author: By HUNSICKER, J:

text:
    GRIGER et, Plaintiff-Appellees, v. SCHOLZ et, Defendant-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21650.
    Decided February 27, 1950.
    M. C. Portmann, Cleveland, for plaintiff-appellees.
    Lody Huml, Cleveland, for defendant-appellant.

      (GUERNSEY, PJ, of 3rd District; Hunsicker and DOYLE, JJ, of the 9th District, sitting by designation.)
   OPINION

By HUNSICKER, J:

The Common Pleas Court of Cuyahoga County, Ohio, sustained a demurrer to a cross-petition that John Scholz had filed in an action which Steve Griger and Pauline Griger had commenced against John Scholz and Gen A. Scholz. After such demurrer was sustained, Scholz, not desiring to plead further, a judgment dismissing "the cross-petition was entered by the trial court. That judgment is now before this court for review on questions of law.

Steve Griger and Pauline Griger, commenced an action to enjoin John Scholz and Gen A. Scholz, defendants-appellants, herein called Scholz, from violating the zoning ordinances of the City of Cleveland, Ohio.

Gen A. Scholz filed by way of answer, a general denial and John Scholz filed a separate answer and cross-petition. The cross-petition sought affirmative relief and alleged that he (Scholz) and his wife, Gen. A. Scholz, acquired property at 2676 East 128 Street Cleveland, in the year 1935, and other property (used as their home) at 2672 East 128 Street, Cleveland, prior to November 5, 1929; that before November 5, 1929, a date prior to the effective date of the zoning ordinance sought to be enforced by the plaintiffs (appellees herein) he, John Scholz “did use the said, premises at 2672 East 128 Street, in connection with his plumbing business, namely, for the storage of a truck and plumbing supplies.”

The cross-petition of Scholz further alleged that:

“* 4 * on or about September 14, 1948, the plaintiff, Steven Griger, Sr., did file a complaint against this defendant with the Board of Appeals, an administrative tribunal for the administration and enforcement of the zoning ordinance of the City of Cleveland.”

As a result of such complaint, he, Scholz, was permitted by an order adopted by the Board of Appeals on October 11, 1948, to use part of the premises for his business; on November 2, 1948, Steven Griger, Sr., again filed a complaint for a rehearing with such Board of Appeals, alleging a violation of the order of October 11, 1948, and that, in conjunction there with, did complain to the Mayor of Cleveland; on January 28, 1949, Pauline Griger filed a complaint “in writing with the Board of Appeals against this defendant, alleging that he did” violate the order of October 11, 1948 with respect to the use of such premises; official investigations subsequent to these complaints showed no violations and such complaints were denied.

The cross-petition then alleged that these complaints of November 2, 1948 and January 28, 1949, were filed without probable cause, were filed maliciously and recklessly to his, Scholz’s injury and damage by way of

“mental suffering and anguish and injury to his reputation in the neighborhood and injury and harrassment and defamation in his plumbing business”

in the amount of $10,000 for which, he, Scholz, prays judgment.

It is to this cross-petition that the demurrer was filed claiming that the facts so alleged do not state a good cause of action.

The question thus before this court is — May an action for malicious prosecution be maintained against one who makes complaint to an administrative board, which administrative board denied such complaint and made no order affecting either the person or property of the one complained about?

Whether an action may be maintained for the malicious institution, without probable cause, of a civil suit which has terminated in favor of the defendant, and in which there has been no interference with the person or property of the defendant, is a question upon which the authorities are in conflict.

The rule in Ohio with respect to such actions for malicious prosecution is stated in the case of The Cincinnati Daily Tribune Co. v. Brack, 61 Oh St. 489 as follows:

“As a general rule no suit will lie for the malicious prosecution of a civil action where there has been no arrest of the person or seizure of property.”

This rule has consistently been adhered to in Ohio. See: Turner v. Central Outdoor Advertising Co. Inc. 15 Oh Ap 105.

The reasons in support of such rule are that the opposite rule would deter honest suitors from ascertaining their rights by putting them in fear of being made liable in damages if they failed, and would promote litigation, by tempting every successful defendant to bring a suit for malicious prosecution.

Wetmore v. Mellinger, 64 Iowa 741, 18 N. W. 870, 52 Am. Rep. 465; Smith v. Michigan Buggy Co. 175 Ill. 619; 51 N. E. 569.

This court believes that the rule as adopted by Ohio with respect to liability for malicious prosecution actions before judicial tribunals so long adhered to, is the rule that must be followed in such actions before administrative boards..

Any deviation from the long-established law in Ohio would result in a more severe rule in the case of such actions before administrative boards than now exists in such actions before judicial tribunals.

We therefore hold that no action will lie for the malicious prosecution of an action before an administrative board where there has been no arrest of the person or seizure of property.

Judgment affirmed. Exc. Order see journal.

GUERNSEY, PJ, DOYLE, J, concur.


source: Caselaw Access Project

author: By WISEMAN, J:

license: Public Domain

text:
    O’LEARY, Exr., Plaintiff-Appellee, v. BURNETT et, Defendants-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    No. 2040.
    Decided December 1, 1949.

