author: By SKEEL, PJ.:

text:
    WOODS, Estate of, In re.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22200.
    Decided October 22, 1951.

      Kitchen & Messner, Cleveland, for plaintiff-appellee.
    H. A. Gillis, Cleveland, for defendant-appellant.
    (PHILLIPS, J, of the Seventh District sitting by designation in place of HURD, J, of the Eighth District.)
   OPINION

By SKEEL, PJ.:

This appeal comes to this Court on questions of law from a final order of the Probate Court of Cuyahoga County, overruling the appellant’s application to probate the purported last will and testament of the deceased, dated September 30, 1948. The application was filed on August 31, 1950 and was set for hearing on September 21, 1950. After hearing the evidence on Sept. 21, 1950, the case was marked “Heard and Submitted” and the testimony taken at the hearing was transcribed and filed as provided by §10504-24 GC.

Prior to the filing of the foregoing application to probate the will dated Sept. 30, 1948, an application had been filed by the appellee, Mervin Roy Wolf to probate a purported will of Nathaniel H. Woods dated Jan. 6, 1944, said application having been filed Aug. 5, 1950. Said will was ordered probated as the last will and testament of Nathaniel H. Woods and letters testamentary were issued to Mervin Roy Wolf, the residuary beneficiary thereunder, as Executor of said estate.

The testimony received by the Court upon the hearing as to the will dated Sept. 30, 1948, as shown by the transcript filed in the case and as quoted by the Court in its memorandum opinion, discloses that the appellant, Harry Nelson Walkden, cousin of decedent, at the decedent’s request, prepared a will in duplicate; that on the 30th day of September, 1948. he, accompanied by Mr. and Mrs. Wm. F. Fussner, went to the home of decedent where these two identical wills were executed by the decedent who acknowledged said paper writings to be his last will and testament and Mr. and Mrs. Wm. F. Fussner acted as witnesses thereto at his request. The copy which was made by the keys of the typewriter was signed and acknowledged first; followed immediately by a similar execution of the copy made by the use of carbon paper. The decedent kept the first copy and the second copy was delivered to Mr. Walkden for safe keeping. The testimony given by Mr. Walkden on this question was as follows:

“Q. Mr. Walkden, I believe you said you prepared that?

A. Yes.

Q. And that is a carbon copy of the original will that you prepared, is that right?

A. The memorandum printed directly by the typewriter he wanted to keep as a memorandum and this he signed as his will.

Q. Now you — there was an original to that, that is a carbon copy, is it not?

A. They were printed at the same time.

Q. You had carbon paper in between them?

A. Yes.

Q. And the original, the first copy, was also signed by Mr. Woods, wasn’t it?

A. Yes, it was signed by Mr. Woods.

Q. And he retained that, didn’t he?

A. Yes, sir.

Q. And you retained this, didn’t,you?

A. Yes, he gave it to me for safe keeping.”

Q. Now, he signed the original first, didn’t he?

A. Yes, sir, he signed both of them.

Q. The original will he kept?

A. This is the will.

Q. Let me put this question to you, then, the will upon which the typewriter made the first impression was kept by Mr. Woods?

A. Yes, the memorandum.

Q. Not what you call it; that will which the typewriter made, the first impression was kept by Mr. Woods?

A. Yes, sir.

Q. The will which you have was the carbon copy, and an exact duplicate of what Mr. Woods kept?

A. This is the will.”-

Before the Court had ruled on the application to probate the will dated September 30, 1948, the appellant on November

29, 1950, filed a motion seeking the right to present newly discovered evidence in support of such application. He also filed on said day an application for a citation directing Melvin Roy Wolf to produce the copy of the will executed September

30, 1948, which had been retained by the decedent.

On January 2, 1951, without the knowledge of the contending parties or their lawyers, an entry, refusing the right to probate the purported will dated September 30, 1948 was made for the reason that the failure to produce the copy of the will retained by the' decedent or to account for its absence constituted a revocation thereof. At the same time the Court overruled the motion to take further testimony. On January 5, 1951, a hearing was ordered set for January 19, 1951, on the application for citation to produce the copy of the will above referred to and a motion was filed to vacate the entries of January 2, 1951. This motion was on January 12th, set for trial January 30, 1951, as was the motion for new trial.

On January 19, 1951, the motion for a citation to produce the copy of the will (which was executed in duplicate) retained by the decedent, came on for hearing. At this hearing, the appellant attempted to show that the decedent went to the hospital (Cleveland Clinic) on July 13, 1950, having been taken there by Mervin R. Wolf; that he, Nathaniel H. Woods, died August 4, 1950 and that he did not leave the hospital from the time he entered it until his death; that Mervin R. Wolf had the keys to the decedent’s house; that during a visit to Mr. Woods a day or so after his admittance to the hospital, Wolf said to him “I see you have changed your will.” This evidence the court refused to admit or consider as material to the question presented, and upon the conclusion of the hearing the application was overruled. In overruling the application the court said:

“This man stated he doesn’t have custody of the Will, doesn’t know where it is.

“An application has been filed in this matter and the Court must take strict statutory procedure. This person was asked in Court to produce this Will and the person states he does not have it. Now, unless you can prove that he does, what would be the purpose of this Court sending him to jail? The only purpose of sending him to jail would be to force him to produce it. He says he doesn’t have it, the evidence didn’t show he did have it, nobody saw it in his hands, nobody saw it in the hands of the decedent or Mr. Wolf. The Court isn’t going to send a man to jail for an indefinite period of time on the evidence you have produced here. I will deny the application.”

The motion for new trial and the motion to vacate the entries of January 2, 1951, were overruled on February 5, 1951. Notice of appeal was filed February 20, 1951 designating the orders of February 5th, as the final orders from which this appeal is taken.

The errors presented are:

“1. Gross abuse of discretion by the Probate Judge by which he was prevented from having a fair trial.

“2. That the final order, judgment or decree, is not sustained by sufficient evidence, and is contrary to law.

“3. Newly discovered evidence and material which with reasonable diligence he could not have discovered and produced at the hearing on August 31, 1950.

“4. Errors of law occurring in the various proceedings and excepted to by him.

“5. Order of January 2,-1951, refusing probate of the last will and testament by the Probate Judge while matters were yet pending and material to the issues involved.

“6. Overruling Motion for the Taking of Further Evidence filed November 29, 1950, on January 5, 1951, set down for hear-allowed counsel to be heard thereon.

“7. Refusal of Probate Judge on January 19, 1951, to require Mervin Roy Wolf to produce testator’s copy of said last will and testament or to account for it; and preventing counsel from questioning him about the same, all of said matters being set forth fully in the record of the proceedings had on said date, to which reference is hereby generally made for sake of brevity.

“8. Refusal on February 5, 1951, to vacate the entry of January 2, 1951 refusing to allow the taking of further evidence.

“9. Refusal on February 5, 1951, to vacate and set aside judgment refusing to probate said will.”

When a person makes and executes his will in duplicate, retaining one copy himself and delivering the other copy for safe keeping to the person therein designated as executor, and upon his death the copy retained by the decedent cannot be found, a presumption arises that the decedent has revoked said will. Without evidence overcoming such presumption of revocation, the copy held by the person entrusted therewith cannot be probated as the last will and testament of the deceased.

Crossman v. Crossman, 95 N. Y. 145; In re estate of Chas. E. Bates, Deceased, 286 Pa. 583, 134 Atl. 573; 48 A. L. R. Annot. p. 297; 57 Amer. Juris, p. 377, Sec. 549; 3 A. L. R. (2d) Annot. p. 947; In re Flynn’s Estate, 21 N. Y. S. (2d) 496 (Surrogate Court). In re Robinson’s will, 257 App. Div. 405, 13 N. Y. S. (2d) 324; In re Wall’s Will, 223 N. C. 591, 27 S. E. (2d) 728. Re Estate of Charles E. Bates, deceased, 286 Pa 583, 134 Atl. 513.

