author: By THE COURT. By THE COURT.

text:
    ZENZ, Petitioner-Appellant, v. ALVIS, Warden, Respondent-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4572.
    Decided November 1, 1951.

      Emile Reiss, Wilmore Brown, Columbus, for petitioner-appellant.
    C. William O’Neill, Atty. Geni., Max H. Dennis, Asst. Atty. Geni., Columbus, for respondent-appellee.
   OPINION

By THE COURT.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Franklin County denying to petitioner, Harry Zenz, a writ of habeas corpus.

The petitioner was tried and convicted in Hamilton County, Ohio, in 1931, under an indictment which consisted of two counts. The first count charged that petitioner entered the Reading Bank and there committed the crime of robbery upon one Harry A. Green. The second count charged that defendant entered the Reading Bank with intent to steal money from said bank.

The defendant was found guilty on both counts. The Court sentenced the petitioner to life imprisonment on both counts, the sentence on the second count to run concurrently with the sentence on the first count.

The petitioner contends that there was only one entry into the bank and that only one offense was committed. The lower court in this matter found that from the record there was no positive showing that there was only one entry and that the Court was permitted to conclude that there may have been two entries. The lower court was bound and this court is bound by the record made in this case. This court cannot consider new evidence in this court which was not presented to the trial court. This matter is in this court on an appeal on questions of law and we are bound by the record made in the trial court.

The lower court held that under §13437-3 GC, the two counts were properly joined in one indictment and a verdict of guilty may be returned on each count. The lower court held that any defect in the indictment should have been raised at the time of trial under the indictment as provided in §13437-28 GC, and that any irregularity which existed, if there was any irregularity, did not render the conviction or sentence void. The lower court further held that the sentencing of the petitioner to life imprisonment on each count was legal and that said sentence did not violate the constitutional provision against cruel and unusual punishment. This Court is in accord with the judgment of the lower court.

Decided November 30, 1951.

The record shows that on May 9, 1947, the Ohio Pardon and Parole Commission granted the petitioner a parole to take effect on and after June 20,1947, when arranged by the Bureau of Probation and Parole. On June 16, 1947, the Pardon and Parole Commission rescinded the action taken on May 9th. On June 16, 1947, the parole had not become effective since “parole” under §2209 GC, is defined to mean “the release from confinement in any State Penal” institution. The petitioner contends' that the Act rescinding the granting of the parole was ineffective legally to invalidate the action granting the parole. This Court has passed upon this precise question in State, ex rel. Newman v. Lowery, et al., No. 4505 (61 Abs 337), Court of Appeals of Franklin County, in an unreported opinion, dated June 21, 1951, in which a writ of habeas corpus was denied on this ground.

This Court finds §12441 GC, to be constitutional. See Ex parte, Fleming, 123 Oh St 16.

We have given careful consideration to each error assigned and all questions raised by counsel for petitioner in his brief and find no assignment of error well made.

Judgment affirmed.

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

ON APPLICATION FOR REHEARING

No. 4572.

OPINION

By THE COURT.

Application for rehearing is hereby overruled.

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


source: Caselaw Access Project

author: By BARTLETT, J.

license: Public Domain

text:
    SILVERSTEIN, Appellant, v. BOARD OF LIQUOR CONTROL, Appellee.
    Common Pleas Court, Franklin County.
    No. 186994.
    Decided May 1953.
    John B. Freiden, Cincinnati, for appellant.
    C. William O’Neill, Atty. Genl., Columbus, for appellee.
   OPINION

By BARTLETT, J.

1. APPEAL DISMISSED. PERMIT HAVING EXPIRED, ITS TRANSFER BECAME MOOT.

2. UNTIL BOTH THE DIRECTOR AND THE BOARD OF LIQUOR CONTROL HAVE HAD OPPORTUNITY TO PASS ON AN APPLICATION FOR RENEWAL OF PERMIT, THIS COURT HAS NO JURISDICTION IN THE MATTER.

The permit (C-2 — Carry Out) having expired, its transfer became moot. No application for renewal having been filed forthwith under regulation No. 14, this Court has no jurisdiction or power to order a renewal of the permit. The matter of renewal is within the jurisdiction of the Director of Liquor Control. If his decision on an application for renewal is not satisfactory, then the applicant may appeal to the Board of Liquor Control and, if necessary, to this Court. Until both the Director and the Board have had an opportunity to pass on an application for renewal, this Court has no jurisdiction in the matter. See State ex rel. Jones v. Bryant, Director, 159 Oh St 59.

Apparently it is not necessary to pass on other questions. Appeal dismissed.


author: By KLOEB, District Judge.

text:
    SWESEY, In re.
    United States District Court N. D. Ohio, W. D.
    No. 20726.
    Decided June 2, 1953.
    Frank C. Kniffin, Toledo, referee in bankruptcy.
    Carl J. Marlow, Toledo, trustee in bankruptcy.
    Milton N. Swanson, Toledo, for bankrupt.
    Harold Hanley, Toledo, for trustee.
    Marshall, Melhorn, Bloch & Belt, John B. Spitzer, Toledo, for petitioner Industrial Nat. Bank.
   OPINION

By KLOEB, District Judge.

The question before the court is whether or not the chattel mortgage lien of the Industrial National Bank of Detroit, Michigan is a valid lien upon the proceeds of sale of the automobile owned by the bankrupt sold by the trustee under the orders of the referee. It is the contention of the trustee, and the referee so held, that under the Ohio Certificate of Title Law, §§6290, 6290-20 GC, particularly §6290-4 GC, as construed in the cases of Mielke v. Leeberson, 150 Oh St 528, 38 O. O. 352, 83 N. E. 2d 209, 7 A. L. R. 2d 1342, and Kelley Kar Co. v. Finkler, 155 Oh St 541, 44 O. O. 494, 99 N. E. 2d 665, the chattel mortgage is invalid because an Ohio certificate of title had not been obtained under that law. Counsel for the bank on the motion for rehearing cited the case of In re Mitchell, D. C., 50 O. O. 164, 104 F. Supp. 969, 61 Abs 585, 64 Abs 218, a case decided by Judge McNamee of the Eastern Division, North District of Ohio, affirmed by the Court of Appeals for the Sixth Circuit in 202 F. 2d 426.

The facts in the case before the court, in substance, are as follows: The bankrupt, on or about April 4, 1952, purchased from a dealer in Detroit a 1952 Plymouth convertible, and executed and delivered to the dealer a note and chattel mortgage as part payment of the purchase price. The dealer assigned the note and mortgage to the bank, upon which there is admittedly due $1,833.62, with interest at 8% from May 15, 1953, the lien of which is in controversy here. The bankrupt gave his address on the chattel mortgage as 2527 Blaine Street, Toledo, Ohio. It is alleged, and not denied, that the bankrupt at the time informed the dealer that his residence was then Toledo, Ohio, but that he had obtained employment in Detroit and for that reason wished to secure a Michigan certificate of title. At the time of the purchase, the bankrupt made and there was filed with the Secretary of State of Michigan an application for a Michigan certificate of title, which was issued to him, and he obtained Michigan license plates for the car. The bank filed the chattel mortgage with the register of deeds, Wayne county, Michigan, in which Detroit is located, on April 11,1952, and had the mortgage recorded by the Secretary of State of Michigan on the Michigan certificate of title as appears from the exhibits attached to its answer. There is no dispute blit that all of the requirements of the Michigan laws were complied with respect to this transaction.

The bank was made a party to the trustee’s proceeding to sell the automobile free of liens and filed an answer consenting to the sale but asking that its chattel mortgage lien be declared valid and be paid out of the proceeds of sale next after the expenses thereof. A hearing was had on the question of the validity of the mortgage, upon which testimony was taken, but no stenographic record or transcript appears among the papers transmitted, nor does there seem to have been any agreed stipulation of facts filed. However, none of the factcs above stated seem to be in controversy. The question appears to be simply one of law.

The bankrupt filed his voluntary petition in this court on July 21, 1952, and was adjudicated. At that time he had possession of the automobile and the Michigan certificate of title, upon which there was noted the lien of the bank, and of which the trustee took possession. No Ohio certificate of title had been applied for or obtained by the bankrupt, presumably because he had obtained employment in Detroit and expected to use the car in the State of Michigan.