      Paul H. Blum, Dayton, for plaintiff-appellee.
    Gene B. Bacher, Howard H. Durst, Dayton, for defendants-appellants.
   OPINION

By WISEMAN, J:

This is an appeal on questions of law from the judgment of the Common Pleas Court of Montgomery County, Ohio, which rendered judgment in favor of the plaintiff for the sum of $8,769.13.

Before passing on the merits of the appeal the court is required to dispose of a motion filed by plaintiff-appellee to strike the bill of exceptions from the files and to dismiss the appeal on the ground that the bill of exceptions was not filed within the time provided by law and the former order of this court.

The record shows that on March 15, 1949 the appeal on questions of law and fact was dismissed and the case retained as an appeal on questions of law. On that date the court ordered the bill of exceptions to be filed within thirty days from the date of the entry. This order was made under the provisions of §11564 GC. The thirty-day period designated in this section, being the maximum time for the preparation and settlement of a bill of exceptions, refers to the filing of a bill of exceptions in the trial court. Univis Lens Co. v. United Electrical, Radio and Machine Workers of America, 84 Oh Ap 323; 85 Oh Ap 53, 86 Oh Ap 241; 53 Abs 290, 292, 55 Abs 241, 243, 248; 86 N. E. (2d) 331, 334. The record shows that the bill of exceptions was filed in the trial court on April 11, 1949, which was within the thirty-day period. The bill was settled in the trial court on May 3, 1949. After the bill is settled in the trial court the appellant is given ten days to file the bill in the Court of Appeals, under the provisions of supplement to Rule VII of this court. The record shows that the bill was filed in the Court of Appeals on May 3, 1949, which was within the ten-day period. Motion to strike the bill and dismiss the appeal overruled.

Coming now to pass on the merits of the appeal, the record shows that the plaintiff in his petition prayed for a money judgment against the defendant, alleging that the plaintiff’s decedent, William J. O’Leary, in December, 1932, entered into a contract in writing with the defendant whereby the defendant agreed to pay the plaintiff five per cent of the gross sale price of all motors manufactured by the defendant and that beginning in 1936 the payment in any calendar year should not be less than $500.00; that the right of the defendant to manufacture such motors was to continue for seventeen years after the letters patent on said motors were issued to the plaintiff’s decedent. It is alleged that letters patent were not issued to the plaintiff’s decedent until July 14, 1936. Plaintiff further alleges that the defendant did manufacture and sell said motors but has not made payment to the plaintiff’s decedent or to his estate according to the terms of the contract. Plaintiff further alleges that “said agreement was written but not signed”.

The defendant, in his answer, pleads the statute of frauds.

This matter was tried to the court without the intervention of a jury.

The appellant assigns as error that the judgment of the trial court is not sustained by any evidence; that the judgment is contrary to law; that the judgment should be in favor of the appellant; that the court erred in the admission of evidence; and other errors of law occurring at the trial.

We find no errors assigned supported by the record except the claim of the appellant that the judgment of the trial court is not sustained by the evidence and is contrary to law. An application for a new trial, which was not filed, was not a necessary prerequisite to obtain appellate review as to these two matters, since the record shows that these matters were submitted to the trial court and the claimed errors appear in the record. Sec. 11576-1 GC.

The principal question for the court to determine is whether the contract complies with the statute of frauds. Sec. 8621 GC, in part provides:

“No action shall be brought whereby to charge the defendant, * * * upon an agreement that is not to be performed within one year from the making thereof; unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.”

It is conceded that the alleged contract on which the action was brought was not to be performed within one year from the making thereof. The appellant contends that the plaintiff did not introduce into evidence any memorandum in writing signed by the appellant. The appellee contends that several memoranda introduced in evidence, one of which was signed by the appellant, constitutes a memorandum in writing signed by the person sought to be charged, in compliance with the provisions of §8621 GC.

The paper writings introduced are designated as plaintiff’s exhibits “A”, “B”, and “C”. Plaintiff’s Exhibit “A” was the license agreement dated December —, 1932, which was prepared for the signatures of the plaintiff’s decedent and the defendant. However, this agreement was never signed. Plaintiff’s exhibit “B” is in the form of a receipt, and is as follows:

“January 1 — 1936.
Received of the W. J. O’Leary Estate $250.00 on back salary from The Rotor Corp. of America and The Rotor Clock Co.
Harry L. Burnett”

The record shows that plaintiff’s decedent died in January, 1935. The record further shows that the defendant at one time had been employed by The Rotor Corp. of America and The Rotor Clock Company in experimental work and that plaintiff’s decedent was the president and active head of both corporations at that time; that in December, 1932, the defendant terminated his employment with the companies and at that time there was back salary due him. Plaintiff’s Exhibit “B” clearly refers to the matter of salary and makes no reference whatever to the agreement which is the subject of this action. Plaintiff’s Exhibit “C” reads as follows:

“January 1 — 1936
Received from Harry L. Burnett $250.00 as first payment on motor license as of Dec. 1932.”