The presumption that a deceased person revoked his will, arising because it cannot be found among his papers after his death, is rebuttable and where evidence tending to show that the will was in fact in existence at the time of his death or that its destruction was not accomplished by the deceased with intent to revoke it, the question whether or not the testator revoked such will becomes one of fact to be determined from all of the surrounding circumstances.

In re Wall’s Will, supra.

In the case of Gibson v. Gibson, 6 C. C. (N. S.) 269 affirmed without opinion, 72 Oh St 677, the court on page 270 said:

“The fact of the paper’s existence subsequent to the death can, like any other fact, be established either by presumption or circumstantial evidence, as well as by direct evidence.”

This principle of law is so well established that further citation of authorities is unnecessary.

The transcript shows that the proponents of the will in question presented evidence of its due execution and attestation as provided by law. The only question remaining was whether or not such will had been revoked subsequent to its execution by the testator. A motion directed to the right to introduce newly discovered evidence on this subject was filed and overruled without the benefit of a hearing. The bill of exceptions containing the evidence taken at the hearing on the application for a citation directing the appellee herein to produce the missing copy of the will signed in duplicate on August 30, 1948, which evidence was in fact the same evidence which appellant was seeking to introduce under his motion for leave to introduce newly discovered evidence, tended to establish the following facts: viz

“1. Under the will admitted to probate the appellee, Melvin R. Wolf was the residuary legatee and would receive from the estate about $50,000.00. •

“2. Under the purported will executed August 30, 1948, he would receive $2000.00 and the Cleveland Library was made the residuary beneficiary.

“3. That the decedent was taken to Cleveland Clinic by Mervin R. Wolf on July 13, 1950 and that the decedent was there continuously until his death on August 4, 1950.

“4. That Mervin R. Wolf had the keys to decedent’s house and returned thereafter, taking Nathaniel H. Woods to the hospital.

“5. That a day or two after Woods entered the hospital (testimony of nurse) Wolf said ‘Uncle Nat, I see you have changed your will,’ and Woods replied, ‘Yes, I have. Leave me alone,’ and further said, ‘Bring me the papers,’ to which Wolf Replied, ‘Uncle Nat, it isn’t fair to me.’

“6. That a patient in the next bed to Woods would testify that Woods and Wolf talked about a will and that Wolf said to the patient:

“ ‘Well, he wasn’t talking to the old man Woods, he turned around to me, I asked him did he have any relations, I mean if the old man have any relations, and he says, “Yes, he has a daughter in California” “I am the one taking care of everything at the time and well, he can’t change anything. I take care of everything what he has.” ’

“7. That Wolf talked about the will of September 30, 1948, with the decedent while in the hospital by his own admissions as demonstrated at the hearing on January 19th as follows:

“Q. ‘Did you that next morning or at a later date talk with your Uncle about having made or going to make a new Will?’

A. Yes.

Q. When did you have such conversation with him?

A. I would say about a week or more after he was admitted.

Q. What was the conversation?

A. “Uncle Nat, did you make a new will?”

Q, What did he say?

A. I said, “Did you sign it?” and he said, “Yes, but it is the kind that won’t stand.”

Q. Who was present at the time?

A. I couldn’t say.

Q. He said, “It’s the kind that won’t stand” did he say what he meant when he said that?

A. No.

Q. Now then, did you know on that next morning of that Will, about which you made reference to just now?

A. The next morning after he was admitted?

Q. Yes?

A. No.

Q. Was he referring to the will of September 30, 1948, if you know?

A. I would assume so.’ ”

The foregoing evidence would certainly have been material on the question of whether or not the will of August 30, 1948 had been revoked by the testator and being material to a vital issue in the case should have been admitted.

In the case of Bauer v. Heaton, 68 Oh Ap 181, the third paragraph of the syllabus provides:

“When a motion to reopen a case is made immediately after the court announced its conclusion on the evidence already introduced, it is the duty of the court to exercise its discretion to determine whether, under the circumstances, justice requires that the movant be permitted to introduce additional evidence, and when the court overrules the motion without exercising any discretion under the mistaken belief of lack of power, an abuse of discretion or error of law is committed, for which the judgment should be reversed.”

While there is some authority to the contrary the general rule is that declarations of the testator may be shown for the purpose of overcoming the presumption that a will has been destroyed animo revocandi arising from the fact that the will which had been left with the testator or to which he had access can not be found after his death. 3 A. L. R. 2nd, 960—Parag. 6. In the case of Gurley v. Armentraut, 6 C. C. (N. S.) 156, at page 159 of the opinion the Court said:

“When a will once known to exist and to have been in the custody of the testator can not be found after his decease, the legal presumption is that it was destroyed by the testator with the intention of revoking it. To strengthen such presumption it is competent to prove the declarations of the testator after making his will; that he has destroyed, or intended to destroy, the same.

“But while the declarations of the testator may be used to weaken the presumption that he has destroyed his will with the intention of revoking it, his declarations may also be received as evidence to strengthen and fortify the presumption that he has destroyed his will with such intention, whether it be the making of a will or the destroying of one, the competency of the testator’s declarations as evidence is alike in each case and for the same reason admissible. Collagan v. Burnes, 57 Me., 449, 465.”

The same principle is demonstrated in the case of Chenowith v. Cary, 17 O. O. 76 where it was held that to aid in determining the question of revocation and not as separate and independent evidence of a revocation, the declarations of the testator that he had destroyed the will is competent evidence. Behrens v. Behrens, 47 Oh St 323. No difference is to be found as to whether the purpose of the testimony is to strengthen the presumption of revocation or to overcome such presumption. The question of its competency is the same in either event.

In the case of Churchill v. Dill, 145 Kan. 306, 65 P 2d 337, the Court held that declaration of the testator shortly before his death to the effect that the will he made “stands” was admissible as tending to rebut the presumption of revocation created because the will could not be found after his death.

There is some authority in Ohio that in order to overcome the presumption of revocation it must be shown that the will was in existence at the time of the death of the testator.

Re Sinclair, 5 Oh St 290; Behrens v. Behrens, 47 Oh St 323; Gibson v. Gibson, 6 C. C. (N. S.) 269.

The evidence which the appellant sought to introduce met fully the requirements of this rule.

We must conclude therefore, that there was error prejudicial to the rights of the appellant in refusing to permit the introduction of newly discovered evidence before finally determining the question of whether or not the will dated September 30, 1948 was in fact the last will and testament of the decedent. It was further error prejudicial to the rights of the appellant in not granting a new trial after such evidence, which was clearly relevant on the question of whether such will had been revoked, had been presented to the Court in the trial of the special proceeding under §10904-10 GC, before the motion for new trial was overruled. The judgment refusing to probate said will and overruling of the motion for new trial and the motion requesting the right to introduce newly discovered evidence is reversed and cause remanded for further proceedings. The question of whether the appellant was, under the evidence presented upon the hearing of the application for a citation directing appellee to produce the will was legally entitled to such order is not properly before us and the errors alleged under that proceeding are dismissed.

Exceptions noted. Order see Journal.

PHILLIPS, J, THOMPSON, J, concur.


source: Caselaw Access Project

author: By MILLER, J.

license: Public Domain

text:
    STATE, Plaintiff-Appellee, v. FARRAND, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4491.
    Decided February 13, 1951.
    Glenn E. Kemp, Police Pros., Richard W. Gordon, City Atty., Columbus, for appellee.
    Roy W. Roof, John L. Roof, Kenton, I. J. Hoover, Columbus, for appellant.
   OPINION

By MILLER, J.