Sec. 6290-4 GC, upon which the referee relied reads as follows:

“No person acquiring a motor vehicle from the owner thereof, whether such owner be a manufacturer, importer, dealer or otherwise, hereafter shall acquire any right, title, claim, or interest in or to said motor vehicle until he shall have had issued to him a certificate of title to said motor vehicle, or delivered to him a manufacturer’s or importer’s certificate for the same; nor shall any waiver or estoppel operate in favor of such person against a person having possession of such certificate of title or manufacturer’s or importer’s certificate for said motor vehicle for a valuable consideration. No court in any case at law or in equity shall recognize the right, title, claim, or interest of any person in or to any motor vehicle, hereafter sold or disposed of, or mortgaged or encumbered, unless evidenced by a certificate of title or manufacturer’s or importer’s certificate duly issued, in accordance with the provisions of this chapter.” (Emphasis ours.)

The case of Mielke v. Leeberson, supra, 150 Oh St 528, 38 O. O. 352, 83 N. E. 2d 209, 210, cited and quoted by the referee, held:

“Under the plain and unambiguous language of §6290-4 GC, a court cannot recognize the right, title, claim or interest of any person in or to any motor vehicle, without the production of a certificate of title or manufacturer’s or importer’s certificate duly issued in accordance with the Certificate of Title Law, * *

This case arose out of an automobile collision in the city of Toledo. The plaintiff and his insurance company brought the action upon the theory that the plaintiff was the owner of the auto which he was driving. The trial resulted in a verdict and judgment in favor of the plaintiff. The Court of Appeals reversed on the sole ground that there was not sufficient evidence to establish plaintiff’s ownership, and that, therefore, plaintiff having failed to sustain an essential elq-^ ment of his claim, final judgment must be rendered against him. The Supreme Court reversed the Court of Appeals and remanded the case for a new trial. The court stated:

“Except for the requirements of §6290-4 GC, plaintiff’s ownership of the automobile he was driving was abundantly proved.” 150 Oh St at page 532, 38 O. O. at page 354, 83 N. E. 2d at page 212.
“In our view of the case, since there was evidence of plaintiff’s ownership, although such evidence can never be sufficient without the production of a certificate of title, the proper procedure is a reversal and a remanding for a new trial.” 150 Oh St at page 535, 38 O. O. 355, 83 N. E. 2d at page 213.

This case does not seem to be at all analogous on the facts to the case here and would not appear to be applicable.

The case of Kelley Car Co. v. Finkler, supra, 155 Oh St 514, 44 O. O. 494, 99 N. E. 2d 665, 666, was also cited by the referee in support of his conclusion. The facts in this case appear to be that, in August, 1947, the plaintiff, located at Los Angeles, California, sold a used 1946 Cadillac convertible to one Anderson, upon which there was an unpaid balance of $4,901 to secure which á conditional sale contract was executed between the parties which reserved title in the seller until the purchase price was paid. Ten days after the purchase, Anderson appeared with the car in Vermont and then secured from the Vermont Motor Vehicle Department a certificate of title which indicated that he was the owner of the car and on which there were no liens noted. Anderson conveyed the car to one Jack Collins, who procured a Vermont registration in his name and then transferred the title of the car back to Anderson. On October 9, 1947, Anderson appeared in Cleveland, Ohio with the car and procured an Ohio certificate of title from the clerk of courts of Cuyahoga county as replacement for the Vermont certificate which he had obtained from Collins. He did not inform the clerk of any interest in the car of The Kelley Kar Company. On October 14, 1947, the defendant Finkler purchased the car from Anderson and obtained an Ohio certificate of title in his name upon surrender of the one previously held by Anderson. In January, 1948, The Kelley Kar Company, relying on its California conditional sale contract, filed a petition in the Court of Common Pleas of Erie county, Ohio to replevin the car. No question of lack of good faith appears in the case.

It thus appears that the plaintiff was relying upon its California conditional sale contract, while, the defendant was relying upon his Ohio certificate of title upon which there was no notation of the plaintiff’s interest or lien. The Supreme Court of Ohio held that, under these circumstances, the plaintiff could not recover.

It is apparent that the facts in the above case are not in any way analogous to the facts of the case here. We are also of the opinion that the decision of the Supreme Court in that case is not controlling under the facts in the case before us.

Syllabus 3 in that case indicates that the court was construing the statute as applicable only to automobiles sold or encumbered in the state of Ohio and did not intend to give the statutes any extra-territorial effect. The syllabus reads as follows:

“Under the provisions of §6290-4 GC, an Ohio court cannot recognize the right, title, claim or interest of any person in or to any motor vehicle sold or disposed of or mortgaged or encumbered in Ohio after the effective date of that section of the Code unless such right, title, claim or interest is evidenced by a certificate of title or manufacturer’s or importer’s certificate duly issued in accordance with the provisions of the Certificate of Title Act.”

As appears from the admitted facts, the automobile in this case was not sold or disposed of or mortgaged or encumbered in Ohio. It was sold and mortgaged in Michigan. There is no question raised but that the sale and encumbrance of this automobile was valid under the laws of Michigan. There is nothing in the Ohio Certificate of Title Law which indicates an intention on the part of the legislature to make a transaction of this kind, valid under Michigan laws, void under the laws of Ohio, and the court will not read into the statute language which is not there.

The Supreme Court of Ohio apparently recognized the distinction above referred to, and that the law has no extraterritorial effect, in the case of State ex rel. City Loan & Savings Co. v. Taggart, 134 Oh St 374, 379, 12 O. O. 517, 17 N. E. 2d 758, 760, holding the Ohio Certificate of Title Law constitutional, in which the court said:

“No extra-territorial scope may be given to these sections. The law must be limited in its operation to those manufacturers, etc., who are subject to the jurisdiction of Ohio, and to those persons in Ohio who are obligated to secure a certificate of title under the law of this state. If they do not present the documentary proof demanded they are not entitled to a certificate.” (Emphasis ours.)

In the case of Ragner v. General Motors Acceptance Corporation, 1947, 66 Ariz. 157, 185 P. 2d 525, 528, a similar question came up, and the court there said:

“* * * The statute was not intended to have extra-territorial effect other than would be accorded it through the rule of comity. This .statute sets forth the modus operandi for registering motor vehicles, securing certificates of title, and establishing liens in this state by and for the citizens of this state. The statute specifically says that a lien can be acquired only in the manner set forth in the statute, and that the instrument creating the lien ‘shall be executed in the manner required by the laws of this state. * * *’ It is inconceivable that the legislature contemplated that it had the authority or was attempting to set forth the manner in which other states might create the means for establishing liens. * * * Though the language of the statute is broad enough to authorize the interpretation contended for by appellants, certainly it is not compelling nor do we believe that it is warranted.”

There is no requirement in the law that an out-of-state mortgagee or the purchaser in this case must procure an Ohio certificate of title, if the purchaser is at the time of the purchase a resident of Ohio. The purchaser in this case could undoubtedly have transferred the certificate to a resident of Michigan or some state other than Ohio and given a good title, without complying with any requirements of the Ohio law. Provision is made in the law, §6290-5 GC, for the issuance of a certificate of title in Ohio if a certificate of title has not previously been issued for the automobile in this state, upon application as therein provided, but there is nothing in the law which provides that the owner of such an automobile or the mortgagee holding a lien upon any such automobile, if the owner is a resident of Ohio, must apply for and obtain an Ohio certificate of title either within a certain limited time after bringing the automobile into this state or at all.

That an out-of-state certificate of title may be recognized by the courts of Ohio without an Ohio certificate of title

being issued therefor to the owner is held in the case of Mock v. Kaffits, Franklin county, 1944, 75 Oh Ap 305, 31 O. O. 72, 62 N. E. 2d 172. In that case, the automobile was owned by a resident of Pennsylvania who held a Pennsylvania certificate of title. The automobile was stolen, brought to Ohio and the motor number was changed. An Ohio certificate of title issued under the changed motor number without any reference to a lien which existed on the car. The car was sold to plaintiff and afterwards seized by the police as a stolen car. The plaintiff, the Ohio purchaser, commenced an action in replevin. The court decided against him on the ground that the certificate he held did not cover the car because the motor number was wrong, and that the only certificate of title upon the vehicle which the court recognized was the Pennsylvania certificate, the holder of which was entitled to the possession of the car.

