text:
    NATIONAL PETROLEUM PUBLISHING CO., Appellant, v. BOWERS, Tax Commr., Appellee.
    Board of Tax Appeals.
    No. 26537.
    Decided November 4, 1954.
    McAfee, Grossman, Taplin, Hanning, Newcomer & Hazlett. Russell C. Grahame, Cleveland, for appellant.
    C. William O’Neill, Atty. Geni., Jack H. Bertsch, Columbus, for appellee.
   OPINION

This cause and matter came on to be considered by the Board of Tax Appeals upon a notice of appeal filed herein by the appellant under date of May 27, 1954, from a final sales tax assessment order made against it by the tax commissioner under date of April 29, 1954, for the audit period January 1, 1949 to June 30, 1949. The order appealed from reads as follows:

“In the matter of Sales Tax Assessment, Serial No. B 4129 National Petroleum Publishing Co., 1213 W. Third St., Cleveland, Ohio; Vendor’s License No. 18-28706, 18-99994.
“This matter came on to be heard and the Tax Commissioner hereby finds that:
“M. E. Newcomer, Esq., 1500 Midland Bldg., Cleveland, Ohio; Mr. F. R. Emerson, Business Manager appeared for hearing at Cleveland, Ohio on Thursday, November 5, 1953.
“The Taxpayer objected to the amount of the sales tax deficiency as determined and assessed against it and on August 19, 1953 filed a Petition for Reassessment complaining as follows:
“(1) ‘Said assessment is erroneous, unreasonable, unlawful and discriminatory.’
“(2) ‘The Petitioner purchased the above mentioned zinc engravings and mats from N. E. A. Service, Inc., for use primarily and directly in the production of tangible personal property for sale by manufacturing, and therefore said purchases are not taxable under the Sales and Use Tax Act as “Retail Sales.” The Petitioner, The National Petroleum Publishing Company, as its name implies, is engaged in the business of manufacturing, publishing and distributing magazines for the petroleum industry. These magazines are manufactured and distributed by the Petitioner throughout the United States. The above mentioned zinc engravings and mats are used by Petitioner in the preparation of its editorial copy for publication purposes. An appropriate exemption certificate was furnished by Petitioner to N. E. A. Service Inc.’
“The assessee edits and publishes a Trade Journal, ‘National Petroleum News’; the assessee in connection with editing and publishing said issue, purchased engravings from N. E. A. Service, Inc., which it delivers to its printer (The Penton Printing Co.,) to be used by the latter in the printing of the journal. The sales were effected by N. E. A. Service, Inc., to assessee, sales tax exempt by reason of an exemption certificate furnished to the seller by the Assessee designating that the tangible personal property involved was to be used directly in manufacturing for sale.
“We are not in accord with the Assessee’s position as to the claimed exempt status of said purchases for the reason that assessee does not print said journal and therefore is not engaged in manufacturing for sale as defined in §5739.01 R. C.
“The sales tax as now imposed against the several transactions is properly issued and the assessment is held to stand in the amount of the sales tax deficiency as herein determined.
“The penalty is conditionally remitted in part.
“Therefore, it is the order of the Tax Commissioner that if payment of
Assessment Penalty Total
(Sales) $168.33 $8.42 176.75
is made within thirty (30) days from date of receipt by the taxpayer of the journal entry showing final determination, the assessment shall stand as adjusted in the above amount. In the event this matter is appealed to the Board of Tax Appeals or the Supreme Court, said thirty (30) day period shall begin to run from the date the entry of the Board of Tax Appeals is filed or the decision of the Supreme Court is rendered.
“If the total amount is not paid as above provided, the assessment shall stand as issued in the following amount:
Assessment Penalty Total
(Sales) $168.33 $25.25 $193.58”

The errors complained of by appellant, with respect to said final order, are as follows:

“1. That the Tax Commissioner erred in finding that the purchase by the Taxpayer of zinc engravings and mats from N. E. A. Service. Inc., for use in the business of manufacturing, publishing and distributing its trade journal ‘The National Petroleum News,’ does not have exempt status for the reason set forth in said findings that the Taxpayer does not print said Journal and therefore is not engaged in manufacturing for sale as defined in §5739.01 R. C.
‘‘2. That the Tax Commissioner erred in finding that the sales tax imposed by reason of the above-mentioned purchases was properly issued in the amount set forth in said findings.
“3. That the Tax Commissioner erred in not finding that the Taxpayer is the publisher of said magazine and hence the manufacturer thereof for purposes of sale, within the meaning of said §5739.01 R. C., and in not finding that the above mentioned purchases have exempt status under the provisions of said Section.
“4. That said Tax Commissioner erred in not finding that said Sales Tax Assessment is erroneous, unreasonable, unlawful and discriminatory, and therefore was improperly issued.”

The cause was submitted to the Board of Tax Appeals upon the notice of appeal, the transcript of proceedings before the tax commissioner, the evidence presented at a hearing before this board, and briefs of counsel.

The facts are not in dispute. During the period of the audit, National Petroleum, Publishing Company, an Ohio corporation with its office in Cleveland, Ohio, was engaged in collating and assembling news of the Petroleum industry into two periodicals, one of which, the National Petroleum News, is of concern here. In essential part. National Petroleum Publishing Company’s business consists of making a master layout of each issue of the National Petroleum News and forwarding it, along with certain plates, mats and printing instructions, to the Pen-ton Press in Cleveland, Ohio, which is the subsidiary of Penton Publishing Company and prints for magazine publishing houses regularly. Upon receipt of the printing instructions the Penton Press, with its own employees and own machinery and technical skill, prints the National Petroleum News in its marketable form. The printing is by contract with Penton Press and appellant has no control whatsoever over Penton's employees or the printing of the magazine, except however, that checks can be made by appellant to determine that the printing meets its quality and form specifications. Finished copies of the magazine were mailed to appellant’s subscribers by an agent of appellant, and any remaining copies were returned to National Petroleum Publishing Company for reserve. Monthly invoices submitted to appellant by Penton Press were broken down according to the various types of work done, but were paid in a lump sum.

Among the various materials supplied by appellant to Penton Press for the printing of the magazine, such as paper, envelopes, and mailing labels, were zinc engravings of news pictures to be printed in the magazine, and it is these zinc engravings which are the subject matter of the sales tax assessment here under consideration. The engravings were purchased by appellant from N. E. A. Service, Inc., and title to them remained at all times with appellant. In making an audit of appellant’s books, the sales tax examiner refused to grant National Petroleum Publishing Company an exemption for its purchases of zinc engravings on the ground that they were not directly used by appellant in manufacturing or processing.

The issue in this case may be stated as follows:

When zinc engravings are purchased by a publisher and supplied by the publisher to a printer for use by the printer in printing a magazine periodical for the publisher, are said zinc engravings used directly by the publisher in manufacturing or production of items of tangible personal property for retail sale so as to except said zinc engravings from the definition of “retail sale” as the same is found in §5739.01 It. c.?

Sec. 5548-1 GC (§5739.01 R. €.), reads in part as follows:

“As used in §§5739.01 to 5739.31, inclusive, R. C.:
“(A) * * *
“(B) ‘Sale’ and ‘selling’ include all transactions by which title or possession, or both, of tangible personal property, is or is to be transferred, or a license to use or consume tangible personal property is granted, for a consideration in any manner, whether absolutely or conditionally, whether for a price or rental, in money or by exchange, and by any means whatsoever; and include the production or fabrication of tangible personal property for a consideration for consumers who furnish either directly or indirectly the materials used in the production or fabrication work; * * *
“(E) ‘Retail sale’ and ‘sales at retail’ include all sales except those in which the purpose of the consumer is:
“(1) * * *
“(2) * * * to use or consume the thing transferred directly in the production of tangible personal property for sale by manufacturing, processing, etc. * *

From the evidence it seems clear to us that appellant publisher is a vendor making retail sales of items of tangible personal property (issues of National Petroleum News). It also seems clear to us that any items that appellant purchases to use directly in manufacturing, processing and printing its magazine are entitled to be purchased by appellant without the payment of sales tax upon presentation of the proper exemption certificate to its vendor. Apparently the tax commissioner does not disagree with this contention, and he says, in effect, that if the appellant had itself used and consumed the items in dispute in printing its magazine the tax would not apply but that since appellant hired someone else (Penton Press) to do its printing for it, it became liable for the tax when it turned possession of the zinc plates over to the printer.

In our opinion the tax commissioner’s interpretation of the statute in this case produces an unreasonable and illogical result.

From a reading of the entire statute relative to “retail sales” and “sales at retail” we conclude that there is no requirement that items of tangible personal property be actually physically used by the purchaser to bring the item involved within the exception noted in the statute, if, in fact, the item itself is actually used in manufacturing or processing some item of tangible personal property for sale.

In the brief filed on behalf of the tax commissioner it is stated:

“It is appellee’s position therefore that Penton Press was manufacturing or processing printed magazines for sale to National Petroleum and that National Petroleum was not using the engravings directly in any manufacturing or processing operation.”

As to this, we are of the opinion that Penton Press, in and by its transactions, does not sell magazines to National Petroleum Publishing Company. We are of the opinion that Penton Press merely furnishes a contract printing service to appellant for a lump sum consideration.

In the absence of evidence to the contrary we must assume that the tax commissioner has followed, until the assessment was made in the instant case, the advice given to him by the attorney general of Ohio in Opinion No. 4549 for the year 1935. The pertinent paragraph of this opinion reads as follows:

“The first question presented in your communication is with respect to the sale of an electrotype to a buyer for use by a printer or publisher in manufacturing or processing some article such as a catalogue, book or calendar for such buyer. Applying the principles of the statutory provisions here in question according to their manifest intent, and keeping in mind the principle or rule that what one does through another he does for himself, it appears that in the transaction first noted in your communication the electrotype was purchased with the intent and purpose on the part of the buyer to use or consume such property in manufacturing or processing and that the sale of the electrotype in this case is not subject to the tax provided for by this act.”