This memorandum was unsigned.

In deciding the motion to dismiss the appeal on questions of law and fact this court, in a former opinion (54 Abs 415; 87 N. E. (2d) 897) held that this action was essentially one at law for the recovery of money only and that the equitable relief sought was merely incidental. In our opinion part performance cannot be invoked to take this case out of the operation of the statute of frauds. Hodges v. Ettinger, 127 Oh St 460, 189 N. E. 113; Bower v. Heer, 35 Abs 416, 40 N. E. (2d) 879.

The plaintiff contends that the memoranda introduced (Plaintiff’s Exhibits “A”, “B” and “C”) are adequate under the law to constitute a writing signed by the party sought to be charged. Reliance is placed on Kling, Admr., etc., v. Bordner, 65 Oh St 86, 61 N. E. 148. In our opinion this case supports the contention of the defendant, rather than the contention of the plaintiff herein. The first syllabus of that case is as follows:

“The memorandum in writing which is required by the statute of frauds (Section 4199, Revised Statutes), is a memorandum of the agreement between parties; and it is not sufficient unless it contains the essential terms of the agreement expressed with such clearness and certainty that they may be understood from the memorandum itself or some other writing to which it refers, without the necessity of resorting to parol proof.”

The plaintiff also cites Thayer v. Luce and Fuller, 22 Oh St 62, for the proposition that several pieces of paper may constitute one writing if proper reference is made. The first two paragraphs of the syllabus are as follows:

“Several writings, though made at different times, may be construed together, for the purpose of ascertaining the terms of a contract required, by the statute of frauds, to be in writing and signed by the party to be charged therewith.
If some only of such writings be so signed, reference must be specifically made therein to those which are not so signed; but if each of the writings be so signed, such reference to the others need not be made, if, by inspection and comparison, it appear that they severally relate to or form part of the same transaction.”

It is apparent that the only writing that is signed by the defendant makes no reference whatever to the unsigned license agreement, and therefore the principle of law laid down in Thayer v. Luce and Puller has no application.

In our opinion the memoranda presented in this case did not constitute a memorandum or note in writing signed by the party sought to be charged. Therefore, the oral agreement entered into is unenforceable. The judgment of the trial court was not sustained by sufficient evidence and is contrary to law.

The judgment is reversed and this court, coming to render the judgment which the trial court should have rendered, orders that judgment be entered for the defendant.

MILLER, PJ, and HORNBECK, J, concur.


author: By BUCKLEY, J.

text:
    STATE ex CADMAN, Relator, v. NOLAN et, Respondents.
    Ohio Appeals, Seventh District, Jefferson County.
    No. 1026.
    Decided June 30, 1949.
    James S. Kimble, Samuel Freifield, Steubenville, for relator.
    Robert L. Smith, City Solicitor, Steubenville, for respondents.
   OPINION

By BUCKLEY, J.

This is an original action in mandamus, and was submitted to the court upon an agreed statement of facts, as hereinafter set forth, and the briefs of the relator and the respondents.

The facts as agreed upon between the parties, and as submitted to this court, are as follows: The relator, Harold Cadman, is a resident of the City of Steubenville; and on the 15th day of April, 1947, was appointed as a patrolman in the Police Department of Steubenville, after having successfully passed a civil service examination. After having served one year as a Patrolman, as required by law, Cadman, the relator herein, on the 9th day of June, 1948, took a competitive examination for the position of Sergeant in the Police Department of the City of Steubenville. As the result of the examination one Samuel Baker and the relator, Cadman, successfully passed said promotional examination, and their names were placed on an eligibility list of two persons eligible to be promoted to the position of Sergeant.

About the first day of July, 1948, a vacancy in the position of Sergeant occurred in the department, and the Director of Public Safety of the City of Steubenville, in accordance with the statutes of the State of Ohio, requested a certification from the Civil Service Commission to fill such vacancy, and the Civil Service Commission certified the name of Samuel Baker as having the highest grade on the promotional eligibility list. The said Samuel Baker was duly appointed as Sergeant; and the eligibility list for future promotions was thereby reduced from two to one, the one name remaining on said list being that of relator, Harold Cadman.

On the 1st day of January, 1949, another vacancy occurred in the position of Sergeant in- the Police Department. The Director of Public Safety notified the Civil Service Commission that a vacancy had occurred in the position of Sergeant, and requested the Civil Service Commission to certify from the promotional eligibility list a person for the position of Sergeant in the Police Department.

On the 15th day of February, 1949, the Chairman of the Civil Service Commission notified the Director of Public Safety that there was only one name on the eligibility list for the position of Sergeant; and that, in accordance with the opinion of the City Solicitor, the Civil Service Commission could not certify anyone for said position until a new eligibility list was established containing at least three names. The Civil Service Commission issued notice that an examination would be held, and pursuant to said notice the Civil Service Commission conducted a second examination and established a new eligibility list. On the 30th day of March, 1949, the respondent, Civil Service Commission, certified to the Director of Public Safety, the appointing authority, a name from the new eligibiliy list as having made the highest grade in the second promotional examination.