Referring to the case of In re Mitchell, supra, D. C., 50 O. O. 164, 61 Abs 585, 64 Abs 218, while that case is not in point on the facts, it does have to do with the construction of certain provisions of the Ohio Certificate of Title Law and what the court there held has some application here. In that case, the facts appear to be as follows: The bankrupt, one Mitchell, purchased a house trailer from a dealer located in 13720 Lorain avenue, Cleveland, Cuyahoga county, Ohio, made a down payment, executed a note secured by chattel mortgage for the balance and signed an application for a certificate of title, with his address thereon in blank. The note and mortgage were assigned to the Michigan National Bank, whose secured claim was contested by the trustee in bankruptcy. The address of the bankrupt was later 'filled in as 13720 Lorain avenue, the address of the dealer, by mistake. At the time of the purchase, the bankrupt resided on Lorain avenue in the village of Ridgeville, Lorain county, Ohio. The clerk of courts of Cuyahoga county issued a certificate of title to the bankrupt and noted thereon that the bank was the holder of a chattel mortgage for the balance due thereon. The bank asserted its lien in a proceeding by the trustee to sell the trailer. The referee held the mortgage void because it was not filed in Lorain county. The trustee contended that the lien, claimed by the bank was invalid under the Ohio Certificate of Title Law and relied upon an opinion of the Attorney General to the effect that an application for a certificate of title must be filed in the county of the residence of the applicant and that non-compliance renders the certificate void. Judge McNamee held that there was no express language in the statute stating that a certificate of title mistakenly issued in the wrong county is void and that there was no sound reason for declaring a transfer of title invalid where, through mistake, the purchaser’s address is incorrectly stated in the application. He did not discuss the Ohio Supreme Court decisions referred to herein. He quoted in support of his conclusions from In re Lowry, 4 Cir., 40 F. 2d 321, 322, which seems to be applicable here:

“ ‘Under the circumstances here to take that which in all equity and justice is the property of appellant for the benefit of general creditors would not be doing equity.’ ” 104 F. Supp. 972.

This case was affirmed by the Sixth Circuit Court of Appeals in a memorandum opinion, reading as follows, 202 F. 2d 426:

“This appeal having been heard upon the record, briefs and argument of counsel for the respective parties.
“And the court being of the view that the opinion of the Attorney General of Ohio construing the statute herein involved, is not controlling in the decision of this case within the meaning of the rule announced in Erie Railroad Co. v. Tompkins, 304 U. S. 64, 58 S. Ct. 817, 11 O. O. 246, 82 L. Ed. 188; In re Avery, 6 Cir., 114 F. 2d 768, 770; In re Zaepfel & Russell, Inc., D. C., 49 F. Supp. 709, 710, affirmed Farmer’s State Bank v. Jones, 6 Cir., 135 F. 2d 215; Leddy v. Cornell, 52 Colo. 189, 120 P. 153, 38 L. R. A., N. S. 918; Follmer v. State, 94 Neb. 217, 142 N. W. 908; Jones v. Williams, 121 Tex. 94, 45 S. W. 2d 130, 79 A. L. R. 983;
“And that the construction and application of the statute to the facts of this case, as made by the district judge, is not erroneous:
“It is ordered that the judgment of the District Court be affirmed on the grounds and for the reasons stated in the opinion of the district judge.”

Referring to the cases cited by the Court of Appeals above, the case of In re Avery, 6 Cir., 114 F. 2d 768, held, with reference to the application of Erie R. Co. v. Tompkins, 304 U. S. 64, 58 S. Ct. 817, 11 O. O. 246, 82 L. Ed. 1188:

“It is urged here that the decision of the District Court was in the teeth of Erie R. Co. v. Tompkins, 304 U. S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, 114 A. L. R. 1487. Assuming that the decision was contrary to the holdings of the highest court of Michigan, still we can find no basis for the conclusion that Erie R. Co. v. Tomkins, supra, has any application to the question presented here. The court was not sitting in a trial at common law, — to the contrary, it was considering the effect in bankruptcy of facts found by its special master.” 114 F. 2d at page 770.

The case of In re Zaepfel & Russell, Inc., D. C., 49 F. Supp. 709, also held:

“The rule announced in the case of Erie R. Co. v. Tompkins, 304 U. S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, 114 A. L. R. 1487, is not applicable to the consideration of facts in a bankruptcy proceeding. In re Avery, 6 Cir., 114 F. 2d 768. * * *” 49 F. Supp. at page 710. (Emphasis added.)

Leddy v. Cornell, 52 Col. 189, 120 P. 153, Follmer v. State, 94 Neb. 217, 142 N. W. 908, and Jones v. Williams, 121 Tex. 94, 45 S. W. 2d 130, 79 A. L. R. 983, all held, in effect, that the opinion of an Attorney General, while persuasive, is not conclusive or binding upon state officers or the courts.

For the reasons above stated, we are of the opinion that the petition for review of the referee’s order should be sustained and the chattel mortgage lien of the bank as a secured claim allowed as against the proceeds of sale of the automobile in question.

NOTE: For a discussion of the Ohio law applicable, see 6 O. S. L. J. 291 and 13 O. S. L. J. 296; for a general discussion on the subject see 96 Pa. L. R. 455.


author: By CASE, J.

text:
    HUFF et, Plaintiffs, v. SPRUANCE, Defendant.
    Common Pleas Court, Fayette County.
    No. 21585.
    Decided October 16, 1953.

      Reed M. Winegardner, Washington, C. H., for plaintiffs.
    Winston W. Hill, Hill & Hill, Washington, C. H., for defendant.
   OPINION

By CASE, J.

DECISION GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO STRIKE

The Court, coming now to consider Defendant’s motion, herein filed on August 14, 1953, seeking an order of this Court striking certain allegations from Plaintiffs’ petition, and upon due consideration thereof and being fully advised in the premises, finds.

1. That Plaintiffs’ petition was filed herein on April 20, 1953, and set forth certain causes of action therein as follows:

“FIRST CAUSE OF ACTION
“Plaintiffs say there is due them, by the defendant, the sum of $450.00 for house rent over-charges paid to defendant, by plaintiffs, for the occupancy of the residence property, owned by defendant, at 634 Gibbs Avenue, Washington C. H„ Ohio, from May 21, 1948, to November 21, 1950, being a total of 30 months of rent over-charge at the rate of $15.00 per month: that the rental and occupancy of said residence property, owned by the defendant, as listed herein, was a housing accommodation subject to the Housing and Rent Control Act of 1947 as Amended, passed by the Congress of the United States and approved by the President, and was located in the Washington Court House Defense Rental area.
“Plaintiffs further say that on September 9, 1952, an Order was made, in writing, by John B. Barton, Area Rent Director, Columbus, Ohio, within whose jurisdiction the Washington Court House Defense Rental Area was and is located, directing a reduction, after due consideration, in the monthly rental rate of the residence property located at said 634 Gibbs Avenue. Washington C. H., Fayette County, Ohio, effective as of February 1, 1947, from $25.00 per month, to $10.00 per month; that plaintiffs have made demand on defendant for a refund of said alleged rent-overcharges, paid by them, for the occupancy of said property, during the period from May 21, 1948, to November 21, 1950, in the total amount of $450.00, but the same has been refused.
“SECOND CAUSE OF ACTION
“Plaintiffs further say there is due them, from the defendant, the sum of $304.50 for house rent over-charges, paid to defendant, by plaintiffs, for the occupancy of the residence property, owned by defendant and located at 620 Rose Avenue, Washington C. H., Fayette County, Ohio, during the period from November 21, 1950, to September 21, 1952, being for a period of 21 months of actual rental payments, at an overcharge rate of $14.50 per month; that the rental and occupancy of the said residence property, owned by the defendant, as listed herein, was a housing accommodation subject to the Housing and Rent Control Act of 1947, as Amended, passed by the Congress of the United States and approved by the President, and was located in the Washington Court House Defense Rental Area.
“Plaintiffs further say that on September 9, 1952, an Order was made, in writing, by John B. Borton, Area Rent Director, Columbus, Ohio, within whose jurisdiction the Washington Court House Defense Rental Area was and is located, directing reduction, after due consideration, in the monthly rental rate of the residence property located at said 620 Rose Avenue, Washington C. H., Fayette County, Ohio, effective as of February 1, 1947, from $27.00 per month, to $12.50 per month, to cover the period from November 21, 1950, to September 21, 1952; that plaintiffs have made demand on the defendant for a refund of said alleged rent-overcharges, paid by them, to the defendant, for the occupancy of said residence property, during the period from November 21, 1950, to September 21, 1952, in the total amount of $304.50, but the same has been refused.
“WHEREFORE, plaintiffs pray for a Judgment against the defendant for $753.50 for rent over-charges plus $1509.00 for liquidated damages, for failure to refund the excess over the maximum rent, which could lawfully be retained and for reasonable attorneys fees and costs as determined by the Court, and for such other and further relief as may be provided by law.”

