author: By MILLS, J.

text:
    MILLER, et al., v. VILLAGE OF BROOKVILLE et al.
    Common Pleas Court, Montgomery County.
    No. 97706.
    Decided July 27, 1948.
    Murr & Murr, Dayton, for plaintiffs.
    John H. Shivley, Oscar B. Scharrer, Robert C. Herkins, Dayton, for defendants.
   OPINION

By MILLS, J.

This is an action for declaratory judgment and to-quiet title filed by the plaintiffs against the defendant, the Village of Brookville.

It appears that Elgar Weaver and Elizabeth Z. Weaver, husband and wife, for the sum of one dollar and other valuable considerations to them paid by the Village of Brookville, Montgomery County, Ohio, an incorporated municipality under the laws of the State of Ohio, granted by quit claim deed to the said Village of Brookville, its successors and assigns forever, the 25 and 45 acre tracts of land, more particular described in the petition herein and the deeds introduced into evidence.

The deed to the village, which was executed and delivered on the 8th day of October, 1936, says further:

“That this tract is conveyed to the Village of Brookville, Ohio, to be used as a park, and is made subject to the following restrictions:
“First: That drinks with alcoholic content, spirituous or intoxicating liquor shall never be sold, trafficked in, dispensed or given away on these premises.
“Second: That no part of the premises shall be used or a permit issued for the use thereof by the authorities in control for entertainment, recreational or social purposes if drinks with an alcoholic content, spirituous or intoxicating liquors are to be used or consumed at such entertainment, recreational or social gathering.
“Third: The premises, or no part thereof are to be rented, leased or used as a profit making proposition, except that light refreshments and wholesome food may be sold on the premises, providing the profit therefrom accrues and is used for the benefit of the park. Granting the concessions for the dispensing or handling of the foregoing, wherein the park authorities receive a reasonable fee or division of the profits derived therefrom, shall be deemed as compliance therewith.
“Fourth: This conveyance is made to be and is in perpetuity for a park and pleasure ground purposes, and the foregoing restrictions shall be enforceable by injunction by the grantors, their heirs or assigns, or any citizen of the community who may be interested in the welfare of the park.
“It is the wish and request of the grantors herein that said grantee improve said land herein conveyed for park purposes, as soon as improvements can be conveniently made as follows:
“First: By the erection of a fence enclosing the premises, suitable as to appearance and utility for park purposes.
“Second: To properly landscape said grounds, lay out proper walks and driveways through said tract and properly maintain the same.
“Third: To have drafted a plan of landscaping and improvement by some competent landscape artist -or authority, approved by grantors prior to entering upon the improvement program.
“Fourth: To provide for reforestation plan prepared by a competent authority on forestry.
“Fifth: To build a dam across the stream flowing through said premises creating a lake; the plan of said dam to be prepared by a competent engineer or authority on construction work of this nature and submitted to grantors for approval.”

After naming the above uses the deed goes on further and says “and all the estate, title and interest of the said Elgar Weaver and Elizabeth Z. Weaver, either in law or in equity, of, in and to the said premises; together with all the privileges and appurtenances to the same belonging, and all the rents, issues and profits thereof; to have and to hold the same to the only proper use of said Village of Brookville, Montgomery County, Ohio, its successors and assigns forever.”

And the testimony shows that the real estate was taken off the tax duplicate, and no taxes paid so long as the Village of Brookville owned said real estate.

The Village of Brookville, Montgomery County, Ohio, passed Ordinance No, 93, which ordinance was passed on the 19th day of April, 1938, and reads as follows:

“Be It Ordained by the council of the Village of Brookville, Montgomery County, Ohio, all members elected thereto concurring:
“Section 1: That the following described real estate heretofore deeded to the Village of Brookville, Montgomery County, Ohio, is not needed for any municipal purpose, to wit:
“Situate in the County of Montgomery, in the State of Ohio, and in the Township of Clay and bounded and described as follows. Situated partly in the Township of Clay and partly in the Village of Brookville, and being part of Section 34, Town 6, Range 4 East, and bounded and described as follows:
“Beginning at the point of intersection of the center line of Brown Road with the center line of Arlington Road; thence Easterly along the center line of Brown Road 1674.42 feet; thence south 3 degrees East 2049.96 feet to the northeasterly right of way line of the D. and N. Traction Company; thence Northwesterly along the Northeasterly right of way of the D. and N. Traction Company to the center line of Arlington Road; thence Northerly, along the center line of Arlington Road to the place of beginning, containing seventy (70) acres of land, more or less. Being same premises described in deed recorded in Deed Volume 792, page 172 of Deed Records of Montgomery County, Ohio.
“Section II: That, whereas, the said Village, because of lack of funds has been unable to comply with the provisions of the deed in the maintenance of said land for park purposes, and
“Whereas, it is the opinion of Council that said property should be returned to the former owner by execution of quit claim deed, and the former owner, to wit, Elgar Weaver, has expressed a willingness to receive said deed,
“The mayor of the Village is hereby authorized to convey said real estate by quit claim deed to said Elgar Weaver.”

On the 20th day of April, 1938, the Village of Brookville, through its mayor, E. P. Landis, and clerk, Prank Borden, executed a quit claim deed back to Elgar Weaver, his heirs and assigns, forever, and in this deed is recited one dollar and other valuable considerations, paid by grantee.

The amended answer of the Village of Brookville, admits it received a deed and accepted said deed for the 70 acres from Elgar Weaver for park purposes, and that the said deed contains the restrictions as set forth in the petition.

The answer says the Village of Brookville took possession of said land for park purposes from the date of the deed and its citizens continued to use said land for park purposes continuously until a date following the reconveyance of said land to the said Elgar Weaver.

The defendant admits that on or about April 19th, 1938, the Council of the Village of Brookville, Ohio, passed its ordinance No. 93, a copy of said ordinance being set forth in the petition herein, and did deliver to Elgar Weaver its certain quit claim deed as alleged in the petition which deed is recorded in Volume 842, page 231, of the Deed Records of Montgomery County, Ohio.

It says, however, that it and many of its residents and taxpayers claim the deed reconveying the land to the said Elgar Weaver, the original donor thereof, was invalid and that the said land should be returned to the said Village of Brookville and the title thereto restored to it as provided in the original deed from the said Elgar Weaver and wife to the defendant, Village of Brookville, Ohio, and that said reconveyance of the premises was made without consideration.

Further answering, defendant denies all other allegations in plaintiff’s petition contained and not herein admitted, explained or qualified and prays that the court determine the validity of the said ordinance and deed returning said lands to Elgar Weaver; that the court protect the rights and interest of this defendant, its citizens and taxpayers in said land and for such other and further relief to which it or they may be entitled in law or equity.

The answer and cross-petition of Lawrence E. Bowser and Marie Alice Bowser sets up that they purchased .686-acre tract of said 70-acre tract on April 4, 1947 for $850.

The testimony produced is clear and convincing to this court from the examination of numerous witnesses that there was a continuous use by the Village of Brookville, from the very time of the original conveyance by Elgar Weaver to the Village of Brookville, and its acceptance thereof by the Village of Brookville for park purposes, up until and after the reconveyance by council for the Village of Brookville back to Elgar Weaver on April 19, 1938. The Village was in possession of and a continuous user of said premises for the purposes named in the deed throughout the summer and'fall of 1937 and part of 1938, after Weaver again assumed possession and control of said park. They used it for swimming purposes although it developed that the swimming pool that was there before the premises were deeded to the Village of Brookville leaked. The building thereon was used for dances, very often, one man testified he had played for the dances very often. Softball games, in an organized league, were played three times weekly, and a regular baseball diamond was laid out by the citizens of the Village and improved," not by the appropriation of money or with taxes paid, but work and money donated by the citizens and the Chamber of Commerce. This ball diamond had bleachers that seated about 250 people. This was not used for a private enterprise, no charge was made, and it was for the entertainment of the residents of the Village and community. There were swings and a merry-go-round for children, which were used. Trap shooting equipment for clay birds was erected upon a part of this ground and used regularly. Different reunions, picnics and political gatherings were held there all during the 18 months the deed was in the name of the Village of Brookville, and the Girl Scouts and Boy Scouts worked there and met there.

The testimony shows clearly and convincingly it was improved by the Chamber of Commerce and various citizens in the community, either by use of money or volunteered services, to put the ball grounds in condition, to build as many as five fireplaces’ and ovens, and the Dayton Power and Light Company, at the instance and request of' the Chamber of Commerce of Brookville, trimmed the trees and men and boys in the neighborhood cut up the tops of the timber and stored it away for the use of the Boy and Girl Scouts, and for fires at picnics and reunions, and that the Chamber of Commerce paid for the stretching of wires and electric lights and poles throughout the grounds to make it useful for park purposes.

As many as 6,000 people came to one picnic. It is upon this testimony the court determines there was a consistent user and there were no grounds or reason to abandon for nonusage. There is nothing in the record to indicate that the 70 acres, or any part thereof, could not be used for park purposes, or was unfit for said use. Wheaton et al v. Fernenbaugh, 8 Oh Ap 182. “Suspension of school for a period of three years in the school district in which the school property involved in the instant case is located does not constitute abandonment on the ground of nonuser.”

The court finds by clear and convincing evidence that no one seemingly, but the members of council and the original owner, Mr. Weaver, knew of the transfer back to Weaver, or that the resolution, known as Ordinance No. 93, was passed, or that the deed was given.

Donovan and Ray Althouse purchased this property by warranty deed from Elgar and Elizabeth Z. Weaver for $7500 on the 29th day of July, 1942. They in turn deeded it by warranty deed to the plaintiffs, Robert Miller and Electa Miller for the sum of $8500 on the 16th day of March, 1945. The Millers have put improvements on this land costing about $11,500. They in turn sold, by warranty deed, on April 4, 1947, .686 acres to Lawrence E. Bowser and Marie Bowser for $850. The Bowsers in turn improved the .686 acres by erecting a brick house costing them around $13,000.