It is admitted that at the time the second vacancy for the office of sergeant occurred the eligibility list created as a result of the examination on the 9th day of June, 1948, was less than one year old.

The relator, Harold Cadman, brings this action in mandamus to require the Civil Service Commission to certify his name to the Director of Public Safety, inasmuch as he was the only person on the eligibility list qualified for the appointment.

The relator claims that the act of the Civil Service Commission in holding a second examination for the office of sergeant was wholly without foundation in law inasmuch as the eligibility list established on June 15, 1948, was less than one year old and contained the name of a qualified person for the vacancy occurring about January 1, 1949.

The questions raised in this action in mandamus were answered in the case of State of Ohio, ex rel. Andrew S. Yash, v. Charles R. Orf, et al, (case number 3242 in the Court of Appeals of Mahoning County). This case was heard by the Court of Appeals of the Third District sitting in Ma-honing County on special assignment. In that case the court held: “that the eligible list for promotion to position of Captain of Police of the City of Struthers, Ohio, resulting from the promotional competitive Civil Service Examination held in the month of September, 1946, did not, under the provisions of §486-12 GC, expire until September, 1948”, two years later; and that “there is no provision of law requiring that more than one name appear on an eligible list for promotion”. The court held further that the relator-appellee, Andrew S. Yash, was entitled to be certified for promotion from an eligible list, which at the time of the vacancy contained only the name of the said' Yash. The distinguished court of the Third Appellate Distrist also held that “under the provisions of §486-15A GC, promotional examinations are required only where there is no eligible list for promotion”.

This leads us to the inevitable conclusion that once a civil service eligibility list for promotion 'is established by competitive examination said list must be followed for a period of two years so long as any name appears thereon as eligible for the promotion.

To arrive at any other conclusion would mean that an eligible list was without significance as the Civil Service Commission is bound to certify for promotional appointment the name of that person having the highest grade, and the appointing power is required to certify and appoint such candidate so certified as being, at the time, head of the eligibility list. It would be a peculiar miscarriage of justice to permit a name on the eligible list to be disregarded within the two year period. For example, in the present action, under the admitted facts only two names appeared as eligible for promotion on the list established by examination in June of 1948. If it was necessary to have three persons qualify by examination then the list should never have been established. However the list was established with the two successful candidates thereon, and in the first vacancy, the top name on the list, that of one Samuel Baker, was certified to the Director of Public Safety for appointment and the appointment was made. Since this appointment was made from the list of two, then within the remainder of the two year period any subsequent vacancy should have been filled by the person remaining on the established eligibility list. The name of that person is the name of the relator herein, Harold Cadman; and such name should have been certified to the Director of Public Safety for appointment to the position of sergeant.

The respondents rely upon the case of State, ex rel. Chapman v. Lesser, reported in volume 94 Ohio State Reports page 387. In this case a chief of the fire department was discharged for cause, and later a competitive examination was held by the Civil Service Commission of the City of Jackson. One Edward Chapman was the person receiving the highest grade on the examination, and his name was certified to the Director of Public Safety, who therewith appointed him as chief of the fire department.

The discharged fire chief, one Frederick W. Bertsch, later filed a motion before the civil service commission to set aside the first finding of the commission and to be reinstated as fire chief. The civil service commission rescinded its first finding and ordered Bertsch to be reinstated as fire chief. Chapman brought an action in mandamus to require the director of public safety to continue him as the validly appointed and regularly acting chief of the fire department. In this case, cited by the respondents, the Civil Service Commission of the City of Steubenville and the Director of Public Safety of said city, it is to be noted on page 400 the court states as follows:—

“It is undoubtedly the duty of the civil service commission to certify a list containing the names of at least three persons eligible to appointment, where that number of persons have taken the examination and received the minimum grade fixed by the commission, and it is perhaps true that the appointing authority may demand that three names shall be certified to it upon an eligible list before it is required to make an appointment, even if further examinations are necessary to be held in order to secure such a list, yet it is not necessary to the validity of an appointment to require such a list to be certified.”

As appears in the case of Chapman v. Lesser an eligible list of only one name was established and the name of that person, Chapman, was certified to the mayor for appointment, and the appointment was made.

From these findings by the supreme court of Ohio it is a necessary conclusion that in promotional examinations an eligible list of less than three may be established by the civil service commission either as the result of candidates for promotion not receiving the minimum grade required or that the number of candidates taking the examination may not exceed two.

It is the conclusion of this court, therefore, that since an eligibility list for promotion to the office of sergeant was established as a result of examination and consisted only of two persons, that list, within the two year period of its effectiveness, should have been followed so long as the list contained the name of a successful candidate.