2. That, by leave of court first had and obtained, Defendant filed a motion to the aforesaid petition on August 14, 1953, which reads as follows:

“Now comes the defendant and moves the court for an order striking the entire second paragraph of the First Cause of Action from the petition of the plaintiffs, and a further order striking the entire ' second paragraph of the Second Cause of Action from the petition of the plaintiffs.”

3. That, by leave of court first had and obtained, Plaintiffs filed a brief contra the aforesaid motion on October 13, 1953, setting forth certain portions of the Housing and Rent Act of 1947 as amended together with pertinent provisions of Section 205 of the Act, and citing the case of Dunaway v. Torline, 61 Abs 401.

4. That Plaintiffs’ action is brought pursuant to said section of The Housing and Rent Act of 1947, as amended, to recover amounts paid in excess of the legal maximum rental.

5. That the excess amounts so claimed by Plaintiffs are founded upon an alleged rental reduction order of the Area Rent Director as of September 9, 1952.

6. That said section as amended provides in part as follows:

“(al Any person who demands, accepts, receives, or retains any payment of rent in excess of the maximum rent prescribed under the provisions of this Act, or any regulation, order, or requirement thereunder, shall be liable to the person from whom such payment is demanded, accepted, received, or retained (or shall be liable to the United States as hereinafter provided) for reasonable attorney’s fees and costs as determined by the court, plus liquidated damages in the amounts of (1) $50, or (2) not more than three times the amount by which the payment or payments demanded, accepted, received, or retained exceed the maximum rent which could lawfully be demanded, accepted, received, or retained, as the court in its discretion may determine, whichever in either case may be the greater amount: Provided, That the amount of such liquidated damages shall be the amount of the overcharge or overcharges if the defendant proves that the violation was neither willful nor the result of failure to take practicable precautions against the occurrence of the violation.”

7. That said section also provides in part as follows:

“Suit to recover liquidated damages as provided in this section may be brought in any Federal court of competent jurisdiction regardless of the amount involved, or in any State or Territorial court of competent jurisdiction, within one year after the date of violation:”

8. That Plaintiffs’ first cause of action seeks to recover from Defendant $450 as rental overcharges for the period from May 21, 1948 to November 21, 1950, together with damages and reasonable attorney fees.

9. That Plaintiffs’ second cause of action seeks to recover $304.50 as rental overcharges for the period from November 21, 1950 to September 21, 1952, together with damages and reasonable attorney fees.

10. That Defendant’s motion to strike the second paragraph of each of the aforesaid causes of action does not expressly refer to or specifically raise the time limit within which action may be brought to enforce recovery of the amounts so claimed by Plaintiffs.

Due consideration of Plaintiffs’ petition, Defendant’s motion and the provisions of law applicable thereto, discloses that the element of “time,” as related to the causes of action alleged in Plaintiffs’ petition, constitutes the most predominant question of law to be determined in disposing of the issues now raised and pending in this proceeding.

It is clear that the amounts which Plaintiffs seek to recover are computed upon the basis of rental payments made over time periods of 30 months and 21 months, respectively.

It also clearly appears from the face of Plaintiffs’ petition that, at the separate and several times of payment and receipt of said rentals, said respective rentals so paid and received were not then excessive nor in violation of any of the provisions of said Housing and Rent Control Act.

It further appears, from the express and specific provisions of the very statute under which Plaintiffs are seeking recovery herein, that a tenant may not recover thereunder unless suit therefor is instituted within the stated time of one year after the date of the alleged violation.

It further appears from the face of Plaintiffs’ petition that no rental payments were offered by Plaintiffs nor received by Defendant at any time after September 9, 1952, which was the date of the Area Rent Director’s rental reduction order as alleged in the second paragraph to each of the aforesaid causes of action. It also appears from the face of Plaintiffs’ petition that each of the aforesaid second paragraphs, herein sought to be stricken by Defendant’s motion, purport to set forth those specific allegations without which Plaintiffs’ petition-would completely fail to allege or imply any violation of said Act.

It further appears that said second paragraphs of Plaintiffs’ causes of action specifically allege that the Area Rent Director’s order of September 9, 1952, “was made” “directing a reduction” “in the monthly rental rate” etc. and “that plaintiffs have made demand on defendant for a refund of said alleged rent-overcharges, paid by them” etc.

It is noted that said second paragraphs do not specifically aver or allege that said September 9, 1952 order of the Area Rent Director either directed or required refund of the amount of rental sought to be recovered by Plaintiffs; but merely alleged that Plaintiffs had made demand upon Defendant for such refunds and thereby Plaintiffs imply that such refund was expressly and specifically ordered by the Area Rent Director on September 9, 1952.

Therefore, it is clear from the face of Plaintiffs’ petition that (1) Plaintiffs do not allege that any monthly rentals were paid after the time said rental-reduction order was dated and issued, and (2) that Plaintiffs do not allege that said order of September 9, 1952, either specifically directed or expressly ordered the refunds herein claimed and demanded by Plaintiffs.

Plaintiffs’ petition therefore clearly admits no violation prior to September 9, 1952; fails to allege any excessive payments made and received on or after September 9, 1952; and also fails to allege that any provision of said order of September 9, 1952, either expressly or specifically directed and ordered refunds of any amounts as claimed by Plaintiffs herein.

In the light of the facts and law herein above set forth, this Court must now consider whether or not the statutory limitation of one year, as expressly set forth in the section under which Plaintiffs are seeking to effect recovery, is applicable to either or both causes of action alleged in Plaintiffs’ petition; and whether or not this Court should point out and determine the application thereof even though Defendant’s motion fails to raise this question.

In the case of Berry v. Heller, 79 Federal Supplement 476, decided by the United States District Court, E. D. Pennsylvania, August 12, 1948, we find a somewhat similar factual situation. The headnotes thereto read as follows:

“1. A lessor of housing accommodations, registered with Office of Price Administration, became liable in damages for violation of Housing and Rent Act each time that he accepted amount exceeding maximum monthly rental fixed by such office, but such liability was enforceable only within year after each violation, so that tenant could recover only amounts of overpayments made in year immediately before date on which suit therefore was brought, notwithstanding refund order made by Housing Expediter within such period. Emergency Price Control Act of 1942, as amended, 50 U. S. C. A. Appendix No. 901 et seq.; Housing and Rent Act of 1947, No. 205, 50 U. S. C. A. Appendix, No. 1895.
“2. Where statute creating liability sets time within which action may be brought to enforce it, as in case of 1947 Housing and Rent Act, bringing of suit within such time is indispensable prerequisite to maintenance thereof, and defense of statute of limitations need not be raised by answer. Housing and Rent Act of 1947, No. 205, 50 U. S. C. A. Appendix, No. 1895; Federal Rules of Civil Procedure, rule 8 (c), 28 U. S. C. A. following section 723c.
“3. Where the complaint in tenant’s action to recover amounts paid landlord in excess of legal maximum monthly rentals does not show on its face that overpayments were made within year before commencement of action, as required by Housing and Rent Act, District Court must point out such defect, though defendant fails to do so by answer. Housing and Rent Act of 1947, No. 205, 50 U. S. C. A. Appendix, No. 1895; Federal Rules of Civil Procedure, rule 8(c), 28 U. S. C. A. following section 723c.” (Emphasis added.)

It is also noted that District Judge Ganey made the following comments and distinguished between the facts and law in that case and the decision of the majority members of the Supreme Court of the United States in Woods v. Stone, infra:

“* * * But such liability may be enforced only within a year of the violation. Consequently only those overpayments which were made in the year immediately preceding February 5, 1948, the date this suit was brought, may be recovered herein.
“In citing Woods v. Stone, 333 U. S. 472, 68 S. Ct. 624, the plaintiff points out that the one-year statute of limitations begins to run when the time prescribed in a refund order, within which repayment is to be made, has elapsed. The cited case is not controlling here, for the housing accommodation there in question was not registered, whereas in our case, the housing and rent regulations with respect to registration had been complied with. Therefore, as we have indicated, a duty was cast upon the defendant to make a refund upon each acceptance by him of an overpayment. He was relieved of this duty upon the plaintiff’s failure to enforce it within one year of the particular payment. Once the duty had expired, it could not be resurrected by a refund order of the Housing Expediter.
“Plaintiff brings to our attention that under Rule 8(c) of the Federal Rules of Civil Procedure, 28 U. S. C. A. following section 723c, the defense of the statute of limitations is designated as an affirmative defense. He contends, therefore, that such defense may be raised only by answer. Depending on the type of the particular statute of limitations, there appears to be some authority for this contention in this district. But, where, as here, the statute creating the liability also sets the time within which an action may be brought to enforce it, the bringing of a suit within that time is an indispensable requirement to the maintenance of the action. That is, if suit is not brought within the time specified, the right of action itself is extinguished in addition to the remedy being no longer available. Matheny v. Porter, 10 Cir., 158 F. 2d 478, 479; Bowles v. American Distilling Co., D. C. S. N. Y. 62 F. Supp. 20, 22. If the complaint,, in cases of this character, does not show on its face that the overpayments sought to be recovered were made within the time an action may be maintained, it is incumbent upon the court to point out the defect even though the defendant fails to do so.
“Accordingly, with respect to those overpayments made within the year immediately preceding February 5, 1948. the defendant’s motion is denied; as for the remaining overcharges, the motion is allowed.” (Berry v. Heller, 79 F. Supp 476 at pages 477, 478.)
It is also significant to note that the case of Berry v. Heller, supra, was before Judge Ganey upon defendant’s motion therein filed to dismiss plaintiff’s complaint because it failed to state “a claim upon which relief may be granted.”

