author: By WOODS,

text:
    ROBERT E. LEE, Inc., Bankrupt, In re.
    IN THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION
    No. 71937.
    Decided December 9, 1954.

      Harry C. Bogart, Elyria, Attorney for the Grafton Lumber & Concrete Co.
    Meyer Gordon, Lorain, Richard. S. Horan, Elyria.
   CERTIFICATE OF REVIEW

By WOODS,

Referee in Bankruptcy.

To the Honorable Judges of the United States District Court, for the Northern District of Ohio, Eastern Division, sitting in Bankruptcy:

I, William B. Woods, Referee in Bankruptcy, in charge of the above proceedings, do hereby certify:

That in the course of the proceeding, Richard S. Horan, Receiver, and later Trustee of bankrupt corporation, filed his Petition to Sell all the property of Robert B. Lee, Inc., of Elyria, Ohio. To this petition the Grafton Lumber & Concrete Co. of Grafton, Ohio, filed its Answer objecting to any summary jurisdiction over it; and the Answer further avers that the property, particularly the Ford dump truck in controversy, standing in the name of Carlton E. Lee in the Ohio Certificate of Title, alleges that said Carlton E. Lee gave a mortgage on said Ford truck in the amount of $3,000 to the answering Defendant, and further admits that said answering Defendant is in possession of said Ford dump truck, and claims its possession and ownership of said property by virtue of said mortgage.

An Order of Sale of the chattel property of bankrupt was entered and the sale by the trustee proceeded, except that the items claimed by the mortgage of The Grafton Lumber & Concrete Co. .were continued for further order of the Court, which left for decision by the Court the question of the ownership of said Ford dump truck; and whether the mortgage given by said Carlton E. Lee to The Grafton Lumber & Concrete Co. constituted a preference or a fraudulent transaction, because given within four months before bankruptcy and for a past consideration.

Upon hearing had and the filing of briefs, an order was entered on Sept. 28, 1954, denying the ownership of said Ford dump truck in the answering cross-petitioner, and finding its claim to lien on the truck invalid; and holding such truck to be the property of Trustee of bankrupt, and thereafter on Oct. 7, 1954, the Grafton Lumber & Concrete Co. filed its Petition to Review said order.

Thereafter, on Nov. 10, 1954, an order was entered by consent of all parties that the said Ford dump truck to be sold, and that the funds derived therefrom be held by the Trustee until this controversy is concluded, without prejudice to the rights of any party.

Statement of the Case

At the hearing it developed that said Robert E. Lee, Inc., general contractors of Elyria, Ohio, filed a voluntary petition in bankruptcy on May 25, 1954. The corporation had three stockholders and directors, Robert E. Lee, his brother, Carlton E. Lee, and Robert R. Wood; and on Sept. 3, 1953, Robert E. Lee sold his business assets to the corporation for $2,000 in corporation stock, and on the same day Carlton E. Lee sold all his business assets to the corporation for $2,000 in corporation stock. Included in the assets sold by Carlton E. Lee was an item of motor vehicles (Trustee Ex. 2,).

Among the motor vehicles thus acquired by the corporation was the Ford motor truck (described as a motor dump truck in bankrupt’s schedules) which had been bought by Carlton E. Lee, and the Certificate of Title was issued to him by the Clerk of Lorain County on Jan. 9, 1953 (Grafton Ex. 1) which shows a mortgage to the Savings Deposit Bank of Elyria, Ohio, for $3,303.63, cancelled Feb. 15, 1954; and also shows a mortgage to The Grafton Lumber & Concrete Co. for $3,000 filed May 19, 1954, and not can-celled (Grafton Ex. 3).

The books' of account of The Grafton Lumber & Concrete Co. on Feb. 17, 1954, show a debt due from Robert E. Lee, Inc., the bankrupt, in the amount of $7000. The Grafton Lumber & Concrete Co. took a mortgage on the 1952 Ford dump truck, and also placed a lien for $3000 on the so-called Pankoff property (Trustee Ex. 2), and the company did not credit the $3000 on the account of bankrupt, but made a statement in writing on Feb. 15, 1954, that only $2100 was due. The testimony by Myles Knechtges, President of The Grafton Lumber & Concrete Co. is: “What does the Company’s record?” and his answer was “Pankoff owed me approximately $2100 subsequent to Feb. 15th.” (Tr. p. 54)

So the facts are that on Feb. 15, 1954, The Grafton Lumber & Concrete Co. received a mortgage for $3000, placing a lien on the Pankoff property for $3000 and received a check for $2000 or cash (Trustee Ex. 3, page from books of account of bankrupt, page entitled “Bob Lee”); and The Grafton Lumber & Concrete Co. took a mortgage on the dump truck, the title to which is in, question before the Court, and also obtained a mechanic’s lien on the Pankoff property for $3164.01, for materials furnished May 3, 1954, so that there arises a dispute on this date as to the amount due from the bankrupt corporation to The Grafton Lumber & Concrete Co. By Trustee’s Ex. 3, the book account of The Grafton Lumber & Concrete Co. entitled “Bob Lee * * * Pankoff” account shows a credit of $3000 on April 7, and balance of $164.01 on May 3, 1954, which totals the amount of $3164.01, as in the affidavit of Knechtges made to obtain lien on Pankoff real estate on May 3, 1954.

At the time of the execution of the mortgage, the 1952 Ford dump truck had the legend “Robert E. Lee, Inc. — Better Built Homes” on the side of each door of the said Ford dump truck so that it was notice to the world that the truck belonged to Robert E. Lee, Inc. At the time of' the execution of the mortgage, Carlton E. Lee was not indebted to The Grafton Lumber & Concrete Co.

Findings of Fact

(1) That Richard S. Horan succeeding himself as receiver, is the duly elected, qualified, and acting Trustee in Bankruptcy of Robert E. Lee, Inc., adjudicated a bankrupt on May 25, 1954.

(2) That Robert E. Lee, Inc., bankrupt, of Elyria, Ohio, was an Ohio corporation; at a special meeting of directors on Sept. 3, 1953, Robert E. Lee and Carlton E. Lee each offered to sell “all the business and assets as of June 30, 1953”, to the corporation for $2,000 in corporate stock; and included in the assets of Carlton E. Lee sold by him was the Ford dump truck in controversy (Trustee Ex. 2).

(3) That the motor vehicles thus sold by Carlton E. Lee to the corporation for corporate stock included the Ford dump truck, which Carlton E. Lee had purchased on Jan. 9, 1953, for which Ohio Certificate of Title No. 470389609 was issued by the Clerk of Lorain County (Grafton Ex. 1) showing as first lien a chattel mortgage to Savings Deposit Bank & Trust Co., Elyria, Ohio, for $3,303.63, showing the same discharged and cancelled on Feb. 15, 1954; and said certificate shows a second lien, chattel mortgage of May 19, 1954, to The Grafton Lumber & Concrete Co. for $3,000.

(4) That on Feb. 24, 1954, at request of Myles Knechtges, President of The Grafton Lumber & Concrete Co., Carlton E. Lee executed a chattel mortgage (Grafton Ex. 3) on the back of which is Statement of Claim signed by Milton Knechtges, president, on the truck, to Grafton Lumber & Concrete Co., and on May 4, 1954, Carlton E. Lee also executed a statement on the corporate letterhead of the corporation stating that the truck became the property of the Robert E. Lee, Inc., at the time the corporation was formed, Sept. 3, 1953, and “I then relinquished all claims to vehicles * * * title will be transferred at next year’s lien beginning — signed Carlton E. Lee” (Trustee Ex. 1).

(5) That the Ford dump truck in question was in fact the property of the bankrupt corporation, Carlton E. Lee having received stock for said dump truck and by agreement with the officers of the company had withheld transfer of Certificate of Title until the licensed year would begin. (Trustee Ex. 1 on Bankrupt’s stationery signed by Carlton E. Lee). Also, this dump truck was listed as an asset in the schedules of bankrupt.

(6) That the officers of The Grafton Lumber & Concrete Co. had knowledge of the ownership by it of said truck for the testimony of Carlton E. Lee is, “all the work I did was as an officer of the corporation and Mr. Knechtges knew it at the time, and it was specificaly stated that I was not to do anything personal.” (Tr. pg. 20). So The Grafton Lumber & Concrete Co. knew the dump truck was a property of the bankrupt corporation although the Certificate of Title showed it stood in the name of Carlton E. Lee (Tr. pg. 30).

(7) That The Grafton Lumber & Concrete Co. knew that Robert E. Lee, Inc. was unable to pay its bills, and had been delinquent for some time in its account with the lumber company on Feb. 17, 1954, within four months of bankruptcy, when the chattel mortgage was given to secure a past-due debt of the bankrupt corporation to the lumber company; and finally the lumber company admits in its answer and cross-petition that it was in possession of the truck by virtue of seizing it by claim under its mortgage.

Conclusions of Law

(1) That under the Ohio Statute, if a transfer made in trust or otherwise, in contemplation of insolvency and with a design to prefer and with intent to hinder, delay or defraud creditors, on proof that the transferee knew of such condition of the transferor, such transfer is made with fraudulent intent under the Ohio Statute.

(2) That where the trustee in a bankruptcy proceeding instituted on May 24, 1954, representing creditors and prior to bankruptcy a chattel mortgage was executed on Feb. 24, 1954, and there was no new money but only past consideration for the mortgage, the claim of lien by chattel mortgage fails in bankruptcy under the Ohio Law. Sec. 1335.02 R. c. (8618 GC). Sec. 1313.56 R. C. (11104 GC), §1313.57 R. C. (11105 GC). Bankruptcy Act, Sec. 67d (2), d(5), Sec. 70(c) and (e), 11 U.S.C.A. Sec. 107d (2), d(5), 110 (c) and (e).