The defendant was tried in the Municipal Court upon the charge that he unlawfully advertised and announced himself to be a practitioner of medicine and surgery before ne had obtained a certificate from the State Medical Board as required by law. Upon a plea of not guilty a jury trial was had which resulted in a verdict of guilty.

The errors assigned may be epitomized as follows:

1. The judgment and verdict are contrary to law.

2. The evidence was not sufficient to sustain the same.

3. Errors in the admission of evidence.

4. The Court erred in its general and special charges to the jury.

The record reveals that the defendant had an office in a building located at 889 East Broad Street, Columbus, Ohio; that hanging over the entrance to the building was a neon sign which read “Dr. Parrand’s Naturopathic Clinic.” The sign was written in three lines with the word “Naturopathic” in the middle and in letters much smaller than the others. Three witnesses testified on behalf of the State concerning treatments received from the defendant on or about the time specified in the affidavit. The first testified that he was suffering from a “Charley horse” in the leg and the defendant treated it by rubbing and the application of heat. The second testified that he was suffering from pains in the back and shoulder and that he was given massages and heat applications by the defendant. The third testified as to receiving treatments from the defendant, but refused to testify concerning the nature of the illness. Two of the witnesses stated that they had made payments to the defendant for the treatments and the other one had made no payments up to that time.

The record reveals further that the defendant had no license from the Medical Board to practice medicine or surgery in any of its branches, although he previously had a license for the practice of chiropractic and mechanotherapy which had been revoked on November 5, 1949.

At the close of the plaintiff’s case the defendant moved for an instructed verdict in favor of the defendant, which was overruled. Thereupon the defendant rested his case.

It is urged by the appellant that the judgment is contrary to law, alleging that the record does not reveal that the defendant advertised himself as a practitioner of medicine or any of its branches. In support of this allegation the defendant on cross-examination of Mr. Dorsey offered in evidence a letter signed by H. M. Platter, Secretary of the State Medical Board, in which he stated that naturopathy was not a recognized branch of medicine. The question therefore presented is whether the word “Naturopathic” as used in the sign prevented any statutory violation which might otherwise have existed. Sec. 12694 GC makes it a violation for one to advertise or announce himself as a practitioner of medicine or surgery or any of its branches before obtaining a certificate from the State Medical Board.

Now the practice of medicine is defined by §1286 GC which provides:

“A person shall be regarded as practicing medicine, surgery or midwifery, within the meaning of this chapter who uses the words or letters, ‘Dr.,’ ‘Doctor,’ ‘Professor,’ ‘M. D.,’ ‘M. B.,’ or any other title in connection with his name which in any way represents him as engaged in the practice of medicine, surgery or midwifery, in any of its branches, or who examines or diagnoses for a fee or compensation of any kind, or prescribes, advises, recommends, administers or dispenses for a fee or compensation of any kind, direct or indirect, a drug or medicine, appliance, application, operation or treatment of whatever nature for the cure or relief of a wound, fracture or bodily injury, infirmity or disease, provided however, that the treatment of human ills through prayer alone by a practitioner of the Christian Science church, in accordance with the tenets and creed of such church, shall not be regarded as the practice of medicine; and provided further that sanitary and public health laws shall be complied with, and that no practices shall be used which may be dangerous or detrimental to life or health and that no person shall be denied the benefits of accepted medical and surgical practices.

“The use of any such words, letters or titles in such connection or under such circumstances as to induce the belief that the person who uses them is engaged in the practice of medicine, surgery or midwifery, shall be prima facie evidence of the intent of such person to represent himself as engaged in the practice of medicine, surgery or midwifery.”

In connection with the foregoing statute the record reveals that the defendant advertised himself as “Dr.,” and the giving of the massages and treatments for the cure or relief of bodily infirmities or diseases constituted such surrounding circumstances as to induce the belief that he was engaged in the practice of medicine. Therefore all of the statutory requirements were met in order to sustain a conviction. The use of the word “Naturopathic” in the sign does not prevent the act from being a violation. This was clearly pointed out by this Court in the case of State v. Henning, 83 Oh Ap at page 449:

“The defendant contends that he was practicing naturopathy which is not medicine or any of its branches within the purview of §12694 GC. We are not interested in what name or title the defendant gives his profession, but we are interested in whether what he did constituted the practice of medicine as defined by §1286 GC.”

The judgment is therefore not contrary to law. The evidence was clearly sufficient to sustain the charge since a prima facie case was established which was never overcome as the defendant offered no evidence in his behalf.

It is further claimed that the Court erred in admitting testimony of the three patients who testified concerning the treatments they received. This was clearly admissible as a surrounding circumstance mentioned in §1286 GC. See also State v. Mueller, 41 Oh Ap 102; and State v. Method, 68 Oh Ap 66.

We find further that the Court did not err in its general and special charges to the jury. With reference to the special charges the record shows that after the jury had been deliberating for several hours it returned to the courtroom for further instructions. In answer to one of the juror’s questions the Court stated,

“You are only concerned with.whether or not at the time charged in the affidavit this defendant was illegally engaged in the practice of medicine.”

This statement was incorrect as the defendant was not charged with engaging in the practice of medicine but only the unlawful advertising of the same. However, this misstatement was later cleared up by the Court when he said:

“The defendant is charged with violating that part of the section which under the laws of Ohio, prohibits any one from advertising or announcing himself as engaged in the practice of medicine or any of its branches thereof, without first having obtained a license from the State Medical Board.”

In giving consideration to all of the interrogatories submitted to the jury we are of the opinion that the jury were not misled as to the issues involved in the case. Even though we should be wrong in this conclusion, §13449-5 GC would prevent a reversal for the reason that it does not affirmatively appear from the record that the accused was prejudiced thereby or prevented from having a fair trial.

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

HORNBECK, PJ, WISEMAN, J, concur.


author: By THE COURT.

text:
    STATE, ex HARTOON et, Relators, v. SWEENEY, Sec. of State, Respondent.
    Ohio Appeals, Second District, Franklin County.
    No. 4456.
    Decided June 14, 1950.
    Elmer McClain, Lima, for relators.
    Hon.. Herbert S. Duffy, Atty. Geni., Nelson Lancione, Asst. Atty. Geni., Columbus, for respondent.
   OPINION

By THE COURT.

Submitted on motion of the respondent seeking an order making the International Electrical Local 724 Building Corporation, a corporation not for profit organized and incorporated under the laws of Ohio, whose principal office is located at Lima, Ohio, a party respondent to this action for the reason that it has an interest in the controversy adverse to the relators and is a necessary party hereto and this action cannot be completely determined and settled without its presence herein.

The petition in this action seeks to compel the Secretary of State to cancel and remove from the records of his office the Certificate of Amendment to the Articles of Incorporation of IE Local 724 Building Corporation. The relators appear to be challenging the rights of the persons submitting said Certificate of Amendment to act for the corporation then existing. This respondent is contending that the Certificate of Amendment was presented in proper and due form to the Secretary of State who filed the same pursuant to the laws governing his official duties. It would therefore appear that the persons who submitted the said Certificate of Amendment have an interest in the controversy adverse to that of the relators, and the addition of new parties under such circumstances is permissible under §11255 GC. In State, ex rel. Nixon v. Merrill, 127 Oh St 72 the Court held that any person may be made a defendant in a mandamus action who has or claims to have an interest in the controversy adverse to the plaintiff.

The motion will therefore be sustained.

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


author: Per CURIAM:

text:
    CURLE et, Plaintiff-Appellant, v. FYFE, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22247.
    Decided December 3, 1951.
    Kitchen & Messner, Cleveland, for plain tiff-appellant.
    Bulkley, Butler & Rini, Cleveland, for defendant-appellee.
   OPINION

Per CURIAM:

The plaintiff in this action is the bailor of an automobile which was involved in a collision with the defendant at the intersection of Pulaski Avenue and East 79th Street. The plaintiff’s automobile was being driven by her son westerly on Pulaski Avenue and was being driven into the intersection of Pulaski Avenue and East 79th Street and attempting to turn south on East 79th Street. Defendant was driving his automobile north on East 79th Street. There is evidence tending to establish the fact that the collision occurred after plaintiff’s automobile had been driven two-thirds of the way through the intersection.