It must also be noted that the differences in fact and law which distinguish Berry v. Heller, supra, and the instant case from Woods v. Stone, supra, are also applicable in distinguishing the instant case from Henneman v. Vaughn, 97 N. E. 2d 725, 60 Abs 19, decided by the Court of Common Pleas of Hamilton County, Ohio, November 1, 1950. The headnotes thereof read as follows:

“Irwin Henneman, tenant, sued Edna Vaughn, landlord, to recover for excessive rents collected by defendant. The Municipal Court sustained a demurrer to the bill of particulars on the ground that the action had not been brought within the time limit for the commencement of such actions, and plaintiff appealed. The Court of Common Pleas, Weber, J., held that since the bill of particulars had been filed less than one year after 30 days after the date on which an order to refund had been issued by the Rent Director, the demurrer should have been overruled.
“Reversed and remanded with directions.
“The one year statute of limitations on an action for the recovery of a rent overcharge began to run not from the date of payment of the rent but from the date of the landlord’s failure to comply with the rent director’s order of refund, and therefore trial court erred in sustaining landlord’s demurrer to action brought for recovery of excess rent where that action was commenced less than one year after 30 days after date on which order to refund was issued. Housing and Rent Act of 1947, as amended, 50 17. S. C. A. Appendix, No. 1881 et seq.; Emergency Price Control Act of 1942, as amended, 50 17. S. C. A. Appendix, No. 901 et seq.”

It is to be also noted that Judge Weber made the following comment on the facts and law applicable to the issues before him in that case as follows:

“The identical question was decided March 15, 1948, in Woods, Housing Expediter v. Stone, 333 U. S. 472, 68 S. Ct. 624, 92 L. Ed. 815, from which we quote as follows: T. The one-year period of limitations prescribed by No. 205(e) of the Emergency Price Control Act of 1942, as amended, on an action against a landlord on account of an overcharge in rent of property which the landlord had failed to register as required by rent regulations, beings to run not from the date of payment of the rent but from the date of the landlord’s failure to comply with a refund order.’ ”

It is therefore clear that the defendant in Woods v. Stone, supra, and Henneman v. Vaughn, supra, had violated and had continued to violate certain provisions of the Act for continuing periods of time immediately prior to the making and issuing of the Area Rent Director’s order upon which their respective suits for recovery were sought to be maintained. However, such facts are not alleged and do not appear to exist in the instant case before this Court, as evidenced by Plaintiffs’ petition herein; and, by reason of such distinguishable facts, this Court is of the opinion that such clear distinctions of law and fact require it to follow those principles of law declared and established by District Court Judge Ganey in the case of Berry v. Heller, supra, as hereinabove set forth and discussed.

The soundness of legal logic and the ends of justice to be served by the application of the legal principles established in the case of Berry v. Heller, supra, are illustrated and supported to a considerable degree by the decision of Judge McNamee, Common pleas Court, Cuyahoga County, Ohio, in the case of P. J. Stritzinger v. D. C. Improvement Company, 36 O. O. 76, which was later affirmed by the Court of Appeals for that district. Judge McNamee’s decision reads as follows:

“The observations which follow indicate the reasons supporting the decision reached in the above entitled cause.
“In his supplemental petition plaintiff narrows his base of recovery to the contention that defendant’s failure to refund excess rent collected between October, 1943, and February, 1944, constitutes a violation of Section 205(e) of the Emergency Price Control Act. Plaintiff’s claim for treble damages rests upon a postulate that would transmute the failure to refund into a violation of an applicable maximum price regulation. Plaintiff’s argument, supporting this claim, is ingeniously made.
“The mischief sought to be prevented by Section 205(e) is the charging of prices in excess of existing maximum price regulations. Manifestly where a regulation prescribes a maximum price the acceptance of a consideration in excess thereof constitutes a violation. If a consideration is accepted under circumstances where no maximum price is then applicable, no violation occurs. In the latter event, a subsequent promulgation of a regulation establishing a maximum price retroactively imposes the duty upon a landlord to refund the excess .collected in the interim between the effective date of the regulation and the time of its adoption. The amount to be refunded does not constitute an ‘overcharge’ as that term is used in Section 205(e). The amount of the refund represents a sum conditionally but lawfully received at the time it was collected. The landlord had a right to collect this excess. He violated no provisions of law in so doing. He made no ‘overcharge’ at the time the rents were collected. The term ‘overcharge’ as used in 205(e) means the amount of consideration received in excess of a then applicable maximum price.
“Plaintiff suggests that a refund by a violator does not operate to release him of liability. The correctness of this proposition can not be challenged. One who violates an existing price regulation can not escape the consequences of his act by restoring the excess consideration received. A refund of the over-charges does not expunge guilt. The failure or refusal to make a refund of an overcharge is not an ingredient of the offense. How then can the failure to refund excess considerations which were lawfully collected constitute an offense under Section 205(e) .in the absence of a statutory provision to that effect? Concededly a refund does not impart legality to an act which the statute makes unlawful. Nor does the mere failure to make a refund of considerations received under authority of law but subsequently determined to have been excessive become a violation of Section 205(e) unless the statute so provides.
“Plaintiff’s present contention is irreconcilable with the allegations of multiple violations set forth in his petition. Defendant’s only dereliction was his failure to refund within thirty days after the maximum rent was fixed. A determination that such failure constituted several separate overcharges necessarily would rest upon the assumption that the several previous collections of rent were in excess of a then applicable maximum price. This is contrary to the facts. The several collections of rent in question were in amounts which defendant was expressly authorized to receive. No overcharges were made at the times the rentals were collected. Nor can the failure to refund be considered as a single violation. The retention of excess rentals which were lawfully received is not an act, nor does it constitute conduct prohibited by the terms of 205(e).
“Further comment is unnecessary. The petition of plaintiff is dismissed at his costs. If plaintiff desires the court to act upon his request for special findings, the court will do so, but suggests that counsel for each side prepare and submit suggested findings for the court’s approval. No determination is here made as to plaintiff’s right, if any, to collect the amount of the refund from the defendant.”

The similarity between the issues involved in P. J. Stritzinger v. D. C. Improvement Co., supra, and Plaintiffs and Defendant in the instant proceeding are so obvious that this Court deems further comment at this time to be unnecessary.

At this point in its consideration of the issues raised herein this Court feels constrained to cite a case wherein the United States brought actions against three landlords for injunctions against, restitution of, and triple damages for, excessive rent collections as reported in the case of United States v. Bize et al., 86 F. Supp. 939, United States District Court, D. Nesbraska, Lincoln Division, September 2, 1949. In that case, District Judge Delehant’s comment and summary upon the issues therein reads as follows;

“The question is whether, under that section, by virtue of the 1949 amendment, the United States may demand judgment based wholly or in part upon over-charges in rents exacted before the filing of suit therefor. In the court’s tentative opinion that question should be answered negatively.” (86 F. Supp. at page 946.) (Emphasis by the court.)