It came to the knowledge of the Millers and Bowsers when they made application to the Brookville Building and Loan for a loan that something was wrong- they couldn’t get a loan. They each described it as a “clause” in either the title or deed, neither seemed to understand it. At°any rate they each obtained their respective loans from the Brookville National Bank. Why the Brookville National Bank loaned money on these premises is not a matter of record in this case.

The Village council had notice as to the proper procedure, as evidenced by a letter from their attorney, Mr. Shively, telling them how they must proceed, under §§3698 and 3699 GC; that it required an ordinance and advertisement.

The court finds from an inspection of the deed from Elgar Weaver to the Village of Brookville that- the grant is for park purposes and is without a condition subsequent and there is no clause in said deed that provided for a reversion to Elgar Weaver or his heirs or assigns, if said property could not be used for park purposes, or if the village council did not care to use it for park purposes any further, or did not care to improve it, or they violated any of the wishes or conditions expressed in said deed from Elgar Weaver to the Village, nor does the court find any condition or limitation in said deed. The deed has an habendum clause, “to have and to hold by the Village of Brookville, their successors and assigns,” etc.

There is no provision therein for right of re-entry in the event the property is abandoned. In other words, there was no condition in this deed from Weaver to the Village of Brook-ville, that provided for reversion or forfeiture to Elgar Weaver or his heirs in any event, even including the abandonment of the land for park purposes.

Sec. 3698 GC of the State of Ohio reads as follows: “Lease or sale of corporate property. Municipal corporations shall have special power to sell or lease real estate or to sell personal property belonging to the corporation, when such real estate or personal property is not needed for any municipal purpose. Such power shall be exercised in the manner provided in this chapter.”

Sec. 3699 GC sets out the procedure in leasing or selling of real estate: “Lease or sale of real estate; procedure. No contract for the sale or lease of real estate shall be made unless authorized py an ordinance, approved by the votes of two-thirds of all members elected to the council, and by the board or officer having supervision or management of such real estate. When such contract is so authorized, it shall be made in writing by the board or officer having such supervision or management and only with the highest bidder, after advertisement once a week for five consecutive weeks in a newspaper of general circulation within the corporation. Such board or officer may reject any or all bids and re-advertise until all such real estate is sold or leased.”

Ordinance No. 93 is approved by two-thirds or more of all members elected to the council. The testimony is clear that council appointed a Park Board of three. There is no testimony in the record to show that the Board or officer having supervision or management of such real estate approved the sale of said premises by his or their vote.

The clerk of council testified that there was no advertisement once a week-for five consecutive weeks in a newspaper of general circulation.

Nor is there any record where there were any other bids other than Elgar Weaver. This is the only section which prescribes the manner in which sale of corporate property shall be made.

In Kerlin Bros. Co. v. Toledo, 8 Ohio N. P. 62, the Attorney General of the State of Ohio, as reported in 1928 O. A. G. 2925, in issuing an opinion says: “A municipality may not convey to the State for the use of the Department of Agriculture as a fish hatchery, lands owned by said municipality except in pursuance to advertisements and sale to the highest bidder under §3699 GC.”

Sec. 3713-3 GC authorizes the conveying of land owned by a municipality to the United States government, without advertising, and this is the only section of General Code which permits execution and delivery of a deed without advertising.

Referring to 16 American Jurisprudence, Article 16, under “Contractual Analogies” and “Dedication Generally” it is held: “Neither a written grant nor any particular words or ceremonies, or form of conveyance, are necessary to render the act of dedication of land to public uses effectual at common law. Anything which fully demonstrates the intention of the donor and the acceptance by the public works the effect. Words are unnecessary if the intent can be gathered from other sources. It is sufficient if the owner’s intention and express act coincide; dedication will then be effective immediately on its acceptance by the public.”

Under Article 49, at page 375 of 16 American Jurisprudence, under the subject of “Withdrawal”: “In general, the proprietor may revoke or withdraw his offer of dedication, in whole or in part, at any time before it is accepted by the public or its representatives and before the rights of private persons have intervened.”

It is held in First Presbyterian Church of Salem, Appellee v. Tarr et al., Appellants 63 Oh Ap 286, 26 N. E. 2d 597, and decided November 1, 1939: “A devise of real estate to a religious society ‘to be used as a parsonage,’ but with no provision for forfeiture or reversion, conveys all of the estate the testator had therein to the devisee, and the failure of the devisee to use the property as a parsonage will not cause the title to revert to the heirs of the testator.”

In Larwill v. Farrelly, 8 Oh Ap 356, an opinion was expressed as follows: “The use in a deed of general warranty of the words ‘for the use and sole purpose of the Catholic church and such other erections as may be needed for the use of said Catholic Church’, does not constitute a condition subsequent o'r engraft a limitation upon the title, but at most is a mere suggestion or unenforceable request or desire.”

In First New Jerusalem Church of Lakewood, Appellant, v. Singer et al., Appellees, 68 Oh Ap 119, 34 N. E. 2d 1007, 1009, in quoting from In re Copps Chapel Methodist Episcopal Church, 120 Oh St 309, 166 N. E. 218, it is held: “Where a quitclaim deed, for valuable consideration, conveys to trustees of an unincorporated church association certain real property, ‘to have and to hold * * * unto the said grantees and their successors * * * so long as said lot is held and used for church purposes’, without any provision for forfeiture or reversion, such statement is not a condition or limitation of the grant. Since the deed contains no provision for reversion or forfeiture, all of the estate of the grantor was conveyed to the grantees.”

The fourth syllabus in First New Jerusalem Church of Lakewood v. Singer, reads: “Such a deed conveying the land to the ‘trustees * * * and their successors in office forever, to be held in trust’ for the church, and providing that the ‘land is to be returned to the original owners’ in the event that it should ever cease to be used for church purposes, conveys an absolute fee-simple title to the trustees.”

Syllabus five reads: “In such case, the grantors must, in order to create a reverter or forfeiture of the estate reinstating the fee in them or their heirs, use words in the reverter clause of equal dignity and force to those of the grant, embodying the conception of perpetuity and succession.”

Quoting from First Presbyterian Church of Salem v. Tarr, 63 Oh Ap 286, 26 N. E. 2d 597:

“To create a condition in a grant, apt and appropriate words ought to be used, or a right of re-entry be reserved; a mere expression of purposes for particular uses to which the property is to be appropriated is not sufficient, * * *.
“A condition will not be raised by implication from a mere declaration or recital in an instrument that the grant is made for a particular or certain purpose, unless it is coupled with words clearly showing upon their face such a condition, such as words indicating that the grant is to be void and the property to revert if the declared purpose is not carried out. The most that can be claimed for such recitals or statements is that they might be construed as the expression of a mere wish or desire on the part of the grantors to have the property used for the purposes indicated; but in effect they are mere suggestions, unenforceable requests, or desires.
“Conditions which in any way have a tendency to destroy or lessen estates are not favored by the law; such conditions are strictly construed, and all doubts are resolved against them in such way as to save the grant, and not to defeat it, even, it is said, to an extent hardly reconcilable with conscience, because on the breach of such conditions there is a forfeiture, and the law is adverse to forfeitures.”

In Commissioners of Mahoning County v. Young et al., 59 F. 96, 9 Ohio F. Dec. 202, it is held: “Condition subsequent, in a deed, when relied upon to work a forfeiture of a vested estate must be created by expressions or implications so clear that there can be no doubt of the intent of the grantor, and the mere expression of a purpose or particular use to which property is to be appropriated will not make the estate conditional.”

The City of Cleveland v. Herron, 102 Oh St 218, 131 N. E. 489, holds:

“Failure of the grantee to perform a promise which formed the whole or part of the consideration for the execution of a conveyance gives rise to no right of rescission in the grantor, where such failure was not expressly made a ground of forfeiture.
“Where a conveyance of real estate for park and boulevard purposes is made to and accepted by a municipality, the stated consideration whereof was the sum of $3,000, which was paid, and the promise of the municipal authorities to improve said tract in the respects recited in the deed, ‘all oí which shall be done as regards both manner and material pursuant to the direction and discretion of the board of public service * * * as rapidly as possible,’ and pursuant thereto a large sum of money is thereafter expended, the proposed improvement not being at any time abandoned, the grantor will not be awarded a decree of cancellation and rescission of the conveyance for delay in the prosecution and completion of such improvement, particularly where no ground of forfeiture is stated in the conveyance.”

Counsel for plaintiff seems to lay great stress on the abandonment by the Village of Brookville for the uses and purposes expressed in the deed and the fact that there is a conditional limitation as expressed in the habendum clause in said deed.

The court has examined all the authorities cited, and others, on the subject of habendum clause, conditions and uses expressed in the habendum clause of deeds, and is of the opinion that there is no condition or limitation expressed in the deed in question which would even suggest the conditional limitation that would subject it to a reverter. Had there been it would not only have been proper for Mr. Weaver, upon abandonment, had there been an actual abandonment of said property for park usage, to appeal to a court of equity and upon presentation of the required amount of evidence upon the subject, and have the property decreed to him upon the grounds counsel for plaintiff claims.

It also seems that the above cited cases indicate had there been a forfeiture clause in the deed from Weaver to the Village of Brookville upon breach of certain conditions or abandonment, that he would have to go to the courts to get his relief, and that the council, in no case, should by an ordinance or resolution, determine there is abandonment of property deeded to them, and deeded to them for a specific purpose, then deed it back without an order of a court of equity. But there was no such clause in the deed from Weaver to the Village of Brookville.

It. is suggested by counsel that there has been abandonment after the attempted reconveyance by the members of council back to Elgar Weaver for a period of ten years as a nonuser. It is the opinion of the court that testimony indicates that there was a user after Weaver dispossessed the citizens of the Village of Brookville when he received the purported deed back and that when they attempted to have the picnic and to use the ball diamond they found the outfield plowed up and later on the entrance to the park barred to the use- of the public. It is the opinion of the court that the possession of Weaver and his purported successors in title is an adverse possession for the past ten years other than abandonment.