It is therefore the judgment of this court that the relator, Harold Cadman, is entitled to the relief sought, and that a preemptory writ of mandamus be and is hereby issued from this court to require the respondents, The Civil Service Commission of the City of Steubenville, to certify to the Director of Public Safety of the City of Steubenville, the appointing authority, the name of Harold Cadman for promotion to the office of Sergeant of the Police Department of said city.

It is further ordered, adjudged and decreed that the costs in this proceedings be and hereby are charged against the respondents, the Civil Service Commission and the Director of Public Safety of the City of Steubenville.

PHILLIPS, PJ, NICHOLS, J, concur.


author: By PHILLIPS, PJ.

text:
    PETYAK, Plaintiff-Appellant, v. PETYAK et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3244.
    Decided March 24, 1949.
    John A. Willo, Youngstown, for plaintiff-appellant.
    P. J. Melillo, Youngstown, for defendants-appellees Steve Petyak and Veronica Petyak Hernandes.
    James M. Modarelli, Youngstown, for defendant-appellee Milwaukee Mechanics Insurance Company.
   OPINION

By PHILLIPS, PJ.

Plaintiff appeals on questions of law and fact from a judgment of the Court of Common Pleas entered upon the finding of a judge thereof made in plaintiff’s action filed therein “to declare a trust upon real estate, recovery of real estate, and equitable relief”.

In the court of common pleas plaintiff sought to have that court declare that defendants Steve Petyak and Veronica Petyak Hernandes held real estate which he alleged was.his in trust for him; to enjoin them from conveying, encumbering or otherwise disposing thereof; to order them to convey such real estate to him; and to have that court order the proceeds of a policy of insurance paid by defendant Milwaukee Insurance Company covering a fire loss thereon.

Plaintiff alleged that on or about September 3, 1936, he purchased, paid for, and has since occupied a “homestead” situated in Youngstown, Mahoning County, Ohio, title to which was taken in the name of defendants Steve Petyak and Veronica Petyak Hernandes, his son and daughter respectively, to avoid being harrassed by certain creditors, “whose exorbitant and unconscionable claims had been amassed during the depression, and to make said homestead safe and secure for his family”, with the understanding that the named defendants were to hold such real estate in trust for him; that they have refused his request to convey such parcel of real estate to him; and that he has no adequate remedy at law to enforce his alleged rights.

By answer defendant Veronica Petyak Hernandes admitted that plaintiff is her father; that the premises involved in this case were damaged by fire “on or about January 22, 1948;” that defendant Milwaukee Mechanics Insurance Company issued to her and plaintiff a certain policy of insurance against such loss; denied each and every other fact stated, averment made, and allegation set forth in plaintiff’s petition not therein admitted to be true; alleged that the proceeds of such policy covering such loss belong to her; that by false statements plaintiff has sought to induce the named defendant to pay such proceeds to him; that plaintiff’s alleged claim “is not evidenced by any note or memorandum in writing made by this defendant or by anyone authorized by this defendant”, and “is barred by the statute of limitations of the General Code of Ohio”; and that “the facts stated in plaintiff’s petition do not constitute a cause of action.”

Defendant Steve Petyak admitted in his answer the occurrence of the fire as alleged by plaintiff; denied that he and plaintiff “entered into a trust agreement at the time this property was purchased, or at any other time”; denied each and every fact stated, averment made and allegation set forth in plaintiff’s petition not therein specifically admitted to be true; and alleged “that on September 2, 1936, he and his sister Veronica Petyak Hernandes purchased the property described in plaintiff’s petition for a valuable consideration, with their own money, and that the plaintiff contributed nothing toward the purchase of said dwelling.”

Though plaintiff appealed on questions of law and fact he filed seven assignments or error claiming that the trial judge erred to his prejudice “in the admission of evidence objected to by appellant; in the rejection of evidence offered by appellant”; and contends that “the finding, judgment and decree of said court are against the manifest weight of the evidence”, and “contrary to law”; in overruling appellant’s motion for a new trial, and that “the finding, judgment and decree was given, entered, and made in favor of the appellee, when it should have been given, entered and made in favor of the appellant”; and that there are “other errors of law on the part of said court appearing on the face of the record”.

This case was properly appealed to us on questions of law and fact, and accordingly will be treated by us as such. Regardless of the finding of the court of common pleas we will make our own finding from the evidence before us which is found in the transcript of the testimony and evidence introduced in the court of common pleas, submitted to us by agreement of counsel in open court as the evidence in the case, and in which they reserved all objections and exceptions shown therein.

On September 3, 1936, The Home Savings and Loan Company deeded the disputed parcel of real estate to Stevé Petyak. and Veronica Petyak for $750.00 upon receipt of a down payment of $150.00 and subsequent payments of $225.00, and a mortgage for the balance of $375.00 executed by them, and which has since been rented or occupied by plaintiff.

In 1943 the premises were partly destroyed by fire, and by agreement between plaintiff and the named defendants the proceeds of the policy of insurance covering such loss in the amount of $1693.70 was paid to plaintiff, and the premises thereafter repaired.