The defendant testified that he did not see the automobile with which he collided until he was but a few feet away.

Bearing in mind that even if the driver of the plaintiff’s automobile was negligent, because of the admitted relationship of the bailor-bailee, such negligence cannot be imputed to the bailor.

Therefore, the sole question presented in this case is whether or not there is any credible evidence that the defendant was negligent and that such negligence proximately caused the damage to plaintiff’s automobile. The defendant’s statement that he did not see the plaintiff’s automobile until he was practically upon it is certainly some evidence of the failure to exercise ordinary care under the circumstances.

For the foregoing reasons, we hold that the judgment is manifestly against the weight of the evidence and remand the cause for further proceedings according to law.

Exceptions noted. Order see Journal.

SKEEL, PJ, HURD, J, THOMPSON, J, concur.


author: By HUNSICKER, PJ.

text:
    KNOFF, Appellant, v. BOARD OF LIQUOR CONTROL, Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4669.
    Decided October 16, 1951.
    Simon L. Leis, Cincinnati, for appellant.
    C. William O’Neill, Atty. Geni., Richard L. Canter, Asst. Atty. Geni., Columbus, for appellee.
    HUNSICKER, PJ, DOYLE and STEVENS, JJ, of the Ninth District, sitting by designation.
   OPINION

By HUNSICKER, PJ.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County, Ohio, affirming the order of the Board of Liquor Control of the State of Ohio, herein called Board, which order suspended for a period of 45 days the D-5 liquor permit of the plaintiff-appellant, Robert Knoff, herein called Knoff.

Knoff for his assignments of error says:

“1. That the judgment of the Board is arbitrary and unreasonable.

“2. That the Board committed an abuse of discretion in arriving at its judgment.

“3. That said judgment is based upon errors of law.”

That portion of the order of the Board of Liquor Control which is pertinent herein is as follows:

“The Board finds from the evidence that on March 4, 1951, at 2:00 A. M. the said permit holder and/or his agents or employees sold and furnished, on the said permit premises, intoxicating liquor, to wit, a gin Tom Collins, to a person who on the said date was not twenty-one years of age, to wit, Mrs. Dorothy Fussnecker, aged twenty years; that on the said date and time the said permit holder and/or his agents or employees sold and furnished, on the said permit premises, malt beverages which contained more than 3.2 per cent alcohol by weight, to persons who on the said date were not twenty-one years of age, to wit, Hobart T. Handy, aged eighteen years, and Nobel Dean Handy, aged sixteen years; and that on the said date and time the said permit holder did not have a price list and glass size list posted in the said place of business; all in violation of provisions of the Ohio Liquor Control Act and regulations of the Ohio Board of Liquor Control.

“It is therefore ordered and adjudged that Permit D-5 35675 be and the same is suspended for a period of forty-five (45) days, beginning May 23, 1951 and ending at midnight, July 6, 1951.”

The third finding of the Board that Knoff “did not have a price list and glass size list posted in the said place of business” is not supported by any evidence. No evidence on that subject was sought to be introduced at the time of the hearing before such Board. Such third finding is prejudicial to the substantial rights of the appellant Knoff.

The Board based its first and second findings on the provisions of 6064-22 GC, which section relates to the sale of alcoholic beverages to minors.

The evidence before the Board with respect to the finding that intoxicating liquor was “sold and furnished” to one Mrs. Dorothy Fussnecker, a minor, is first, a categorical denial by Mrs. Fussnecker (who was a witness called by the Board), that she bought, was furnished or drank such intoxicating liquor at the time in question. The evidence does disclose that: inspectors of the Department of Liquor Control saw, at a table where Mrs. Fussnecker was seated with several other persons, some intoxicating liquor in glasses and at least one nonalcoholic beverage; inmediately before Mrs. Fussnecker went to this table such inspector saw her seated at the bar in the act of drinking some beverage but not the beverage which was on the table at which she was seated with several friends. A careful reading of the testimony shows that there were more persons at the table where Mrs. Fussnecker was seated than there were glasses of liquid on such table. It would require mere guessing on the part of the inspectors to say that Mrs. Fussnecker was the one to whom such intoxicating liquor was “sold and furnished.”

We therefore determine that as to the first finding of the Board there was no evidence to substantiate the claim that Mrs. Fussnecker, a minor, was “sold and furnished” intoxicating liquor by appellant Knoff.

The second finding of the Board upon which such Board based its order suspending the liquor permit of Knoff is that “malt beverages which contained more than 3.2 per cent of alcohol by weight” were “sold and furnished” to two minors named Hobart T. Handy and Novel Dean Handy. These minors were not called as witnesses and no testimony by either of them was introduced by way of deposition or affidavit. The testimony, concerning the finding with reference to the two boys, is that there were two other persons sitting at the table with them and that four bottles of the so-called “high powered” beer were on the table. There is no evidence to show that Knoff “sold and furnished” this beer to the boys although the inspector did say that he saw each of the Handy boys drink some of the beer. The inspector did not testify as to the manner in which the boys got the beer. It is a subject of speculation as to whether the other persons purchased the beer without the knowledge of Knoff or if the Handy boys themselves made the purchase.

The rule announced in the case of Sata v. Board of Liquor Control, 88 Oh Ap 89, Ohio Bar, February 26, 1951, wherein this Court said,

“In order to constitute a violation of the provision of §6064- %% GC, prohibiting the sale of intoxicating liquor to a minor, the seller must have had actual or constructive knowledge that the liquor sold was to be transferred or given to the minor,”

is applicable in the instant case.

We find no evidence to support the charge that Knoff “sold and furnished” the beer to these boys and such finding of the Board is prejudicial to the substantial rights of the appellant Knoff.

The judgment of the Court of Common Pleas is reversed as well as the ruling of the Board and the cause is ordered remanded with instructions that the charges upon which the findings were based be dismissed.

Judgment reversed.

DOYLE and STEVENS, JJ, concur.


author: By THE COURT:

text:
    HALLIDAY, Admrx., Plaintiff-Appellant, v. YORK LAKE COMPANY et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22129.
    Decided June 13, 1951.
    Deibel, Elbrecht & Roberts, Cleveland, for plaintiff-appellant.
    Thompson, Hiñe & Flory, H. O. Zeigler, A. E. Gordan, Cleveland, for defendants-appellees.
    (PHILLIPS, J, GRIFFITH, J, of, the Seventh District; METCALF, J, of the Fourth District sitting by designation.)
   OPINION

By THE COURT:

The record, based upon the amended petition and opening statement of counsel for plaintiff plainly indicates that plaintiff is attempting to collaterally attack title to real property that has been duly registered under the Torrens Act. (Secs. 8572-1 et seq GC.)

The defendants as purchasers in good faith of registered lands are fully protected as against any allegation relied upon by plaintiff or in her assigned errors.

This being true, there is no justiciable issue here presented as against any of the defendants and the judgment of the trial court, here on questions of law, must be affirmed.

Judgment affirmed. Exc. Order See Journal.

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


author: By HORNBECK, PJ.

text:
    BOARD OF LIQUOR CONTROL, Appellee, v. ABERNATHY, Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4557.
    Decided June 14, 1951.
    C. William O’Neill, Atty. Geni., Thomas R. Lloyd, Asst. Atty. Geni., Columbus, for appellee.
    Harold T. Gassaway, Cleveland, Ray E. Hughes, Columbus, for appellant.
   OPINION

By HORNBECK, PJ.