The Supreme Court of the State of Ohio, in State ex rel. v. Shriver, 113 Oh St 171, 148 N. E. 697, recognizes the fact that a village council, in order to sell real property not needed for municipal purposes, must have the approval of the Board or officer having supervision or management of the project, and will be required to pass an ordinance and advertise in accordance with §§3698 and 3699 GC of the State of Ohio.

That is relied upon in 39 Attorney General’s Decision, 758, and in Weinland on Municipal Corporations in Ohio, §3699 GC page 203 and 204, as follows:

“The formalities required by the statutes for the sale of property of a city must be strictly complied with Kerlin Bros. Co. v. Toledo, 20 Ohio Cir. Ct. R. 603.” “A contract by a city which is void because bid was not advertised for imposes no liability on the city. Wellston v. Morgan, 65 Oh St 219, 62 N. E. 127.” Therein the Supreme Couurt recognizes a contract for the sale of real property by the city is void for want of advertising and proceeding’by law. “No estoppel from the acts of city officers can arise to cure an omission to advertise. Lancaster v. Miller, 58 Ohio St. 558, 51 N. E. 52.” “Sale at auction is authorized by this section, but employment of an auctioneer is not authorized. State ex rel. Zielonka v. Carrel, 103 Oh St 50, 132 N. E. 161.” “Council must proceed under this section where a part of the property sold is real estate.” Referring to what is now §3699 GC. Kerlin Bros. Co. v. Toledo, 8 Ohio N. P. 62. “Under this wording of the law, the contract for sale must be made with the highest bidder. Beaver v. Trustees of Institution for Blind, 19 Oh St 97; Boren v. Darke County Com’rs, 21 Oh St 311.” “Provisions as to advertising for bids are designed for the protection of the tax payer and are preemptory. Upington v. Oviatt, 24 Oh St 232.” “And advertisement for less than the statutory period would render the sale void. McCloud v. Columbus, 54 Oh St 439, 44 N. E. 95.” See also Fenner v. Cincinnati, 8 Ohio N. P. 340, 342; Gilfillin v. Koke, 1 W. L. M. 704; Harmon v. Whittemore, 1 Bull 109; Early v. Doe, 16 How. 610, 14 L. Ed. 1079; Merves v. Lorain, 32 Abs 417; See steps necessary under §3699 GC as set out on page 205, in Wineland on Municipal Corporations.

Counsel for plaintiffs rely upon Burdette v. Jones, Ohio Com. Pl., 72 N. E. 2d 152, 34 O. O. 488, decided January 30, 1947. The court says: “The granting clause of a deed to a Board of Education which ‘bargained and sold, and by these presents do grant and convey to the party of the second part, its successors and assigns, as long as the same shall be used for school purposes,’ conveys a base, or qualified or determinable fee only, which is terminable upon the abandonment of the property for school purposes although there is no provision for forfeiture or reversion, and the original owners of the property, their heirs or assigns have an immediate right of entry on abandonment of the property for school purposes.”

The court has no criticism with that decision because there is apparently a qualified or determinable fee expressed in that deed, so much different from the deed given by Elgar Weaver to the Village of Brookville.

This question is discussed in Schurch et al. v. Harraman, 47 Oh Ap 383, 191 N. E. 907, at length; and also in Thompson on Abstracts of Title, Section 43.

And again the Board of Education of Rush Township, Tuscarawas County went to the courts and asked for a declaratory judgment and for instructions as to how to proceed and what to do. That was not done by the village council in this, case.

It is, therefore, the opinion of the court that Elgar Weaver in his deed to the Village of Brookville granted all the right, title and interest he had in said premises to said village. There is no provision of reverter in said deed, and there is no determinable fee that can in any way whatsoever be read into the language in said deed. There is no limitation whatsoever in the usage, except as to intoxicating liquor, and there is no alleged breach of that restriction.

The court finds, by clear and convincing evidence there was no abandonment of usage, except as to the action of council, and all the testimony indicates there was a constant and continuous usage and improvement by the citizens of the community, for whose benefit it was deeded in the first place, and that the deed from the Village of Brookville back to Elgar Weaver in April, 1938, was without authority and contrary to the provisions of the law as set out in §§3698 and 3699 GC, and it follows that Elgar Weaver had no right, title or interest to convey to the Althouses, nor the Althouses to Miller, nor Miller in turn to Bowser. The deed from the Village of Brookville to Elgar Weaver dated April 10, 1938, is void.

It is the opinion of this court that this court has no power under the state of the pleadings in this case to determine the right of the respective owners under the occupying claimant’s law, or the right of the respective owners as against the estate of Elgar Weaver, under the warranty in his deed to the Althouses or Althouses in their warranty deed to Miller, and Miller in his warranty deed to Bowser.

It is suggested that estoppel will deny the Village of Brookville from recovering from the present occupancy of the premises, citing Markley v. Village of Mineral City, 58 Oh St 430, 51 N. E. 28, 65 Am. St. Rep., 776. It seems that the Supreme Court, in deciding that case, decided that the village was estopped from claiming from Markley on the ground that they had no right to acquire property for the purpose of giving it away to a private corporation on a private person for the purpose of establishing a factory or a business, and since it was unlawful for them to acquire property for that purpose the deed in the first instance was void.

Now in the instant case of Miller v. Village of Brookville, the Village did have authority to acquire property by deed from a private party for park purposes, and the law defines how they shall dispose of that property when they once acquire it. However, the recovery of the property is not before the court. The court has held the deed is void from the Village of Brookville to Weaver. If the deed is void the title to the property never passed. If its present occupants are holding by adverse possession then they haven’t had adverse possession for a sufficient length of time in order to obtain title thereby.

The question before the court is whether or not the court can quiet the title of the present owners of the 75-acre tract. The court is of the opinion that for the reasons above given that cannot be done. Counsel will draw their entries accordingly.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    MILLER, et, Plaintiffs-Appellants, v. VILLAGE OF BROOKVILLE et, Defendants-Appellees.
    Ohio Appeals, Second District, Montgomery County.
    No. 2005.
    Decided December 10, 1948.
   By THE COURT:

We have examined the bill of exceptions, assignments of error and briefs of counsel, and upon consideration thereof find no prejudicial error in the record. We are in full accord with the legal conclusions of the trial court which are well supported in a lengthy and well considered opinion.

The judgment is affirmed.

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


author: By MILLER, J. By THE COURT:

text:
    BROWN-BROCKMEYER CO., Employer-Appellee, v. HOLMES, Employee-Appellant, BOARD OF REVIEW, BUREAU OF UNEMPLOYMENT COMPENSATION, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 1990.
    Decided January 4, 1949.
    A. K. Meek, Dayton, for employer-appellee.
    Hugh S. Jenkins, Atty. Geni., John M. Woy, Asst. Atty. Ge-nl., Roland B. Lee, Asst. Atty. Geni., Columbus, for Board of Review, defendant-appellant.
   OPINION

By MILLER, J.

This is a law appeal from a judgment of the Court of Common Pleas for Montgomery County, holding an order of the Board of Review of the Bureau of Unemployment Compensation to be unreasonable and unlawful. The order of the Board was one allowing unemployment compensation to Fred Holmes, one of the appellants. The facts are not in dispute and were found by the Board of Review to be as follows:

Claimant worked for the Brown-Brockmeyer Company of Dayton, Ohio, from April 15, 1945, to June 15, 1946, when he quit to go to California where he obtained work with the Salisbury Motor Corporation in Pomona, California, on August 14, 1946, and worked until December 5, 1946, when he was laid off for lack of work. He filed an initial interstate claim for benefits on December 9, 1946, in California. He was out of employment for four weeks. On December 26, 1946, the BrownBrockmeyer Company sent claimant a letter offering him employment in Dayton, Ohio. Claimant refused to accept this offer because he was over 2000 miles away, had a place to live there and was only temporarily unemployed.

The only error assigned is that the judgment is contrary to law.

For a determination of the rights of this claimant it becomes necessary to construe §1346-6-e-(3) GC, which provides:

“e. No individual otherwise qualified to receive benefits shall lose the right to benefits by reason of a refusal to accept new work if:
(3) The work is at an unreasonable distance from his residence. having regard to the character of the work he has been accustomed to do, and travel to the place of work involves expenses substantially greater than that required for his former work, unless the expense be provided for.”

The only argument over this section is the meaning of the word “residence.” Does the word refer to his former residence in Dayton, Ohio, or to his new residence in California? We think it refers to the state in which the present unemployment arose. The claimant clearly had a right to voluntarily leave the employment of Brown-Brockmeyer, but in so doing, under §1345-6-d-(9), he lost all his right to benefits under the act until he was again “re-employed in employment subject to the unemployment act or the Unemployment Compensation Act of another state and has earnings equal to at least four times his weekly benefit amount.”

The record discloses the disqualification was removed as he became re-employed in California and his earnings surpassed the minimum amount enumerated in the statute. He therefore became restored to all of the rights and privileges provided under the Act. He now becomes a California employee, residing in California.

In the case of Brown-Brockmeyer v. Roach, 148 Oh St 511, it was held that one voluntarily quitting his employment became subject to certain penalties but that it did not preclude an award. Syllabus 1 provides:

“The provisions of §1345-6, subdivisions b and c, GC, in effect July 26, 1944 (120 Ohio Laws, 666 at 682), did not preclude an award of unemployment compensation to an employee who voluntarily quit his employment without just cause but subjected him to the prescribed penalties of an increased waiting period and decreased benefits.”

Under the facts presented in this case the claimant’s residence being in California the Board of Review properly held that the work offered to him at Dayton, Ohio, was at an unreasonable distance from his residence. Therefore, under §1345-6-e- (3) GC he lost none of his rights because of his refusal to accept this new work.