(3) That where a motor vehicle Certificate of Title was issued pursuant to the provisions of the Ohio Certificate of Title Act, §4505.04 R. c. (6290 GC), and there has been effected a resulting trust so that the ownership of the vehicle is different than the name set forth in the Certificate of Title, and where there has been fraud in the transaction, such fraud causes such Certificate of Title to be voidable as to the real owner of the motor vehicle, in this case a corporation in bankruptcy.

(4) That while Ohio §4505.04 R. C. (formerly §6290-4 GC) known as the Ohio Certificate of Title Law, makes evidence not admissible to dispute the title of him to whom a Certificate of Title is issued pursuant to the provisions of the Ohio Certificate of Title Act is true as a general proposition, but there is an exception thereto when the evidence establishes fraud as in the case presented here, such Certificate of Title is voidable.

(5) That the facts established that upon bankruptcy ownership of the truck paid for by the corporation before bankruptcy vest in the trustee of such corporation, and the result is that from the facts presented here, it is established that the Certificate of Title is voidable.

Memorandum

Two questions are presented: (1) Did the transfer of the Ford dump truck by chattel mortgage constitute a preference or fraudulent transfer of said truck when Carlton E. Lee signed a chattel mortgage on said truck to The Grafton Lumber & Concrete Co. on Feb. 24, 1954, which was within four months of bankruptcy, and a chattel mortgage was given for a past-due consideration, and (2) upon bankruptcy ownership of the truck paid for by the corporation, vested in the Trustee so the result is that the Certificate of Title showing ownership in Carlton E. Lee is voidable as to the Trustee in bankruptcy?

(1) Fraudulent Transfer or Preference

The question is as to the validity of the mortgage to The Grafton Lumber & Concrete Co. executed by Carlton E. Lee on Feb. 24, 1954, and the mortgagor’s claim of lien as against the Trustee of the bankrupt corporation, who claims right to the truck received by preference or fraudulent conveyance to the detriment to the bankrupt’s creditors,

A similar case where a mortgage on chattels was taken within four months of bankruptcy as reported in Re: Wright Industries, 93 Fed. Supp. 58 (1950), where this Referee held that (1) the mortgage and lien were fraudulent transfers under Sec. 67d (2) of the Bankruptcy Act; (2) the mortgage and lien were preferences under Ohio law; and (3) the mortgage and lien were fraudulent conveyances under Ohio law.

The ruling of this Referee was affirmed by His Honor Judge Jones in that case as so reported, and the lien of defendant was denied, and any claim of defendant was allowed as a general claim. The authorities are discussed at length in that opinion and will not be repeated here since the rule for the instant case can only follow the general rule applicable to such cases, and the Wright case, supra, has become a binding precedent for the decision to be here made.

(2) Certificate of Title Voidable Here On Facts Established

Counsel for the Grafton Lumber & Concrete Co., mortgagee, claims that since the Certificate of Title on file in Lorain County shows the title to the truck in Carlton E. Lee, that fact is conclusively established; counsel relies on §4509.04 R. C., entitled Certificate of Title as Evidence of Ownership, which statute is as follows: or estoppel operate in favor of such person against a person having possession of such certificate of title, or manufacturer’s or importer’s certificate for said motor vehicle, for a valuable consideration. No court in any case at law or of any person in or to any motor vehicle sold or disposed of, or mortgaged or encumbered, unless evidenced by a certificate of title or a manufacturer’s or importer’s certificate issued in accordance with §§4505.01 to 4505.19, inclusive, St. C.”

“Certificate of Title as Evidence of Ownership. No person acquiring a motor vehicle from the owner thereof, whether such owner is a manufacturer, importer, dealer, or otherwise, shall acquire any right, title, claim, or interest in or to said motor vehicle until such person has had issued to him a certificate of title to said motor vehicle, or delivered to him a manufacturer’s or importer’s certificate for it; nor shall any waiver

The Ohio Certificate of Title law was enacted “to prevent the importation of stolen motor vehicles, and thefts and frauds in the transfer of title to motor vehicles . . .” 117 Ohio Laws 373. To the same effect is the statement in 6 O. Jur. 2d, Sec. 5, page 176:

“The primary object of such law is to afford an effective means of transferring and recording the evidence of title to motor vehicles in one continuous chain from the beginning to the end of their existence in Ohio, with close co-operation between the various clerks of courts and the Registrar, and to eliminate several well-known and flagrant types of abuse which were perpetrated under the old bill of sale law.”

Many cases have been presented to the courts of Ohio involving the force and effect of this statute. The recent case of Douglas v. Hubbard, 91 Oh Ap 200 (1951), considered the question presented here. In this case Judge Hunsicker said (p. 202):

“The pattern of many of these cases is an attempt, by one, not the holder of a certificate of title, to gain possession of a motor vehicle from a party who purchased such motor vehicle in good faith from the then holder of a certificate of title, such purchaser receiving from the vendor a certificate of title valid on its face.”

The Judge goes on to consideration of cases and then in the case before him which involves the facts similar to the situation here, he said at pages 203-205:

“In the instant case, we do not have the question of a certificate of title to a motor vehicle secured by fraud, or of a third party who purchased a motor vehicle in good faith, relying on the indicia of title contained in a valid certificate of title. We do have an action by one claiming to be the purchaser of a motor vehicle, who through agreement at the time of such purchase, placed the legal title in a person from-whom he now seeks to secure a transfer of such legal title; such purchaser claiming that the beneficial interest in the motor vehicle remained with him, the purchaser, while the legal title was in another.
“We come, then, to the controlling question in this appeal, which may be stated as follows: Do the terms of §3290-4 GC, prevent the creation of a trust, the corpus of such trust being a motor vehicle?
“Was it the intention of the Legislature, when it enacted the certificate of title law, to remove from the law of trusts that species of personal property known as motor vehicles, so that under no circumstances could the legal title, as evidenced by a certificate of title, be in one person and the beneficial interest remain in another? We do not believe that any such thought was in the legislative mind when it enacted the statute in question, . . .
“A resulting trust arises in favor of the person who transfers property or causes it to be transferred, under circumstances raising an inference that he intended to transfer to the other a bare legal title and not to give to such other the beneficial interest in such property. Ohio has always recognized the propriety of one who is the owner of property, to create a trust, which is a right enforceable in equity, to the beneficial enjoyment of such property, while the legal title is in another. The Legislature, in the enactment of the certificate of title law, was concerned with legal title and not beneficial interests. By this legislation, the legislators sought to prevent fraud in the sale of motor vehicles and the sale of stolen motor vehicles. It was not intended to change the substantive law and place motor vehicles outside of the operation of the law of trusts.”

So in the situation presented here, while the legal title was in Carlton E. Lee, the ownership, under the principles of the law of trusts, was in the Robert E. Lee, Inc., the parties agreeing to have the correction made, as evidenced by the language in the memorandum on stationery of Robert E. Lee, Inc., of May 4, 1954, (Trustee Ex. 1) signed by Carlton E. Lee, also reciting that “Title will be transferred at next license year beginning. Signed: Carlton E. Lee.”

Finally as to the case of Douglas v. Hubbard, supra, the record shows that a motion to certify was filed in the Supreme Court of Ohio and that in 157 Oh St 94 on Feb. 27, 1952, the appeal was dismissed with this entry: “It is ordered and adjudged that this appeal as of right be and the same hereby is dismissed. . .”

Coming now to later holdings on this question as posed by the Certificate of Title statute, the Supreme Court allowed a motion to certify a Court of Appeals decision In Re: Case, 96 Oh Ap 289, reported in Ohio Bar Sept. 24, 1954, and In Re: Case, 161 Oh St 288, proceeded to hear the appeal in a Probate matter where the title to automobiles were in controversy, and held evidence was non-admissible to dispute title to an automobile to whom a Certificate of Title is issued pursuant to the Ohio Statute, “except evidence to establish fraud which would cause such Certificate of Title to be voidable” (Second syllabus). Concluding his opinion Judge Middleton in affirming the court below, said (pg. 294), so the instant case is within this exception:

“It is to be noted that neither fraud nor theft is involved in the instant case. This decision will not control in a situation where the facts may warrant a decision that a certificate of title under the Ohio Act is voidable on account of fraud.”

So the Ohio Certificate of Title law was never intended to authorize or permit a creditor of bankrupt to profit by an otherwise voidable preference or a fraudulent transfer made by a failing bankrupt.

Herewith is handed up for consideration of your Honors:

(1) Answer to Trustee’s Petition to Sell

(2) Answer of the Sav. Deposit Bank & Trust Co.

(3) Order of Sale

(4) Reply of Trustee

(5) Brief of Defendant, The Grafton Lumber & Concrete Co.

(6) Memorandum of the Defendant, The Grafton Lumber & Concrete Co.

(7) Brief of Trustee

(8) Transcript of Testimony & Proceedings

(9) Order of Sale on 1952 Ford Dump Truck

(10) Petition for Review of The Grafton Lumber & Concrete Co.

(11) Suggested Statement of Facts & Conclusions of Law for Certificate of Review

(12) Statement of Facts & Conclusions of Law by Meyer Gordon

ROBERT E. LEE, Inc., Bankrupt, In re.

No. 71648.

Decided March 15, 1955.

Memorandum on Review of Order of Sale in re Chattel Property Claimed by the Grafton Lumber & Concrete Company, Petitioner.

OPINION

By JONES, J:

This matter is before the court on review of an order of the Referee in Bankruptcy approving the sale of a Ford dump truck by the Trustee of the bankrupt corporation.