This is an appeal from a judgment of the Common Pleas Court affirming an order of the Board of Liquor Control rejecting the renewal of appellant’s C-2 permit.

There is no finding of facts in connection with the order of the Board of Liquor Control and therefore all reasonable intendment that can be drawn from the evidence must be indulged to support the regularity and validity of the order.

Upon the record, it appears that appellant was granted a permit in July, 1947, and the number of his place of business was 9801 Cedar Avenue, Cleveland. It appears that there are two buildings at this number in one of which in front, appellant conducted his business. He lives in the rear as do others. It further appears that on two occasions prior to the issuance of the permit to him, on July 10, 1945, and September 17, 1946, appellant was arrested, charged, convicted and sentenced on charges of “policy.” The latter arrest was probably not in the business establishment but on the premises at the number where appellant lived. On October 2, 1947, appellant was arrested, charged with “policy” and dismissed. On the 18th of September, 1948, he was arrested, convicted and sentenced for “policy.” In addition to these offenses of which the appellant himself was convicted, his wife, Rose, was also convicted of the offense of “policy” on March 10, 1948, which gambling was conducted on the permit premises. Two other arrests of other persons on the charge of “policy” gambling made on October 2, 1947, and March 23, 1948, also appear in the record, although the persons convicted do not appear to have been related to the appellants.

Without comment or further observation we are satisfied that the Board of Liquor Control did not abuse its discretion in refusing to renew appellant’s permit, upon the evidence before it at his hearing.

No error assigned is established.

The judgment of the Common Pleas Court is affirmed.

WISEMAN and MILLER, JJ, concur.


author: By CROMER, J.

text:
    STATE, Plaintiff, v. MARSHALL, Defendant.
    Municipal Court, Piqua.
    No. 6411.
    Decided February 15, 1952.

      Bernard S. Keyt, Piqua, for state.
    Richard A. Goater, Piqua, for defendant.
   OPINION

By CROMER, J.

On February 5, 1952, an affidavit was filed in this court against the defendant, who was charged with the violation of §6367-19 (a) GC. This is one of the sections of The Uniform Traffic Act and charges the defendant with operating a vehicle while “under the influence of intoxicating liquor.”

The affidavit was signed by James Zimpher, a police officer of the City of Piqua. There is nothing on the face of the affidavit which is unusual. The case, in the regular order of court business, was set for arraignment at 3:00 P. M. on Tuesday, Fegruary 5, 1952. At the time of arraignment, Mr. Richard A. Goater, attorney, appeared for the defendant. Mr. Goater objected to a plea being made by the defendant, claiming that he wished to file a motion to quash the arrest or the warrant; that he did not want to waive any rights the defendant might have in the matter. The whole objection was entirely oral and not too definite as to what was desired. The court refused to pass upon an oral motion until the same was made definite. The court indicated that no advantage would be taken of the situation by plea or otherwise. The court suggested that the warrant be served; that the defendant enter a plea of “not guilty” and that the defendant be released on a nominal bond, which the defendant alone might sign. This was done and the case continued until February 19, 1952. It was suggested by the court that, in the meantime, a written motion might be filed and the matter passed upon in the usual manner.

On February 11, 1952, the defendant filed his motion, which is called “Motion to Quash Affidavit and Warrant.” With the motion there is an “Affidavit” of the defendant and there is also filed “Memorandum in Support of Defendant’s Motion.” The motion, affidavit and Memo are all bound together in one manuscript cover. The affidavit, although bearing no file marks, will be considered as filed.

Although the motion is one to quash the affidavit, counsel for the defendant agrees that the motion is really a plea in abatement.

An affidavit charging an offense is the first step in bringing a misdemeanor before the court.

Chapter 18: Service of Indictment and Exceptions, is part of the Code of Criminal Procedure in Ohio. The chapter refers to indictments and not to affidavits. However, defects in affidavits are raised in the same manner as defects in indictments. This chapter outlines the procedure. After an indictment is found a reasonable time is allowed the defendant “to examine the indictment and prepare exceptions thereto.” (Sec. 13439-4 GC.)

Under §13439-5 GC: “The accused may except to an indictment by first, a motion to quash; second, a plea in abatement and third, a demurrer.” A plea to quash is “made when there is a defect apparent upon the face of the record.” (Sec. 13439-6 GC.) Since there is no such defect apparent, a motion to quash does not prevail. But “a plea in abatement may be made when there is a defect in the record shown by facts extrinsic thereto. (Sec. 13439-7 GC.) Because the defect, if any, must be shown by evidence outside the record, that is, shown by'affidavits which detail certain facts, we do conclude that the remedy is a plea in abatement, and it will be considered thus.

Defendant’s motion, or plea, consists of three grounds which blend more or less into one contention, namely, that the arresting officer, a member of the police force of the City of Piqua, had no right to arrest the defendant, without a warrant, for a misdemeanor committed within the City of Piqua, which misdemeanor the defendant was “found violating”; the arrest of the defendant having been made within less than five minutes, by the police officer who observed the offense, the arrest having been made outside of the City of Piqua, but in an unincorporated village of Spring-creek Township, one of the townships of the Piqua Municipal Court’s territorial jurisdiction.

Defendant contends that (1) the arrest was illegal and void ab initio; that (2) the arrest was illegal and void or voidable because the defendant “was detained under arrest an unreasonable time after his arrest” without a warrant before being brought before the court and that (3) “the warrant was served on defendant while he was in protective custody

This brings us to a question of facts as to parts (2) and (3) of defendant’s plea. Part (1) is a legal conclusion of the defendant or a question of law which will be noticed after parts (2) and (3) are disposed according to the evidence contained in the affidavit of the defendant and counter-affidavits of'the State of Ohio.

Officer Zimpher, the arresting officer, states in his affidavit that on Monday night, February 4, 1952, at about 11:45 P. M. he was on foot patrol on North Main Street, the principal business street of the city — U. S. Route 25, Dixie Highway, is on this street — that he was on the southeast corner of Main Street and Greene Street; that he heard an automobile approaching from the south at a rapid rate of speed estimated to be in excess of 45 miles per hour — by ordinance this is a 25 mile zone — that the approaching automobile was being driven without a muffler, or with a defective one; that the defendant, who was known to the officer, when he reached Greene Street, swerved his automobile out of the line of its course; that the officer saw the above named facts, all of which are violations of the state law and the city ordinances and, that in good faith, believing that the defendant was operating his vehicle while “under the influence of intoxicating liquor” called by phone the police headquarters, at 11:46 P. M., using the telephone at the Patio, distant about 150 feet from Main and Greene streets; that the police cruiser arrived at Main and Greene Streets at 11:47 P. M.; that the cruiser with Patrolman Zimpher and three other officers, arrived at the home of the defendant in Rossville at 11:49 P. M.; that the defendant had gone into his home, but had not removed his coat and hat at the time the officers arrived; that the defendant’s breath smelled of alcohol and he was asked to accompany the officers to headquarters for a drunk-o-meter test. The test showed a blood-alcohol content in excess of the amount considered safe for driving. The times set forth herein appear on the “log” kept in the police department, by Officer Sauers, who was on duty that night.

The affidavit filed by the defendant is substantially the same as that of Officer Zimpher. However, he states that he passed Greene Street on Main Street at about 11:25 P. M. He states that the officers arrived at his home at 11:45. The “log” shows that the officers left defendant’s home “at 11:51 P. M. At most, according to defendant’s evidence, only 20 minutes elapsed between the violation at Main and Greene Streets and the arrest at defendant’s home. According to the police “log” only 3 minutes elapsed.

The elapsed time becomes important when we refer to cases on “continued” pursuit.

Now, the defendant complains that he was detained too long without a warrant. He refers to Rule 26 of this court. The cases will show that length of detention must vary with the circumstances of each case. What are the circumstances? What practical rules are necessary to operate this court?