Counsel for the appellee urges, however, that should we give this interpretation to the Unemployment Compensation Act, the same would be in conflict with the Fifth Amendment to the Constitution of the United States and also in conflict with Section 26 of Article II of the Constitution of Ohio. It is urged that Brown-Broekmeyer’s account with the Unemployment Bureau cannot lawfully be charged with benefits to a claimant who refuses to return to work for the company; that there must be some causal connection between loss of employment with the Brown-Brockmeyer Company and the claimant. Counsel for the appellee cites the case of State, ex rel. v. Creamer, 85 Oh St 349. At page 396 it is stated:

“The court states one of the premises on which it proceeds as follows:
‘When our Constitutions were adopted, it was the law of the land that no man who was without fault or negligence would be held liable for damages for injuries sustained by another’.”

Standing alone, this quotation appears to support the appellee’s contention. However, the court continuing notes an exception to this general rule which we think has application to the case at bar. This exception provides:

“But that rule was not of universal application. At common law one may sustain such relation to the inception of an undertaking that he will be held liable for negligence in the progress of the enterprise, even though he have no part or connection with the negligent act itself which caused the injury. Such for instance, as where the owner of property contracts with an independent contractor to do work which though entirely lawful, yet has inherent probabilities of harm if negligently performed. The position in the line of causation which employers sustain in modern industrial pursuits is of course the basic fact on which employers’ liability law rests.”

It was on the wages earned from the Brown-Brockmeyer Company that claimant’s rate of compensation was determined. The company is thus in the line of causation on which it was required to pay contributions to the unemployment compensation fund. It is on this basis that the Legislature requires benefits to be paid in the reverse order of employment. Inverse order of payment of benefits would seem to be just and equitable, and it would not be fair to charge the last employer with all the payments made for benefits when the employee had been employed by two or more employers during the base period. .The amount of benefits is determined by the amount of earnings in the most productive calendar quarter of the base year. It is thus that former employers may get into the causal chain of employment.

In the case of Charles C. Stewart Machine Co. v. Davis, 301 U. S. 548, the Supreme Court of the United States held that the federal law was not unconstitutional under the Fifth Amendment to the Constitution of the United States.

In the case of Pennsylvania v. Perkins, 21 Atl. (2d) 45, affirmed by 314 U. S. 586 the United States Supreme Court again upheld the constitutionality of the Pennslyvania Unemployment Compensation Act. The Alabama law was declared not to be unconstitutional by the Supreme Court of the United States in the case of Carmichael v. Southern Coal & Coke Co., 301 U. S. 495. In California Commission v. Los Angeles Down Town Shopping News Corp., 150 Pac. (2d) 186, the court said:

“The legislation constitutes a valid exercise of the state’s taxing power and' its objects are not limited to the raising of revenue. It is a remedial statute and as such must be liberally construed for the purpose of its objects.”

In the case of Zelney, etc., v. Murphy, et al., 387 Ill., 492, 56 N. E. (2d) 754, it is said:

“It is well settled that the legislature may, in the exercise of the police power of the state, enact those measures which have a tendency to promote the public welfare of society * * *. In the exercise of this power the' legislature may enact laws regulating, restraining or prohibiting anything harmful to the welfare of the people, even though such regulation, restraint or prohibition interferes with the liberty or property of an individual.”

An examination of the Ohio Constitution discloses that there is a direct constitutional authority for the enactment of an unemployment compensation law. Article II, Section 34 provides :

“Laws may be passed fixing and regulating the hours of labor, establishing a minimum wage and providing for the comfort, health, safety and general welfare of all employees; and no other provisions of the Constitution shall impair or limit this power.”

The constitutionality of the act was challenged in State of Ohio v. Iden, 71 Oh Ap 65, the first paragraph of the syllabus is as follows:

“1. The Unemployment Compensation Act (§§1345-1 to 1346-5, inclusive, GO, is a valid and constitutional legislative measure enacted in the exercise of the state’s taxing power, and its validity is determined by constitutional principles applicable to state taxation.”

Sec. 1345-19 GC provides that the administrator shall cooperate with federal, state and other agencies. Sec. 1345-34 GC provides that the act is enacted as a part of a national plan of unemployment compensation and social security and for the purpose of assisting in the stabilization of employment conditions; that the imposition of the contributions imposed upon Ohio industry alone without a corresponding tax imposed upon all industry in the United States would defeat the purpose of the act; that therefore, the act shall remain in effect only so long as the excise tax upon employers of eight or more persons, which is imposed by Title II of the Social Security Act enacted by the Congress of the United States, shall remain and be in effect and operative.

We are therefore of the opinion that the trial court erred in overruling the decision of the Board of Review, which is ordered affirmed.

WISEMAN, PJ, and HORNBECK, J, concur.

ON APPLICATION FOR REHEARING

No. 1990. Decided January 19, 1949.

By THE COURT:

Application for rehearing is denied.

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


author: By BELT, J:

text:
    STATE, Plaintiff, v. LUCAS, et, Defendants.
    Common Pleas Court, Franklin County.
    No. 29561.
    Decided January 20, 1949.
   OPINION AND DECISION

By BELT, J:

This cause was submitted to the Court on the questions presented by a plea in abatement to the indictment herein.

The indictment charges the Defendants, one of whom was at the times alleged therein a Commissioner of Franklin County, with conspiracy to defraud the State of Ohio. The bill of particulars filed by the Attorney General in response to a motion therefor alleges that the contracts referred to in the indictment were construction contracts entered into by and between Lucas Brothers, a partnership, of which Defendant Carl Lucas was a member, and the Board of Franklin County Commissioners, whereby said partnership contracted to erect certain housing units for the considerations therein set forth.

It was agreed by all parties in interest in this case that the housing units referred to in the contracts were to be constructed as emergency housing for veterans under the authority conferred by §§1078-62 to 1078-71, both inclusive, GC.

The overt acts charged were the presentation for payment to the County Commissioners by the Defendant Carl Lucas of false and fraudulent statements of money due for work and labor performed under the contracts in question.

For a better understanding of the issues involved, the pertinent sections of the statutory law will be referred to and discussed together with a brief history of the case.

The so-called “Emergency Housing for Veterans” Act became effective August 28, 1946 and appropriates Six Million ($6,000,000.00) Dollars to be allocated to the political subdivisions of the State to provide immediate temporary emergency housing for veterans of World War II, and further provides that the moneys appropriated shall be distributed by the Auditor of State to the several counties of the State upon application by the County Commissioners in the ratio that the total population of the County bears to the total population of the State; that all moneys allocated to a County shall be placed in a special fund in the Treasury of the County to be known as the “County Veterans’ Housing Fund,” and that the same be expended only as provided in said act. The act further provides that the Commissioners may accept contributions to the fund or contribute thereto from County funds. The express limitations are that the County Commissioners are authorized to éxpend all or any part of the fund for immediate temporary emergency housing facilities for residents of the County, who are members of the Armed Forces of World War II. The only other provision worthy of mention is that any sum remaining to the credit of the fund of a County on the 31st day of December, 1949 shall be paid to the Treasurer of State and placed in the general revenue fund.

The last mentioned section is somewhat vague and the question arises: In the event contributions are máde to the fund by either individuals or the County, whether the whole of the balance, if any, shall be paid into the State Treasury? However, there is no showing in this case that any such contributions were made.

Secs. 13116-1 and 13116-2 GC, provide respectively as follows:

Sec. 13116-1 GC. “If two or more persons conspire to defraud the State of Ohio, or any other political sub-division thereof, in any manner, or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy upon conviction shall be fined not more than five thousand dollars or imprisoned not more than two years, or both.”
Sec. 13116-2 GC. “It shall be the duty of the attorney general of Ohio, and he shall have full power and authority to prosecute any person for conspiring to defraud the state of Ohio in violation of the provisions of §12810-1 GC. The attorney general in the prosecution of any person for conspiring to defraud the state of Ohio in violation of said section, shall have authority to call the grand jury in any county of the state for the purpose of conducting an investigation into alleged violations, and the court of common pleas, or any judge thereof, on written request of the attorney general, may order a special grand jury to be summoned as provided by law, and such special grand jury called at the request of the attorney general may discharge its duties either before, during or after any session of the regular grand jury, and its proceedings shall be independent of the proceedings of the regular grand jury, but of the same force and effect.” (Emphasis ours.)

The above-quoted sections, known as the conspiracy statutes, were enacted in 1939 and became effective September 1 • of that year. Prior thereto Ohio had no statute making conspiracies, as such, criminal.

The history of this legislation is well-known by the members of the Ohio Bar and grew out of the controversy commonly known as the “Hot Mix” cases in which certain highway contractors were publicly charged with defrauding the State of Ohio in the construction and repair of. the State Highway system. Upon investigation it was found that Ohio had no criminal statute adequate to deal with such situations, resulting in the enactment of the conspiracy statute.

The conspiracy to commit a crime is an entirely different offense from the crime that is the object of the conspiracy. It is not a substantive offense, but essentially a crime of intent. It does not merge in the completed offense. The unlawful combination and confederacy constitute the essential element of criminal conspiracy rather than the overt acts done in pursuance thereof, and neither the success nor failure oi criminal conspiracies is determinative of the guilt or innocence of the conspirators. Thus, under the act, an entirely new offense in Ohio was recognized and punishment therefor provided.

Under the authority conferred in Section 2 of the act, the Attorney General of Ohio requested the Common Pleas Court of Franklin County to cause to be impanelled a special Grand Jury to investigate alleged conspiracies to defraud the State of Ohio. In response thereto a special Grand Jury was duly impanelled, charged as to its duty within the limitations set out in said §13116-2 GC, and proceeded to return the indictment under consideration, together with a number of other indictments charging embezzlement and the presentation of false and fraudulent claims to the Board of County Commissioners, made a crime by §13105 GC. Pleas in abatement to the indictments charging the presentation of false and fraudulent claims and embezzlement were sustained by this Court for the reason, in the opinion of the Court, that such special Grand Jury was not authorized or empowered to present an indictment charging a crime other than the crime of conspiracy to defraud the State under the limitations contained in §13116-2 GC. That section seems to retain sole jurisdiction in the law enforcement officers of the Counties to prosecute conspiracies pertaining to County funds or funds of any political sub-division of a County, the State being limited solely to investigations and presentment of indictments where State funds only are involved and then only in cases of conspiracy.