We learn from the journal entry filed in the court of common pleas, which is not disputed, that defendant Milwaukee Mechanics Insurance Company in open court, through its attorney, James M. Modarelli, Sr., consented and agreed to pay the sum of Ten Hundred Seventy Dollars ($1070.00), which is the amount of loss occasioned by fire to the disputed premises on January 22, 1948.

As stated on January 22, 1948, the premises were partially destroyed by fire, and plaintiff again sought to have defendants Petyak and Hernandes agree to have the proceeds of the policy of insurance paid to him, which until the time of trial they refused to do.

The evidence discloses that defendant Steve Petyak paid the down payment of $150.00, and his brother George Petyak the installment payments to the amount of $200.00.

Plaintiff, aged 76 years, of whom his counsel said in open court “I don’t say he didn’t get drunk now and then, but with the money he had he didn’t get drunk very often”, and of whom his daughter, defendant Veronica Hernandes, testified "had been going around with a young woman”, which was admitted as bearing upon his credibility, testified that he paid the payments on the mortgage to the amount of $375.00.

Veronica Petyak Hernandes testified that such payments on the mortgage were made by her brothers; that when she and Steve Petyak, who did not testify, accepted a deed to the property and executed the mortgage for the balance of the purchase price they “took it over for the purpose of making a home for your (her) father and mother”; and affirmatively answered the question of the trial judge “that was your only purpose, you didn’t buy the house because you wanted to own a home, but you wanted to buy it for the purpose of seeing your father and mother had a home to live in, that is your position”; and that her father could live in it as long as he desired; and that she had no objection to having the proceeds of the policy of insurance applied to the repair of the premises. The evidence is decidedly conflicting and contradictory, and in our opinion plaintiff has not shown us by the required degree of proof that he is entitled to have us engraft a trust upon the conveyance to Steve Petyak and Veronica Petyak Hernandes. The declaration of a trust must be contemporaneous with a deed.

Without further word this court finds as the court of common pleas found:—

“* * * that the plaintiff has failed to establish by clear and convincing evidence a trust in favor of plaintiff to the extent of an equitable ownership in fee in the premises described in plaintiff’s petition.
“* * * that Steve Petyak and Veronica Petyak Hernandes are the owners in fee simple of the property described in plaintiff’s petition having purchased said property on September 3, 1936, for the use and occupancy of Mike Petyak, their father for and during his natural life.
“* * * ^at on or about March 23, 1946, the defendant, Milwaukee Mechanics Insurance Company, issued to the defendants Steve Petyak and Veronica Petyak Hernandes, a policy of fire insurance bearing No. 2827 on the dwelling and garage situated on the land described in plaintiff’s petition. That on or about January 22, 1948 a fire occurred in said building causing certain damage for which said insurance company in open court through their attorney, James M. Modarelli, Sr., consents and agrees to pay the sum of Ten Hundred Seventy Dollars ($1070.00) being the amount of the loss.
“* * * that the Milwaukee Mechancis Insurance Company should pay the sum of Ten Hundred Seventy Dollars ($1070.00) representing the loss caused by fire to Steve Petyak and Veronica Petyak Hernandes and that they, Steve Petyak and Veronica Petyak Hernandes must repair the building that was damaged by fire with the money received from the insurance company to-wit: Ten Hundred Seventy Dollars ($1070.00)

An entry drawn in accordance with this finding may be presented for the signatures of the members of this court.

NICHOLS, J, BUCKLEY, J, concur in judgment.


author: By THE COURT:

text:
    De GARMO, Plaintiff-Appellee, v. De GARMO, Defendant-Appellant.
    Ohio Appeals, Second District, Champaign County.
    No. 118.
    Decided November 16, 1949.
    David W. Carter, William E. Bailey, Springfield, for plaintiff-appellee.
    Coughlin, Ogier & Lloyd, Columbus, for defendant-appellant.
   OPINION

By THE COURT:

This is an appeal on questions of law from the judgment of the Common Pleas Court of Champaign County, Ohio, which granted a decree of divorce to the plaintiff-appellee on the grounds of gross neglect of duty and extreme cruelty.

The appellant has not set forth specifically the errors assigned, but from the brief it appears that the errors complained of are: That the judgment is not sustained by sufficient evidence and that the court committed manifest error in finding that only one child was born as the issue of said marriage.

The plaintiff, in her amended petition, alleged that the defendant was guilty of gross neglect of duty and extreme cruelty. The terms "any gross neglect of duty" and "extreme cruelty" are not defined in the statute. What facts constitute gross neglect of duty or extremd cruelty in any given case must be left to the sound discretion of the court. In such matters the trial court may exercise a broad discretion. Coleman v. Coleman, 68 Oh Ap 410, 41 N. E. (2d) 734.