In this connection it is likewise noted that the provisions of §5623 GC (§5715.28 R. C.), read as follows:

“The department of taxation shall decide all questions that arise as to the construction of any statute affecting the assessment, levy, or collection of taxes, in accordance with the advice and opinion of the attorney general. Such opinion and the rules, regulations, orders, and instructions of the department prescribed and issued in conformity therewith shall be binding upon all officers, who shall observe such rules and regulations and obey such orders and instructions, unless the same are reversed, annulled, or modified by a court of competent jurisdiction.” We must also note that an administrative interpretation of a given law, while not conclusive, is, if long continued, to be reckoned with most seriously and is not to be disregarded and set aside unless judicial construction makes it imperative to do so. See State, ex rel. Automobile Machine Company v. Brown, 121 Oh St 73.

For the foregoing reasons we find for the taxpayer and it is considered and ordered that the final order of the tax commissioner herein complained of be, and the same hereby is, reversed.


source: Caselaw Access Project

author: By BELL, J.:

license: Public Domain

text:
    OHIO FARMERS INSURANCE CO., Plaintiff-Appellee, v. McNEIL, Defendant-Appellant.
    Common Pleas Court, Hamilton County.
    No. A-147409.
    Decided May 15, 1956.
    Fred L. Hoffman, for defendant-appellant.
    Edward J. Utz, for plaintiff-appellee,
   OPINION

By BELL, J.:

This case is in this court on appeal on questions of law. The case arose in the Municipal Court of the city of Cincinnati.

The plaintiff filed its petition and later an amended petition in which it is alleged, in substance, that plaintiff is a corporation authorized to write collision insurance in the State of Ohio. Some time prior to November 6, 1954, for a valuable consideration it had written and issued a certain policy of insurance wherein it agreed to reimburse the insured, Raymond Adams, for all damages sustained to a certain Buick automobile in excess of $50.00; that on November 6, 1954, the insured was operating the said automobile northwardly on Reading Road, a public thoroughfare in the city of Cincinnati; that the defendant was operating an automobile in a southerly direction on said Reading Road; that by reason of the negligence of the defendant (McNeil) a collision resulted; that the insured’s (Adams) automobile was damaged in the sum of $1,139.32. The plaintiff then alleges that it paid the insured (Adams) $1,089.02 and became subrogated to the claim of Adams against the defendant.

The prayer of the amended petition is for judgment in favor of the plaintiff against the defendant in the sum of $1,089.02. To that amended petition the defendant filed an amended answer and cross-petition. The answer contains three defenses: First, a general denial; second, that plaintiff is not the real party in interest; and third, that the negligence of the plaintiff’s insured (Adams) was the sole proximate cause of the collision.

By way of cross-petition the defendant sets forth that as a result of the collision, which he claims was caused by the negligence of the plaintiff’s insured he suffered bodily injuries, which injuries are set forth, and that he was damaged in the sum of $5,000.00. The prayer of the cross-petition is for judgment in that amount.

Thereafter, by agreement of counsel, a motion to strike the answer and cross-petition from the files was treated by the court as a demurrer. The court sustained the demurrer to the answer and cross-petition; defendant not desiring to plead further, the court dismissed the cross-petition at the defendant’s costs. Thereupon an appeal was taken to this court on questions of law.

This court concluded that there being no judgment in the Municipal Court against either party that the sustaining of the demurrer to the cross-petition was not such a final order under the circumstances above set forth as to afford the defendant a right to appeal on questions of law. To that ruling the court still adheres.

Application was made for a rehearing which was granted, the court desiring to hear counsel on the question of whether, when a cross-petition was filed praying for a sum of money in excess of $2,000.00 it did not become the duty of the Municipal Court to forthwith certify the cause to this court for final determination. After the rehearing the court has concluded that the jurisdictional question is of paramount importance.

If it be assumed that the Municipal Court had jurisdiction to pass upon the demurrer the court erred in failing to sustain the demurrer to the amended petition. However, in view of the conclusion reached on the question of paramount importance that error is merely mentioned in passing.

The paramount question may be stated thus: Did the Municipal Court have jurisdiction to decide the question raised by the demurrer?

Subsection (E) of §1801.22 R. C., the present enactment with reference to certification of certain cases to the Court of Common Pleas, became effective after the repeal of §1558-10 GC.

By §1558-10 GC, it is enacted:

“When the amount due to either party exceeds the sum for which the Municipal Court is authorized to enter judgment, such party may remit the excess, and judgment be entered for the residue. A defendant need not remit such excess, and may withhold setting it out. A recovery for the amount set off and allowed, or any part of it, shall not be a bar to his subsequent action for the amount withheld.”

That section was interpreted in at least three cases which arose in this county.

In Chambers, d. b. a. Radio Supply Co. v. Industrial Condenser Corp., 31 O. O. 154, it was held that under §1558-10 GC, the defendant had a right to proceed in accordance with the provisions of that section or to elect not to assert his claim in the Municipal Court but file a separate action in a tribunal having adequate jurisdiction to consider and determine his rights.

In Braun v. Pociey, 18 Oh Ap 370, decided by the Court of Appeals of this district, the court passed upon that same statute and held that where the defendant set up his claim in the Municipal Court for a sum of money in excess of that court’s jurisdiction a motion to certify was properly overruled.

In Oglesby Granite Quarries v. Schott Monument Co., 4 O. O. 289, also decided by the Court of Appeals of this district, it was held that:

“Where counter-claim and set-off is filed in excess of the jurisdictional amount, under the provisions of §1558-10 GC, the court has jurisdiction of such counter-claim or set-off to the limit of the jurisdictional amount and may render judgment for that amount.”
“In such a case the defendant is not required to waive the excess. The judgment would not be a bar to a subsequent action to recover the excess.”

Under the provisions of §1558-10 GC, a defendant who had a counterclaim, in which the prayer was for a sum of money greater than the jurisdiction of the court, would either be compelled to file a separate action or split his cause of action in order to receive relief.

The legislature, apparently to correct that situation, repealed §1558-10 GC, and passed what is now subsection (E) of §1901.22 R. C. Subsection (E), insofar as it is pertinent here, reads as follows:

“In any action in a municipal court in which the amount claimed by any defendant in any statement of counterclaim exceeds the jurisdictional amount, the judge shall certify the proceedings in the case to the common pleas court.”

It should be noted that the language of subsection (E) of §1901.22 R. C., is entirely different from the language of §1558-10 GC, and it is clearly manifest that the legislature intended by such subsection to change the procedure in this class of cases.

It is perfectly plain that where a defendant files a claim for an amount in excess of $2,000.00 (the jurisdictional limit of the Municipal Court of Cincinnati) it becomes the mandatory duty of that court to certify the entire case to the court of common pleas for determination.

Therefore, when the defendant filed the answer and cross-petition for personal injuries growing out of the same transaction which was the subject of the plaintiff’s petition, the Municipal Court should have immediately certified the cause to the common pleas court for determination. This construction placed upon subsection (E) of §1901.22 R. C. gives effect to the plain language of the section and works toward the orderly administration of justice.

The law frowns upon multiplicity of actions. Under subsection (E) as presently in force, a defendant can file his cross-complaint in the court wherein plaintiff seeks redress and if such cross-complaint is for a sum in excess of the jurisdiction of the Municipal Court, the entire matter is certified to the Court of Common Pleas and there determined in one action.

Under §1558-10 GC, a plaintiff having a claim less than $2,000.00 could by his choice of the forum for trial force a defendant having a cross-complaint in excess of $2,000.00 into a multiplicity of actions. Defendant was forced in such case either to defend plaintiff’s action in the Municipal Court and file his complaint in a separate action, or file his cross-complaint in the Municipal Court and thereafter bring a separate suit for any excess over and above the jurisdictional amount of such court. That is the situation which was cured by the passage of subsection (E) of §1901.22 R. C.

Entertaining these views, it follows that the judgment of the Municipal Court sustaining the demurrer to the cross-petition of the defendant and dismissing such cross-petition should be and hereby is reversed and the cause is remanded to the Municipal Court with instructions to set aside the entry sustaining the demurrer and dismissing the cross-petition and directing that court to follow the provisions of subsection (E) of §1901.22 E. C., and certify the cause to the Common Pleas Court for determination.


author: By THE COURT.

text:
    SOCOTCH, In re, Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5005.
    Decided November 2, 1953.
    Isadore Topper, Brooke Alloway, Columbus, William J. Kraus, Cleveland, for appellant.
    Hon. C. William O’Neill, Atty Geni., Robert E. Leach, Special Counsel, Robert B. Rady, Asst. Atty. Geni., Columbus, for Board of Liquor Control of the State of Ohio.
   OPINION

By THE COURT.

This is an appeal from an order of the Common Pleas Court dismissing appellant’s appeal from an order of the Board of Liquor Control, affirming an order of the Department of Liquor Control refusing to renew and issue a D-5 permit to appellant bn her application therefor.

Three errors are assigned, first, failing to consider the appeal on its merits; second, failure to reverse the order of the Board of Liquor Control; and, third, in dismissing the appeal.

The dismissal of the appeal by the Common Pleas Judge was based upon the conclusion that the same subject matter between the same parties was pending in the Court of Appeals of Franklin County on review of an order of the Common Pleas Court in a contempt proceeding requiring the D-5 permit of appellant to be granted which is the same relief sought by appellant in the instant case.

Strangely enough, the parties are in agreement that the Common Pleas Court has jurisdiction to hear and determine the appeal which was dismissed. They differ, however, in their reasons. Counsel for the Board insist that the Court from which the contempt citation issued had no jurisdiction to determine the question which is presented on the appeal from the Board, and, therefore, the appeal should properly proceed in the Common Pleas Court. The appellant maintains that she is entitled to all the relief sought in the contempt proceeding but that possibly, she might be mistaken; that the Court might hold against her in that proceeding and, if so, she is entitled to be heard on her appeal and to the relief there sought.