The question raised by the pleas in abatement is whether or not the Attorney General of Ohio, upon his own motion, is authorized to impanel a special Grand Jury to investigate alleged violations of the law, making it an offense for two or more persons to conspire to defraud a political sub-division of the State of Ohio. The ultimate question presented by the pleas is whether or not the funds in question are funds of Franklin County or funds of the State of Ohio.

The funds in question are a part of the Six Million ($6,000,000,001 Dollar appropriation made by the General Assembly for the “Emergency Housing for Veterans” Project. This fund so appropriated was placed in a special fund in the Treasury of Franklin County. Under the act in question it could not be expended by the County Commissioners for purposes other than the furtherance of such project. The fund lost its identity as a State fund upon being paid to Franklin County. Whether the State would have a cause of action to recover from Franklin County any part of said funds not expended for the purposes provided for in said act is not before the Court and need not now be determined. It seems clear, however, that the State would have no civil cause of action against any person to whom said funds were unlawfully paid. If this fund is not a State fund, then the special Grand Jury impanelled by reqxiest of the Attorney General would have no authority to return an indictment for conspiracy or otherwise, under the provisions of §13116-2 GC, for the reason that the Attorney General is given specific power only to prosecute for conspiring to defraud the State of Ohio. This is the express limitation contained in said section. Funds legally appropriated by the State and paid to a County to be used for a specific purpose become County funds.

Political sub-divisions of the State are entitled to a share of many funds collected by the State for express purposes, such as the gasoline fund, auto tax fund, sales tax fund, school fund, and others, all of which by express direction of the law must be used by the Counties and other political sub-divisions for the purposes provided by Statute. It would not be contended that any of such funds, after payment thereof to the political sub-divisions, are still State funds, although collected and distributed by the State, although, under the provisions of the various statutes, such funds may only be legally used for specified purposes.

Claim is made that the language of §13116-1 GC, is, in part, taken bodily from Section 37 of the Federal Criminal Code and that the Federal Courts have broadly interpreted that section. That is no doubt true, but the section itself is much broader than the section of the State Code under discussion in that it provides that if two or more persons conspire either to commit any offense against the United States or to defraud the United States in any manner, or for any purpose, such offense is cognizable under that section. The section, however, under discussion in this case, insofar as the power of the Attorney General extends, is limited to prosecutions for conspiring to defraud the State and he is not authorized to prosecute for conspiring to defraud a County or any sub-division of the State.

It is the specific holding of this Court that the funds in question concerning which a conspiracy is charged in the indictment in this case are County funds and that, therefore, the Attorney General had no power to have a Grand Jury impanelled to consider such alleged violation.

Holding as we do, the pleas in abatement to the indictment herein are sustained.

If there is sufficient evidence to warrant an indictment in any of these cases, the Defendants not having been in jeopardy, further proceedings are indicated and necessary. There is no question but that the Prosecuting Attorney of Franklin County and a regular or special Grand Jury, duly impanelled, have complete jurisdiction to inquire into any and all of the alleged offenses contained in this and the other indictments to which the Court has referred, and such inquiry should be launched in due course. To that end a copy of this Opinion is being submitted to the Prosecuting Attorney of Franklin County.

Sec. 13439-10 GC, reads as follows:

“Accused not discharged when indictment quashed, etc. When a motion to quash, or a plea in abatement is adjudged in favor of the accused, the court may order the re-submission of the case to the grand jury, if then pending, or to the next succeeding grand jury, and in such case the accused may be committed to jail or held to bail in such sum as the court requires for his appearance to answer at a time to be fixed by the court.”

Under authority of that section all of the accused in this and the other cases referred to are hereby ordered committed to the jail of Franklin County and held to await the action of a Grand Jury, duly impanelled therein, if in default of bail, which is hereby fixed in the sum of One Thousand ($1,000.00) Dollars in each case.

Counsel for the Defendants may prepare and submit to other Counsel and to the Court an entry conforming to this Opinion and Decision.

       (Changed to section 13116-1 by the attorney general.)


author: By PHILLIPS, J.

text:
    STATE, Plaintiff-Appellee, v. MAHONEY, Defendant-Appellant.
    Ohio Appeals, Seventh District, Carroll County.
    No. 313.
    Decided May 10, 1948.

      Glenn Fortune, Pros aAtty., Carrollton, for plaintiff-appellee.
    Thomas H. Nichols, Canton, for defendant-appellant.
   OPINION

By PHILLIPS, J.

Defendant appealed to this court on questions of law from a judgment of the Juvenile Court of Carroll County entered upon a jury verdict of guilty of the charge set forth in the following duly executed affidavit, which was drawn pursuant to §1639-45 GC, hereinafter set forth herein:—

“The State of Ohio, Carroll County, Juvenile Court Before me, LaMoine Handley, Judge and Ex-officio Clerk of the Juvenile Court in and for said County, personally appeared Vaughn James residing at Magnolia, Ohio, who being first duly sworn according to law, says that on or about the 15th day of January, 1948, in the County of Carroll aforesaid, one J. Elmer Mahoney residing at Magnolia, Ohio, R. F. D. did contribute toward the delinquency of the following child, to wit: Darlene Elliott, age sixteen years, in that the said J. Elmer Mahoney, being a married man, did keep said child away from her place of residence until late hours at night, and did improperly associate with said Darlene Elliott, contrary to the statute in such case made and provided and against the peace and dignity of The State of Ohio.”

Sec. 1639-2 GC, defines a delinquent child as any child:—

“1. Who violates any law of this state, the United States, or any ordinance or regulation of a subdivision of the state.
2. Who does not subject itself to the reasonable control of its parents, teachers, guardian or custodian, by reason of being wayward or habitually disobedient.
3. Who is an habitual truant from home or school.
4. Who so deports itself as to injure or endanger the morals or health of itself or others.
5. Who attempts to enter the marriage relation in this or any other state without the consent of its parents, custodian, legal guardian or other legal authority, as required by the laws of this state.” (For an analogous section see former §1644 GC.)

Sec. 1639-45 GC, provides:—

“Whoever abuses a child or aids, abets, induces, causes, encourages or contributes toward the dependency, neglect or delinquency, as herein defined, of a child or a ward of the court, or acts in a way tending to cause delinquency in such child, or who aids, abets, induces, causes or encourages a child or a ward of the court, committed to the custody of any person, department, public or private institution, to leave the custody of such person, department, public or private institution, without legal consent, shall be fined not less than five dollars, nor more than one thousand dollars or imprisoned not less than ten days nor more than one year, or both. Each day of such contribution to such dependency, neglect or delinquency, shall be deemed a separate offense.” (For an analogous section, see former §1654 GC.)
“The defendant contends that the affidavit does not set forth facts showing the minor to be a delinquent minor, within the purview of §1639-2 GC, and therefore does not state a charge against him”, and that the trial judge erred in overruling his motions for a verdict directed in his favor made at the close of the state’s case and at the conclusion of all the evidence, and that the judgment of the Juvenile Court is against the manifest weight of the evidence.
The prosecuting attorney maintained that the affidavit contains facts sufficient to show the minor to be a delinquent child under §1639-2, subdivision 4, GC, to-wit; one “who so deports itself as to injure or endanger the morals or health of itself or others.”
“Upon motion to direct a verdict the party against whom the motion is made is entitled to have the evidence construed most strongly in his favor. But if upon any essential issue, after giving the evidence such favorable construction, reasonable minds can come to but one conclusion and that conclusion is adverse to such party, the judge should direct a verdict against him.” Hamden Lodge No. 517, Independent Order of Odd Fellows, et al, v. The Ohio Fuel Gas Co, 127 Oh St 469.

Defendant waived his right to rely on the denial of his motion for a verdict directed in his favor made at the conclusion of the State’s evidence and overruled by the court when he elected not to stand on his exception to the ruling and proceeded with his defense and introduced evidence on his own behalf.

“When a motion of a defendant for a directed verdict is made at the conclusion of plaintiff’s evidence and overruled, the defendant has an election either to stand on his exception to the ruling of to proceed with his defense; and if he accepts the ruling, however erroneous it may be, and proceeds with his defense, introducing evidence on his own behalf, he thereby waives his right to rely on the denial of his original motion.” Halkias, Appellee, v. Wilkoff Co., Appellant, 141 Oh St 139.

As was said in the case of State v. Zaras, 81 Oh Ap 152, we believe:—

‘‘It is not a prerequisite that the minor be found to be delinquent in a separate action before a charge of contributing toward the delinquency of such minor can be maintained, but the affidavit setting forth the charge, that the defendant contributed toward the delinquency of the minor, must set forth facts showing the minor to be a delinquent minor within the purview of §1639-2 GC.
“ ‘1. There can be no valid conviction on an affidavit which charges no offense against laws of state.
“ ‘2. Affidavit charging defendant contributed to delinquency of a minor-held fatally defective, even after judgment of conviction, where it did not specify some facts showing minor was delinquent child, within meaning of §1644 GC.
“ ‘3. It is not sufficient to charge offense of contributing to delinquency of minor in language of §1654 GC.
“ ‘4. Affidavit charging one with contributing to delinquency of a minor states no charge, under §1654 GC, unless it charges some one or more acts of delinquency specified in §1644 GC, since words “as herein defined,” as used in §1654 GC, insofar as they relate to delinquency, refer to definition of delinquent child contained in §1644 GC.’ Edmonds v. State, 30 Oh Ap, 195, 164 N. E., 649.
“ ‘1. Statute defining offense cannot be extended by construction to person or things not within its terms, though apparently within its spirit.
“ ‘2. Allegations that minor was under eighteen, a delinquent within meaning of statute, and that accused contributed to such delinquency, are essential to statement of offense (§§1644 and 1654 GC).
“ ‘3. No conviction can rest on affidavit which charges no offense against laws of the State.’ Peefer v. State, 42 Oh Ap, 276, 182 N. E., 117.”