A reviewing court will not disturb the judgment of the trial court on the ground of insufficiency of the evidence unless it clearly appears that the conclusion reached cannot be supported by any rational view of the evidence. The trial court was required to weigh the evidence and was the sole judge of the credibility of the witnesses. A reviewing court will not reverse the judgment because the evidence supporting it seems open to suspicion or does not impress the reviewing court. 2 O. Jur. (Part 2), page 1154. If there is some evidence to sustain the judgment of the trial court it is the duty of the reviewing court to affirm the judgment.

After a careful examination of all the evidence in this case the Court concludes that the allegations in the plaintiff's amended petition were supported by some evidence and this Court is required to and does hereby affirm the judgment with respect to granting the divorce.

The plaintiff, in her amended petition, and the defendant, in his answer, alleged that two children were born as the issue of said marriage. The facts are uncontradicted. It appears that the first child was born three months prior to the marriage. However, the pleadings aiid the evidence clearly meet the requirements of §10503-15 GC. As a consequence, James De Garmo, the first child born, is a legitimate child of the plaintiff and the defendant, and the court should have so found.

Where the facts are undisputed the reviewing court, under the provisions of §12223-27 GC, may modify the final order. Coming now to make the order which the trial court should have made, this Court finds that two children are the legitimate issue of said marriage, James De Garmo, age thirteen years, and Sally De Garmo, age five years. Inasmuch as the court made no order respecting the support and custody of James De Garmo, the case is remanded to the trial court for a determination of this matter. An entry may be drawn accordingly.

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


author: By ROSS, PJ.:

text:
    CINCINNATI (City), etc., Plaintiff-Appellee, v. KELLOGG, City Manager et, Defendants-Appellees, and SHANNON, a taxpayer, Appellant.
    Ohio Appeals, First District, Hamilton County.
    No. 7159.
    Decided July 19, 1949.

      Henry M. Bruestle, City Solicitor, Robert White, Asst. City Solicitor, Cincinnati, for City of Cincinnati.
    J. B. Grause, Jr., Maurice W. Jacobs, Cincinnati, for W. R. Kellogg, et al.
    Taft, Stettinius & Hollister, Cincinnati, for The Cincinnati Street Railway Company.
    David L. Shannon, Cincinnati, for appellant.
   OPINION

By ROSS, PJ.:

Two appeals on questions of law, filed by a taxpayer, not a party to the original action filed in the Common Pleas Court of Hamilton County, have been attacked by motions to dismiss filed by defendants-appellees.

The first appeal filed by such taxpayer was from an order of the Common Pleas Court refusing to permit such taxpayer the right to intervene in an action, brought by the City Solicitor of the City of Cincinnati, at the request of such taxpayer, to enjoin giving effect to an ordinance passed by the council of such city. The general effect of such ordinance was to cause the city to assume the expense of the repair of portions of the streets in such city, which duty to repair had been previously placed upon The Cincinnati Street Railway Company, by a former ordinance of the city. By virtue of such latter ordinance, the Street Railway Company relinquished the right to increase fares conferred upon it by the former ordinance.

It is the claim of the taxpayer that such latter ordinance results in the unlawful payment of the funds of the city created by the receipt of taxes and that the latter ordinance creates a benefit for a selected group, to-wit: street car riders only.

The second appeal is from the final judgment of the Common Pleas Court sustaining a demurrer to the petition filed by such City Solicitor in such action, and dismissing the same.

This court in considering the motions to dismiss such appeals does not reach a review of the merits of the controversy involved in the final judgment of the Common Pleas Court.

The motion to dismiss the first appeal raises merely the question — whether the trial court committed error, prejudicial to the taxpayer appellant in refusing the taxpayer the right to intervene in the action brought by the City Solicitor at his request.

In Pierce, et al v. Hagans, 79 Oh St, 9, it is stated in the syllabus:

“A resident taxpayer, owning property within an incorporated village subject to be taxed for the support of the revenues of the village, in which village there is no solicitor nor other legal counsel whose duties require him, in the name of the corporation, to apply to a court to restrain the illegal use of the funds of the corporation, is not without legal capacity to maintain for himself and on behalf of the village, an action against the municipal authorities to enjoin the unauthorized expenditure of the funds of the village.”

This case is authority for the proposition that in the absence of statutory regulation, a taxpayer has a common law right to maintain an action to enjoin the misapplication of tax funds by a municipality.

See, also: 52 Am. Jur., p. 2 — “Taxpayers’ Actions,” Section 2, et seq. Also, City of Middletown, et al., v. The City Commission of Middletown, et al., 138 Oh St, 596. And at page 614 in the concurring opinion of Judge Turner, wherein Crampton v. Zabriskie, 101 U. S. 601, is cited, it is stated:

“ ‘On the right of resident taxpayers to invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of the county or the illegal creation of a debt which they in common with other property holders of the county may otherwise be compelled to pay, there is at this day no serious question.’ ”

In Middletown, et al. v. City Commission of Middletown, et al., supra, the Supreme Court was divided, Judge Weygandt and Judge Zimmerman concluded that the taxpayer was not even a proper party, even if the City Solicitor failed to vigorously prosecute the action. Such was the holding of this court in that case when before it. Judge Turner in his concurring opinion stated that the taxpayer had the right to intervene as a matter of right. See page 613, opinion. Judge Hart concurred with Judges Williams, Matthias, and Bettman, in holding the taxpayer was a proper party, but dissented on the merits of the case.