The facts are that Officer Zimpher on February 4, was on duty from 11:00 P. M. to 7:00 A. M. Sven a police officer must sleep. The police department has a form called “Report for Affidavits.” The arresting officer fills in whatever is necessary information to procure an affidavit. This was done in this instance. Rule 19 of this court provides that the Director of Law, that is, Mr. Keyt, shall draw all affidavits. In practice, some member of the Police Department takes the “Report for Affidavits” to Mr. Keyt’s office where the affidavit is prepared. If the officer is not on the 11:00 P. M. to 7:00 A. M. trick, the arraignment is usually at 10:00 A. M., which according to Rule 26 is the “preferred” time. But out of consideration for the officer’s rest, the court always considers an arraignment at 3:00 P. M. proper. That was this case.

Therefore, parts (2) and (3) of defendant’s plea in abatement is insufficient on all the facts of the instant case.

We shall now investigate the proposition of law raised in part (1) of the defendant’s plea. Defendant’s attorney is to be commended in raising this very question, because our own observation shows that it is easy to violate rights of those who are only accused of breaking the law. Not all persons who are arrested are guilty. So often it becomes necessary to examine anew some of the laws’ fundamental concepts, never forgetting the presumption of innocence or man’s equality under the law. It is with this thought, that we made more research than the problem might seem to merit.

STATUTORY LAW

“Sec. 13432-1 GC. Officer may arrest on view. A sheriff, deputy sheriff, marshal, deputy marshal, watchman or police officer, herein designated as “peace officers” shall arrest and detain a person found violating a law of this state or any ordinance of a city or village until a warrant can be obtained.

“A constable within the limits of the township in which said constable has been appointed or elected, shall arrest and detain a person found by him in the commission of a misdemeanor, either in violation of a law or an ordinance of a village, until a warrant can be obtained.”

Let us look at the history of this §13432-1 GC. It now appears in two paragraphs. The first paragraph was Section 21 of Ohio’s first Code of Criminal Procedure. 66 Ohio Laws 305. This paragraph became R. S. 7129. Then it became Section 13492 (113 Ohio Laws 123) which was parts of the present Ohio Code of Criminal Procedure. Effective October 18, 1933 (115 Ohio taws 530) the second paragraph was added and became a part of the present Code.

First, let us paraphrase paragraph one, of §13432-1 GC, as follows:

“A * * * police officer * * * shall arrest and detain a person found violating a law of this state, * :f * until a warrant can be obtained.”

The word “shall” is mandatory, as the cases to be cited will show. It is mandatory both to arrest and to detain. Arrest whom? The answer is “a (any) person found violating” a law of the state. How long shall the person be detained? The answer is “until” a warrant can be obtained. It does not say that a warrant must be obtained at once, but until it can be obtained. See State v. Lewis, infra.

The first paragraph refers to laws of the state, which includes both felonies and misdemeanors. The second paragraph refers to misdemeanors only.

Turning to the second paragraph of this section, let us paraphrase it:

“A constable, within the limits of the township * * * shall arrest and detain a person found “committing a misdemeanor.”

Here, in the second paragraph is a distinct limitation to the township on the part of the constable. There is no limitation applicable to any officer named in the first paragraph. Hence, there is no limitation upon such officers, whereby they are confined to any particular territory, so long as it is within the State of Ohio.

In statutory construction, there is a Latin maxim “Expressio unius est exclusio alterius” meaning “The mention of one person or thing is the exclusion of another.” Black’s Law Dictionary. See State v. Guilbert, 75 Oh St 45; Beilstein v. Hugonin, 145 Oh St 397-400 and Ironton Cross Tie Co. v. Rd. Co. 10 N. P. (n. s.) 416.

As we hereafter refer to two cases, one from Massachusetts and one from Indiana, we cite Comparative Legislation as regards §13432-1 GC as follows:

Massachusetts: Gen. Law. Ch. 276, Sec. 28 (1932)

Indiana: Burns’ Statutes, Sec. 9-1024 (1933)

OHIO CASES ON THE QUESTION

There are a number of cases in Ohio on the question here involved, which we shall notice in some factual detail sufficient to present the problem. The cases (six of them, are by the Supreme Court and one by the Court of Appeals) are arranged in the Order of their decision. They are as follows:

1. Wolf v. State of Ohio, 19 Oh St 248 (1869). This case arose in Muskingum County, Ohio. The defendant, Wolf, was the Marshal of the City of Zanesville. One named Lee engaged in the alleged operation of a house of ill-fame, where algamation of the races was believed to have taken place. The above conduct was, if true, a violation of the state law. Wolf, without a warrant, accompanied by other officers, attempted to make an arrest of Lee who resisted arrest. In the opinion of the court, it is said:

“* * * that the official character of the accused (Wolf, the arresting officer and present defendant) was known to the deceased (Lee); that he (Lee) knew the cause of the attempted arrest, though the officers gave him no notice thereof; that he (Lee) forcibly and by reason of firearms resisted arrest; that the deceased (Lee) was shot and killed by the accused (Wolf) while he was attempting to apprehend him.”

The State of Ohio claimed the attempt to arrest Lee was unlawful unless he was notified of the charge against him. The court so charged. This was held to be error.

We again quote from the opinion by Judge Day as follows:

“It is also provided by the 21st. section of the criminal code, that every sheriff, marshal * * * police officer shall arrest and detain any person found violating any law of this State, * * * until a legal warrant can be obtained. 66 Ohio Law 291.” (Emphasis is ours.)

The court said: “There was at least evidence tending to prove that Lee was “found violating” the act * * * and if that was so, he (Lee) might be lawfully arrested by the proper officer, without a warrant.”

Judge Day says the question “turns upon the mode of arrest”.* * * that the offender must be * * * “found violating the law.”

The lower court was in error in its charge to the jury aforesaid.

The Wolf case, supra, as quoted above, refers to the phrase, “found violating” a law of the state, that is “found violating” by a police officer, a law of the State. This phrase is found in the original Criminal Code of Ohio, as hereinbefore indicated. “Found violating” is synonymous with “in the act of committing an offense against.” See Wolf case, supra, at page 258. Both phrases have their origin in the common law relating to criminal procedure.

2. In chronological order, the next case in Ohio is Eichenlaub v. State, 36 Oh St 140 (1880). Judge Okey, in the opinion at page 143, speaking of the power to arrest, says:

“Nor do we deny the power of officers, and even private persons, to arrest criminals under some circumstances, without warrant (66 Ohio Law 291); or charge on oath or affirmation. This power is recognized in our statutes, has long existed, and is not prohibited by any constitutional provision. But these statutes provide in effect, that the person so arrested can only be detained “until a legal warrant can be obtained; and such warrant can only be issued on oath or affirmation.”

This case decided that an arrest may be made without a warrant, but the accused can only be detained until a warrant is obtained. This is important mainly in referring to Sec. 21 of the original Criminal Code of Ohio, that is, 66 Ohio Laws 291, where the phrase “found violating” appears.

3. The next case to be decided by our Supreme Court, which construes R. S. 7129 — formerly Sec. 21 of original Criminal Code — , is the case of Ballard v. State, 43 Oh St 340.

We shall paraphrase Section 7129, Revised Statutes, as follows:

“A sheriff * * * marshal * * * police officer, shall arrest and detain any person (found violating any law of this state) * * * until a legal.warrant can be obtained.” (Emphasis is ours.) Parenthesis is the emphasis of Judge Johnson’s opinion in the Ballard case.

In the Ballard case, the arrest was attempted by the marshal of the village of Wilmington, Ohio. In the present case, the arrest is made by a police officer. Both of these officials, with other officers, are named in the statute as it then read. It still reads the same as you will observe above.