The affidavit charged that defendant “did contribute toward” the delinquency of the minor named therein, and we believe that by “improperly” associating with defendant, a married man, “until late hours at night” Darlene Elliott so deported herself “as to injure or endanger” her “morals or health” and by such acts she became a delinquent child as defined in subdivision 4 of §1639-2 GC, quoted supra.

Darlene Elliott, whom the evidence disclosed had been found to be a delinquent child in a previous action in the juvenile court, testified that defendant had illicit relations with her on two occasions in counties other than that of her residence, which, while denied by defendant, yet presented a question for the determination of the jury thus precluding the trial judge from arresting the case from its consideration, as counsel for defendant claims he should have done at the conclusion of all the evidence.

We have read the bill of exceptions submitted to us in this case, and we can not conclude that the verdict of the jury and judgment of the trial judge are against the manifest weight of the evidence.

The judgment of the court of common pleas is affirmed.

CARTER, PJ, NICHOLS, J, concur in judgment.


text:
    FISSEL, etc., Plaintiff-Appellant, v. GORDON, et, Defendants-Appellees.
    Ohio Appeals, First District, Hamilton County.
    No. 6969.
    Decided July 6, 1948.
    John P. Strother, Cincinnati, for plaintiff-appellant.
    Calvin S. Cramer and Cedric Vogel, Cincinnati, for defendants-appellees.
   OPINION

By THE COURT:

This is an appeal on law and fact from a judgment finding on the issues joined in favor of the defendants, and entering judgment for the costs in their favor.

The plaintiff, Charles Fissel, conveyed an undivided one-half interest in certain real estate to defendant Stanley Gordon on March 18th, 1941. This action is one to have the conveyance and subsequent succession conveyances by Gordon to Lovita Giffert, and by her to Martha Lee Johnson and Grace Cox set aside, and the title of the plaintiff quieted, and for an accounting of rent and for damages.

The sole ground alleged in the petition and the amended petition, or amendment to the petition as it is variously called, is that at the time the plaintiff executed the deed to Stanley Gordon he was of unsound mind' and lacked the mental capacity to execute a deed. There is no allegation or proof that Lovita Giffert at the time she acquired title knew of any defect in the title of Gordon, and unless the deed from Gordon to her was totally void, she acquired a title that was free of any equity which the plaintiff might have had to rescind the conveyances and recover the title and possession of the property. The conveyance to Martha Lee Johnson and Grace Cox was made during the pendency of this action, and, of course, they took title subject to whatever judgment might be entered in this action, but if Lovita Giffert’s title was free of the claim of the plaintiff, their title would be equally so.

We have weighed the evidence in this case and have been unable to find any substantial evidence that in 1941 when the deed to Gordon was executed the plaintiff lacked the mental capacity to execute a deed. At that time he was transacting every other form of business contracts of employment, depositing in and withdrawing money from a building association, etc., — and performing all other acts that would normally be performed by a sane person in his environment. There is a failure of proof of a lack of mental capacity.

As the sole ground alleged for invalidating Gordon’s deed is mental incapacity, our finding therefore disposes of the entire case.

It might be added, however, that a deed executed by an insane person is not void unless the person is so bereft of reason as to make him incapable of giving even an imperfect assent to the transaction. 22 O. Jur., 67, et seq.; 28 Am. Jur., 692 et seq. They are voidable. And mere weakness of mind in the absence of fraud or undue influence is not a ground for declaring a deed either void or voidable. 22 O. Jur., 79. The title of Lovita Giffert would, therefore, be free of any claim of the plaintiff and she could transmit such title to her grantees, notwithstanding the pendency of this action. That would prevent the plaintiff from recovering the real estate, and would leave nothing to be considered except the claim for a personal judgment, and as to that there is no allegation of fraud or undue influence against any of the defendants and no substantial evidence to that effect.

For these reasons, a judgment may be entered finding on the issues in favor of the defendants and adjudging the costs against the plaintiff.

MATTHEWS, PJ, ROSS & HILDEBRANT, JJ, concur.


author: By SLOCUM, J.

text:
    BURNETT, et, v. WOOSTER, et.
    Common Pleas Court, Lake County.

      No. 22576.
    Decided November 19, 1948.
    Theodore R. Zettelmeyer, Willoughby, for plaintiffs.
    A. C. Knight, Willoughby, Lester W. Donaldson, Painesville, former Pros. Atty, Thomas H. Blakely, Painesville, Pros. Atty., for defendants.
   OPINION

By SLOCUM, J.

This action involved the contest of an election and was brought under favor of Chapter 7 of the General Code of Ohio. Secs. 4785-166 to 4785-174 inclusive, GC control election contests, the procedure being entirely statutory must be strictly construed.

In the election at issue held on October 5, 1948, in the unincorporated area of Willoughby Township Ohio, on the question of approving zoning regulations adopted by the Township Trustees, some 488 persons voted in favor of zoning, some 431 against it, and some 1,001 apparently entered the voting machines and were counted by the machines. It thus appeared that 82 persons failed to register a vote either for or against these regulations, but of those who actually did express their views 57 more persons voted for the issue than against it.

This election was held under the provisions of §3180-35 GC which provides as follows:

“Sec. 3180-35 GC. Zoning plan to be submitted to electors; majority vote required for approval.
“If the zoning resolution is adopted by the board of township trustees, the board of township trustees shall cause the question of whether or not the proposed plan of zoning shall be put into effect to be submitted to the electors residing in the unincorporated area of the township included in the proposed plan of zoning for their approval or rejection at the next primary or general election, or a special election may be called for this purpose. No zoning regulations shall be put into effect unless a majority of the vote cast on the issue is in favor of the proposed plan of zoning. Upon certification by the board of elections the resolution shall take immediate effect if the plan was so approved. (122 v. 597 (608), §35. 9-25-47.)”

The contestors and the contestees both rely upon, the decision of the Supreme Court in the case of the City of Wellsville et al v. Connor, 91 Oh St 28, 109 N. E. 526. It involved a proceeding brought in the Common Pleas Court of Columbiana County to enjoin the issuing of bonds of the City of Wellsville for the purpose of constructing a 'municipal electric lighting plant. A number of blank ballots and a number of unintelligible ballots were cast at the election, and if these were counted against the proposition it would have lost. Sec. 3947 GC, then in effect under which that election was held read as follows: “If two-thirds of the voters voting at such election upon the question of issuing the bonds vote in favor thereof, the bonds shall be issued.”

The language of the section under which the election was held in the Wellsville case and in the instant case is very similar. The pertinent language of the Wellsville case is “voting at such election upon the question of issuing the bonds.” That on the instant case is “a majority of the vote cast on the issue.”

The first syllabus of the Wellsville case is as follows: “Where the question of issuing bonds by a municipality pursuant to §3939 et seq., Page & A. GC, is submitted to the electors at a special or general election, in ascertaining whether two-thirds of the voters voting at such election upon the question of issuing the bonds have voted in favor thereof, as required by §3947 GC, blank ballots or unintelligible ballots are not to be considered.”

The Court is of the opinion that the Wellsville case applies to and controls the case at issue for the following reasons: In that case the lower courts enjoined the issue but the Supreme Court reversed the lower courts on the ground that it was not necessary for the question to receive two-thirds of all the votes cast at the election including the blank and unintelligible ballots, but it was only necessary for the question to receive a two-thirds vote of those actually voting at the election upon the question. The Court further held that those persons who put blank and unintelligible ballots into the ballot box had not expressed their opinion upon the question and therefore such votes should not be counted. The reasoning of the Court appears 91 Oh St. at page 33, 109 N. E. at page 527, as follows: “By analogy if it is impossible to determine the answer of an elector to a question submitted at the election, his ballot should not be counted upon that question. A ballot is merely the instrument by which a voter expresses his choice between candidates or on a question; and, where the voter expresses no choice, he has not voted for either candidate, nor on the question. If upon any proposition the law requires that there shall be a majority of the votes cast at the election in order that the proposition should carry, it would be necessary to reckon with his vote. But if it is necessary to have a majority of those voting at such an election upon the question, his vote would not be reckoned with, for he did not vote upon the question.”

The contestors contended that this case supports their position because of the following language found in the second syllabus of the case: “Where a voter at an election duly held does not, by his ballot, express his choice for an office to be filled, or on a question submitted to the electors, his ballot should not be counted for such office or on the question. But if it is required by law that a majority, or any certain proportion of the votes cast at the election, should be in favor of a proposition in order that it should carry, then all the votes cast at the election, including blank and unintelligible ballots must be considered.”

It would thus appear that the pertinent words in the above language are “cast at the election,” and that the statute in the Wellsville case and the case at issue, do not require that the question, receive a majority of all the votes cast at the election but only a majority of the votes actually cast on the issue; and that therefore blank and unintelligible votes whether cast under the old paper ballot system or by means of the voting machine should not be counted. This view is also supported by the case of Spickermon et al. v. Goddard et al. The case was decided in the Supreme Court of Indiana on December 10, 1914, and is reported in 182 Ind. 523, 107 N. E. 2, 2 L. R. A. 1915C, 513, the third and fourth syllabi of the case reads as follows:

“Where voting machines were used in a local option election, and it appeared that there was a difference of 497 between the poll list number and the number of votes cast, it would be presumed that such number intentionally refrained from voting, or through ignorance of the working of the machines failed to so adjust the voting key as to register their intentions.”
“Proctor Act (Burns’ Ann. St. 1914, §8322) §7, provides that, if a majority of the legal votes cast at a local option election shall favor prohibition, it shall thereafter be unlawful to grant a license to sell liquor, and the board of commissioners shall have no power to hear applications for licenses in such territory until at a subsequent election a majority of the legal voters voting at such subsequent election shall vote against prohibition. Held, that the term ‘majority’ as so used did not contemplate a majority of all the electors taking part in the election, but meant a majority of the legal votes cast, and where 497 more were shown by the poll list than the number of votes shown to have been cast by the voting machine, the 497 should not be considered in determining the majority.”