We are in agreement with the conclusion that the Common Pleas Court should hear and determine the appeal. This is true for at least two reasons: First, the proceedings in contempt and the appeal are not inconsistent in the remedies sought. Second, the statutory proceeding covering the appeal requires the Common Pleas Court to hear and determine that appeal.

There is no doubt that the order of the Board of Liquor Control is a final order, that it is appealable and that the proper steps have been taken to perfect the appeal. This being true, the applicable Section, §154-73 GC, requires that the Court shall conduct a hearing on such appeal “and shall determine the rights of the parties in accordance with the statutes or other law applicable to such action.” Manifestly, to maintain orderly procedure and to comply with the mandate of the statute the appeal should be determined without respect to the pendency of the contempt proceedings. If in the contempt citation, it was held that Socotch was entitled to the relief sought, the appeal should have been considered and determined in the light of that adjudication. If to maintain comity between coordinate branches of the court the judge hearing the appeal felt constrained to follow the order in the contempt proceeding, then the Board should have been reversed and the Department directed to issue the permit, as requested. In view of the provision of §154-73 GC that the hearing on the appeal shall have preference over all other civil cases, we know of no way that the Common Pleas Court could have deferred the hearing to await the action of the upper court on the appeal in the contempt case.

In case No. 4934, Socotch v. Krebs et al (67 Abs 197), opinion released today, we have determined that the Court did not have jurisdiction in the contempt citation to reach the question involved on the appeal.

The dismissal of the appeal had the effect of an affirmance of the action of the Board in refusing the issuance of a permit to appellant although at that time the order of the Common Pleas Court in the contempt citation directed the Department to issue the permit as applied for.

The first and third branches of the assignments of error will be sustained. The second will be overruled.

The order of the Common Pleas Court will be reversed and the cause remanded for further proceedings according to law.

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


author: By HORNBECK, J:

text:
    CAMPBELL et, Plaintiffs-Appellees, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA et, Defendants-Appellants.
    Ohio Appeals, Second District, Darke County.
    No. 737.
    Decided December 13, 1955.

      Spidel, Staley & Hole, Greenville, for plaintiffs-appellees.
    Myers, Mills, Boesch & Cline, Dayton, for defendants-appellants.
    Anthony A. McCarthy, Dayton, for The Prudential Insurance Co. of America, defendant.
    (CONN, J, of the Sixth District, sitting by designation in the Second District.) -
   OPINION

By HORNBECK, J:

This is an appeal on questions of law from a judgment of the Common Pleas Court in favor of plaintiffs-appellees to the effect that they were entitled to the proceeds of a certain policy of insurance on the life of their father, William Emerson Campbell, deceased.

Four errors are assigned:

1. Overruling special demurrer of defendant, Virginia P. Campbell challenging the jurisdiction of the court of her person and of the subject matter of the suit because the cause of action involved is the same subject matter as was pending in the Common Pleas Court of Montgomery County, Ohio.

2. For error in the refusal of the court to admit testimony offered by defendant-appellant, Virginia P. Campbell.

3. The judgment of the court was contrary to the evidence and against the manifest weight of the evidence.

4. The judgment was not sustained by sufficient evidence and was contrary to law.

For an appreciation of the question raised by the special demurrer, we set out chronologically the substance of the pleadings when and where filed.

On February 24, 1953, plaintiffs filed their petition. The one defendant named was The Prudential Insurance Company of America. It plead issuance of a policy in the sum of $1000.00 upon the life of William Emerson Campbell, whose first wife was cleo Bessie Campbell, and second wife, Virginia P. Campbell. Further averred that on February l, 1946, the insured and his wife, Cleo Bessie Campbell, entered into a separation agreement wherein it was provided that the insured should maintain the policy, and name as beneficiaries his three children, the plaintiffs, and further that said agreement was incorporated into and made part of a decree of divorce in the Common Pleas Court of Darke County, Ohio. That, contrary to the agreement, insured caused the beneficiaries in the policies to be changed to some person or persons whose names were unknown to plaintiffs. That the insured had died and that the defendant company threatens to pay the proceeds of the policy to others than the plaintiffs; that if it does so, plaintiffs will be irreparably injured.

The prayer of petition was that defendant be enjoined from paying the proceeds of the policy to anyone until it is determined who is entitled to the same, and for such other and further relief as they may be entitled to in the premises.

The insurance company was served with process and on April 11, 1953 answered, admitting issuance of the policy pleaded in the petition. Further, on March 30, 1953, Virginia P. Campbell, the designated beneficiary under the policy at the time of the death of the insured, filed her petition in the Common Pleas Court, Montgomery County, seeking payment as beneficiary under the terms of said policy. Defendant then admits its liability in the amount of $936.98, being the amount due on the policy and its willingness to pay the same to the proper parties upon determination by the court.

Defendant, Virginia P. Campbell, on March 30, 1953 instituted her action against the insurance company only, as defendant, in the Common Pleas Court, Montgomery County, Ohio, averring that she was the beneficiary under the policy, that it had been delivered to the insurance company, that she understood a check had been written for the proceeds of the policy, and praying either that check be turned over to her or the proceeds of the policy be paid to her, upon failure of which she receive judgment in the amount due under the provisions of the policy.

On April 13, 1953, the company answered the action in Montgomery County, substantially as in their answer to the suit instituted by the plaintiffs in Darke County, with the additional averment of the action in Darke County and the restraining order that had there been issued.

Thereafter, on April 14, 1953, plaintiffs moved to make Virginia P. Campbell a party defendant. This motion was granted and on April 29, 1953, plaintiffs filed their amended petition, upon which summons was issued to Virginia P. Campbell and service made upon her.

The amended petition set forth substantially the same subject matter as the original petition, with the further averment respecting the institution of the suit by Virginia P. Campbell in Montgomery County, Ohio. The prayer of the amended petition was that the insurance company be ordered to deposit with the Clerk of Courts the amount due under the policy, and determination be made as to who was entitled to the fund, and for such other further relief as plaintiffs may be entitled in the premises. To this amended petition, Virginia P. Campbell filed her special demurrer, without entering appearance, and challenged the jurisdiction of the court of the subject matter of the claim and of her person and asserted that a cause of action involving the same subject matter “is now pending in the Common Pleas Court of Montgomery County, Ohio.”

The special demurrer was overruled. An attempt to prosecute an appeal from this order was made but the appeal was dismissed.

Thereafter, defendant, Virginia P. Campbell, answered admitting the corporate capacity of the insurance company, the issuance of the policy, marriage of the insured to Cleo Bessie Campbell, the divorce, averring the subsequent marriage of the insured and defendant; that she was the beneficiary of the policy duly designated by the insured, asserting that in the divorce action The Prudential Insurance Company was not made a party, and that the company had no notice of the separation agreement or the decree of the court. That the first knowledge she had of the claim of plaintiff was when the insurance company was served with a restraining order in this action. She prayed that the cause of action be dismissed and restraining order held for naught. To this answer, plaintiffs filed a reply in the form of a general denial The cause was tried to a judge of the Common Pleas Court of Darke County, Ohio, who rendered judgment for the plaintiffs. From this action the appeal is prosecuted and the assignments of error heretofore stated set up.

Upon the first assignment of error, it was the claim of the appellant in the special demurrer that the Common Pleas Court of Darke County , had neither jurisdiction of subject matter of the suit, nor of the person of defendant, Virginia P. Campbell.

The original action in this case was instituted before the action in Montgomery County. In both suits, there was but the one defendant, the insurance company. Service was had upon the insurance company and the answer made by it in the instant action before it answered to the action in Montgomery County. By its answer in Darke County it stated a purpose to subject the proceeds of the policy to the order of the Common Pleas Court of Darke County, and waived all rights that it had to insist upon strict compliance with the terms of the policy as to designation of beneficiary. In the subsequent answer to the action in Montgomery County, it took a like position.

In our judgment, the answer to the first petition in Darke County, before the institution of the action in Montgomery County, though not strictly the placing of the proceeds of the policy in custodis legis, to all intents and purpose had that effect. The prayer in plaintiff’s petition could have been in the alternative for a judgment against the company and defendant Campbell, could properly have been made a party to the action. It was averred that others than the plaintiffs, whose identity was unknown, were making claims to the benefits under the policy. Had defendant Campbell then been known as the named beneficiary in the policy, and had she then been joined as party defendant, the service on the insurance company would have been sufficient to establish the jurisdiction of the Darke County Court. Totten, et al. v. Lawton, et al., 8 O. C. C. 377. When it developed that.Virginia P. Campbell was designated as beneficiary, and none of the parties plaintiffs were parties to the action in Common Pleas Court, Montgomery County, the amended petition was filed in which she was named as party defendant and served with process.

In receivership cases where there is conflict of two coordinate courts as to the jurisdiction over the property, it is the universal rule that the tribunal must prevail in which jurisdiction first attaches by the seizure and custody thereof under its process. 34 O. Jur. 1001.

Inasmuch as the proceeds of the policy were first subjected to the order of the Darke County Court, defendant Campbell, if a claimant thereto, was required to establish her rights to said proceeds in the action by the plaintiffs before she would be entitled thereto. McDonald v. McDonald (Ala.), 36 A. L. R. 762.

The subject matter of the suit was within the jurisdiction of the Darke County Common Pleas Court, and the plaintiff was properly made a party and the court had jurisdiction of her person.

The second assignment of error is directed to the refusal of the court to admit certain testimony proffered by defendant, Virginia P. Campbell.

Vassa M. Phipps, a sister of defendant, Virginia P, Campbell, and a sister-in-law of the insured, had testified that after the death of insured she had taken the policy to The Prudential Insurance Company; she said that she knew that the policy was on the life of William Emerson Campbell and that her sister, Virginia P. Campbell, was the beneficiary therein, and that the matter was discussed with the insured at the hospital. This question was then put;

“Q. Now, having that knowledge did you do anything as far as the funeral arrangements were concerned?”