Briefly, the facts are these. In 1952, Carlton E. Lee purchased a Ford dump truck and title was issued in his name. In September, 1953, upon incorporation of Robert E. Lee, Inc., “A General Contractor,” Carlton E. Lee, a director and officer of said company, conveyed certain assets to the corporation among which was the truck in question, in consideration for $2,000 in corporation stock. Title, however, was not assigned to the company but remained in the name of Carlton E. Lee. In February, 1954, a chattel mortgage was executed by Carlton E. Lee to the Grafton Lumber & Concrete Company for $3,000, covering the truck. On May 4, 1954. Carlton E. Lee acknowledged in writing that the truck had become the property of the company at the time of incorporation (September, 1953) and stated that “* * * title will be transferred at the next license year beginning.” On May 19, 1954, the chattel mortgage (supra) was filed for recordation by the Grafton Lumber & Concrete Company. On May 25, 1954, Robert E. Lee, Inc., filed a petition in bankruptcy.

Upon these facts and the applicable law, the Referee found:

(1) That ownership of the truck had passed to the company upon incorporation in September, 1953, because, although bare legal title thereafter remained in Carlton E. Lee, the company had paid for the truck ($2,000 in corporation stock), used the truck in its business, and advertised the truck as its own by placing the company insignia on either side of the truck; that in law, a resulting trust had been created in favor of the company.

(2) That the chattel mortgage executed in February, 1954 created a preference in favor of the Grafton Lumber & Concrete Company long a creditor of Robert E. Lee, Inc., but at no time a personal creditor ct Carlton E. Lee.

(3) That upon bankruptcy ownership of the truck paid for by the corporation vested in the Trustee.

(4) That the certificate of title showing ownership in Carlton E. Lee is voidable as to the Trustee in Bankruptcy.

Petitioner contests the Referee’s finding .contending that Ohio Statute, §4505.04 R. C„ specifically excludes any evidence as to ownership of a motor vehicle other than the certificate of title, and particularly so in this case since Grafton was an innocent third party purchaser. It is petitioner’s conclusion that by virtue of the chattel mortgage, it, not the Trustee, is the rightful owner of the truck.

Upon review of the pleading's and transcripts on file and the eases and statutes cited, the court is satisfied that the conclusions of law and findings of fact by the Referee are just and accurate. The case of Douglas v. Hubbard, 91 Oh Ap 260 (1951), is inequivocal in stating that the law of trusts may be applied in determining ownership of a motor vehicle under §4505.04 R. C. (supra.) It is also a settled principle of law that a creditor’s preference will be disallowed when shown to have been created in contemplation of insolvency. Revised Code of Ohio, §§1335.02, 1313.56, 1313.57, Bankruptcy Act, Section 67 d (2), d (5), 70 (c) and (e), 11 U.S.C.A., Section 107 d (2), d (5), 110 (c), and (e), and In Re: Wright Industries, 93 Fed. Supp. 58.

In applying the stated law to the facts in this case, the Referee was confronted with the problem of sifting the truth of the parties’ intentions from a questionable series of transactions. And upon the record as a whole his finding that ownership of the truck was intended to and did pass to the corporation prior to the execution of the chattel mortgage (although bare legal title remained in another), and that said mortgage could only have been executed to cover a corporation debt at a time when the parties to the mortgage were or should have been aware of the company’s insolvency, or when bankruptcy was actually contemplated, is the only logical conclusion to be reached.

Accordingly, the petition for review will be denied and dismissed and the order of the Referee approved and confirmed.

ROBERT E. LEE INC., Bankrupt, In re

No. 71648.

Decided March 15, 1955.

The Grafton Lumbei & Concrete Company having petitioned this court for an Order to review and reverse the Order of the Referee herein entered on the 28th day of September, 1954, granting the Petition of Richard S. Horan, Trustee, formerly Receiver of Robert E. Lee, Inc., to sell a Ford dump truck of the bankrupt corporation, free and clear of all encumbrances, and especially the mortgage of the Grafton Lumber & Concrete Company, at public or private sale, and said Petition upon review having thereupon come on to be heard before this Court whereat the Petitioner was represented by Harry Bogart, his Attorney in support of said Petition to review, and the Trustee in Bankruptcy, Richard S. Horan, represented by Meyer Gordon, his Attorney in opposition thereto, now. upon due consideration it is ordered that the Petition for review is hereby denied and dismissed, and the Order of the Referee is approved and confirmed.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE, Plaintiff-Appellee, v. BARGER, Defendant-Appellant, Two Cases
    Ohio Appeals, Eighth District, Cuyahoga County.
    Nos. 10459, 10460.
    Decided February 4, 1954.
    Frank T. Cullitan, County Prosecutor, Cleveland, for plaintiff-appellee.
    Phillip C. Barragate, Cleveland, H. C. Wedren, Cleveland, for defendants-appellants.
   OPINION

PER CURIAM:

The defendants herein have filed their separate appeals on questions of law from a judgement of guilty of manslaughter in the first degree rendered by the Court of Common Pleas of Cuyahoga County, being tried to a court of three judges, they having waived the right of trial by jury. This court now has before it for determination separate motions for a stay of execution and to fix bail pending the hearing and decisions of their respective appeals based°on §2953.10 R. C.f which reads as follows:

“The court of common pleas, court of appeals, or supreme court, or any judge thereof, to which court an appeal is taken from an inferior tribunal, has the same power and authority to suspend the execution of sentence during the pendency of such appeal and admit the defendant to bail as is provided for in respect to said inferior tribunal.”

The defendants are entitled to appeals from the judgment of the trial court as a matter of right. Stays of executions and the settings of bail, however, rest upon the sound discretion of the court. A long line of precedent has established the granting of stays of executions in most cases pending hearing on appeal. The power to fix bail pending appeal was first granted the Court of Appeals of Ohio on October 25, 1949 by virtue of 82953.10, supra. Until then, the. matter of bail rested exclusively within the jurisdiction of the trial court which still retains such power. However, that court, in these cases, has refused to set bail and the jurisdiction of this court on the subject has been invoked.

Since these defendants have no previous criminal record and were on bail during the entire period these actions were pending in Common Pleas Court and, since there is no evidence before us which would justify the conclusion or warrant the inference that they might engage in offensive conduct during the pendency of these appeals, the best interest of the community does not demand they be held in custody pending the hearing of their appeals on the merits.

The motions for stay of execution and for allowance of bail are, therefore, granted. Each defendant is hereby ordered to be released from custody upon the posting of bail in the amount of $7,500.00 each, to the satisfaction of the Clerk of the Court. A journal entry may be drawn accordingly. Exc. O. S. J.

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


author: By THE COURT:

text:
    STATE, Plaintiff-Appellee, v. BROWN, Defendant-Appellant.
    Ohio Appeals, Second District, Miami County.
    Nos. 487, 488.
    Decided April 8, 1954.

      James H. DeWeese, Prosecuting Attorney, Troy, and Mr. Fred M. Kerr, Dayton, for plaintiff-appellee.
    Clement V. Jacobs, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

This is a law appeal from the judgment of the Common Pleas Court rendered upon the verdict of a jury finding the defendant-appellant guilty as charged in two indictments, one of which charged trespassing and the other breaking and/or damaging and destroying a fence with intention to release cattle.

The record reveals that separate indictments were returned against the defendant, but upon motion of the prosecuting attorney the cases were ordered consolidated into one action, the same to be conducted under the title and case No. 7423. This, it is urged, constituted prejudicial error. We are cited no authority which supports this view, and we have been unable to find any. All the cases we have been able to find hold that the trial court must exercise a sound discretion in the matter; that even the granting or refusing of separate trials to defendants jointly indicted rests in the legal discretion of the Court. Baron v. U. S., 286 F. 822; Whitehead v. State, 10 Ohio, 449; Bixbee v. State, 6 Ohio, 86, Since the subject matter of the two indictments is closely related, the acts complained of occurring at or about the same time, and much of the evidence supporting the two charges, is the same, we can find no error in the consolidation of the two cases.

It is next urged that since §12522 GC, which defines a trespass, and §12448-2 GC, which relates to the damaging of a fence, each specifies that the act complained of must be upon the “property of another”, there can be no verdict of guilty for the reason that the defendant is the owner of the property upon which the alleged offense was committed. The record reveals that the defendant herein is the owner of the legal title and that the complainant came into possession of the land; which is the subject of this action, under the terms of a written contract either as a tenant or as a purchaser under a land contract. The defendant urges that the complainant entered as a tenant and that he defaulted because of nonpayment of rent in accordance with the terms of said contract. The record discloses that the contract provided for the payment of $75.00 per month, and upon the failure to meet two monthly payments the contract should become null and void. The court properly instructed the jury that, unless the appellant reserved the right to re-enter the land, any entering thereon would be unlawful unless the jury should find by the proper degree of proof that it was a contract of tenancy which had been breached by the said tenant. In such an event the entry would not be unlawful. The jury was definitely told that it must determine the relationship of the parties under the contract and base its verdict upon such finding, provided, of course, that in case of a guilty verdict all of the other elements of the offenses were established by the proper degree of proof.

In Wilber v. Paine, 1 Ohio, 248, the court held that a party in possession of land under a parol contract may maintain trespass against the owner. We recognize this was a civil action, but the rights of the parties are not altered by the nature of the proceedings.

We find no error in the charge to the jury. The court may not be charged with error for any omissions, as the court was not requested to give any charges before argument, or to give additional charges at the close of the general charge. Johnson v. Bishop, 83 Abs. 511; 4 O. Jur. (2d). 983, p. 240; City of Columbus v. Charlton, 39 O. O. 522; Fry v. Hildreth, 59 Abs. 443; Sadler v. Bomberg, 62 Abs. 13; Rhoades v. City of Cleveland, 157 Oh St 107; 47 O. O. 91.

We have examined the entire record and are of the opinion that the evidence fully supports the verdict.