Beginning at the bottom of page 947 (86 F. Supp.), Judge Delehant directed his discussion to the retroactive aspects of the Act and commented in part as follows:

“A familiar rule of statutory construction, which need not be too insistently labored here, declares that, unless the contrary fairly appears by express declaration or necessary implication from the language of a statute, it will be presumed and considered to have only a prospective, and not a retroactive, operation. Brewster v. Gage, 280 U. S. 327, 50 S. Ct. 115, 74 L. Ed. 457; Claridge Apartments Co. v. Commissioner of Internal Revenue, 323 U. S. 141, 65 S. Ct. 172, 89 L. Ed. 139; Big Diamond Mills Co. v. United States, 8 Cir., 51 F. 2d 721; Ford v. Cotter, 8 Cir., 33 F. 2d 875. The presumption is clearly against retroactivity. And it is particularly strong when an antecedent operation would visit a theretofore nonexistent harshness upon any person or group of persons.
“Nowhere in the section of the statute under review is there any language declaring its retrospective operation. And nothing in the Act of 1949, necessarily or even reasonably, implies such operation. Its purpose is equally, and it may be argued better, served by an entirely prospective application. The final section of the Act declares that it ‘shall become effective on the first day of the first calendar month following the month in which it is enacted.’ And that day was April 1, 1949, two days after its approval.”

In addition to the foregoing cases, we must note with equal interest the case of Woods v. Haydell et al., 178 Fed. Reporter 2d 914, wherein Tighe E. Woods, Housing Expediter, brought action against Carrie Haydell and husband for restitution and damages for rent overcharges and for an injunction. The case was heard before Holmes, McCord, and Waller, Circuit Judges of the United States Court of Appeals, Fifth Circuit, and their decision thereon was written by Judge Waller on December 16, 1949, which reads in part- as follows:

“In this suit against a married woman the Expediter sought restitution and damages under the Emergency Price Control Act of 1942, 50 U. S. C. A. Appendix, No. 901 et seq., and an injunction pursuant to the Housing and Rent Act of 1947, 50 U. S. C. A. Appendix, No. 1881 et seq. When, to this action, the lessor pleaded coverture, the complaint was amended to include the husband, in conformity with the statutes of Texas.
“Prior to May 18, 1945, the lawful rent was $8.00 per week: on this date it was ordered reduced to $3.25 per week. The Court found that, nevertheless, $8.00 per week was, contrary to the reduction order, collected from all tenants except one, from whom $6.00 per week was collected. The Expediter herein seeks damages, retroactively, for overcharges collected prior to the reduction order. This cannot be done. Neither damages nor overcharges can be lawfully assessed against a landlord for having collected rent which, when collected, was lawful. The Expediter is not entitled to collect as overcharges ox-damages rents lawfully fixed and collected prior to the reduction order. A reduction order, standing alone, does not make unlawful that which was lawful at the time it was done. (178 Fed. Reporter 2d at page 915.) (Emphasis by the court.)

And we also note with equal interest the detailed analysis in the decision» reached by District Judge Davidson, United States District Court, N. D. Texas, Forth Worth Division, Jan. 19, 1950, in the case of United States v. Steagall et al. 88 F. Supp. 98, and the summary of the principles of law therein determined as reflected in the first four headnotes thereto which read as follows:

“Provision of the Housing and Rent Act of 1947 that suit to recover rental overcharge may be brought in any federal, state, or territorial court of competent jurisdiction within one year after date of violation of the act, is a statute of jurisdiction and not a statute of limitation. Housing and Rent Act of 1947, No. 205, 50 U. S. C. A. Appendix, No. 1895.
“Any suit brought after date of Federal Housing and Rent Act of 1947 to recover rental overcharges, must be brought under that act, rather than under prior acts, having no saving clause. Housing and Rent Act of 1947, No. 1 et. seq., 50 U. S. C. A. Appendix, No. 1881 et seq.
“Whenever the legislative branch of the government enters a field and enacts a law, both existing law and equity must conform thereto.
“In suit against landlord by Housing Expediter under the Housing and Rent Act of 1947 to compel restitution for tenants charged excess rentals, Housing Expediter had right to recovery, limited to a period of one year dating from the filing of the suit. Housing and Rent Act of 1947, No. 1 et seq., 205, 50 U. S. C. A. Appendix, Nos. 1881 et seq., 1895.”

As is already obvious from the cases hereinabove cited and discussed, the effect, of sustaining Defendant’s motion to strike said second paragraphs from each of the causes of action alleged and set forth in Plaintiffs’ petition, would be to remove those allegations without which Plaintiffs’ petition would clearly fail to allege or imply any cause of action whatsoever within any meaning or intent of the Housing and Rent Control Act, as amended.

The form and substance of Plaintiffs’ petition appears to sound as in an action on account and the brevity thereof tends to follow the short form of pleading authorized by the provisions of former §11333 and §11334 GC as in force and effect at the time of filing this petition. However, if it was Plaintiffs’ intention to utilize such short form of pleading, it is clear on the face thereof that Plaintiffs failed to attach a copy of the instrument or account upon which their action was founded, and also failed to state any reason which would explain their omission for failing to attach such copy. Therefore, it would appear that, in so far as plaintiffs’ petition sounds as in an action founded on an account in the nature of a claim for money had and received, said second paragraphs of each of the within alleged causes of action would be subject to Defendant’s motion for failure to either (1) set forth a copy of the Area Rent Director’s alleged order in each of said causes or (2) to state the reason and explain such omission as mandatory under said Ohio statutory provisions authorizing short form pleading.

On October 13, 1952, the Court of Appeals for Cuyahoga County, in the case of Castrovinci v. Castrovinci, 112 N. E. 2d 53, 93 Oh Ap 133, considered and declared the applicability of Ohio and Federal law to be as summarized below:

“Suit commenced July 3, 1951, under terms of Federal Housing and Rent Act of 1947, by tenant against landlord, wherein first cause of action concerned alleged overcharges of rent for period October 1, 1946 to June 1950, and second cause of action sought treble damages for alleged overcharges from July 1, 1950 to May 31, 1951. The Municipal Court of Cleveland sustained landlord’s demurrer to the first cause of action, and tenant appealed. The Court of Appeals for Cuyahoga County, Thompson, J., held that provision of Federal Housing and Rent Act of 1947 prescribing a one-year limitation for the bringing of certain suits under said Act precluded recovery by tenant, even if action were considered to be one for money had and received, which is subject to six-year statute of limitations.”
“Judgment affirmed.”

It is significant to note that the Syllabus in the Castrovinci case, supra, was written by the Court and reads as follows:

“1. Under section 205 of the Federal Rent Control Act of 1947, as amended, 61 Stat. at L., 199, Title 50, Section 1895, Appendix, U. S. C. A„ a tenant may not recover damages for overcharges of rent received by his landlord unless suit therefor is brought in a federal, state or territorial court within one year after the date of such alleged violation. The one-year limitation provided in the statute applies to any action by the tenant for restitution of over-payments, whether in the nature of a claim for money had and received, or otherwise, and despite the provisions of §11222 GC, providing a six-year limitation for actions for money unlawfully had and received.
“2. Where by statute a right of action is given which did not exist a common law, and the statute giving the right fixes the time within which the right may be enforced, the time so fixed becomes a limitation or condition on such right and will control no matter in what form the action is brought, and such rule does not make the general provisions of the statute of limitations existing in the jurisdiction where the liability was created operate extraterritorially.”

The findings, reasoning and judgment, so clearly and ably set forth in this decision by the Court of Appeals for Cuyahoga County, leaves no doubt respecting the applicability of the one-year limitation where the tenant seeks to recover for overcharges beyond the one-year statutory bar expressly stated and set forth in the Act itself.

It is indeed significant that the last sentence in the first paragraph of the syllabus in the Castrovinci case, quoted above, reads as follows:

“The one-year limitation provided in the statute applies to any action by the tenant for restitution of overpayments, whether in the nature of a claim for money had and received, or otherwise, and despite the provisions of §11222 GC, providing a six-year limitation for actions for money unlawfully had and received.” (Emphasis by the court.)

This Court, therefore, upon due consideration of the allegations set forth in Plaintiffs’ First Cause of Action, the express statutory provisions of said Act, and the case law applicable thereto, as hereinabove set forth and discussed, finds:

(a) That this Court is without jurisdiction, under the express provisions of Section 205 of said Act, to grant the relief sought upon the allegations set forth in Plaintiffs’ First Cause of Action when said allegations and the docket of this Court clearly show that the amounts claimed by Plaintiffs, as overcharges and damages, are based upon payment of rentals which were lawfully collected more than one year prior to the time Plaintiffs instituted and commenced said cause of action.

(b) That, insofar as Defendant’s motion seeks to strike the entire second paragraph of the First Cause of Action from Plaintiffs’ petition, said motion is well made and should be sustained for the reasons set forth in (a) above, and upon further consideration of the allegations set forth in Plaintiffs’ Second Cause of Action, the express statutory provisions of said Act, and the case law applicable thereto, as hereinabove set forth and discussed, this Court further finds:

(cl That this Court is without jurisdiction, under the express provisions of Section 205 of said Act, to grant the relief sought upon those allegations set forth in Plaintiffs’ Second Cause of action which specifically allege and claim damages and overcharges based upon payment of rentals lawfully collected more than one year prior to the time Plaintiffs instituted and commenced said cause of action as clearly shown upon the face of Plaintiffs’ petition and the docket of this Court.