Upon objection, the court refused to receive the testimony. Mr. Cline stated:

“Your Honor, we want to show that an innocent party obligated themselves on the basis of the information contained on said policy: and that further she not only obligated herself, she has paid the funeral bill for which she would not be responsible as far as relationship is concerned.”

She was then asked at what funeral home she made arrangements; she said the Hoyne Funeral Home, she made arrangements on East Third Street; that other members of Mr. Campbell’s family were there when the arrangements were made. Then she was asked to tell the court what happened. “Whether or not she obligated herself for the payments of funeral expenses of William Emerson Campbell.” The court refused to permit these questions to be answered. This proffer was made: “If the witness were to answer, she would have said ‘Yes.’ ” That is to say, that she obligated herself for the payment of the funeral expenses of William Emerson Campbell, and offered to show the amount which she had paid in the sum of $595.63.

It may be observed that the witness was not a party defendant, and asserted no claim to any of the proceeds of the policy; neither does defendant, Campbell, plead such a claim in any manner whatever. There is nothing in the testimony which was proffered which would require the conclusion there was any contract between the insured, the named beneficiary, his second wife, and the witness whereby upon the consideration of her paying the funeral expenses, she was to be reimbursed from the proceeds of the policy. Hud $11 the testimony been admitted. it would not have attained the degree of proof which would have shown that the witness, an innocent party, was misled by the insured and the ostensible beneficiary to advance money on the security of the policy and thereby have estopped the plaintiffs from asserting their claim to the full proceeds of the policy. See Clark v. Callahan, 105 Md. 600, 10 L. R. A. (N. S.) 616; Hutchins v. Miner, 46 N. Y. 456; LeGrand v. LeGrand, 178 S. C. 230; 102 A. L. R. 582; Bardin v. Moore, 85 N. H. 362, 83 A. L. R. 62.

We come, then, to the last assignments of error. The order is not supported by the evidence, is contrary to the manifest weight thereof, and contrary to law.

Upon these assignments of error we might well adopt the opinion of Judge Riegel, with which we are in accord.

Upon the ultimate question in this case, the equities are clearly with the plaintiffs. The separation agreement by which the insured agreed to keep the policy in force for the benefit of his children was supported by a valuable consideration, and thereafter carried into a formal decree of the court in the divorce action. By this agreement and this decree, the insured estopped himself from invoking the priviiege of changing the beneficiary under the policy as fully as if his designation of the plaintiff was set forth in an irrevocable clause in the policy. The beneficiaries were changed in accord with the agreement and the decree. When, then, the insured violated his obligation, it was without effect unless an innocent party by reason of the action of the plaintiffs was misled and damaged thereby. It does not definitely appear how the insured came into possession of the policy, which had been left with legal counsel for the plaintiff. He testifies that it was removed from his files without his consent or authorization. It does not appear that the second wife, defendant, Campbell, who no doubt was an innocent party, advanced any consideration which would cause her rights to the proceeds of the policy to rise any higher than those of the insured under whom she claimed.

The trial judge properly held that the action of the insured in changing the beneficiary constituted fraud against the plaintiff.

The only question of substance in this case is raised upon the special demurrer to the amended petition. The cases cited by appellant, Saben v. Grand Lodge of A. O. U. W. of New york, et al., 8 N. Y. Sup. 185. 31 N. E. 1087 and Shoudy v. Shoudy, 55 Colo. App. 447, 203 Pac. 437, are not parallel in the facts to those presented on this appeal. The case of Atkinson v. Metropolitan Life Ins. Co. et al, 114 Oh St 109, is authority for the right of the insured to change the beneficiary under a policy insuring his life. It has application only to the basic right of the insured, uninfluenced by any contract or decree altering that right. This case is also authority for the right of the defendant insurance company in this case to waive the provisions in the policy regulating the mode and manner of making a change of beneficiary. Fourth Syllabus.

We find no error assigned' well made. The judgment will therefore be affirmed.

MILLER, PJ, CONN, J, concur.


author: Per CURIAM.

text:
    METAL TRIMS, INC., Plaintiff-Appellee, v. STORM MASTER CORPORATION, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3588.
    Decided March 24, 1954.
    Max Braunstein, C. J. Hoyt, for plaintiff-appellee.
    Sidney Rigelhaupt, for defendant-appellant.
   OPINION

Per CURIAM.

Plaintiff sued defendant in the court of common pleas to recover $1100.00, the amount alleged to be due upon an account for dies ordered by defendant from plaintiff and made for defendant to its specifications in accordance with an agreement entered into between the parties.

The amended petition of plaintiff alleged an action on an account. The defendant filed his general denial after admitting the corporate capacity of the parties, whereby the burden of proof was upon plaintiff to prove the allegations of the amended petition.

The evidence indicates that by the terms of an agreement entered into between plaintiff and defendant at the time such dies were ordered the defendant would not be required to pay for the same if it purchased from plaintiff 50,000 pounds of extrusions (aluminum) from each die, within a year after their completion; although defendant’s answer contained no affirmative allegations of that kind.

The case came on for trial, and at the conclusion of plaintiff’s opening statement defendant moved for a verdict to be directed in its favor on the ground there was a variance between the amended petition and the statement of counsel for plaintiff, it being claimed that plaintiff in such statement changed the character of the action from one upon an account to one for damages for breach of contract. The trial judge overruled that motion. The opening statement of plaintiff did not change the character of the action from one on account to one for damages for breach of contract. The trial court was not in error in overruling such motion. The case proceeded to trial, the jury returned a verdict for plaintiff, upon which the trial judge entered judgment.

Defendant appealed to this court on questions of law from that judgment.

By assignments of error defendant urges that the trial court erred “in overruling the motion of appellant to direct a verdict for the appellant at the close of the opening statement of the appellee; at the close of the testimony of the appellee; at the close of all of the testimony”; erred “in the admission of testimony offered by the appellee to which admission the appellant duly objected”; erred “in its charge to the jury on the trial of said action”; and contends that “the verdict of the jury is against the manifest weight of the evidence,” and “contrary to law”; that the court erred “in overruling the motion of appellant for a new trial”; and that there are “other errors apparent upon the face of the record.”

There is no dispute in the evidence that defendant ordered and the plaintiff furnished defendant with ten dies at the price of $110.00 each. Nor is there any dispute in the evidence that defendant did not have to pay for the dies if it ordered extrusions from each die in an amount agreed upon.

The only dispute is whether it was 50,000 pounds or 30,000 pounds the defendant was to order from each die. There is no dispute as to the amount defendant was to pay for the dies, to-wit $1100.00, if it failed to order the amount of extrusions agreed upon.

In our judgment the action was one upon an account conditioned that the defendant would not have to pay for the dies if within one year defendant ordered 50,000 pounds or 30,000 pounds of extrusions. It is immaterial which quantity was agreed upon, since the evidence clearly shows that only a much lesser quantity than 30,000 pounds was actually delivered by plaintiff to defendant.

The issue between the parties to this lawsuit was, as stated by the trial court, a very simple one. On the one hand, the plaintiff claimed that the defendant had not ordered the amount of extrusions agreed upon as the condition excusing defendant from paying for the dies. On the other hand, the defendant claimed and offered testimony that it did order the amount of extrusions agreed upon and that the plaintiff failed and refused tp deliver the same. Thereby the only question for the jury from the evidence was to determine which claim the jury would believe, the evidence being in conflict upon that single disputed question of fact.

In his general charge to the jury the trial judge said: “When the stories of two witnesses are different, you have got to believe somebody.”

Defendant claims this was an erroneous charge which misled and confused the jury to its prejudice, and conflicted with the later charge of the trial judge as follows:—

“You can believe all a witness says or you can disbelieve it all or believe it in part only, that is your function to determine the questions of fact.”

Read in connection with the entire charge we do not find that the jury was misled, nor that the court committed prejudicial error in telling the jury it had to believe somebody. We have carefully read the charge of the court to the jury and find no prejudicial error resulting therefrom.

We have also considered all of the other errors assigned by appellant, and find none so prejudicially erroneous as to require a reversal of the judgment in this case.

As stated above, this action was one upon an account, and the fact that the parties agreed that the defendant was not to pay for the dies under certain conditions did not change the nature of the action from one upon account to one for damages for breach of contract.

It appearing that substantial justice has been done in the common pleas court the judgment of that court must be and is affirmed. Judgment affirmed.

GRIFFITH, PJ, PHILLIPS and NICHOLS, JJ, concur.


author: By MILLER, Circuit Judge.

text:
    WILLIAMSON v. JONES & LAUGHLIN STEEL CORP.
    United States Court of Appeals, Sixth Circuit.
    No. 11916.
    Decided May 31, 1954.

      Mortimer Riemer, Smoot & Riemer, Cleveland, on the brief, for appellant.
    James Butler, Bulkley, Butler & Rini, Cleveland, on the brief, for appellee.
    Before MARTIN, McALLISTER and MILLER, Circuit Judges.
   OPINION

By MILLER, Circuit Judge.

Appellant, Rex Williamson, brought this action in the District Court on account of injuries received while working in the mill of appellee, Jones & Laughlin Steel Corporation, in Cleveland, Ohio. At the close of appellee’s ease, the District Judge sustained appellee’s motion for a directed verdict, and ordered the complaint dismissed.

On March 29,1949, appellant was working as an electrician for Dingle-Clark Company, which was making, under contract with the appellee, certain electrical repairs and installations in appellee’s mill. He was engaged with his helper, Clinton Edwards, in installing .one inch conduit pipe on the ceiling of the basement of the motor room in appellee’s blooming mill. He was working in a section of the basement about 10 feet wide and 40 feet long which contained electrical equipment essential to the operation of the mill. He was running the conduit immediately above a battery of power transformers, oil switches, and two potential transformers which were affixed to a steel pipe rack about five feet above the floor and 48 inches apart. The two potential transformers were connected by electrical cables and wires to the oil switches and the power transformers and had open fuse clips which were dangerous to touch. The potential transformers carried 6,600 volts.