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

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


text:
    PLANTNER et, Plaintiffs-Appellees, v. HOKE et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23185.
    Decided November 10, 1954.
    Siegel & Siegel, Cleveland, for plaintiffs-appellees.
    Robert Merkle, Cleveland, for defendants-appellants.
   OPINION

PER CURIAM:

Judgment affirmed for the reason that substantial justice has been done.

This action sounds in fraud, seeking $1,000.00 damages against the defendant, a real estate broker, for inducing the plaintiff to deposit $1,000.00 with the defendant as the agent of one Hoke as a down payment for the purchase of Hoke’s residence by the plaintiff. The following facts are undisputed.

The defendant was employed by Hoke to sell or find a purchaser for his home on Cleveland Heights Boulevard. The defendant interested the plaintiff in the purchase of said property and induced them to enter into a purchase agreement with the Hokes to buy such property and to deposit with the defendant $1,000.00 under the purchase agreement which defenant prepared and which in part provided in paragraph 2:

“A. Earnest money in hand to apply on the purchase price the receipt of which is hereby acknowledged by E. G. Wilkinson, agent, to be held by him or deposited with the escrow agent until the transaction is completed ******* $1,000.00.”

Paragraph 11 in part provides:

“* * * * if within said time (65 days) the purchaser defaults in the performance of any of the obligations imposed by the terms hereof, owner may at his option treat the contract as null and void and the earnest money is forfeited as liquidated damages. * * *.”

It is clear from the record that the transaction was never completed, nor was there an escrow agent appointed with whom the defendant was authorized to deposit the down payment under the terms of the agreement.

It is the claim of the plaintiff that the offer, which was in writing, having been drafted by the defendant and by him delivered to the owner, Hoke, was conditioned upon the defendant selling the plaintiff’s residence on Throckley Avenue. The defendant denies that he accepted the offer on behalf of his principal under such “condition.” This question was submitted to the jury under proper instructions from the court and we are unable to say that the verdict of the jury is contrary to the manifest weight of the evidence.

The record discloses that after the defendant was notified by the plaintiff that it was his claim that unless the defendant sold plaintiff’s house the sale between plaintiff and Hoke could not be consummated and the defendant was to return the down payment, the defendant on October 26, 1951, sent Hoke $600.00 of the money and kept $400.00 of it for himself. Certainly this defendant had no right to look to the plaintiff for any part of his commission for the alleged sale of his principal’s property. If he had earned a commission, the obligation was that of Hoke and not this plaintiff. There was no contractual relations between plaintiff and defendant and unless, under the terms of the contract which defendant procured for his principal from the plaintff he was authorized to deliver the down payment to Hoke, then all of the money should have been paid over. But under paragraph 2 of the contract no such power was vested in the defendant.

The Hokes have made no claim by cross-petition against the plaintiffs, although they were made parties defendant when the case was filed, being dismissed on their motion at the end of plaintiff’s case. If in fact the signing of the contract was induced by fraud, the principal could not enforce its provisions against the plaintiff.

The plaintiffs having prevailed in the trial court, by judgment entered upon a jury verdict, on the question of fraud, and damages having been fixed in the amount which defendant admitted receiving and which under the contract was to be held by him or paid to an escrow agent, the judgment must be affirmed, Exe. Order see journal.

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


author: PER CURIAM.

text:
    STATE, Plaintiff-Appellee, v. TERLECKI, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    Nos. 3521, 3522.
    Decided September 30, 1952.
    W. A. Ambrose, Prosecuting Attorney, and Harold H. Hull, Assistant Prosecuting Attorney, Youngstown, for plaintiff-appellee.
    Russell G. Mock, Youngstown, for defendant-appellant.
   OPINION

PER CURIAM.

In case numbered 18204 on the docket of the court of common pleas appellant pleaded guilty to the crime charged in an indictment laid under §12423,GC, which indictment reads as follows:

“INDICTMENT FOR RAPE.”
“THE STATE OF OHIO. MAHONING COUNTY, SS.
“In the Court of Common Pleas, Mahoning County, Ohio, of the Term of September in the year of our Lord one Thousand Nine Hundred and Fifty One.”
“The Jurors of the Grand Jury of the County of Mahoning, and State of Ohio, then and there duly empaneled, sworn and charged to inquire of and present all offenses whatever committed within the limits of said County, on their said oaths, in the name and by the authority of the State of Ohio, do find and present:
“That Frank P. Graziano, Robert C. Graves, John Vostitsianos, and John Terlecki late of said County, on the 30th day of August in the year of our Lord one thousand nine hundred and fifty-one, at the County of Ma-honing aforesaid did maliciously, unlawfully and feloniously unite, combine and conspire for the purpose and with the intent then and there to- unlawfully and forcibly rape, and in pursuance of said conspiracy, and to effect the object thereof, did then and there unlawfully, forcibly and maliciously rape or ravish Margaret Mary Shipsky, she, the said Margaret Mary Ship-sky, being a female person other than the daughter or sister of them, the said Frank P. Graziano, Robert C Graves, John Vostitsianos, and John Terlecki, and not being a female under the age of twelve years, contrary to the statute in such cases made and provided and against the peace of the State of Ohio.”

In case numbered 18205 on the docket of the court of common pleas the trial judge, to whom the case was submitted upon waiver of trial by jury, found appellant guilty as charged in an indictment laid under §13386-3 GC, which indictment reads as follows:

“INDICTMENT FOR KIDNAPPING A WOMAN WITH INTENT TO RAPE.”
“THE STATE OF OHIO, MAHONING COUNTY, SS.”
“In the Court of Common Pleas, Mahoning County, Ohio, of the Term of September, in the year of our Lord one thousand nine hundred and fifty-one.”
“The Jurors of the Grand Jury of the County of Mahoning, and State of Ohio, then and there duly empaneled, sworn and charged to inquire of and present all offenses whatever committed within the limits of said county, on their said oaths, in the name and by the authority of the State of Ohio, do find and present:
“That Frank P. Graziano, Robert C. Graves, John Vostitsianos, and John Terlecki, late of said County, on the 30th day of August in the year of our Lord one thousand nine hundred and fifty-one, at the County of Mahoning aforesaid did maliciously, unlawfully and feloniously unite, conmbine and conspire and maliciously kidnap a female person for the purpose of committing rape upon her person, and in pusuance of said conspiracy, and to effect the purpose thereof, did then and there unlawfully and forcibly kidnap, entice, abduct, carry off, detain and decoy one Margaret Mary Ship-sky, for the purpose of committing rape upon her person, and then and there, so united, did commit rape upon the person of the said Margaret Mary Shipsky, contrary to the statute in such cases made and provided and against the peace of the State of Ohio.”

On October 3, 1951, appellant pleaded not guilty to the charges lodged against him in both cases. On October 17, 1951, he withdrew his plea of not guilty in case number 18204 and entered a plea of guilty as charged in that case, and was sentenced to imprisonment in the Ohio penitentiary for the term of three to twenty years.

On January 28, 1952, appellant filed a plea in bar and requested the trial judge to quash the indictment returned against him in case number 18205. The trial judge overruled that motion and plea.

Having been found sane, after observation had in accordance with the provisions of §13451-20 GC, the trial judge found appellant guilty in case number 18205, as charged therein, and subsequently duly sentenced him to be imprisoned in the Ohio Penitentiary for not less than five nor more than thirty years.

Appellant appealed to this court in both cases on questions of law from the judgment of the court of common pleas, and by stipulation the appeals were consolidated for all purposes and will be disposed of accordingly.

About 12:30 on the morning of August 30, 1951, Frank Graziano, Marón Fares, and appellant were riding in the back seat of an automobile being operated in an easterly direction on East Federal Street in downtown Youngstown, Mahoning County, Ohio, by Robert Graves, beside whom John Vostitsianos was sitting on the front seat.

When the automobile in question was stopped at the intersection of East Federal and Champion Streets, one block east of the Public Square of Youngstown, in obedience to a traffic light situated there, Vostitsianos beckoned to Margaret Mary Shipsky, aged twenty-four years, who was waiting for a bus at a place on the sourtherly side of East Federal Street near the intersection of Champion Street, to enter such automobile, which she did, sitting between him and Graves.

Mistaking, as she testified in the trial court, the occupants thereof for friends she asked permission to leave the automobile as it proceeded eastterly on East Federal Street, which she was denied. Thereupon she grasped the steering wheel of the car for the purpose of directing attention of other automobilists to the car in which she was riding, in which attempt she failed.

The automobile was driven some distance east then to a lonely place several miles north of Youngstown in Trumbull County, where she testified she was raped forcibly and against her will by appellant and certain other occupants of such automobile.

By assignments of error filed in case number 18204 appellant contends that the trial judge “abused his discretion in not permitting the defendant to withdraw his former plea of guilty and enter a plea of not guilty”; that che trial court “was without jurisdiction to enter any sentence and judgment therein”; that the trial judge erred “in overruling the motion for a new trial”; and contends that “the sentence and judgment is contrary to law.”

In case number 18205 appellant contends by assignments of error that the trial judge erred to his prejudice “in overruling the plea in bar filed by the defendant and thereby failing to quash the indictment”; erred “by placing the defendant twice in jeopardy for the same offense contrary to the Constitution of the State of Ohio and the Constitution of the United erred “by sentencing the defendant in the within cause when he had been previously sentenced in case number 18204”; and erred “in overruling the motion for new trial”; and contends “the sentence and judgment is contrary to law”.

The burden of appellant’s contention, as indicated in his assignment of errors filed in his respective appeals is that:

“* * * the indictments herein having grown out of the same transaction, referring to the same offense under different sections of the General Code that only one penalty could be ordered by the Common Pleas Court for the violation thereof; that the alleged crimes herein resulted from a single act, from a continuous transaction and that although covered by separate sections, under the procedure in Ohio the two charges might be made in one indictment, but a conviction for either one offense in either a single indictment or where the indictment contains two counts, a sentence on one or the other prohibits any further penalty being imposed by the court.”