(d) That, insofar as Defendant’s motion seeks to strike so much of the second paragraph of said Second Cause of Action as contains specific allegations with respect to such rentals lawfully collected more than one year prior to the time Plaintiffs instituted and commenced said Second Cause of Action, said motion is well made and should be sustained for the reasons stated in (c) above; and that in all other respects Defendant’s motion to strike should be tentatively denied.

(el That, with respect to the remaining portion of Plaintiffs’ Second Cause of Action, which is based upon rentals lawfully collected within one year of the date on which Plaintiffs instituted and commenced said action, this Court reserves judgment as to whether it has jurisdiction under the express provisions of said Act to grant the relief sought; although it is this Court’s tentative opinion that said Area Rent Director’s rental reduction order of September 9, 1952, standing alone, does not make unlawful that which was lawful at the time of said rental collections.

The Court further finds that Counsel for Defendant may prepare an entry accordingly which will include therein appropriate notations of exceptions on the part of Plaintiffs and Defendant to the aforesaid findings, decision and entry, and thereupon submit same to Counsel for Plaintiff and to this Court for approval.


author: By THE COURT:

text:
    WHEELWRIGHT, Plaintiff-Appellee, v. BAKER, Denfendant-Appellant.
    Ohio Appeals, Second District, Miami County.
    No. 459.
    Decided November 16, 1951.
    Forrest L. Blankenship, Troy, for plaintiff-appellee.
    Spidel, Staley & Hole, Greenville, for defendant-appellant.
   OPINION

By THE COURT:

This is an appeal on questions of law from the judgment of the Common Pleas Court of Miami County. Four errors are assigned by defendant-appellant: First, the refusal of trial court to grant continuance as requested by defendant; second, entering judgment for more than was due; third, trial of the cause by the Court without waiver of jury trial by the defendant; and fourth, irregularity in entering judgment.

Plaintiff sued the defendant for an alleged breach of contract of employment, claiming there was due him $1972.64.

At the outset we are confronted with the absence of a bill of exceptions. All we have before us is a transcript of the docket and journal entries. Incorporated in the transcript are two written opinions of the trial court. In part appellant based his discussion of the questions raised in this appeal on certain factual material found in the written opinions. These two written opinions cannot be considered in lieu of a bill of exceptions. Even if we give full effect to the material in the written opinion we are still of the opinion that the contention of counsel for appellant is not supported.

The cause was continued several times and upon the day of hearing counsel for defendant produced a letter from the defendant who lived in another state, stating he could not appear as he had been ill prior thereto and must now stay on his job. The trial court refused a continuance. The granting or refusal of a continuance lies within the sound discretion of the trial court. No abuse of discretion is shown.

From the record before us it does not appear that judgment was entered for more than was due.

An entry was filed at the time the last continuance was granted which recites: “It is further ordered that the case be tried to the Court, the parties having waived a jury trial.” This entry was signed by the'trial Judge and approved in writing by counsel for both parties without reserving exceptions. In our opinion the record shows a sufficient compliance with the provisions of §11421-1 GC, which provides for waiver of trial by jury. Furthermore, a jury may be waived by submitting to a trial by the court. 24 O. Jur., p. 155.

After hearing was had the trial court journalized an entry rendering judgment in favor of the plaintiff in the sum of $1472.64. A motion for new trial was duly filed within term which was overruled. The Court in the journal entry overruling the motion for a new trial found that it had made an arithmetical error in the amount found to be due and ordered the original judgment corrected to show that judgment was rendered for the plaintiff for a less sum, to- wit: $1464.12. In our opinion the Court had authority to correct the judgment and in doing so did not commit prejudicial error.

We find no assignment of error well made.

Judgment affirmed.

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


author: By THE COURT.

text:
    SHERMAN et, Plaintiffs-Appellants, v. KREBS et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4620.
    Decided October 19, 1951.
    Isadore L. Margulis, Columbus, for plaintiffs-appellants
    C. William O’Neill, Atty. Genl., Thomas R. Lloyd, Richard L. Canter, Asst. Atty. Genl., Columbus, for defendants-appellees.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court sustaining an order of the Board of Liquor Control suspending the appellants’ C-2, D-l, D-2 and D-3 liquor permits for a violation of §6064-22 GC. We think the evidence clearly supports the Board’s finding. The appellants were charged with selling intoxicating liquor to one D. B. White while in an intoxicated condition. The appellants admit the sale to White but contend that he was not intoxicated and that it was not sold to him for his own consumption; that he made the purchase for two of his friends. The evidence supports the Board’s factual finding that White was intoxicated.

Sec. 6064-22 GC provides that no sale of intoxicating liquor shall be made to an intoxicated person. It will be noted that the statute makes no exception as to the purpose for which the sale is made. Therefore, the sale alone constitutes the violation, regardless of the purpose and concerning which there was a conflict in the testimony.

It is also contended by the appellant that the matter is res adjudicata. It appears that on the appellants’ application for a renewal of its permit a hearing was had before the Board upon the objection of the Salvation Army and a church, which were located within 500 feet of appellants’ place of business; that at the hearing evidence was offered tending to establish the sale herein complained of. The renewal was denied by the Board but upon appeal to the Common Pleas Court the order of the Board was reversed and the renewal issued. The record discloses that the sale violation was not included in the previous citation, that the violation of §6064-22 GC has been charged only in the citation before the Board in the matter now under consideration. The defense of res adjudicata was not well made.

Finding no error in the record, the judgment is affirmed.

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


author: By EARHART, J.

text:
    STATE, ex. ROBINSON, Plaintiff, v. BOARD OF TRUSTEES, Hamilton Township, Defendant.
    Common Pleas Court, Lawrence County.
    No. 33366.
    Lloyd Burwell, for relator.
    Homer Edwards, Ironton, for respondents.
   OPINION

By EARHART, J.

This is an action praying for a writ of mandamus and came on to be heard on the petition of the relator, the answer of the respondents and a demurrer filed by the relator to the answer of the respondents. The case was submitted to the court upon the agreed statement of facts.

The relator, James Robinson is a trustee of Hamilton Township, Lawrence county, and was appointed by the Honorable John J. Gallagher, Municipal Judge of the city of Ironton, Ohio, to succeed Leonard Schwab who resigned. The appointment was made effective August 3, 1953 and the relator is still serving in this capacity. Leonard Schwab served as trustee of said township in excess of one hundred days in 1953 and was paid for his services the sum of five hundred dollars as provided by law. Relator alleges that two remaining trustees who are the respondents herein, have failed and refused to appropriate any funds with which to pay his statutory compensation. The claim of the respondents is that Leonard Schwab, having drawn the five hundred dollars authorized by statute, they have no legal right to appropriate additional funds to pay the relator his salary. Reference was made in argument by counsel for the respondents that the relator had performed no service, nor had he attended any meetings of the trustees, but this court does not believe that this fact is material to the controversy involved in this case.

The claim of relator is that he was duly appointed and has qualified as a trustee of said township, and that he is entitled to have the necessary funds appropriated with which to pay his salary, nothwithstanding the fact that relator’s predecessor in office has already been compensated to the extent of five hundred dollars. In the statement of facts, it is agreed that Hamilton Township has an annual budget of less than ten thousand dollars.

The respondents contend also that this is not a proper case for the issuance of a writ of mandamus, and that the relator has an adequate remedy at law. A writ of mandamus is an extraordinary writ issued sparingly by the courts and would be issued only to compel performance of ministerial acts required by law, and where there is no adequate legal remedy. This court takes the view that mandamus is a proper remedy in this case if the law and facts disclose that the relator is entitled to relief prayed for.

The question then is whether the relator is entitled to collect compensation when his predecessor in office has already been paid five hundred dollars for services rendered.

Sec. 505.24 R. C. (formerly §3294 GC) provides as follows:

“Each township trustee is entitled to compensation as follows:
“(A) Five dollars for each day of service in the discharge of his duties in relation to partition fences, to be paid in equal proportions by the parties;
“(B) Five dollars for each day of service in the business of the township, to be paid from the township treasury:
“(1) In townships having a budget of less than ten thousand dollars, compensation for not more than one hundred days at five dollars per day;
“(2) In townships having a budget of from ten thousand to twenty thousand dollars, compensation for not more than one hundred twenty-five days at five dollars per day;
“(3) In townships having a budget of from twenty thousand to thirty thousand dollars, compensation for not more than one hundred fifty days at five dollars per day;
“ (4) In townships having a budget of thirty thousand dollars or over, compensation for not more than one hundred seventy-five days at five dollars per day. Each trustee shall present an itemized statement of his account for such per diem and services, which shall be filed with the township clerk and preserved for inspection by any persons interested.”