Appellant was preparing to hold a strap to be welded to an overhead cast iron I-beam, which extended about 8 inches below the ceiling, to support the conduit pipe. He climbed on a wooden scaffold which was about four feet off the ground, and placed himself at a point midway between the potential transformers with his back against an abutment in the wall of the building. Because the ceiling was only 10 feet above the floor he was unable to stand erect. He squatted on his left foot, which he placed on the pipe rack and placed his right foot on eight temporary insulated cables which were strung across the horizontal members of the pipe rack. He grasped the conduit pipe in his left hand and lifted it toward the overhead I-beam. He held the strap in his right hand which was to be welded to the I-beam by Jarvis Street, another employee of Dingle-Clark Company. The appellant’s testimony at this point was— 'T took the strap, I had the strap in my hand, I put my thumb against the conduit that was coming across the beam, put the bracket up over the top of the beam and pushed the pipe up and that’s the last thing I knew.” He also testified as follows:

“Q. All right. Now, you reached up, you testified, and you received the shock, then what happened? A. The next thing I knew I was hanging head down, and my hands would almost touch the floor.
“Q. Where were your feet? A. This fellow had me by the ankles.
“Q. And was he up on the ladder? A. He was on his ladder.
“Q. And he was holding your ankles, your head was down and your hands were dangling almost to the floor? A. Almost, a couple of inches.”

He also testified that before the accident no part of his body was in contact with the potential transformers, and that there was no way in which his foot or leg or other part of his body could have touched either potential transformer. Three fingers of his left hand were burned.

Clinton Edwards testified that the appellant’s right foot was more or less just as a support on the cable, and that there was no sag or give to the cable. Also, that in getting himself into position it was not necessary for the appellant to come up closer to the fuse clip because he could raise upright from his position directly under the I-beam.

Jarvis Street testified that his job was to go up and weld the pipe clip to the I-beam while the appellant held it in place; that he was about to start up the ladder when he saw a blue flash of light from electricity; that he looked up under the ceiling of the room and saw the appellant slumped over to the side with his hand up and realized that he was in trouble. This testimony then followed:

“Q. Let me interrupt for a minute. Where was this flash or blue arc you saw? A. From the ceiling.
“Q. Now, say that this is the wall behind me, with my back against the wall. When you looked up after seeing the flash how was Williamson? A. Slumped way over to the left.
“Q. Slumped over to the left? A. With his one hand up in the air.
“Q. One hand was still up in the air? A. Up on the ceiling, way up.
“Q. Up on the ceiling? A. Yes, he was hanging on.
“Q. Which hand was up on the ceiling, the right hand? A. Left.
“Q. The left hand was still up on the ceiling. A. Yes.
“Q. Against the I-beam, I guess, you mean. A. He had a one-inch pipe, he was holding the strap up, so that was probably it. I don’t know what he exactly had hold of.
“Q. But he was still with his hand up and his body hung over like that? A. Yes, sir.
“Q. What did you do then? A. I’m thinking. I yelled for help and started up the ladder, and while I was going up the ladder there was another flash and he fell down against the potentials on the transformer.
“Q. Those are the potential tranformers, you mean, that he fell across? A. Potential, yes, the potential transformer; yes, sir.
“Q. Did he fall across the one to his left or the one to his right? A. To his left.”

The complaint alleged that contrary to its duty to provide a safe place in which the appellant could work, the appellee failed to do so and allowed its equipment to become worn out and defective, negligently failing to provide safeguards to handle and control the high voltage electric current flowing through its equipment, and that the appellant received severe injuries from an electrical shock caused by the electrical faults in appellee’s worn out and defective equipment.

The District Judge was of the opinion (1) there was no evidence of negligence on the part of the appellee which directly or proximately caused the accident and injuries to the appellant, and (2) the case was not one in which the doctrine of res ipsa loquitur was applicable. He expressed the view that there was a safe way and an unsafe way in which the appellant could have done the work he was attempting to do; that, in his opinion, it was a most hazardous effort for the appellant “to have placed himself between two potential transformers which he knew were carrying 6,600 volts of electricity and undertake to crouch on on a steel rack with his left foot and with his right foot on a movable cable and thus balance himself while he reached his left hand up to make a weld with a conduit against the girder above his head.” He thought it was more probable that the accident happened because of the gross negligence on the part of the appellant than because of negligence on the part of the appellee. However, he made it clear that he was not basing his ruling upon a finding that the appellant was guilty of contributory negligence, stating that if the case had reached that point he would have submitted such an issue to the jury.

We agree with the view of the District Judge that the evidence was insufficient to sustain the allegations of specific acts of negligence on the part of the appellee. The point involved in this appeal is whether the case should have been submitted to the jury under the doctrine of res ipsa loquitur. '

It is settled under the Ohio decisions that the doctrine of res ipsa loquitur does not have to be pleaded and that the plaintiff does not waive the right to invoke the doctrine by pleading and unsuccessfully attempting to prove particular acts of negligence. Fink v. New York Central R. Co., 144 Oh St 1, 7, 28 O. O. 550, 56 N. E. 2d 456.

It is also well settled under the Ohio decision that the res ipsa loquitur doctrine is applicable in actions based on negligence on the part of the defendant. Weller v. Worstall, 129 Oh St 596, 3 O. O. 12, 196 N. E. 637. As stated in Fink v. New York Central R Co. supra, 144 Oh St 9, 28 O. O. 553, 56 N. E. 2d 460, “* * * this court has consistently held that the rule of res ipsa loquitur is a rule of evidence which permits the jury, but not the court in a jury trial, to draw an inference of negligence where the instrumentality causing the injury is under the exclusive management and control of the defendant and an accident occurs under such circumstances that in the ordinary course of events it would not occur when ordinary care is observed. It is an evidential inference, not controlling upon the jury but to be considered by it under proper instructions by the court.” The rule has been well expressed by the Supreme Court in Sweeney v. Erving, 228 U. S. 233. 33 S. Ct. 416, 418, 57 L. Ed. 815, as follows: “In our opinion, res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient: that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict.”

The District Judge declined to apply the doctrine in the present case because he construed certain decisions of the Ohio Supreme Court as holding that the doctrine was not applicable in a case where all the facts connected with the accident fail to point to the negligence of the defendant as the proximate cause of the injury but show a state of affairs from which an inference could as reasonably be drawn that the accident was due to a cause or causes other than the negligent act of the defendant. Loomis v. Toledo Railways & Light Co., 107 Oh St 161. 140 N. E. 639; Cleveland Ry. Co. v. Sutherland, 115 Oh St 262, 152 N. E. 726. As pointed out hereinabove, he was of the opinion that it was more reasonably probable that the accident happened because of the gross negligence on the part of the appellant than because of any negligence on the part of the appellee.

We are of the opinion that this was not the proper construction to be given to those cases. The court was not considering the effect of contributory negligence on the part of the plaintiff, which is not involved in this initial phase of the case dealing only with negligence on the part of the defendant. In the Loomis case, the evidence showed that there was a reasonable probability that the accident was caused by a severe and extraordinary storm amounting to a vis major. In the Sutherland case, in which a pedestrian was injured by broken glass falling from a window of a car of the defendant Railway Company, the evidence showed that the break was such as to justify the reasonable inference that the window was broken by the act of a third person with which the company had nothing to do. In both cases the court properly ruled that the res ipsa loquitur doctrine did not apply because the instrumentality causing the injury was not under the exclusive control of the defendant, such facts permitting the reasonable inference to be drawn that the accident was due to causes other than the negligence of the defendant. This destroyed the fundamental basis upon which the res ipsa loquitur doctrine rests.

We are of the opinion that the res ipsa loquitur doctrine was applicable in the present case. The equipment in the basement room was under the exclusive control of the appellee. Appellant was properly in the room. The shock received by the appellant, assuming that he did not come in contact with either of the potential transformers, was one that would not occur in the ordinary course of events if the equipment was in proper condition and functioning properly. The facts provide a typical case for the application of the rule. It was for the jury to accept or reject the inference of negligence as well as the inference of probable cause. Jesionowski v. Boston and Maine R. Co., 329 U S. 452. 67 S. Ct. 401, 91 L. Ed. 416; Detroit Edison Co. v. Ewing, 6 Cir., 122 F. 2d 852, 856.

Appellee contends that the doctrine is not applicable because appellee received the shock by coming in contact with one of the potential transformers, in the installation and operation of which appellee was admittedly not negligent. This would be a meritorious argument if it was factually correct, but the evidence does not support it. It is undisputed that appellant received burns from contact with the potential transformer. But the evidence shows that he fell onto the potential transformer after receiving the shock through contact with the I-beam. There were only three eyewitnesses to the accident, all of whom testified. Their evidence, referred to hereinabove, does not support appellee’s contention.

The contention that appellee in fact was not negligent in having in operation the equipment which caused the shock, or in not knowing or discovering that a defect existed in such equipment, if one did exist, is a matter of defense, which is not involved in our present problem. The res ipsa loquitur doctrine does not foreclose this defense. If the facts warrant the submission of the case to the jury under the res ipsa loquitur doctrine, such a defense, as well as the issue of contributory negligence, is also submitted to the jury for its consideration. The District Judge was not authorized to rule on such factual issues in considering the motion for a directed verdict. Fink v. New Fork Central R. Co., supra, 144 Oh St 12, 28 O. O. 554, 56 N. E. 2d at 461; Weller v. Worstall, supra, 129 Oh St 603, 3 O. O. 15, 196 N. E. 640.

The judgment is reversed and the cause remanded to the District Court for further proceedings consistent with the views expressed herein.


author: Per CURIAM: By HURD, J:

text:
    GAGE, Plaintiff-Appellant, v. GAGE, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23508.
    Decided June 22, 1955.
    Harry J. Dworkin, for plaintiff-appellant.
    Edwin C. Reminger, for defendant-appellee.