Or as stated by the State’s attorney:

“All of the defendant’s assignments of error are bottomed on the fact that inasmuch as both the rape and kidnapping involve the same parties, ‘the same transaction, on the same date’, that both offenses were committed by the same act; that the kidnapping necessarily included the commission of the rape, and, that defendants could only be punished for the commission of one offense and to punish for both offenses constituted placing the defendants twice in jeopardy for the same offense.”

Further appellant contends that the stale’s attorney having elected to try defendant under the indictment returned in case number 18204 imposed the mandatory duty upon the trial judge to entertain the plea in bar filed in case number 18205 and quash the indictment returned against him in that case as under the protection of Article 1, Section 10, of the Constitution of Ohio “no person shall be twice put in jeopardy for the same offense”; and that under Amendment 5 of Article 7 of the Constitution of the United States “ * * * nor shall any person be subject for the same offense to be twice put in jeopary of life and limb * * and that in the instant case “two different consecutive sentences of punishment” were imposed upon defendant.

The details of the gang kidnapping, assault and rape in which appellant undisputedly participated are so horrifying and revolting that we are grateful that able counsel for defendant has spared us the necessity of reciting them by not contending that the judgment of the trial judge is not supported by the evidence, nor against the manifest weight thereof.

The law with reference to appellant’s contention is so well settled against him and so thoroughly briefed by counsel for the state that we cite some of the cases and excerpts therefrom set forth in the state’s brief.

“The plea of former jeopardy, under the Ohio Constitution, is limited by such constitution to ‘the same offense’.” State v. Billotto, 104 Ohio St 13.

“A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one oí them would have been sufficient to warrant a conviction upon the other.” Duvall v. State, 111 Oh St 657.

“One. acquitted under an indictment for stealing certain property may be subsequently indicted and tried for receiving and concealing the same property, Knowing it to have been stolen.” Beamer v. State, 10 C. C. (n.s.l 131.

“Two indictments, each charging the unlawful killing of different human beings, though growing out of the same general transaction, quarrel or controversy, do not charge the same offense. They each charge a separate and distinct offense under the laws of Ohio.” State v. Billotto, 104 Oh St 13.

“An acquittal of a defendant upon the charge of murder in the first degree, while attempting to perpetrate a robbery (under §12400 GC), is not a bar to a prosecution for the crime of robbery (under §12432 GC), even though committed upon the same person named in the former charge, and the robbery was a part of the same criminal act referred to in the indictment for murder.” Duvall v. State, 111 Oh St 657.

“A single act may be an offense against two statutes.” Duvall v. State, 111 Oh St 657.

“A plea of former conviction can not be sustained where it appears that in one transaction several offenses were committed, even though the same evidence is admissible in all offenses charged.” State v. Parrish, 27 N. P. (n.s.) 242.

“When the defendant was convicted or acquitted, or has been once in jeopardy upon an indictment or information the conviction, acquittal or jeopardy is a bar to another indictment or information for the offense charged in the former, or for an attempt to commit the same or for an offense necessarily included therein of which he might have been convicted under that indictment or information.” Sec. 13440-8 GC.

“The fact that a defendant has been put in jeopardy upon a trial for one criminal act is no bar to a prosecution for a separate and distinct criminal act merely because they are closely connected in point of time, place and circumstance.” Dodge v. State, 124 Oh St 580.

“Where a person has been in jeopardy upon an information or affidavit charging that he contributed to the moral delinquency of a female person in violation of Section 1654 General Code such jeopardy cannot be successfully pleaded as a bar to a prosecution by indictment on a charge of rape under §12413 GC.

“The provision of the constitution relating to jeopardy is in the following words: ‘No person shall be twice put in jeopardy for the same offense.’ The offense charged in the information is not the same offense and does not include the offense charged in the indictment, and hence the defense of jeopardy must fail.” State v. Rose, 89 Oh St 383, syllabus.

“The words ‘same offense’ mean same offense, not the same transaction, not the same acts not the same circumstances or same situation. * * *

“It is not enough that some single element of the offense charged may have a single element of some other offense as to which the defendant had theretofore been in jeopardy, but the constitutional provision requires that it shall be the ‘same offense’ The usual test accepted by the textwriters on criminal law and procedure is this: If the defendant upon the first charge could have been convicted of the offense in the second, then he has been in jeopardy.” State v. Rose, 89 Oh St 383 at 386 and 387.

“Under the state and federal constitutions no person shall be twice put in jeopardy for the same offense.”
“One act may constitute several offenses.”
“When a single unlawful act results in the killing of more than one person, each homicide constitutes a separate offense for which the defendant may be tried without being twice put in jeopardy.” State v. Martin, 154 Oh St 539.

It was not necessary for a conviction of the defendant in case number 18204 charging rape under the provisions of §12413 GC, that the state present any evidence of the kidnapping of the person raped.

In case number 18205 it was necessary to a conviction under §13386-3 GC, that the state proved beyond a reasonable doubt that the raped person had been kidnapped for the purpose of committing rape.

We hold the two crimes are separate and distinct, and that the conviction in the first instance would not constitute a bar to the second prosecution. and that there was no error in the overruling by the trial court of defendant’s plea in bar in case number 18205, nor do we find any other prejudicial error asserted in these appeals.

The judgment of the court of common pleas is affirmed.

NICHOLS, GRIFFITH and PHILLIPS, JJ, concur.


text:
    DATKO, Plaintiff-Appellant, v. GIEB et, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22652.
    Decided February 9, 1953.
    Morton D. Barrisch, Cleveland, for plaintiff-appellant.
    John J. Wintering, Cleveland, for defendant-appellee.
   OPINION

PER CURIAM:

The plaintiff, a minor, entered into an agreement to purchase a motor vehicle from defendant, paying the said defendant the full purchase price of $1,500.00. After he took delivery of the car he offered to return it to defendant and demanded the return of his money on the ground that he was a minor both on the date of the purchase and at the time of his disaffirmance of the purchase. The fact that he was then a minor is not in dispute. The record shows that the plaintiff conducted his negotiations with the defendant, believing him to be the owner of said automobile and paid to him the full purchase price. After the purchase of the automobile, the plaintiff learned for the first time that the certificate of title was in the name of Robert Beckett, said certificate of title being signed by Beckett in blank and delivered to plaintiff in such form by the defendant at the time the transaction was completed.

Upon trial, after the foregoing evidence was introduced, upon defendant’s motion for judgment at the conclusion of plaintiff’s case the court granted said motion for reason that the defendant did not have the certificate of title to the automobile in his name. That the rule relating to an undisclosed agent did not apply and that because of the provisions of §6290-4 GC., the plaintiff could not maintain an action for return of his money against the defendant because the defendant did not have the registered title to the car in his name and in so holding the court committed prejudicial error to the rights of the plaintiff.

The motor vehicle title law is not concerned or involved in this proceeding. If the defendant acted for an undisclosed principal, making the contract in his own name, he is bound by his contract and an infant with whom he deals has the right to look to him for the return of the money upon disaffirmance of the purchase agreement during his minority or within a reasonable time after becoming of age.

Judgment reversed and cause remanded for further proceedings according to law. Exceptions noted. O. S. J.

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


author: By STEVENS, J.

text:
    STATE Appellee, v. SHOLITON, Appellant.
    Ohio Appeals, Ninth District, Summit County.
    No. 4447.
    Decided. November 10, 1954.
    Alva J. Russell, Pros. Atty., Jackson B. Morris, Asst. Pros. Atty., Akron, for appellee.
    Harris, Sacks & Subrin, Akron, for “appellant” (now deceased).
   OPINION

By STEVENS, J.

Defendant was indicted for the crime of armed robbery, upon trial was convicted, and was sentenced to the penitentiary. From the judgment of conviction, appeal on questions of law was duly taken, and execution of sentence was suspended by the trial court pending appeal.

While the appeal was pending in this court, the defendant died on or about the 12th of June, 1954.

Counsel, who were of record for defendant in the trial court and in this court, have filed a motion setting up the death of defendant, and asking this court to “abate the criminal prosecution and all procedure hereinbefore had in this court and in the court below, including the verdict and the judgment,” because of said death.

The prosecuting attorneiy of Summit County, Ohio, has filed a motion asking that the appeal herein “be dismissed because the appellant, Irving Sholiton, died on or about the 12th day of June, 1954.”

No question has been raised as to the propriety of the representation of the decedent in this proceeding by his former counsel, and therefore no cognizance of that question is taken.

It is urged by former counsel for defendant that the defendant’s death abates the entire criminal proceeding from its inception.

In Ohio, criminal proceedings are solely statutory, and, in the absence of a statute providing that the death of a convicted defendant during the pendency of an appeal by him on questions of law, abates the proceedings from their inception, we conclude that such abatement does not ensue

Upon the motion of the State to dismiss the appeal because moot, the Supreme Court of Ohio had before it a quite similar case in Makely v. State, 128 Oh St 571, in which the per curiam opinion states:

“This cause came on to be heard on September 19, 1934, upon the transcript of the record of the Court of Appeals of Allen County, upon the motion of the defendant in error to dismiss the petition in error filed as of right herein, and was argued by counsel.
“Thereafter, on September 25, 1934, the Warden of the Ohio Penitentiary, wherein said plaintiff in error was confined, advised the court that said plaintiff in error died on Monday, September 24, 1934, and the question herein having thus become moot, it is ordered and adjudged by this court that said petition in error be, and the same hereby is dismissed on authority of Minor v. Witt, 82 Oh St 237.”