Was it the intention of the legislature when it enacted this statute to limit absolutely the salaries to an aggregate of $1500.00 per year, or was it the intention of the legislature to merely set up a scale for measure of compensation as contended by the relator?

I find no cases reported in Ohio which deal with this question. The relator has cited three Attorney General’s Opinions to support his contentions. In 1931, Attorney General’s Opinions, Volume 1, page 339, this identical question was presented. Under the statute in effect at that time, compensation was limited to one hundred days at $2.50 per day, but otherwise its provisions are identical. The Attorney General held in that case that where one trustee had drawn full compensation of $250.00 and then resigned, that his predecessor could also draw compensation at the same rate. Similar holdings were made in 1937, Attorney General’s Opinions Volume 2, page 1778, in 1944, Attorney General’s Opinions Volume 1, page 23.

If we are to place upon this section the interpretation sought by the relator, it would be possible for each of the three trustees to serve one hundred days and draw their salary of $500.00 each, and then resign, to be followed by three more trustees who serve another hundred days, receive their compensation of $500.00 each, then resign and be succeeded by still a third group who would serve one hundred days and draw $500.00 each, thus costing the township the sum of $4500.00 per year for administration of its township business. In Hamilton Township which has a budget of less than $10,000.00 per year, more than fifty per cent of its total budget could be used for trustees salaries alone. It does not seem reasonable that the intention of the legislature could have been thus. It is conceivable that under this arrangement the entire budget of the township could be spent for payment of salaries of its trustees, leaving nothing for construction of roads, ditches, and other improvements by the township.

It seems that the only reasonable interpretation of this statute is that the intent of the legislature was to provide a basis for determining the amount of compensation and also placing a limit upon the amount which could be spent for administration. This court is aware that the Attorney Generals of this state have rendered opinions contrary to the view of this court. These opinions are not binding upon this court, and I am unable to accept the views expressed therein.

I am aware that the relator finds himself in the position of being a township trustee with no prospect of receiving any salary. This risk he assumed when he accepted the appointment after his predecessor had drawn his compensation of $500.00. It certainly could not be the intention of the General Assembly to leave the door open for township trustees to use fifty per cent to one hundred per cent of the township budget for the payment of administrative expenses, which could happen under the interpretation placed on this statute by the Attorney General’s Opinions cited above.

For these reasons, the demurrer of the relator to the respondent’s answer is overruled and the writ of mandamus is denied. An entry may be drawn accordingly, noting the exceptions of the relator to the ruling of this court.


author: By THE COURT. By THE COURT. By THE COURT.

text:
    McMILLEN et, Plaintiffs-Appellees, v. WATTS et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4405.
    Decided May 29, 1950.
    Decided August 7, 1950.
    Robert W. Newlon, Richard R. Price, John Robert Jones, Columbus, Forrest B. Ashcraft, Newark, for plaintiffs-appellees.
    John F. Seidel, Warren E. Bigony, Columbus, for defendants-appellants.
   OPINION

By THE COURT.

Submitted on motion of the plaintiffs-appellees seeking an order dismissing the appeal on questions of law and fact and reducing the appeal to one on law only for the reason that no appeal bond has been filed within the time provided by law. The record supports the grounds set forth in the motion and the same will be sustained. The appellants will be permitted to file bill of exceptions, assignment of errors and brief in accordance with supplement to Rule VII of this Court.

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

ON MOTION TO DISMISS APPEAL

No. 4405.

Decided September 7, 1950.

OPINION

By THE COURT.

The plaintiffs-appellees filed a motion to dismiss the appeal on questions of law and fact for the reason that no appeal bond has been filed in accordance with §12223-6 GC. The motion will be sustained and the case will be retained for determination on questions of law only. See §12223-22 GC.

The appellees have also filed a motion seeking an order requiring the appellants to file a supersedeas bond in order that their rights might be protected. This motion will be overruled, since execution may be issued when no bond is given. Sec. 12223-9 GC. A further motion is filed by the appellees seeking an order restraining the appellants from dumping garbage, refuse, trash, etc., upon the premises or permitting the same to be done. This motion will be overruled as there is an adequate remedy at law, to wit, enforcement of the judgment or a supersedeas bond.

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

ON MOTION TO DISMISS APPEAL

No. 4405.

Robert W. Newlon, Richard R. Price, Columbus, for plaintiffs-appellees.

John F. Seidel, Warren E. Bigony, Columbus, for defendants-appellants.

OPINION

By THE COURT.

This is a motion seeking an order dismissing the appeal on questions of law for failing to comply with Supplement to Rule VII of this Court.

The record discloses that on June 7, 1950, the appeal was reduced to one on law only, but no time was fixed in the judgment entry for the perfecting of the appeal, although the opinion of the Court stated that the appellant would be granted leave to perfect the appeal as provided by said court rule. The appellant refers to the case of Bussard v. Kennedy, 83 Oh Ap, 281, where it is said that under §11564 GC the Court is required to fix a time not exceeding 30 days for the preparation and settlement of a bill of exceptions. This requirement is met by our Court rule previously referred to.

The appeal will not be dismissed, but since there is nothing in the record for the Court to consider the judgment will be affirmed.

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


author: By McCRYSTAL, J.

text:
    LIEDORFF, Plaintiff, v. LIEDORFF, Defendant.
    Common Pleas Court, Erie County.
    Filed June 4, 1953.
    Richard Wennes, for plaintiff.
    Lewis L. Marquart, Sandusky, for defendant.
   OPINION

By McCRYSTAL, J.

This case arose as the result of a petition for divorce filed by the wife and a general denial filed by the husband. The parties, both of whom were previously married, separated on April 7, 1952, after living together for a period of almost eleven months.

The plaintiff charged her husband with gross neglect of duty and extreme cruelty. Evidence introduced on behalf of the plaintiff, was that the defendant on many occasions expressed to his wife a desire to commit suicide and wishing to be beside his previously deceased wife, in the cemetery, and that on at least one occasion, he attempted suicide, or at least went through all of the outward appearances of an attempt, by lying on the bath room floor, with a gas jet turned on and bundled in an overcoat.

One of the plaintiff’s daughters by a previous marriage, testified that the defendant admitted to her the attempt at suicide and that on previous occasions she had heard him state that he wished he was dead. Another daughter of the plaintiff, corroborated the plaintiff’s testimony that the defendant had made repeated assertions that he wished he was dead.

The defendant in his testimony denied any suicide attempt or the making of any statement concerning his death, or a desire to be with his deceased wife. Strangely enough, the defendant testified that the plaintiff’s daughter who had previously testified concerning his admissions as to the suicide attempts, was his favorite step-daughter and he further admitted that prior to her testimony in Court, he had always found her to be truthful and trustworthy.

Based upon all the evidence, the Court is of the opinion that the defendant did attempt suicide, or at least went through all of the outward motions, so as to convey to his wife, the idea that he was attempting it.

The question then arises, would the attempted suicide accompanied by prior and subsequent statements of an intent to destroy ones self, or statements expressing a desire to be dead, constitute grounds for divorce in this State? An exhaustive search has failed to find any cases which deal directly with this question. The case of Dodge v. Dodge, 142 Atl. 178, is of some help, but the question involved here, does not squarely present itself in that case.

It is the opinion of the Court that a bona fide attempt at suicide accompanied by prior and subsequent statements of a desire to commit suicide, or to be dead, which acts and statements are made known to the other party to the marriage, constitutes extreme cruelty, as that term has been defined by the courts in this State.

The above statements must naturally be qualified to the extent that the party attemping the suicide or making the statement, must be otherwise mentally competent and rational. Such acts or statements when made by a person mentally ill, or otherwise incompetent, of course, would not and could not constitute grounds for divorce. The question might arise, as to whether the suicide attempt and accompanying statements were bona fide or merely done or made to aggravate the other party to the marriage, but it appears to the Court that the ultimate effect of such acts or statements, regardless of the intent with which they were done or made, would be the same and constitute extreme cruelty.

It is therefore, the opinion of the Court that a divorce be granted to the plaintiff for extreme cruelty, and a .judgment entered against the defendant for her costs.