      (HUNSTCKER, PJ, DOYLE, J, of the Ninth District, MIDDLETON, J, of the Third District, sitting by designation in the Eighth District.)
   OPINION

Per CURIAM:

The appellant, Floyd A. Gage, was granted a divorce from the appellee, Florence Lenore Gage, by the Court of Common Pleas of Cuyahoga County, Ohio. This judgment also provided for a division of property and payment of alimony in monthly installments to Mrs. Gage. A cross-petition, filed by Mrs. Gage, was dismissed. Notice of appeal was filed in this Court by Mr. Gage from this judgment which granted to his wife alimony and a division of property. Mrs. Gage did not file a cross-appeal.

When the case became lodged in this Court, counsel for Mrs. Gage filed an application here for “Allowance of expense money pending appeal.” Mr. Gage insists that there is no statutory authority given to the Court of Appeals to grant such allowance, particularly since Mrs. Gage was found to be the aggressor and relief by way of divorce was granted to Mr. Gage.

The statute which provides for the Court of Appeals, during the pendency of an appeal, to grant alimony and support, is §3105.14 R. C.

The legislature provided in this Section that when an appeal is taken by either party to the Court of Appeals, such court may grant “like alimony and support during the pendency of the appeal.” The legislature said that a court

“. . . may grant alimony to either of the parties for his sustenance and expenses during the suit . . .”
and thereby defined alimony as used in that section. The phrase “like alimony” in the section then means that the Court of Appeals, during the pendency of the appeal, may make an award to either party for expense and support. The statute makes no distinction between aggressor and the injured party.

We agree with the opinion and reasoning jn the case of Sciacca v. Sciacca, 69 Abs 513, wherein that court determined that an application to the Court of Appeals for an award of alimony may be made by a party in that court for “sustenance and expense during the litigation.”

The appellee herein, Mrs. Gage, may be satisfied as to the outcome of the litigation in the trial court but Mr. Gage was not satisfied for he filed an appeal to this court. The effect of that appeal is to require Mrs. Gage to defend her action and expend time, money and effort to preserve that which the trial court granted to her.

We recognize that the granting of an award in situations such as this rests within the sound discretion of the court and in exercising such discretion, we must consider the facts and circumstances of each case.

We conclude herein that an award of $200.00 shall be granted to Mrs. Gage for expenses during suit in this court, to be paid by Mr. Gage within sixty days from the date hereof.

Decided October 26, 1955.

The parties will prepare and submit a journal entry in accord with this memorandum. Exceptions granted.

HUNSICKER, PJ, DOYLE, J, MIDDLETON, J, concur.

No. 23508.

Harry J. Dworkin, for plaintiff-appellant.

Edwin C. Reminger, for defendant-appellee.

OPINION

By HURD, J:

This cause originated in the Court of Common Pleas of Cuyahoga County on March 20, 1953, when the plaintiff filed suit for divorce against the defendant alleging extreme cruelty and gross neglect of duty. The defendant then filed her answer and cross-petition. In her answer, she denied generally the allegations contained in plaintiff’s petition and in her cross-petition, prayed for divorce and an allowance of temporary and permanent alimony and that in addition, she be allowed a reasonable sum by way of alimony as and for attorney’s fees and for such other and further relief as would be just and equitable. For purposes of brevity, the parties will be here designated as plaintiff and defendant as they appeared in the trial court.

The transcript of docket entries shows that the trial court allowed alimony to the defendant pendente lite in the sum of $200.00 per month. Thereafter, on January 31, 1955, the cause came on for hearing, and on March 17, 1955, the court found in favor of plaintiff and filed a journal entry setting forth in detail its judgment decree. As part of the decree, the court awarded plaintiff real estate owned by him and an automobile free and clear of incumbrances and one-half of the cash on hand in the sum of $525.00. Defendant was awarded the other half of the cash on hand, and government bonds having a value of $525.00, and a one-third interest in the proceeds of plaintiff’s life insurance policy.

In addition to the division of property, the trial court also awarded defendant alimony for her maintenance and support in the sum of $130.00 per month based upon the plaintiff’s future earnings, to continue until such time as the “defendant shall remarry,” and in the event the defendant shall become unemployed, the order for maintenance and support “shall be subject to modification by the court.” The court also allowed the defendant as attorney’s fees for services rendered by her counsel, the sum of $225.00 and ordered that a like sum should be paid to her counsel by defendant.

Plaintiff has here appealed part only of the judgment on questions of law. The plaintiff does not complain of the division of plaintiff’s property, either as to the right of the trial court to make such division; or as to the fairness or equity of the division of property so made by the trial court. The plaintiff complains, however, because the trial court awarded the defendant alimony and challenges the jurisdiction of the trial court so to do, setting forth three principal assignments of error as follows:

1. Having granted the plaintiff a divorce on his petition, and having dismissed the defendant’s cross-petition, the trial court erred in granting the defendant alimony as prayed for in her cross-petition.

2. The trial court erred in basing the alimony award upon plaintiff’s future earnings.

3. The trial court erred in granting the defendant attorney’s fees, as prayed for in her cross-petition.

It should be noted at the outset that the evidence adduced in the trial court is not before us for review on the merits as the plaintiff failed to.file a bill of exceptions by which this court could test the soundness of the discretion of the trial court in respect to the orders made. The plaintiff claims that the errors assigned are demonstrable on the face of the record without any consideration of the evidence, which brings into issue here upon this review questions of law only as to the power and jurisdiction of the Court of Common Pleas.

Coming now to a consideration of the first assignment of error, we are presented with a single question as to whether the Court of Common Pleas is empowered by statute to make an award for the maintenance and support of the wife when a divorce is granted to a husband. The plaintiff claims that such an award is erroneous, being beyond the jurisdiction of the court. Counsel for plaintiff has cited text and case authority to the effect that when a divorce is granted to a husband for the aggression of the wife, the court cannot grant alimony but only a share of the husband’s estate under §11993 GC and cognate sections.

We have examined carefully the authorities cited and quoted by counsel and find that at the time of the filing of the petition herein and the trial of this case, the numerous authorities relied upon by plaintiff have ceased to be applicable because of comparatively recent statutory amendments enacted by the legislature. Inasmuch as it appears that the question of the power of the Court of Common Pleas to make an award of alimony pursuant to these amendments has not heretofore been discussed in any reported case since the effective date of the statutory amendments, we think it helpful to review the statutes on alimony and recent amendments.

It is fundamental that all grounds for divorce and alimony and the rights of the parties in relation thereto are fixed by the statutory laws of this state. Mark v. Mark, 145 Oh St 301.

Under the provisions of Chapter 3 GC, entitled Divorce and Alimony, in effect prior to the amendments, the Court of Common Pleas was limited in its jurisdiction in respect to the allowance of alimony dependent entirely upon the findings made by the trial court in respect to the aggression of either of the parties.

Former §11950 GC (effective January 1, 1932) granted to the court jurisdiction to allow alimony to the wife “for the aggression of the husband” while §11993 GC (effective January l, 1932) granted to the court jurisdiction to allow alimony to the husband when the divorce was by “reason of the aggression of the wife.”

However, effective August 28, 1951, the Legislature revised Chapter 3 on Divorce and Alimony in many important respects and renumbered the General Code Sections. (See prior §§8003-1 to 8003-23 GO, both inclusive.) It is important here to note that the words “because of the husband’s aggression” as contained in old §11990 GC and the words “by reason of the aggression of the wife” as contained in §11993 GC, were completely eliminated so that the question of the aggression of the parties ceased to be a norm or standard to which the court was obliged to adhere in determining the allowance of maintenance and support or alimony.

The prior sections of the General Code (§11990 and 11993 GC), relating to alimony, were superseded by §§8003-17 and 8003-19 GC, reading as follows:

“Sec. 8003-17 GC. Restoration of name and alimony in divorce actions. When a divorce is granted the court shall, if the wife so desires, restore to her any name she had before the marriage. The court may allow such alimony as it deems reasonable to either party having due regard to property which came to either by their marriage, the earning capacity of either and the value of real and personal estate of either at the time of the decree. Such alimony may be allowed in real or personal property, or both, or by decreeing either such sum of money payable in gross or by installments, as the court deems equitable.”
“Sec. 8003-19 Alimony. Alimony may be allowed in real or personal property, or both, or by decreeing a sum of money, payable either in gross of installments, as the court deems equitable.”

The emphasized above represents italics set forth in the amendments as found in Page’s Ohio General Code. Annotated, Cumulative Pocket Supplement for Volume Five, 1952, as set forth at pages 96 and 97.

It will be observed that §§8003-17 and 8003-19 GC, above quoted, and emphasized in part, had the effect of changing the old rule concerning aggression to a new rule or standard by which the court is allowed wide discretion as to what is deemed reasonable and equitable under all the circumstances of each case.

Following these changes in the General Code, the Legislature in 1953, proceeded to a revision of the Code and the statutes relating to divorce and alimony were then incorporated in new Chapter 3105 R. C., which now embraces §§3105.01 to 3105.21 R. C., both inclusive, and §3105.99 R. C. In this revision of the Code in 1953, former §8003-17 GC, was changed so that the first sentence, having to do with restoration of the wife’s maiden name, was enacted into new §3105.16 R. C. The Legislature then combined the remainder of former §8003-17 GC with former §8003-19 GC, into present §3105.18 R. C., which now reads as follows: “Sec. 3105.18 R. C. (§8003-19 GC). Alimony. The court of common pleas may allow alimony as it deems reasonable to either party, having due regard to property which came to either by their marriage, the earning capacity of either, and the value of real and personal estate of either at the time of the decree.

“Such alimony may be allowed in real or personal property, or both, or by decreeing a sum of money payable either in gross or by installpients, as the court deems equitable.”