This view is apparently supported by the vast majority of the authorities. See 131 American Law Reporter, page 1382, et seq. In this connection it is noted that the Wellsville case is cited at page 1386 as sustaining the majority view.

It was also urged by the contestors that there was a change in the map of the territory included in the proposed zoning regulations as certified by the Township Zoning Commissioners between the time of certification and the date of the holding of the election. The contestors relied upon §3180-33 GC, which reads as follows: “No change in or departure from the text or maps as certified by the township zoning commission shall be made unless the same be first submitted to the township zoning commission for its approval, disapproval or suggestions. If such changes are disapproved by the township zoning commission the provision so disapproved must receive the favorable vote of the entire membership of the board of township trustees in order to be adopted.”

They claimed that the fact that the Village of Eastlake became incorporated between the time of the new certification and the time of the holding of the election constituted a change in or departure from the text and maps of the zoning commission. In order to understand the meaning of §3180-33 GC it is necessary to read the sections preceding and following this particular section.

“Sec. 3180-20 GC provides that the Township Zoning Commission submit a plan, including the text and maps to the Township Trustees. Sec. 3180-30 GC provides that before submitting its recommendation of the zoning plan to the Board of Township Trustees, the Township Zoning Commission shall hold at least one (1) public hearing thereon. Sec. 3180-32 GC provides that after receiving the certification of the zoning plan from the Township Zoning Commission, the Township Trustees shall hold a public hearing thereon. Then the next §3180-33 GC, which is relied upon by the plaintiffs, provides that no change in or departure from the text or maps as certified by the Township Zoning Commission shall be made unless the same be first submitted to the Township Zoning Commission for its approval, disapproval or suggestions.”

From the contents of this section and those preceding and following it, the Court is of the opinion that it is clearly the intent and meaning of the legislature that no change in or departure from the text and maps shall be made by the Board of Township Trustees, but this is the only change or departure in the text and. maps that is contemplated in this section, and has no application to the situation where a portion of the unincorporated area of the township is withdrawn by operation of law by forming a corporation, since this withdrawal could be effected at any time before, during, or after the adoption of zoning by the incorporation of any area in the township. In this connection it was stipulated that between a fifth and one sixth of the unincorporated area of Willoughby Township was withdrawn from the area of the proposed zoning regulations by the incorporation of this village of Eastlake. The evidence also showed that this withdrawal did not change the overall plan of the zoning regulations and that' the voters in this village of Eastlake did not vote on the zoning issue.

There was also some complaint on the part of the contestors to the effect that the Board of Elections failed to properly instruct the electors and “that the voting officials violated §4785-131 GC in refusing electors a second ballot.” However, the contestors in making this complaint apparently overlooked the provisions of §4785-110a GC, which provides as follows: “The provisions of §§4785-110, 4785-127 and 4785-131 GC shall not apply to those counties which have adopted voting machines under the provisions of §4785-161 et seq GC.

The Court has seen fit to pass on the question of the change of the map as certified by the township zoning commissioners although perhaps it is not strictly in question on an election contest. This question is apparently one of first instance in Ohio. He has done so because there is another case filed-in behalf of one of the owners of property included in the area in dispute involving this question, this case being No. 22574 of the docket of this Court and entitled Charles R. Williams et al. v. Ethel Wooster, etc., et al. (unreported.) It is also to be noted that there is still another case in this Court concerning this zoning issue awaiting decision in the Supreme Court of Ohio all of which tends to show the diligence of the opponents of this measure and their counsel.

Prevailing counsel will therefore draw a Journal Entry in accordance with this opinion and submit the same to opposing counsel and the Court for approval noting proper exceptions.


author: By HILDEBRANT, PJ.:

text:
    COHEN, Plaintiff-Appellee, v. I. B. GOODMAN MFG. CO., Defendant-Appellant.
    Ohio Appeals, First District, Hamilton County.
    No. 6988.
    Decided October 25, 1948.
    Paxton & Seasongood, J. Griffin Murphey, Jr., Cincinnati, for plaintiff-appellee.
    Harry Kasfir, Joseph H. Hoodin, Arthur R. Heckerman, S. Arthur Spiegel, Cincinnati, for defendant-appellant.
   OPINION

By HILDEBRANT, PJ.:

Appeal on questions of law from a money judgment for plaintiff for commissions earned under an oral contract of employment as a salesman for defendant, a manufacturing jeweler, which lasted from January 1, 1941 to June, 1946.

The total amount of sales is agreed upon, as is the total amount of money paid to plaintiff by defendant, so that the sole dispute between the parties is as to the rates of commission agreed upon, which varied on four classifications of business according to the four different discounts given, which were 25%, 20% — 10% and 6% and net, or no discount 3%.

Plaintiff claims that the agreement was altered by the parties so from January 1, 1945 his computation shows a flat rate of 10% commission on all classes of business after January 1, 1945 until the employment terminated on May 31st, 1946. Illustrative of the rival claims and computations is stipulated Exhibit A, set forth below:

“SALES DISCOUNTS.
YEAR 25% 20% 10% & 6% NET
1941 $ 35,367.92 $ 9,142.88 $4,575.53 $14,914.39-
1942 44.093.83 18,082.34 1,017.74 20,247.23
1943 65.245.83 8,187.48 823.72 4,221.56
1944 36,239.65 36,197.81 1,092.41 3,947.78
$180,947.23 $71,610.51 $7,509.40 , $43,330.96
Cohen-10% Cohen-12%% Cohen-15% Cohen-10 %
Goodman-5% Goodman-3V2% Goodman-10% Goodman-3 %
Cohen $32,505.53
Goodman $17,185.12
1945 $33,699.92 $27,974.44 $1,253.79 $4,447.73
1945 $17,756.71 $11,620.00 $ 53.72 $ 525.20
$51,456.63' $39,594.44 $1,307.51 $4,^72.93
$97,331.51
Cohen-10% Cohen-10% Cohen-10% Cohen-10%
Goodman-5% Goodman-8 % % Goodman-10% Goodman-3 %
Cohen $9,733.15
Goodman $6,218.30
H. C. PAID $33,613.73 GOODMAN
H. C. CLAIMS H. C. PAID $33,613.73
EARNED $42',238.68 H. C. EARNED $23,403.42
H. C. PAID $33,613.73
H. C. CLAIMS $ 8,624.95 GOODMAN CLAIMS $10,210.31”

Obviously, the last year should be 1946.

The only persons who knew the agreed rates of commission were the plaintiff and I. B. Goodman, President of defendant company, and they were the only witnesses who testified as to the rates set forth in the rival claims appearing by stipulated Exhibit A. It is, therefore, apparent that the problems for the jury in determining in truth and in fact just what rates were agreed upon for the four classes of business it is remitted almost solely to a minute scrutiny and analysis of the testimony of the plaintiff and I. B. Goodman. The choice then must necessarily rest on considerations of credibility, correctness of memory, and authenticity of record evidence.

Throughout the record certain inconsistencies in plaintiff’s claims as to the rates appear. For example, his Exhibit I, consisting of notations as to the rates which he testified were made at the time the oral contract of employment was agreed upon, shows his claimed rates as to only three classifications of business. Omitting any notation as to the fourth or net class. Again, in plaintiff’s Exhibit 19, he states, and, again, only as to three classes of business:

“I have the original figures of the amount of commission paid, which you gave me when I started with you. I have same on your own stationery; also have witnesses' of the amount of commissions which were paid to me, and this is what they were to be: On 25%, 10% commission; on 20%, 10% commission, on 10 and 6, 12% commission, and I am certainly going to hold you to that agreement.”

If his recollection on September 19, 1946, as set forth in the letter, constituting Exhibit 19 is correct, the computation would be appreciably different from that appearing in Stipulated Exhibit A, at the time of trial.

In his letter of July 10, 1946, plaintiff’s Exhibit 12, the plaintiff claims to have commissions due of $6,600.00, and states:

“Inasmuch as I have not received a final statement from you, I would like to call your attention that I still have commissions due of $6,600.00. This covers the period from January 1st, 1941 to January 1st, 1946, and also commissions on all orders sold which you accepted for the year 1946.”

This figure obviously had to be computed at rates different from those set forth by plaintiff in Stipulated Exhibit A. The plaintiff further testified that the flat rate commission of 10% became effective in March of 1944, rather than January 1, 1945, as shown by Stipulated Exhibit A.

Error is assigned to the following portion of the charge of the Court, to-wit:

“The court instructs you that the figure, the ultimate figure that you will award, if you so award a figure, must be either one figure or another and that the amounts involved are not divisible. The amounts in the different classifications have been totaled for your benefit and the question is was it 10 per cent in the first column there or was it 5 per cent, and so on down the line. There is no disagreement as to the amounts involved, so that if you find for the plaintiff in this case you will find for $8624.95.”

It is claimed the above charge invades the province of the jury to weigh the conflicting evidence given by plaintiff himself and requiring any verdict for him to be at his highest claim, and excluded the possibility of finding plaintiff correct as to some rates and Goodman correct as to others, and nullifying that portion of the charge, wherein the court correctly informed the jury of its power to believe all, part, or none of the testimony.

The court finds the objection to the charge above stated to be valid, and that the charge is prejudicially erroneous, as an invasion of the province of the jury. The syllabus in Painesville Theatre Co. v. Lautermilch, 118 Oh St, 167, states:

“Whenever, from conflicting evidence of the same witness or of different witnesses, it becomes necessary to weight such conflicting evidence to determine wherein the probable truth lies, or from a combination of circumstances determine an ultimate fact upon the determination of which different minds might reasonably arrive at different conclusions, it is the province of the jury to perform that function. It is reversible error for the court to invade the province of the jury.”

