant.
    United States District Court S.D. Ohio, E. D.
    No. 3443.
    Decided July 30, 1954.
    Roger K. Powell, Chalmers M. Parker, Columbus, for plaintiffs.
    Hugh K. Martin, U. S. attorney, Columbus, for defendant.
   OPINION

By CECIL, District Judge.

This action was brought by Esther E. Grant and Dorothy Ebersbach, co-executrices of the estate of Charles Ebersbach, deceased, as plaintiffs against Harry F. Busey, as collector of internal revenue of the United States, to recover the sum of $31,927.79 alleged to be an over-payment of a portion of the income taxes paid on the final individual return of the decedent for the year 1943.

The question is whether or not the allocable share of partnership earnings of the decedent to the date of his death should be included in his gross income on his final individual income tax return.

This presents the further questions of whether or not a partnership is dissolved by the death of a partner and whether or not in this case there was an agreement to continue the business of the partnership after the death of a partner.

Specifically the question is whether or not the decedent’s share of the partnership income for the fiscal year beginning October 1, 1942 and ending September 30, 1943, a period extending 52 days beyond the death of the decedent, should be included in his final individual income tax return. The alternative to this is that none of the income of the partnership for this fiscal year should be included in the final individual tax return of the decedent. If not so included, it would be set up as income of his estate.

The court finds the facts as set forth in the stipulations of the parties, the exhibits attached thereto, the exhibits offered in evidence at the time of trial and the additional facts from the evidence, that there was no closing of the partnership records on August 9, 1943 and that without such a closing, it would have been impossible to accurately ascertain the distributive share of the deceased as of that date.

The court finds from these facts that the plaintiffs have failed to prove by a preponderance of the evidence that there was an agreement among the partners to continue the partnership beyond the death of any partner.

Neither can the court infer from the facts before it that there was any such agreement, either expressed or implied.

The court finds as a matter of law that it is the general rule in Ohio that a partnership is dissolved by the death of a partner.-

The court being of the opinion that death dissolves a partnership, and finding that the plaintiffs have failed to prove that there was an agreement to continue with the partnership business, it is in accord with the conclusion reached by Chase, Circuit Judge, in the case of Commissioner of Internal Revenue v. Waldman’s Estate, 2 Cir, 196 F. 2d 83, 85: “The petitioner relies upon Henderson’s Estate v. Commissioner 5 Cir., 155 F. 2d 310 [164 A.L.R. 1030]; Girard Trust Co v. United States, 3 Cir., 182 F 2d 921, and Commissioner [of Internal Revenue] v. Mnookin’s Estate, 8 Cir., 184 F. 2d 89, as did the Tax Court, and we make no attempt to distinguish them but, with deference, reach the contrary decision which we think Guaranty Trust Co. v. Commissioner, supra [303 U. S. 493, 58 S. Ct. 673, 82 L.Ed. 975], requires.”

If there were an agreement in this case to continue the partnership business after the death of a partner there might be some question as to the tax liability claimed by the government, but it seems that without such an agreement the plaintiffs’ claim is without foundation.

In the original brief of counsel for the plaintiffs, it is argued that there was an oral agreement to continue the business, but in the reply brief, the position is shifted and it is claimed that the agreement attached to the stipulation of facts and marked “Exhibit A” constitutes such an agreement.

To support the oral agreement counsel for plaintiffs say on page 7 “During the years 1940, 1941, 1942 and 1943 five partners, holding half of the original ownership of the partnership died prior to the death of Charles Ebersbach. None of these deaths affected any termination of the partnership business or changed its manner of filing an income tax return. The partnership books were closed, partnership returns were filed as of September 30, the close of each fiscal year and in place of the partner who had died during that' fiscal year, the name of his estate was shown as entitled to his distributive share.”

These statements are not proven by the facts. It is true that some of the partnership returns offered in evidence as exhibits show the names of some estates as distributees. The court cannot assume any proof from these mere facts. The court knows nothing of the details of the handling of those transactions. If they were as claimed, they may have been erroneous and illegal. It is no sound argument to say that because such a course of conduct was followed in those cases, there must have been an agreement.

It is also argued that in the 1943 partnership return, the estates of two other partners were shown as having received distributive shares. This is not determinative of anything in this case.

The court cannot interpret the agreement to which reference was heretofore made, being Exhibit A attached to the stipulations, as a contract to continue the partnership business after death of a partner. This contract did not create a partnership. It recognized the existence of a partnership and provided for its management and liquidation. It provided that it was to be in effect for five years unless terminated by liquidation before that time. It also provided that any member could liquidate his interest upon his election in writing so to do.

The mere statement that a contract is to be in existence for a certain number of years, does not take care of the contingency of death. Where partnership agreements are to continue after death, it is generally specifically stated.

Counsel for plaintiffs cited §1779.08 R. C. as authority for the proposition that the death of a partner does not dissolve a partnership in Ohio. This section provides that by the original articles of a partnership in force at the death of a partner or by the will of a deceased partner, provision may be made for the settlement or disposition of a partnership interest contrary to the other methods provided by statute.

This section is not applicable in this case for the reason that there is no evidence of any provisions made by the will of the deceased or any provisions made in the partnership articles.

The court, having reached the conclusion that there was no agreement in this case to continue the partnership business after death, is of the opin-ion that neither Section 42 nor 126 of Title 26 U.S.C.A., is applicable.

As was stated in the beginning of this opinion, the question is whether or not the final individual tax return of the decedent is to Dear the burden of the income of a full fiscal year, which is 52 days after his death, or whether it should bear none of that burden. It might be argued that the plaintiffs are entitled to have only so much of the partnership profits as accrued up to August 9, charged in the final individual tax return of the decedent. The court desires to point out that it was the responsibility of the plaintiffs to have a closing made as of that date and that the return of the entire fiscal year of the partnership in the final individual return of the decedent was the voluntary action of the plaintiffs.

It is significant that the Guaranty Trust case, Girard Trust Co., Mnookin’s Estate and the Waldman’s Estate, all heretofore cited, required a bunching of income if the Guaranty Trust rule was followed. In all of these cases, there would have been nearly 18 months of partnership returns to be included in the final individual return of the taxpayer. In the case at bar. only one year of partnership returns would be included. If the plaintiffs prevail, then no partnership income will be included in the taxpayer’s final individual return.

The conclusion of the court is that the plaintiffs are not entitled to recover the return of any of the tax previously paid and a judgment order may be drawn accordingly.

The court is of the opinion that the findings of fact and conclusions of law are sufficiently set forth herein to comply with Rule 52 of the Federal Rules of Civil Procedure, 28 U.S.C.A.