We quote in full syllabus “2” in the Ballard case, supra, as follows:

“Under a proper construction of these sections (R. S. 1849 and R. S. 7129) a marshal of a municipal corporation is authorized, without warrant, to arrest a person found on the public streets of the corporation carrying concealed weapons contrary to law, although he has no previous personal knowledge of the fact, (if he acts bona fide) and upon such information as induces an honest belief that the person arrested is in the act of violating the law.” (Emphasis is ours.)

The opinion concludes: “The accused * * * was found violating a law of the state, within the terms of 7129.” (Emphasis is ours.)

4. Reinhard v. City of Columbus, 49 Oh St 257 (1892) is the next important case. This is a civil case, not a criminal case, in which the accused, who had been arrested, without warrant, for a misdemeanor, deposited money in lieu of bail for his appearance. While money was still in hands of the city, the accused made demand for the money which was refused him. This suit is to recover the money from the city.

Judge Dickman refers to the 21st Section of the original criminal code, which we paraphrased above. The court cites section 142 of the municipal code, which provided that the city marshal “shall arrest any person in the act of committing an offense * *

We quote the following from the opinion:

“By these two sections statutory power is conferred upon officers named to arrest, without warrant, and to detain, for a limited time, to the end that there may not be a failure of justice through the escape of criminals. But the officer, if not armed with a warrant, has no authority to arrest unless the persons are “found violating” or are “in the act of committing an offense against” a law of the state or an ordinance of a city or incorporated village.

“The record” says the court, “does not disclose that plaintiff (defendant in the criminal case) and his companion were “found violating” or “in the act of committing an offense against any law or ordinance, or that the officer in making the arrest acted upon knowledge or reliable information which proved to he true. Ballard v. State, 43 Oh St 340.” (Emphasis is ours.)

5. Counsel for the defendant relies heavily on the case of State v. Lewis, 50 Oh St 179 (1893). Lewis was marshal of the village of Hillsboro, Ohio. He attempted to arrest one Elliott for a misdemeanor, without a warrant. In doing so, the marshal killed Lewis. The defendant-marshal was indicted for murder in the second degree. The syllabus of the case is sufficient to show the fact and the decision. It reads in part as follows:

“If * * * the officer was absent when such offense was committed, and did not appear there until after the affray had ended, public order restored, and the guilty parties had departed from the vicinity, and all the information the officer had of the affray and the parties to it, was the statements of bystanders who witnessed it, he has no authority in law to pursue and arrest the persons charged with the offense without first obtaining a legal warrant therefor.” (Emphasis is ours.)

In short the marshal’s information was pure hearsay. Hence, he had no right to pursue.

Chief Justice Bradbury who wrote the opinion, concluded:

“Section 7129 R. S. provides for the arrest of persons “found violating” a law or ordinance. Found by whom? The statute does not expressly declare; but when the rules of the common law upon this subject are considered, it is clear that the legislature meant, found by the officer who attempts to make the arrest.”

One other proposition is pertinent here, which says:

“Even where such offense has been committed in the presence of an officer, his power to arrest the offender without warrant should be promptly exercised or it will be lost. Am. & Eng. Ency. of Law, 784 * * *.”

“In one case,” the court says: “It was held that the officer must proceed at once in the matter, and follow it up until arrest is accomplished and delay of five hours are fatal to the authority.”

It was declared that “there was no continued pursuit of the prisoner.”

The instant case is one of prompt and continuous pursuit until the arrest is accomplished. More when we come to cases from other jurisdictions.

6. The case of Conrad v. Lengel, 110 Oh St 532 (1924) decided that detention of the accused “for the period of one hour without warrant is not unreasonable.” The arrest was for committing a misdemeanor. (Peddling without a license.) The question arose on a demurrer to the answer of the arresting officer.

Judge Matthias, who wrote the opinion, said:

“Under the averments of the answer the plaintiff was found violating the ordinance by the police officer, and the officer was authorized by the provisions of §13492 GC, (now §13432-1 GC), to make the arrest, without warrant, and certainly it cannot be determined as matter of law that detention of one hour is an unreasonable time.”

This case decided that the period of detention is not a matter of law, but is one of fact, depending upon all the facts and circumstances of each particular case.

7. Clark, Admr. v. Carney, 71 Oh Ap 14 (1942) M. C. O. is a civil case for damage arising for death by wrongful act. (Sec. 10509-166 GC.) The facts are that a police officer discovered four men robbing a bakery. Upon demand, they refused to halt. One of the robbers was shot. Hence, the suit for excessive use of force.

Judge Ross decided that the officer was not liable. After quoting §13432-1 GC, the court said:

“The statute law of this state makes it a mandatory duty upon the police officer to arrest a person found violating the law of the state.”

Although the above case is a felony, the statute does not make any distinction where a misdemeanor is involved.

Without comment, we cite the following cases to the same effect as those mentioned already, namely: Billington v. Hoverman, 18 C. C. 637; Ringhand v. Grannan, 12 C. C. (n. s.) 255; Dunning v. Cincinnati, 21 N. P. (n. s.) 468 and State v. Page, 7 N. P. 543. See Blockman v. Cincinnati, 18 O O 129 (C. P.)

In anticipation of an objection hereafter to the use of a drunk-o-meter in the instant case, we quote syllabus 3, of Dunning v. Cincinnati, supra:

“3. The forcible taking by the officer from the accused of such papers thrust into his pocket is within the authority of the officer, and is not in violation of the constitutional right of the accused against unlawful search and seizure.”

We might add that it is not compulsory self incrimination.

TEXT AND CASES FROM OTHER JURISDICTIONS

It is argued by the defendant’s attorney that there could be no lawful arrest in this case, because, at the time of the arrest, the defendant was no longer driving his automobile and already had arrived at his home. We would infer an admission on the part of the defendant that an arrest could be made lawfully, if made during the time the prohibited act was being committed. This argument seems to have its basis upon the common law concept “that a peace officer may, without a warrant, arrest any person who is committing or attempting to commit a misdemeanor in his presence.” (C. J. S. Arrest, Sec. 6)

At common law, an arrest for a misdemanor cannot be made without a warrant unless it also involves a breach of the peace. The term “breach of the peace” is defined as “something more than that which used to be alleged in indictments and complaints as a legal incident of every criminal offense.” Commonwealth v. Gorman, 192 N. E. 618-620.

The Gorman case, supra, relies upon the case of U. S. v. Hart, Fed. Co. No. 15,316, Pet. C. C. 390, wherein Washington, J. held: “that driving a carriage at an immoderate rate of speed through a principal street was a breach of the peace, justifying an arrest by a constable without a warrant.”

“Voluntary drunkness in private, though a crime (Commonwealth v. Conlin, 184 Mass. 195, 68 N. E. 207) is not of itself a breach of the peace.”

In State v. Deitz, 136 Wash. 238, 239 P. 386, it was held that driving without lights was not a breach of the peace, “the right to arrest without a warrant exists nevertheless.”

The case of Dailey v. State, 194 Ind. 683, 144 N. E. 523 was a case which, in Ohio, we would call “being in actual physical control of a motor vehicle while under the influence of intoxicating liquor,” yet the Sheriff could make lawful arrest, although there was no element of breach of the peace, and without a warrant.

Under Section 6, of C. J. S. supra, a collection of cases is made under a paragraph called “Particular Offenses,” where it is stated:

“In accordance with the rules just announced, under appropriate statutory provisions, a peace officer may arrest without a warrant, one who, in his presence, is violating a law relating * * * to “driving an automobile on a public highway while intoxicated.” Citing the Gorman case, supra. Many other offenses, none of which involve “breach of peace” are listed, including speeding and reckless operation of a motor vehicle.”