The result is that the Supreme Court has not passed upon the power of a taxpayer to intervene in such an action as is here considered as a matter of right.

As hereinbefore stated, this court is not now concerned with the merits of the taxpayer’s claim that he should have had the right to intervene. The effect of the motion to dismiss the appeal from the order refusing the taxpayer such privilege is to state that under no circumstances has he such right as such, although it is admitted that the court in its sound discretion under authority of Middletown, et al. v. City Commission of Middletown, supra, may admit him as a proper party. His right to intervene is predicated upon his position that he not only is a proper party, but is a necessary party, and the refusal of the court to permit his intervention constitutes error, prejudicial to him.

As stated by Judge Zimmerman, at page 602 of the opinion in Middletown, et al. v. City Commission of Middletown, supra, it seems that this is a matter for the legislature, rather than the courts.

“The writer’s position is that the General Assembly having within its prerogatives prescribed a definite and exclusive method of challenging the alleged wrongful conduct of municipal officers, the judicial branch of the government is not at liberty to substitute a different and conflicting plan. Legislation permitting a taxpayer to become an intervening party when the court believes the solicitor is not acting diligently or in good faith would no doubt be desirable, but the court has no right to supply any such deficiency.”

To the same effect is City of Lakewood, et al. v. Rees, et al., 51 Oh Ap 490, wherein Judge Lieghley stated at page 496 of the opinion:

“There is no principle or rule of equity that may be invoked. Equity follows the law. The legislature has prescribed the remedy. The right of the taxpayer has been restricted. When the solicitor substantially complies with the demand of the taxpayer, his conduct as a public official is not subject to supervision, control and repudiation by the taxpayer. Nor shall an apparent effort at substantial compliance with the demand be held to be no compliance to annul or remove the restriction imposed by statute. The legislature has provided and prescribed the remedy and recited no exception thereto.” (Emphasis ours.)

However, it is to be noted that — the circumstances of the case were therein taken into consideration and the court, as expressed in a concurring opinion, stated at page 498:

“While concurring in the judgment, we do not wish to be understood as announcing a proposition of law that in no case can the court allow intervention by a taxpayer in such action. A mere paper compliance by the Director of Law with the demand made by the taxpayer to file suit, is not sufficient compliance. The compliance contemplated by the statute is a substantial compliance, so that the court will have presented to it all the issues of law and fact in order that a full and complete adjudication may be had.
“In a proper case, the court may determine that a mere sham compliance by the Director of Law is no compliance with the demand of the taxpayer, in which event the court could allow the application of a taxpayer to intervene.”

In spite of the doubt thus thrown upon the proposition that a taxpayer has no right as such, under any circumstances, to intervene in a suit, wherein the City Solicitor has, at his request, brought an action to enjoin misapplication of public funds, this court concludes that no such right exists, that he is not a necessary party to the action, although he may be a proper party, and be permitted by the trial court, in its sound discretion, to intervene.

The conclusion upon the first appeal obviously disposes of the second appeal.

There is no right independent of statute to appeal in any case by anyone. There is no authority, certainly, justifying an appeal by one who was not a party to the action in the trial court, and thus having found that the trial court committed no prejudicial error in refusing the taxpayer the right to intervene, he stands as an oustider to the appeal from the final judgment, dismissing the action.

Before concluding, one final matter demands some statement. It is admitted by all parties that the taxpayer requested the City Solicitor to appeal from such final judgment, dismissing the action, and that the City Solicitor refused to appeal.

Do the provisions of §4314 GC, apply to an appeal?

It is the conclusion of the court that they apply to the three preceding sections only, each of which relates to the original action in the trial court, and cannot be extended by implication to an appeal.

The motion as to each appeal is granted.

The power of a taxpayer, as a matter of right, to intervene in the type of action here considered, not having been determined by the Supreme Court, and the members of that court, as constituted when Middletown v. City Commission of Middletown, 138 Oh St, 596, was considered, being in disagreement as to whether such taxpayer was even a proper party, and there being statements both in the opinion of Judge Lieghley and that of the concurring Judges in City of Lakewood, et al. v. Rees, et al., 51 Oh Ap 490 (see pages 497 and 498 of the opinion), and the Lakewood case being noted by Judge Turner in his concurring opinion in Middletown v. City Commission of Middletown, supra, at p. 610, it is the conclusion of this court that this is a matter of real importance to the taxpayers of this state, and that the conclusions reached by this court present sufficient conflict with those entertained by the Judges of the Eighth District, as expressed in the case of Lakewood v. Rees, 51 Oh Ap, 490, to justify certification of this case to the Supreme Court for conflict therewith.

ROSS, PJ, & MATTHEWS, J, concur in syllabus, opinion, judgment & certification. .

HILDEBRANT, J, not participating.