It will be noted that the substance of prior §8003-17 GC was not changed in any manner whatsoever but that the Legislature enlarged upon former §8003-19 GC, and included therein that part of prior §8003-17 GC, above quoted. The net effect of the adoption of prior §8003-17 GC, and the revision of that section heretofore noted was to clothe the court with plenary powers as to the allowance of alimony as it deems reasonable to either party in real or personal property or both in gross or by installments as the court deems equitable. It is our conclusion that the Legislature intended, as set forth in plain and unambiguous language, to clothe the Court of Common Pleas with sound discretion in allowance of alimony to either party, being subject to reversal only for an abuse of such discretion. In short, it is clear that it was the intention of the Legislature to rely upon the sound discretion of the trial court with relation to the allowance of alimony without respect to the question of the aggression of either of the respective parties. At page 14 of Chapter 3105, Baldwin’s Ohio Revised Code, we find the following illuminating comment by the Director of Code Revision (1953) as a note to §3105.16 R. C. (§8003-17 GC):

“This section confines itself strictly to the change of name and the remainder of the provisions of former §8003-17 GC are contained in §3105.18 R. C., in combining the alimony grants with former §8003-19 GC. The revision clarifies the, law by granting a court the power to award alimony to either party, having regard to property, both real and personal and in addition the ‘earning capacity’ of either party. Such applies to either divorce suits or alimony proceedings.” (Emphasis added.)

As heretofore stated, we are here concerned only with the issues raised as to the power or jurisdiction of the court as we do not have a record of the evidence before us by which to test thé soundness of the discretion used by the trial judge in the allowance made by him in the instant case. The defendant argues by way of brief that §3105.18 R. C., must be construed in connection with §3105.17 R. C. (former §8003-18 GC). We' think this argument is untenable insofar as it is claimed that §3105.18 R. C., has no application to divorce actions. The intention of the Legislature is clear as expressed by the language used that §3105.18 R. C., has application to divorce actions as well as to actions for alimony alone. The same proposition applies with equal force to prior §8003-17 GC, as amended August 28, 1951, which was in effect at the time of the filing of the petition in this case. By the amendments cited and quoted and the recodification now in effect, the Legislature has brought Ohio into harmony with other jurisdictions which have clothed their trial courts with power to exercise sound discretion in the matter of allowance of maintenance and support to a wife. Support for this statement may be found in 34 A. L. R. 2nd, page 330, et seq. as follows:

“Many states have statutes which provide in effect that when the court grants a divorce it may also award permanent alimony to a wife. Such statement does not refer to and does not make an award dependent upon the question of fault; and the court which grants a divorce is thereby empowered to award permanent alimony to a wife against whom a divorce is granted.”

This is now the rule in the states of Arkansas, Colorado, Illinois, Indiana, Iowa, Massachusetts, Mississippi, New Hampshire, and New Mexico. The authorities cited in the support of the text in the various jurisdictions listed are too numerous to require citation.

The question raised by the second assignment of error, namely that the court erred in basing an alimony award on plaintiff’s future earnings, requires little discussion as alimony is generally understood to be the allowance which a husband by order of the court pays to his wife living separate and apart from him for her maintenance and support. The usual allowance of alimony in installments is payable from the earnings of the husband which in most cases must of necessity include future earnings. A recent case decided on the subject is Klump v. Klump, 96 Oh Ap 93, where in syllabus 5, we find the following:

“Alimony may be awarded out of the future personal earnings of the husband and made payable in installments, and such award may be made in addition to an allowance out of the husband’s personal or real property, or both.”

Coming now to the third assignment of error by which it is claimed the trial court erred in granting defendant’s attorney’s fees as prayed for in the cross-petition, we find no error in the order requiring the husband to pay attorney’s fees in the sum set forth in the order of $225.00. Here again we are obliged to state that we do not have a record of the evidence upon which to test the reasonableness of such allowance and are concerned only with the power of the court to make such an order.

In Stuart v. Stuart, 144 Oh St 289, the Supreme Court in a per curiam opinion declares as follows at page 290:

“That the trial court in the exercise of a sound discretion has power to make a reasonable allowance for attorney fees is undoubted. By the provisions of §11994 GC, the court on notice to the adverse party ‘may grant alimony to either of the parties for his or her sustenance and expenses during the suit.’ The term ‘expenses’ properly includes attorney fees. The power of the trial court to allow attorney fees does not cease upon the making of an allowance therefor on a motion pendente lite. If a sufficient amount has not been previously allowed, the trial court may allow fees, reasonable in amount, in entering final judgment.”

Sec. 11994 GC is now §3105.14 R. C. The only fault that we find with the order in this case is that the court apparently attempted to determine the amount of the attorney’s fees that the wife should pay to her counsel but inasmuch as no complaint is made concerning. this, it is unnecessary to rule on this question.

Holding the views herein stated, it is our conclusion that the assignments of error must be overruled and the judgment of the Common Pleas Court affirmed.

KOVACHY, PJ, SKEEL, J, concur.


text:
    TRENT, Estate of, In re.
    Ohio Appeals, Second District, Franklin County.
    No. 5068.
    Decided March 31, 1954.
    Lopper & Martin, Robert E. Albright, Columbus, for Mary F. Smith, exceptor-appellant.
    William H. Brooks, Columbus, for Charles F. Worley, Executor of the Estate of James W. Trent, deceased, appellee.
    Ray E. Hughes, Columbus, for Charles F. Worley, as personal attorney.
   OPINION

By THE COURT.

Submitted on motion of the executor of the estate of James W. Trent, appellee herein, seeking an order dismissing the appeal of the exceptor, Mary F. Smith, on the grounds and for the reason that the notice of appeal was not filed within the time prescribed by law. The record discloses that on December 9, 1953, an entry was filed dismissing the exceptions to the executor’s first account; that on December 14, a motion for a rehearing was filed and the same was overruled on January 2, 1954. On January 5, 1954, notice of appeal was filed by the exceptor to the order overruling the motion for a rehearing. The appellee is urging that the motion filed herein does nGt assume the status of a motion for a new trial; that it might properly be entertained by the Court in the exercise of its discretion and may be heard at any time; that a motion for a rehearing may be addressed to any order or decision of the Court even to the overruling of a motion for a new trial; that if overruled, however, it does not toll or extend the time for the filing of a motion for a new trial where time is jurisdictional. The question therefore presented is whether or not the motion filed by the appellant is a motion for a new trial. The said motion is as follows:

“Now comes Mary F. Smith, the Exceptor to the First Account of the Executor of the Estate of James W. Trent, deceased, and moves the Court to re-hear said exception to the First Account and to appoint a Master Commissioner, as provided in §2101.06 R. C. to hear said exception to the First Account. In support of said Motion and for a rehearing, a Memorandum is herewith attached.”

The memorandum referred to in said motion does not specifically set forth any of the grounds for a new trial enumerated in §2321.17 R. C., but does state generally that the judgment of the Court is contrary to law. This, it will be noted, is one of the statutory grounds for the granting of a new trial. We note that §2321.20 R. C., provides that when an application for new trial is made the same must be supported by written grounds filed at the time of making the motion. It is also stated in 30 O. Jur. 139, Sec. 81, that the grounds on which a new trial is sought must be stated and the Court is bound to consider only such grounds. It is our conclusion that the memorandum filed with the motion sets forth sufficient grounds to entitle the motion to be classified as one for a new trial. An order overruling such a motion is an appeal-able ordér. Jolley v. Martin Box Co., 158 Oh St 416.

The motion will be overruled and the appellee will be granted 15 days from the date of the entry journalizing this opinion in which to file brief in answer to that of the appellant, which was filed on February 23, 1954.

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


author: By HOLTSBERRY, J.

text:
    ANCHOR LOAN COMPANY, Plaintiff, v. WILLETT et, Defendants.
    Common Pleas Court, Licking County.
    No. 40517.
    Decided May 22, 1956.

      McDonald & Robison, for plaintiff.
    Joseph H. Fitzgibbon, for defendants.
   OPINION

By HOLTSBERRY, J.

Defendant has filed motion herein to set aside a cognovit judgment on the grounds that he has a valid defense of non-compliance of statutory requirements of Ohio concerning a promissory note and chattel mortgage.

Anchor Loan Company, plaintiff herein, is assignee of a promissory note and chattel mortgage executed originally by defendant Willett to the Home Furniture Company of Zanesville, Ohio. The case is submitted upon the evidence, and agreed statement of facts, and upon briefs of counsel.

Willett purchased furniture from Home Furniture Company in excess of one thousand dollars, and on September 6, 1950, executed a cognovit note and chattel mortgage to the seller. The note and mortgage were assigned to Anchor Loan Company.

Records of Anchor Loan show that it purchased the account from Home Furniture on September 8, 1950; the assignment on the back of the chattel mortgage is dated September 8, 1950, but no date appears on the assignment on the back of the note.

The records of Anchor Loan show that Willett was credited with the sum of $97.59 for furniture defendant claimed he failed to receive and that defendant made payments to the Zanesville office of Anchor Loan of $10.00 on June 5, 1951, and $9.00 on June 13, 1951. Defendant testified that several months later in December of 1951, Home Furniture repossessed the furniture.

In June of 1951, after two payments were made, the Zanesville office forwarded the ledger card of said account to the Newark office for collection. The manager then contacted Willett on several occasions, the furniture then still being in his possession, but was unable to obtain additional payments.

In considering the questions involved herein it is helpful to keep in mind that the motion herein is to set aside a cognovit judgment and this action is not one to foreclose a mortgage.

Sec. 8565-3 GC, effective at the time the transaction took place and when the judgment was obtained, provided in substance that when any chattel mortgagee, his executors, administrators, successors, or assigns took goods, chattels or property, covered by a chattel mortgage out of the possession of the mortgagor, by seizure or repossession and sells or disposes of said property before foreclosure without giving notice as required by said Section are precluded from obtaining a deficiency judgment.

What application does §8565-3 GC have with respect to the facts of the instant case? Before such determination the Court must first determine the rights of Anchor Loan in and to the note and mortgage it had in its possession — the promissory note and the chattel mortgage given as security for the note. Consequently, the question arises of Anchor Loan’s right by virtue of being the holder of the note and the question of the finance company’s rights in and to the chattel mortgage.