By limiting a finding for plaintiff to the one computation, shown in Stipulated Exhibit A, the charge was effective to nullify the correct portion of the charge, informing the jury of its right to believe part and disbelieve part of any witness’ testimony, and, therefore, misleading and prejudicial, as held in Bosjnak v. Superior Steel Co., 145 Oh St, 538, wherein it is stated in the fifth paragraph of the syllabus:

“Generally, where, in instructing the jury, the court states a correct rule or principle of law and also states an incorrect rule or principle of law with reference to the same subject matter-, no presumption arises that the correct rule was applied by the jury in consideration of the issue presented, and the error in giving the incorrect rule will be deemed prejudicial.”

It is argued that the charge is correct in limiting the amount to the computation appearing in Stipulated Exhibit A, in event of a finding generally for plaintiff, by reason of the Stipulated Exhibit itself, and that any other charge would be going behind the stipulation. If that position be tenable, the sole issue of the rates would disappear from the case. As the court regards the stipulation, made for the simplification of the issues, by eliminating any dispute as to total sales and total payments to plaintiff, as an aid to court and jury, the only things agreed upon as facts were total sales and total payments to plaintiff — leaving the rates set forth as rival claims as of time of trial to be proven on trial. This view is substantiated in the record when the trial court stated to the jury:

“Members of the jury, you will understand now that the figures you see on the board are agreed between the parties as being the sales made by Mr. Cohen for the Goodman Company during the years winch they reveal on the board, so there is no dispute about those figures in so far as they apply to the amount of sales made. Now, the other figures are explanatory.”

For the reasons given, the judgment is reversed, and the cause remanded to the Court of Common Pleas for further proceedings according to law.

No further error, prejudicial to appellant, appears in the record.

MATTHEWS, PJ, ROSS & HILDEBRANT, JJ, concur in syllabus, opinion & judgment.


author: By THE COURT. By THE COURT.

text:
    HOME OWNERS’ SERVICE CORP., Plaintiff-Appellant, v. HADLEY, et al., Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4134.
    Decided January 25, 1949.
    Marion A. Ross, Columbus, for plaintiff-appellant.
    George H. Chamblin, Columbus, for defendahts-appellees.
   OPINION

By THE COURT.

This is an appeal on questions of law from the order of the Common Pleas Court of Franklin County sustaining the motion of defendants-appellees for judgment on the pleadings. The action was instituted to recover a real estate brokerage commission.

Plaintiff’s second amended petition consists of three causes of action. In the first cause of action plaintiff alleges that the defendants executed an exclusive sales contract whereby plaintiff was authorized to list for sale and sell the real estate owned by defendants for $28,000.00; that said listing continued until withdrawn by a thirty day notice to the plaintiff; that the listing contract provided that if plaintiff originated or was instrumental in securing a purchaser for said property, the defendants agreed to pay the plaintiff a commission. Plaintiff alleges 'that it obtained a purchaser at $28,000.00 but that defendants refused to accept or complete the purchase. In the second cause of action plaintiff incorporates all the allegations contained in the first cause of action, and further alleges that while the listing contract was in force, the defendants sold said property to one, Rose M. Williams; that the sale to Rose M. Williams originated and started and the terms of sale were agreed upon during the period of time that the listing contract was in force. In the third cause of action plaintiff incorporates all the allegations in its first and second causes of action, and further alleges that plaintiff was instrumental in securing or originating a purchaser for the property and that the defendant sold said property to said purchaser. Plaintiff alleges that the defendants refused to pay the commission due under the listing contract.

The defendants in their answer “deny each and every allegation contained” in the second amended petition. Further answering, the defendants deny that the plaintiff was given an exclusive listing contract of the character alleged; deny that the sale was made to Rose M. Williams during the time the listing contract was in effect; deny that plaintiff originated or started the sale to Rose M. Williams; deny that plaintiff was instrumental in securing or originating the purchaser. Further answering, the defendants allege that one of the defendants did execute an exclusive listing contract whereby they gave authority to the plaintiff to sell said real estate for a period of ninety days or until the authority was withdrawn by a thirty day written notice; that the ninety day listing period expired on November 11, 1945, and that at no time prior to November 11, 1945, did plaintiff present an offer to purchase said property for the list price of $28,000.00.

The plaintiff filed a reply which was in the nature of a general denial of all allegations in the answer not expressly admitted or alleged in the second amended petition.

To the-answer the defendants attached seven interrogatories which were answered by the President of the plaintiff company. The answer to Interrogatory No. 1 properly identified the listing contract attached to the answer as an exhibit. The answer to Interrogatory No. 5 was to the effect that plaintiff is unable to state whether or not any of the officers or agents of the plaintiff had any conference with Rose M. Williams prior to November 11, 1945. In answer to Interrogatory No. 6 it is stated that plaintiff was instrumental in securing and originating the purchaser for the property in question by its advertising, placing its “For Sale” sign upon the property, soliciting of prospects, and securing at least three written offers from bona fide purchasers. In answer to Interrogatory No. 7, plaintiff stated that no written offer to purchase the property at the list price of $28,000.00 was submitted to the defendants prior to November 11, 1945. It is obvious that the pleadings make up several issues of fact.

In Meyer v. Daniel, 147 Oh St 27, it is held that,

“A motion for a judgment on the pleadings is in the nature of a general demurrer and presents only questions of law.”

If the pleadings present an issuable fact which would require the introduction of testimony by the moving party to maintain such issue, a motion for a judgment on the pleadings should be overruled. Vol. 31, O. Jur. pp. 878, 879. In the instant case, the answer denies almost every material allegation in the second amended petition, and the reply denies new matter in the answer and, therefore, a motion for a judgment on the pleadings should have been overruled.

But it is claimed that the answers to the interrogatories may be considered by the Court in passing on a motion for a judgment on the pleadings and that the answers to the interrogatories submitted do not support the allegations of the second amended petition and on the basis of such answers the plaintiff was not the procuring cause of the sale and, therefore, cannot recover.

In passing on a motion for a judgment on the pleadings, only statements in the pleadings can be considered. McCoy v. Jones, 61 Oh St 119, 129, 55 N. E. 219; Challen v. Cincinnati, 40 Oh St 113; Crew v. Penna. Rd. Co., 21 Oh Ap 143, 153 N. E. 95.

Are the interrogatories and answers thereto a part of the pleadings? Sec. 11348 GC, provides:

“A party may annex to his pleading, other than a demurrer, interrogatories, pertinent to the issue made in the pleadings,” etc.

In Wild v. Cadwalder, 18 O. D. 565, it was held that the answers to interrogatories should be filed as a separate paper but may also be attached to a pleading. In Ward v. Mutual Trucking Co., 1 O. O. 456, Judge Carpenter, now Judge of the Court of Appeals of the Sixth District, while serving as Judge of the Common Pleas Court of Huron County, held that,

“The right of a party to annex interrogatories to his pleading to be answered by his adversary as provided for in §11348 GC, is intended only to aid the pleader in supporting his own case and not to help him to destroy his opponent’s cause.”

Later, Judge Carpenter as a member of the Court of Appeals of the Sixth District, In Schuldt v. Associates Investment Co., 61 Oh Ap 213 held that,

“The primary purpose of interrogatories appended to a pleading and required to be answered by an opposite party (§§11348, 11349 and 11350 GC) is to enable the interrogating party to properly plead his cause or defense.”

Sec. 11350 GC, in part provides.

“On the trial, such answers, so far as they contain competent testimony on the issue -or issues made, may be used by either party.”

In the case of Schuldt v. Associates Investment Co., supra, it was held that:

“Answers to interrogatories may be received in evidence only in so far as they are competent evidence and could be the subject of testimony by a party (§11350 GC).
When such answers are conclusions or self-serving declarations, the answering party cannot offer them in evidence.”

Sec. 11601 GC, in part provides.

“When, upon the statements in the pleadings or upon the evidence received upon the trial, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the Court,” etc.

In view of the controlling statutory provisions and the judicial pronouncements on the subject, we are of the, opinion that answers to interrogatories do not constitute any part of the pleadings and may not be considered by the Court in passing on a motion for judgment on the pleadings. The submission of interrogatories by the defendants was for the purpose of aiding the defendants in supporting their own case rather than to destroy the plaintiff’s case. Answers to interrogatories may be considered in certain instances as evidence but become no part of the pleadings. The plaintiff was entitled to go to trial on the issues of fact made by the pleadings.

The trial court in overruling the plaintiff’s motion for a new trial took into consideration evidence in the form of a deposition of Rose M. Williams, the purchaser of said property. In passing on a motion for a new trial on a motion for judgment on the pleadings the Court is not permitted to consider evidence in any form. To do so would not necessarily constitute reversible error if the prevailing, party was otherwise entitled to judgment on the pleadings. In the case at bar, in our opinion, the defendants were not' entitled to a judgment on the pleadings. For this reason, the consideration of the answers to interrogatories and the deposition in passing on the motion for a judgment on the pleadings constitutes reversible error.

Finding error in the record prejudicial to the plaintiff, the judgment is reversed and the cause is remanded to the trial court for further proceedings according to law.

WISEMAN, PJ, and MILLER, J, concur.

HORNBECK, J, concurs in judgment.

ON APPLICATION FOR REHEARING

No. 4134. Decided February 17, 1949.

By THE COURT.

Submitted on application for rehearing on the ground that the court may consider interrogatories and answers thereto on passing on a motion for judgment on the pleadings.

We adhere to our former ruling and hold that in the absence of a statutory provision, interrogatories and answers thereto form no part of the pleadings. It is interesting to note that under Federal Rules applicable to the United States District Courts, it has been held that interrogatories are not a part of the pleadings. Bowles v. Safeway Stores, Inc. (D. C. MO.) 4 F. R. D. 469, it was held:

“Interrogatories are evidentiary in character and are not considered as a ‘pleading’ in the case, and until they are offered in evidence by either party they will not be considered by the court.”

In Vol. 27 C. J. S. Section 62, on page 92, the author states that the answer to interrogatories is not a pleading. See, also, Vol. 17 Am. Jur. Sec. 47, page 33.

Application for rehearing denied.

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