Upon the authority of that case, and its supporting authority quoted in the opinion, the motion of the State to dismiss the appeal herein as moot, must be sustained.

It is elementary, in appellate procedure, that an appeal on questions of law, which is the successor to the previous proceeding in error, does not vacate or suspend the judgment below, although execution of sentence may be suspended in a criminal case, upon order of the trial court, by the filing with the trial court of an appropriate bond, and the clerk’s approval of that bond.

Upon dismissal of the appeal by the Court of Appeals, the judgment of the Court of Common Pleas remains in full force and effect, as a valid and subsisting judgment of that court.

We are of the opinion that the dismissal of an appeal, because of the death of the defendant during the pendency thereof, leaves the judgment as it was before the appeal proceeding was instituted.

We are not called upon to determine the question of the liability of the defendant’s estate for the payment of costs in the criminal proceeding, because that question is not presented. Nor are we called upon to express an opinion concerning the dismissal of an appeal as moot, upon the death of a defendant, where the indictment under which the decedent was prosecuted fails to charge an offense. That question is likewise not presented.

The motion of appellant to abate is denied.

The motion of appellee to dismiss the appeal as moot, is sustained.

DOYLE, PJ, and HUNSICKER, J, concur.


author: By MILLER, J.:

text:
    SPRAGUE, Plaintiff-Appellant, v. BOARD OF REVIEW, BUREAU OF UNEMPLOYMENT COMPENSATION, Defendants-Appellees.
    Ohio Appeals, Second District, Montgomery County.
    No. 2247.
    Decided December 4, 1953.

      Raymond S. Caulfield, Dayton, for plaintiff-appellant.
    Hon. C. William O’Neill, Atty Geni., John W. Hardwick, Asst. Atty. Geni., Columbus, for defendant-appellee, Board of Review.
    Cowden, Pfarrer & Crew, Dayton, By Charles P. Pfarrer, of Counsel, for defendant-appellee, Frigidaire Division, General Motors Corporation.
   OPINION

By MILLER, J.:

This is a law appeal from the judgment of the Common Pleas Court sustaining the action of the Board of Review in finding that the plaintiff had failed to establish by the proper degree of proof that she was entitled to further compensation under the provisions of the Unemployment Compensation Act.

The record discloses that the appellant refused employment because the same was not suitable, contending that under 1345-6 (e) GC she was not required to accept the same. The work refused consisted of packing peanut butter and coffee in containers. She testified that the smell of peanut butter makes her sick; that she is allergic to peanuts; that she became ill at the plant when she applied for the job, and that three days later she consulted her family physician, whose name she could not remember, who made certain tests in which he found that she had the said allergy. The Administrator rejected the application for the reason that her statement as to her health was not supported by any medical testimony The record made before the referee also contains only the statement of the appellant, which is unsupported by any medical evidence, even though she was represented by counsel who knew the reason for the refusal by the Administrator.

The appellant urges that since her testimony was not refuted it was incumbent upon the trier of the facts to accept the same. The trial court held that such was not the law. Citing 32 Corpus Juris Secundum, pp. 1089 and 1093:

“Uncontroverted evidence should ordinarily be taken as true, and uncontradicted evidence which is not improbable or unreasonable cannot be disregarded, even if it comes from an interested witness, and, unless shown to be untrustworthy, is conclusive; but evidence not directly contradicted is not necessarily binding on the triers of fact, and may under proper circumstances be given no weight, as where it is inherently ■ improbable or unreasonable, self-contradictory, or inconsistent with facts or circumstances in evidence.”

32 C. J. S. 1089, Evidence, Sec. 1038.

“However, the evidence relied on to support a verdict must in itself have fitness to induce conviction, even if uncontradicted; the persuasiveness of evidence may on occasion be destroyed by analysis even though uncontroverted; and a substantial conflict in the evidence may arise when all of the evidence is produced by one party. A fact is not undisputed merely because one or more witnesses testify to it and no one denies it. since it is for the trial court to determine what credence it will give to witnesses.” Id. p. 1093.

We find the Ohio Law supports the above authority. In the case of Henderson v. Wertheimer, 12 Oh. Ap., 249, the court says:

“The principal contention now made by the plaintiff in error is that the presumption of negligence which might have arisen by reason of the manner in which the collision occurred was rebutted by the uncontradicted evidence offered on his behalf. It is contended the court cannot rightfully reject uncontradicted and unimpeached testimony, and that therefore the statements of the two witnesses for defendant must be regarded as establishing a fact. Bale v. Chicago Junction Ry. Co., 259 Ill., 476.

It is not true in law that a witness must be credited unless directly impeached or contradicted by other witnesses; his manner, the improbability of his story, and his self-contradiction in the several parts of his narrative may justify a court or jury in wholly rejecting his testimony, though he be not attacked in his reputation, nor contradicted by other witnesses. French v. Millard, 2 Oh St, 45; Quock Ting v. United States, 140 U. S., 417; Sonnentheil v. Christian Moerlein Brewing Co., 172 U. S. 401, 408; In re Baumhauer, 179 Fed. Rep., 966; In re Schults, 135 Fed, Rep., 623; The Dauntless, 129 Fed. Rep., 715, 721; United States v. Sing Lee, 125 Fed. Rep., 627, 628; United States v. Lee Huen, 118 Fed. Rep., 442, 459, 462; in re Jew Wong Loy, 91 Fed. Rep., 240, 241, and People v. Tuczkewitz, 149 N. Y. 240.

If the court judicially determined that the testimony offered by the defendant, an interested witness, was unworthy of belief, he had a right and owed the duty to decide the case in accordance with that determination.

The weight of the evidence was for the trial judge to decide. The judgment is not manifestly against the weight of the evidence, nor contrary to law.”

We are of the opinion that the mere absence of medical testimony is not fatal but may be considered by the trier of facts in determining the credibility to be given the same, and when it appears that such evidence was easily available it is reasonable for the trier of the facts to take such omission into account. This is especially true in our case since the Administrator had rejected the claim because of the failure of proof. If further proof were available it is not unreasonable to assume that the same would have been produced for consideration by the Board and referee.

After giving consideration to all the surrounding circumstances in this case we cannot say that the determination of the Board was “unlawful. unreasonable or against the manifest weight of the evidence”.

The judgment will be affirmed.

WISEMAN, PJ, and HORNBECK, J, concur.


text:
    SHILLAT, Plaintiff-Appellee, v. CLEVELAND (City) et, Defendants-Appellants. MURRAY, Plaintiff-Appellee, v. CLEVELAND (City) et, Defendants-Appellants. LUCAS, Plaintiff-Appellee, v. CLEVELAND (City) et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    Nos. 22666, 22667, 22668.
    Decided June 8, 1953.
    Neil W. McGill, Cleveland, for appellee Shillat.
    Martin L. Sweeney, Cleveland, for appellee Murray.
    Parker Fulton, Cleveland, for appellee Lucas.
    Jos. H. Crowley, Director of Law, Chas. W. White, Assistant Director of Law, Cleveland, for appellants.
   OPINION

PER CURIAM:

This appeal comes to this Court on questions of law from judgments entered in the Common Pleas Court of Cuyahoga County, where, upon appeal to said Court by these appellees from separate orders of the Civil Service Commission of the City of Cleveland reducing each of the appellees in rank as members of the police department of the City of Cleveland, the said court found that “sufficient grounds for removal” had not been shown and the orders of the Civil Service Commission were therefore set aside and held for naught.

The appellants claim the following errors:

1. In failing to grant motion to strike a paper filed in the case and designated as “Petition on Appeal” from the files;

2. In overruling motions to dismiss appeals;

3. The judgment on the merits is against the weight of the evidence.

4. The judgment is contrary to law.

The appellees were charged by the Chief of Police with gross neglect of duty in an investigation of whether or not commercial gambling was then being illegally conducted in a room known as 3343 West 120 Street in Cleveland. Each of the appellees was separately charged but a joint trial was had before the Director of Public Safety and before the Civil Service Commission and the Common Pleas Court on the record produced before the Director of Public Safety, and these appeals were here jointly presented upon the same record.

The record discloses clearly that the trial court, by its decision, reviewed the complete record of the trial before the Civil Service Commission for the purpose of “determining the sufficiency of the cause of removal.”

This court withheld decision in these appeals awaiting the decision of the Supreme Court in the cases of Sorge v. Sutton et al and Kelch v. Sutton et al, 159 Oh St 574. These cases have just been reported (June 3, 1953). The Supreme Court here decided the character of the “Appeal” to which an officer is entitled to the common pleas court from a decision of the Civil Service Commission in case of his removal from office under the provisions of §457-17a GC. The syllabus of these cases provide:

“1. The word ‘appeal’ has no conclusive meaning, and where by statute there is given a right of ‘appeal’ to a designated court from an order or decision of an administrative agency, it is necessary to examine the context of the statute to determine the powers and functions of such court on the appeal.
2. Under §486-17a GC, the ‘appeal’ from a decision of a municipal civil service commission to the Court of Common Pleas, ‘to determine the sufficiency of the cause of removal’ accorded members of police and fire departments in the classified civil service contemplates only a review of the proceedings, before the commission, as to their legality and regularity and to determine the sufficiency of the cause of removal and not a trial de novo.”

The record discloses that the “appeal” afforded the parties herein was in full and complete accord with the foregoing holding of the Supreme Court. The Common Pleas Court reviewed the trial before the Civil Service Commission to determine its regularity, legality and whether the evidence was sufficient to justify the removal of the appellees. The Court of Common Pleas concluded that while the trial was regular and legal in all respects, yet the evidence was not sufficient to justify the order of the commission in reducing the rank of the appellees in the police department of the City of Cleveland.