Inspection of the note reveals it complies with all the provisions of §8106 GC, and that it is a negotiable instrument. Therefore, a determination of the initial rights of the parties herein must be determined under the negotiable instrument law of Ohio. The note was negotiated by proper endorsement on the back thereof to Anchor Loan by the payee of the original note. True, no date appears on the endorsement of the note, however, the chattel mortgage, the security for the note, was assigned two days after its execution and the assignment of the security would carry with it the interests in the note. Further, the evidence shows the account was purchased two days after the note was executed. Under the evidence and circumstances, it must be concluded that ownership of the note was transferred to Anchor Loan two days after the note ■ was executed. I find nothing under the Ohio negotiable instrument law requiring an endorsement to be dated.

Sec. 8157 GC, sets forth the requirements before Anchor Loan could have been considered a holder in due course. These requirements are:

“1. That the instrument is complete and regular on its face.
“2. That the owner became the holder of it before it was overdue and without notice that it had been previously dishonored, if such was the fact.
“3. That the holder took it in good faith and for value.
“4. That at the time it was negotiated to the holder, he had no notice of infirmity in the instrument or defect of title of the person negotiating it.”

The note herein is complete and regular on its face; it was transferred two days after its execution and was not overdue, and there is no evidence that it was not taken by the holder, the defendant, in good faith.

Defendant claims an infirmity in the note in that he did not receive all the furniture ordered. It was some time after the endorsement of the note to Anchor Loan that it was told that all the goods ordered were not received. Under §8133 GC, any failure of consideration would not be a defense to a holder in due course of a negotiable instrument.

What are the rights of Anchor Loan by virtue of the chattel mortgage assigned to it by Home Furniture Company, the original chattel mortgagee.

Counsel for defendant contend that the note secured by the chattel mortgage, where both were assigned to a third person, caused loss of identity as a negotiable instrument and became a chose in action. Great reliance is placed upon Baily v. Smith, 14 Oh St 398.

Standing alone this case would lead to the conclusion that the negotiable instrument law would not apply to a mortgage and under the facts of this particular case the real estate mortgage was subject to equities. The facts reveal the original maker of the note and mortgage filed suit to cancel the lien on grounds of fraud in the procurement of both note and mortgage. Fraud was shown, but Smith, the defendant, an endorsee, had obtained the note and mortgage for valuable consideration, before due, and the trial court decided in favor of Smith for the amount paid by him for the note and mortgage and an order of sale of the premises under the mortgage was given. The fourth paragraph of the syllabus in Baily v. Smith reads as follows:

“The transfer of a negotiable promissory note, secured by mortgage on real estate, to a bona fide endorsee, does not entitle the holder to foreclose the mortgage, when it appears that both note and mortgage were obtained by fraud.”

Baily v. Smith, supra, has been forcibly criticized by the Supreme Court of the United States in Carpenter v. Langan, 83 U. S. (16 Wall.), 271, pointing out the general holding of authorities that a mortgage is a mere accessory to a debt which it secures and is as impregnable to attack as the debt itself.

A review of Ohio cases since the United States Supreme Court decision reveals that Ohio courts have limited the principle of Baily v. Smith to the facts under consideration in that case. See Leeper v. Hunkin, 22 Oh Ap 204; Ashland Building & Loan Company v. Kerman, 23 Oh Ap 127; Springfield Loan Company v. The National Guarantee & Finance Company, 63 Oh Ap 508.

The Ohio Supreme Court in First National Bank of Wapakoneta v. Brotherton, Trustee, 78 Oh St 162, expressly limits the principle in Baily v. Smith to the facts of that case and a notation in the syllabus distinguishes said case at page 172, the following comment appears: “In the present case, the question is whether against such bona fide holder there may be asserted a latent equity in favor of persons who are not parties to the mortgage and as to whom the record contains no disclosure whatever. An affirmative answer to that question derives no support whatever from Baily v. Smith. Notwithstanding all that was there said, cases of this character are determined by the familiar rule that a mortgage is an incident to a negotiable note which it secures, and is subject to no equity which may not be asserted against the holder of the note,”

This Court reaches the conclusion that Anchor Loan was a holder in due course of the negotiable promissory note and as such is entitled to all the rights of a holder in due course and that said chattel mortgage was incident to the promissory note and would be subject to no equities that the original note was not subject to. In this instant case the Court finds no fact which would have been a defense in a suit upon the promissory note.

Returning now to the application of §8565-3 GC, to the facts and conclusions reached by this Court, that the furniture involved was taken by the original mortgagee without the knowledge of Anchor Loan, the owner of the note and mortgage, and that the taking was months subsequent to the assignment of mortgage and endorsement of the note to plaintiff. The consequent question arises as to whether or not an original chattel mortgagee can prejudice assignee by his acts which occur subsequent to the assignment.

To permit such prejudice to an innocent assignee would be a dangerous procedure as it would practically destroy the negotiability of promissory notes and, unless no assignment of the mortgage was contemplated, make it almost impossible to conduct any business wherein chattel mortgages were involved. See Vol. 7 O. Jur., page 416.

The acts of Home Furniture Company could not prejudice Anchor Loan, and §8585-3 GC, requiring notice before deficiency judgment could not be applied to the prejudice of plaintiff herein. Home Furniture was placed in a receivership by parties other than those herein, and Anchor Loan had no control over the court appointed receiver and if the furniture was sold, as it probably was, in the receivership, that would not be the fault of Anchor Loan. Defendant does have some justified reason for a quarrel with Home Furniture but this Court is not concerned herein with the merits of any action the law would permit either civil or criminal against Home Furniture for the taking and conversion of the furniture.

■The question is further raised as to the alleged failure to notify defendant of the assignment. This argument is not tenable since there is no law requiring notification of an assignment. Further, the argument could have no merit in any event herein since the evidence discloses that the defendant knew that Anchor Loan was the owner since he made payments on the note at the office of Anchor Loan.

Defendant having advanced no valid defense against the holder in due course, the motion to set aside the cognovit judgment taken September 3, 1953, is denied and judgment is rendered in favor of plaintiff.

Entry to be submitted and exceptions allowed.


author: By THE COURT:

text:
    CLINE, Plaintiff-Appellant, v. CLINE, Defendant-Appellee.
    Ohio Appeals, Second District, Fayette County.
    No. 278.
    Decided October 28, 1955.
    F. Scott Zimmerman, Washington C. H., for plaintiff-appellant.
    Reed M. Winegardner, Washington C. H., for defendant-appellee.
    (CONN, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By THE COURT:

This is a law appeal from a judgment of the Common Pleas Court decreeing upon motion of the defendant a modification of an alimony award by reducing certain overdue payments to a lump sum and changing the custody of one of the minor children of the parties hereto and providing for its support.

The record reveals that on January 11, 1949, a divorce decree was granted to the plaintiff which also awarded him custody of all the children of the parties hereto with the exception of the youngest, then only three years of age, whose custody was awarded to the defendant and for whose support the plaintiff was ordered to pay the sum of $7.50 per week.

The decree also provided:

“Further ordered that the clerk of this court certify to the Juvenile Court of Fayette County, Ohio, that an award of the custody and support of the minor children has been made and that all further proceedings, relative to the care, custody and support, are hereby referred to said Juvenile Court for further proceedings as provided by law.”

The docket of the Common Pleas Court bears the notation that a certified copy of the divorce decree was issued and delivered to the Juvenile Court of Fayette County, but it does not show an acceptance by the Juvenile Judge. The cause was never docketed by the Juvenile Court and there is no evidence in its records indicating that a certified copy was filed with it or that it had accepted jurisdiction over the subject matter of the custodial order. Sec. 8034-1 GC, effective at the time of the filing of the order provided for such a transfer to the Juvenile Court, to wit:

“Any court, other than a juvenile court, having jurisdiction in any case respecting the care, custody, or support of a child under eighteen years of age, may, on its own motion or on motion of any interested party, with the consent of the juvenile court, certify the record in the case or so much thereof and such further information in narrative form or otherwise as the court deems necessary or the juvenile court may request, to the juvenile court for the further proceedings according to law; and thereupon the juvenile court shall have exclusive jurisdiction respecting such child. This section shall apply to pending actions.”

This same section also provides that under certain conditions the certification may be made to any Juvenile Court of any county in the state for further proceeding according to law, “provided the consent of said juvenile court is first obtained.”

The plaintiff objected to the Common Pleas Court assuming jurisdiction, contending that the continuing jurisdiction over the children had been transferred to the Juvenile Court in accordance with the foregoing section of the General Code. The trial court overruled the plaintiff’s motion objecting to the same, holding that express consent of the Juvenile Court is an essential prerequisite to such certification and is a mandatory requirement under the statutory law of Ohio in order to invoke jurisdiction upon it to hear and determine any further proceedings; that the Juvenile Court of Fayette County had acquired no jurisdiction to hear and determine any of the issues raised. We are in full accord with the court’s ruling on the jurisdictional question as well as with the authorities cited in support of the same which are set forth in the well-considered opinion of Judge Case. It would serve no useful purpose for us to write another opinion assigning the same reasons and authorities in support of the order.

We think it well, however, to call attention to the fact that §8034-1 GC was repealed effective August 28, 1951, at which time the comparable section, §8005-6 GC became effective and which changed the prior section by adding the following:

“Cases wherein the Court of Common Pleas finds the parents unsuitable to have the custody of the child or children, consent of the juvenile court shall not be required to such certification.”

If the consent of the juvenile judge was not required in any case by the old section, then the addition to the new section served no purpose, which does not seem reasonable or probable.

The remaining error assigned is that the judgment is manifestly against the weight of the evidence. Our examination of the same reveals that the judgment is supported by evidence that is reliable and probative. We are not permitted to substitute our judgment for that of the trial court as to what order of custody would be for the best interest of the child. Trickey v. Trickey, 158 Oh St 9.

We find no error in the record and the judgment will be affirmed.

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