In the review of that judgment before this court on questions of law there being credible evidence upon which such judgment of the Common Pleas Court was founded we are unable to say that such judgment is manifestly against the weight of the evidence or that the court was guilty of an abuse of discretion under all of the circumstances of the case.

One other question is presented. The statute gives the right of appeal to the Common Pleas Court in case of “removal” of a police officer after trial upon charges before the Civil Service Commission. It is claimed by the appellant that the judgment here entered was “reduction in rank” and not “removal”. It is therefore claimed, as a matter of law, that the Common Pleas Court was without jurisdiction to consider this appeal. The Supreme Court in the case of State ex rel Sidell v. Cole, Director, etc., 147 Oh St 203, held in para 1 of the syllabus:

Under the cognate provisions of amended §§486-17, 486-17a and 486-17b GC, a member of a fire department who has been reduced in rank may appeal to the Court of Common Pleas from the decision of the Civil Service Commission.”

This court is bound by the rule as thus stated.

For the foregoing reasons the judgment of the Common Pleas Court is affirmed. Exceptions noted. Order see journal.

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


author: By PHILLIPS, J.

text:
    STATE, Plaintiff-Appellee, v. PHILLIPS, Defendant-Appellant.
    Ohio Appeals, Seventh District, Jefferson County.
    No. 1059.
    Decided December 11, 1952.
    Robert L. Quinn, Steubenville, for plaintiff-appellee.
    Murphy & George, Steubenville, for defendant-appellant.
   OPINION

By PHILLIPS, J.

Defendant’s arrest by the Ohio State Police, trial before, judgment of conviction, and imposition of sentence by the Mayor of Brilliant, Ohio, and affrmance of that judgment by a judge of the court of common pleas upon appeal thereto, are based upon his knowingly allowing mud to be dropped from the dual wheels of a coal truck he was operating on Ohio State Route No. 7 onto that highway in the village of Brilliant in violation of §6397-72a GC, which reads:

“No person shall place or knowingly drop upon any part of a highway, lane, road, street or alley, any tacks, bottles, wire, glass, nails or other articles, except such substances that may' be placed there by proper authority for the repair or construction thereof, which may damage or injure any person, vehicle, street car or trackless trolley or animal traveling along or upon such highway.”

Assuming, but not determining, as viewing this appeal as we do we need not, that defendant knowingly allowed mud to be dropped on Ohio State Route No. 7, as charged in the affidavit filed in the mayor’s court of Brilliant, the question presented to this court by defendant’s appeal on questions of law from the judgment of the court of common pleas is whether, as urged by his sole assignment of error, “the final order and judgment of the common pleas court of Jefferson County, Ohio, convicting the defendant and affirming the final order of the trial court is contrary to law.” *

Under the rule of ejusdem generis we interpret strictly, as a criminal statute must be interpreted and construed, the words of that section of the code “other articles” to be limited to “the same kind, class or nature as those specifically enumerated” therein, namely “tacks, bottles, wire, glass, nails,” in which class mud in our opinion is not included. See George H. Dingledy Lumber Co. v. Erie Railroad Co., 102 Oh St 236.

In the opinion written in the Dingledy case the court said:—

“The principle of construction known as ejusdem generis therefore should be applied in determining what is included in the term ‘by fire or otherwise.’ The application of that rule would require that where an enumeration of specific things is' followed by some more general word or phrase, such general word or phrase should be held to include only things of the same general nature as those specified.”

If, as argued by the state, the intent of the legislature was to protect the travelling public from injury from all articles dropped upon a highway, lane, road, street or alley, it did not make that intent clear to this court.

Probably most operators of motor vehicles on public highways of the state are familiar with how unsightly mud dropped upon an improved highway in residential, open country, or other areas is, and how dangerous it can become to the operation of a motor vehicle, but in the section for violation of which defendant was charged the legislature has not concerned itself with the ascetics of the matter, nor specifically included mud with tacks, bottles, wire, glass and nails.

Notwithstanding the apparent pressing needs of such legislation this court can not concern itself with the ascetics of the matter, nor read into that statute something the legislature has seen fit to leave out.

We are not called upon to, and accordingly do not, decide whether defendant could have been convicted of the offense with which he is charged under some other section of the Code.

It is obvious from what we have said that the judgment of the court of common pleas must be and hereby is reversed as contrary to law, and coming now to render the judgment that court should have rendered final judgment is entered for defendant and he is discharged hereby.

NICHOLS, PJ, GRIFFITH, J, concur.


author: By MILLER, J.

text:
    SHALOSKY, Plaintiff-Appellant, v. SHALOSKY, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4704.
    Decided October 17, 1952.
    Jack M. Parrish, Columbus, for plaintiff-appellant.
    Joseph G. Rotondo, Columbus, for defendant-appellee.
   OPINION

By MILLER, J.

This is a law appeal from the judgment of the Common Pleas Court, Division of Domestic Relations, sustaining the motion of the defendant-appellee granting a change of custody of the minor children of the parties hereto and overruling the motion of the plaintiff-appellant to reduce to judgment an alleged arrearage of $1092.00 which arose by reason of a former order of the Court.

The record reveals that on November 12, 1947, the plaintifl-appellant, hereinafter referred to at times as the father, was granted a divorce from the defendant-appellee, hereinafter referred to as the mother, because of the aggressions of the mother. At the time the decree was granted the custody of the two children of the parties hereto was awarded to the father and the mother was ordered to pay the sum of $6.00 per week toward the support of said children. On January 5, 1951, the mother hied a motion to regain custody of the children and on January 13, 1951, the father hied his motion to reduce to judgment the arrearage owed by the mother for the support of the children.

The appellant first urges that the order changing the custody is contrary to law and constitutes an abuse of discretion and is not supported by the record. We have examined the bill of exceptions and are of the opinion that the evidence supports the finding that there has been a change of conditions affecting the welfare of the children since the granting of the decree and also a finding that a change of custody was in their best interest?. It should be noted that on appeal from such a judgment to this Court on questions of law we may not substitute our judgment for that of. the trial court.

In the case of Trickey v. Trickey, 158 Oh St 9, the Court recognized the discretionary powers of a trial court in controlling the custody of minor children as being peculiarly important, saying at page 13:

“In proceedings involving the custody and welfare of children the power of the trial court to exercise discretion is peculiarly important. The knowledge obtained through contact with and observation of the parties and through independent investigation can not be conveyed to a reviewing court by printed record. In the instant case the trial judge conducted not one but several hearings. He exhibited great patience and thoroughness. He evidenced sincere concern for the welfare and best interests of the child and acted only after deliberation. We find no indication whatever of abuse of discretion.

This court has repeatedly held that in an appeal on questions of law the Court of Appeals can not substitute its judgment for the judgment of the trial court. In Re Estate of Johnson, 142 Oh St., 49, 49 N. E. (2d), 950; Bishop v. East Ohio Gas Co., 143 Oh St., 541, 56 N. E. (2d), 164; State, ex rel. Squire, Supt., v. City of Cleveland, 150 Oh St., 303, 82 N. E. (2d), 709; In Re Estate of Murnan, 151 Oh St., 529, 87 N. E. (2d), 84; Henry v. Henry, 157 Oh St., 319, 105 N.E. (2d), 406.”

We find that the Court committed no prejudicial error in changing the custody award of the minor children involved herein.

It is further urged that the Court erred in overruling the father’s motion for a judgment against the mother for the arrearages in the support money awarded in the decree. We recognize that the Court could not modify the due and unpaid installments upon the application of the mother, McPherson v. McPherson, 153 Oh St 82, but she is not seeking a modification of the same. The husband is seeking an order reducing to a judgment the amount due under the aforesaid order. This he was required to do before he could have a judgment for a lump sum. Meister v. Day, 20 Oh Ap 224; Kosen v. Kosen, 36 Abs. 156. Certainly the Court had the right to inquire into the amount due and enter its judgment in accordance with its findings. In Bidinger v. Bidinger, 89 Oh Ap 274, the Court held, and we think properly so, that,

“An agreement between a father and a mother (formerly husband and wife) of a minor child, whereby the father, for a valuable consideration, is released from his obligation under the decree of divorce to support such child, is valid as between the parties, and the mother cannot, while such agreement is in effect, recover from the father the unpaid installments of such support award.”

Since every reasonable presumption must be made in favor of the validity of a judgment we shall now look to the record to see if there is any evidence tending to support the same. In so doing it will be seen that the appellee has never been able to meet the weekly payments, counsel for appellant having made this concession in the record at page 81:

“MR. ROTONDO: I know that Mr. Shalosky has never expected to collect six dollars a week from Alice.
MR. PARRISH: No, there has never been any way to collect it or he never made any request of her to pay at any time.”

The record shows further that the mother had the custody of the children during a good part of the time prior to the time of the last hearing; that the appellant told her that he never expected her to make the weekly payments; that he was able to support the children himself (See Record, pp. 127, 128.) Under §8002-3 GC and these circumstances the duty became that of the husband and not of the wife, all of which the Court could consider in determining whether or not to grant the husband a judgment for the support money. If the Court found that the support order had been erroneously entered we do not think that it was required to give it recognition favorable to the father.

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

HORNBECK, PJ, and WISEMAN, J, concur.


author: By HUNSICKER, J.

text:
    POPPA, Plaintiff, v. WANAMAKER, Defendant.
    Ohio Appeals, Ninth District, Summit County.
    No. 4484.
    Decided October 13, 1954.

      J. P. Riddle Akron, for plaintiff.
    Alva J. Russell, Pros. Atty., Akron, for defendant.
   OPINION

By HUNSICKER, J.

This is an original action in mandamus, filed in this court.

The petitioner, Theodore A. Poppa, seeks to secure an order of this court compelling the defendant herein, The Honorable Walter B. Wanamaker. a Judge of the Common Pleas Court of Summit County, Ohio, to issue an order to the clerk of the Common Pleas Court of Summit County, Ohio, to prepare a certified copy of “the full Trial Transcript of Case No. 24696 of the court proceedings had against this petitioner in February, 1950, when petitioner was convicted and sentenced to the Ohio Penitentiary * *

The prosecuting attorney of Summit County, as counsel for the defendant, has filed a demurrer, saying that “said petition does not state facts which constitute a cause of action.”

Counsel for Poppa is serving at the request of the Akron Bar Association, without fee and as a public service in the administration of justice. From the very nature of this case, a broad scope was permitted in oral argument, and a careful survey of all rights of the litigants has been made by this court. Oral argument on the demurrer and on the merits has been presented to this court by counsel.

On February 15, 1950, Theodore Poppa was convicted by a jury on each of four counts of an indictment for certain felonies committed in Summit County, Ohio. The trial judge, The Honorable Walter B. Wanamaker, sentenced Poppa to the Ohio Penitentiary on each of the four counts, to consecutive terms in that institution. Two counts were for the crime of breaking and entering, one count for grand larceny, and one count for carrying concealed weapons.

On March 19, 1954, Poppa petitioned the then presiding judge of the Common Pleas Court for the transcript which he seeks by this present action. The application then made to the court was refused unless a deposit for the payment of the cost of such transcript (or, as it is technically called, bill of exceptions), was first made with the official court reporter who served during the course of the Poppa trial held on February 15, 1950.

The present original action in mandamus was thereafter filed in this court on May 20, 1954, by Poppa, and with it Poppa’s affidavit of indigency.

No request has been made to this court, or to a majority of the judges thereof to grant leave to appeal the judgment of conviction entered on the verdict of a jury in the case of State of Ohio v. Theodore Poppa (§2953.05 R. C.). So far as we know there is no disposition to question the judgment so entered.

Theodore Poppa insists by his petition for mandamus that he is, as a matter of right, entitled to have a copy of the “full Trial Transcript in Case No. 24696.” and that since he is unable to pay for such transcript, he can, by filing an affidavit “in forma pauperis,” secure such transcript upon request.

It must be remembered that mandamus is an extraordinary writ, and will not lie unless the plaintiff can establish a clear legal right thereto. The right of the plaintiff must be clear, and the act, performance of which is desired, must be one of absolute obligation on the part of the person or officer.

State, ex rel. Albright, v. Haber, 139 Oh St 551; State, ex rel. Stanley, v. Cook, Supt., 146 Oh St 348; State, ex rel. Cook v. Civil Service Comm., 152 Oh St 71.

A search of the statutes, with respect to bills of exceptions (§2945.65, et seq., R. C.), and appeals in criminal cases (§2953.01, et seq., R. C.), does not disclose any requirement that a defendant in a criminal case be furnished, free of charge, for the purposes of appeal or mere examination, a bill of exceptions. Sec. 2953.03 R. C., a part of the chapter on “Appeals,” says:

“On application by or on behalf of the accused, to an officer required to make a record or docket entries in a criminal case as provided in §2953.02 R. C., and upon tender of the proper fee, such officer shall make and deliver to such accused, or his counsel, a complete certified transcript of the record omitting therefrom, if so requested, a bill of exceptions. If the prosecution was before a court or magistrate in which a complete record is not made, such officer shall so make and deliver a certified transcript of the judgment and all entries in the case, and shall forward to the clerk of the court in which review is sought, the original papers in the case.”

That portion of the Revised Statutes dealing with the appointment and duties of the official shorthand reporters, §§2301.18 to 2301.26, inc., R. C. (former §§1546 to 1554, inc., GC), discloses certain requirements with respect to the furnishing, of transcripts of the shorthand notes taken during the course of a trial.

Sec. 2301.23 R. C., says:

“When shorthand notes have been taken in a case as provided in §2301.20 R: €., if the court, either party to the suit, or his attorney, requests transcripts of any portion of such notes in longhand, the shorthand reporter reporting the case shall make full and accurate transcripts thereof for the use of such court or party. The court may direct the official shorthand reporter to furnish to the court and parties copies of decisions rendered and charges delivered by the court in pending cases.”

Sec. 2301.24 R. C., in its pertinent part says:

“* * *. The compensation for transcripts made in criminal cases, by request of the prosecuting attorney or the defendant, and transcripts ordered by the court in either civil or criminal cases, and copies of decisions and charges furnished by direction of the court shall be paid from the county treasury, and taxed and collected as other costs. The clerk of the court of common pleas shall certify the amount of such transcripts or copies, which certificate shall be a sufficient voucher to the county auditor, who shall forthwith draw his warrants upon the county treasurer in favor of such shorthand reporters.”

And §2301.25 R. C., in its pertinent part says:

“When ordered by the prosecuting attorney or the defendant in a criminal case, or when ordered by the court of common pleas for its own use, in either civil or criminal cases, the costs of transcripts mentioned in §2301.23 R. C. shall be taxed as costs in the case, collected as other costs, and paid by the clerk of the court of common pleas, quarterly, into the county treasury, and credited to the general fund. * *

Is it possible to reconcile the apparent inconsistency between §2953.03 R. C., and the provisions found in the sections on the duty of the official shorthand reporters?

The Supreme Court of Ohio, in the case of Krieger’s Cleaners & Dyers, Inc., v. Benner, 123 Oh St 482, at p. 491, in speaking of the purpose of similar sections contained in the former General Code of Ohio, said:

“These provisions illustrate the general intent of the Legislature that litigants shall be entitled to make up a true and accurate account of the proceedings at a trial, to be used upon review.”

It should also be noted that §2953.03 R. C., provides for the request to be made to an “officer required to make a record or docket entries in a criminal case.” In this case no such request was made to the clerk of the Common Pleas Court.

In the instant case, if Poppa desires a full transcript of the docket and journal entries including a bill of exceptions, such request should be made to the proper official (the clerk of the Common Pleas Court), to whom he shall present the required fee. Sec. 2953.03 R. C., supra. (Underscoring ours.) If he desires only a “transcript of any portion of such notes (shorthand) in longhand,” the request should be made to the official shorthand reporter. The request as made by the relator herein, Poppa, was to the trial judge, and there is no provision in the statutes that he shall supply such material to a defendant in a criminal case.

There is no legal right to the act sought to be enforced by this petition. The demurrer shall be sustained.

The nature of this case compels us to give a further reason why the request made herein should not and need not be granted. There is no appeal from the judgment of conviction now pending; the use of the material can avail the defendant nothing ecept “to be used upon review” (Krieger’s Cleaners & Dyers, Inc., v. Benner, supra), and the time provided for by the statute granting the right of appeal is several years beyond the legal limit when an appeal may be made as a matter of right.

The, right to appeal is a statutory right, and the Supreme Court of Ohio, in the case of State v. Edwards 157 Oh St 175, speaking on such right, said:

“1. Due process of law involves only the essential rights of notice, hearing or opportunity to be heard before a competent tribunal. An appeal from a judgement of conviction is not a matter of absolute right independent of constitutional or statutory provisions allowing such appeal. It is wholly within the discretion of the state to allow or not to allow such a review and it may be granted on such terms and conditions as to the legislature seems proper. (Paragraph 4 of the syllabus of Luff v. State, 117 Ohio St, 102, approved and followed.)”

The petition for the writ of mandamus prayed for is dismissed, at the costs of the relator. The court will file the proper journal entry.

DOYLE, PJ, and STEVENS, J, concur.


text:
    FROUG, Admr., Plaintiff-Appellant, v. MIAMI SAVINGS & LOAN COMPANY, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2266.
    Decided November 30, 1953.
    Froug & Froug, Dayton, By John Froug, Of Counsel, for plaintiff-appellant.
    Mason Douglass, Dayton, for defendant-appellee.
   OPINION

By THE COURT:

This is an appeal on questions of law and fact from the judgment of the Common Pleas Court of Montgomery County, Ohio, which ruled that the decedent was a stockholder of the Miami Savings and Loan Company and was not entitled to the status of a creditor.

At the time The Miami Savings and Loan Company was taken over for liquidation, the defendant had on deposit the sum of $3,300.00. Plaintiff contends that decedent had deposited money in a savings deposit account, whereas the defendant contends that decedent held a running stock account. On the evidence adduced, the trial court held that the decedent possessed a running stock account.

By stipulation of counsel, the matter was submitted to this Court on the record below, and additional evidence which we find to be pertinent and determinative of the question presented.

A subscription for stock must be in writing. Sec. 9649 GC. The decedent never subscribed in writing for stock, either at the time the account was opened or at a later date; neither does the evidence show that the decedent orally agreed at any time to become a stockholder. The evidence clearly, shows that the decedent at all times considered herself the owner of a savings deposit account. There has been introduced in evidence correspondence between the decedent and the loan company, extending over a period of years, prior to liquidation which shows that the defendant company used the term “interest” and “dividends” to designate the earnings on the account. The decedent usually referred to such earnings as “interest”. The defendant company described the account as a “savings account”. This evidence was not presented to the trial court.

The fact that the defendant loan company, on its records, designated the account as a “running stock account” was not known to and not binding on decedent. The fact that the withdrawal slips had printed on them the words “running stock account” and that on several of the withdrawal slips there was written thereon in ink “Rs”, indicating the account was a runnning stock account, in and of itself, would not be sufficient to convert the deposits into a stock account. Such evidence does not work an estoppel, since there is no evidence that decedent had knowledge that the defendant company considered her a stockholder.

In our opinion the evidence satisfies the required degree of proof supporting the plaintiff’s right to an order reforming and correcting the records of the loan company showing the decedent to be a depositor rather than a stockholder, and declaring the decedent, and now her administrator, to have the status of a creditor.

An order may be drawn accordingly.

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