As respects the argument that the offense in the present case, no longer continued up to the time of arrest, we quote syllabus 2 of the Gorman case, supra:

“State police officer, having a common law authority of a peace officer, in absence of statute, may arrest without warrant for misdemeanor, which involves breach of peace, if committed in presence or view of officer, and still continuing at time of arrest or only interrupted, so that the offense and arrest form parts of one transaction.”

The facts and procedure in the Gorman case, are so much like the present case, that we refer to it at length. In that case there was no warrant, although Gorman had been placed in custody but gave bail for his appearance.

We quote from the opinion of Judge Lummus, second paragraph, as follows:

“In the District Court, before pleading to the merits of the complaint, the defendant made a motion to quash the complaint and also filed a “plea to the jurisdiction” based on 'the alleged unlawfulness of the arrest and of “the procedure in bringing him before the court.” These were overruled and the defendant was convicted. On appeal to the Superior Court, he renewed the motion and the plea. These were again overruled and after trial a verdict of guilty was returned.

Again we quote, omitting citations of authority from the fifth paragraph of the opinion in the Gorman case, as follows:

“(2) The offense of operating a motor vehicle while under the influence of intoxicating liquor (same as the Ohio statute) is classified by our statute as a misdemeanor. (Also a misdemeanor in Ohio.) A police officer, in the absence of statute, may arrest without warrant for a misdemeanor which (1) involves a breach of peace (2) is committed in the presence or view of the officer and (3) is still continuing at the time of the arrest or only interrupted so that the' offense and the arrest form parts of one transaction.”

The opinion discussed and decided that a breach of the peace, justifying an arrest without warrant, “may be prospective or an anticipated one.”

The judge relied upon the dictum of the English case, Trebeck v. Croudace, 1 K. B. 158, 166 (1918) wherein it is §aid:

“From the very nature of things the arrest of a drunken person in the street may very frequently be justified on the ground of an anticipated breach of the peace particularly so when the alleged offender is in charge of * * * a motor vehicle * * * a very dangerous instrument from the point of the view of the public safety when in the hands of a drunken person.”

The defendant in the Gorman case, supra, tried to distinguish between being “drunk” and being “under the influence of intoxicating liquor.”

Judge Lummus, of the Massachusetts court said there was no distinction between the two degrees of intoxication, and added:

“But even that milder degree of alcoholic effect is likely to make an operation of a motor vehicle a public menace and induce in him such reckless conduct as may make him criminally responsible for unintended assault and even manslaughter (citing cases). In our opinion, the offense involves a breach of the peace, and justifies an officer in arresting without a warrant a person he sees in the act of committing it.”

Section 6307-18 (a) of The Uniform Traffic Act of Ohio makes an unintentional killing of another person manslaughter in the second degree (while engaged in the violation of any law of this state applying to the use or regulation of traffic).” Thus, the Ohio law is the same as the law of Massachusetts.

The defendant in the instant case, was placed in custody because he was “found violating” a law of the State of Ohio, namely, for violating §6307-19 (a) GC, which in part, reads as follows:

“No person who is under the influence of intoxicating liquor * * * shall operate any vehicle * * * within the State of Ohio.”

According to the counter-affidavit of Patrolman Zimpher, the defendant is alleged to have operated his motor vehicle on Main Street of this city in the presence and view of Patrolman Zimpher. The defendant was “found violating” a law of the State of Ohio, it being made to appear that the defendant, at the time and place, was operating his vehicle in a reckless and' abnormal manner, thereby endangering the lives and property of the citizens. Perhaps less than three minutes elapsed between the alleged violation and the time the defendant was placed in custody. Certainly, under Rule Three (3) the offense and the arrest “form parts of one transaction.” The evidence shows that the defendant had driven less than one mile. There is here no interruption which would preclude the defendant’s arrest without a warrant.

When could the arrest be made? This question is answered in the text of 6 C. J. S. Arrest, at page 590, in the paragraph entitled “Time of making arrest.” We quote:

“While peace officers are authorized to arrest without a warrant for an offense less than a felony committed in their presence, it is usually held that in order to be valid the arrest must be made at the time of the offense, or any part of the offense, is being committed, or within a reasonable time thereafter, or upon fresh and immediate pursuit of the offender. Under some statutes a village police officer may, upon the violation of a village speed ordinance in his presence, pursue the offender and arrest him outside the village limits without a warrant.” (Emphasis is ours.)

See 4 Am. Jur. Arrest, Sec. 67. Oleson v. Pincock, 68 Utah 507, 251 P. 23 and 5 C. J. p. 406 note 23, Reed v. State, 195 Ga. 842, 25 S. E. (2nd) 692.

Note 23 of 5 C. J. aforesaid cites a large number of cases from many jurisdictions, as to what period of delay in making an arrest for misdemeanor, without a warrant, is reasonable and unreasonable. In the entire list of cases cited, there is no time mentioned as short as in the instant case. Ail the cases hold that the officer must be “allowed a reasonable time and fit opportunity” in which to make the arrest.

The case of Curry v. Commonwealth, 199 Ky. 90, 250 S. W. 793 is a case in point. It is said that the fact that during the pursuit of an intoxicated driver there was a period of time in which he was out of sight of the officer does not invalidate the subsequent arrest by such officer when he overtook the offender, and the further fact that the accused was detained in a neighboring town at the telephoned request of the pursuing officer, would not make the arrest unlawful,” even though the act of detaining accused until the officer arrived was illegal.

Let us assume that the arrest was unlawful — which we deny — what difference does it make in the criminal case now before the court. There is abundant authority that it does not make any difference. Surely, the defendant does not claim that he should be dismissed upon the merits of the case even without a hearing, because he was arrested, unlawfully, he claims.

Returning again the Gorman case, supra, syllabus 4 reads as follows:

“Where motorist, arrested for operating automobile on highway while under influence of liquor, was physically before Court on complaint, regardless of reason, invalidity of original arrest was immaterial.”

The Court cites and quotes, with approval, Mr. Justice Holmes in Michigan Trust v. Perry, 228 U. S. 346, 57 L. Ed. 867, as follows:

“Ordinarily jurisdiction over a person is based on the power of the sovereign asserting it to seize that person and imprison him to await the sovereign’s pleasure.”

The court in the Gorman case, at page 621, of the N. E. report says:

“When the court has jurisdiction over the case, and the defendant is physically before the court to answer to' the plaintiff a possible view is that the unlawfullness of the arrest that brought the defendant there is immaterial in that case, and the court will proceed to try the merits, leaving the defendant to his remedy of an action against the arresting officer. This view has been taken in some jurisdictions even in civil cases.”

Continuing:

“Even though the view just stated be not taken in civil cases, it may nevertheless be adopted in criminal cases. The latter concern directly the public peace and order, and are prosecuted by the Commonwealth to which the wrong doing of its officer cannot be attributed.”

Commonwealth v. Toy, 170 Mass. 192, 48 U. E. 1086, in the opinion, the court said:

“In our opinion the court had jurisdiction to try the complaint, whether her original arrest was illegal or authorized by law. If she was illegally arrested, she had her remedy by action for that wrong; and the illegal arrest did not prevent the court from acquiring jurisdiction to try the complaint.”

To the same effect, see syllabus 2 of Commonwealth v. Conklin, 184, Mass. 33, 68 N. E. 207.

This is the law of Ohio. If the arrest is illegal, the accused has a remedy against the arresting officer and his bondsmen. 3 O. Jur. Arrest, pg. 174, Sec. 39, Officer’s Liability.

Defendant’s attorney relies upon the opinion of Thos. J. Herbert, Attorney General of Ohio — later Governor — in his opinion to Col. Lynn Black, of the State Highway Patrol, dated August 22, 1939, and found in 1939, Attorney General Opinions, Vol. 2, page 1547 to 1557.

The syllabus of the opinion is as follows, paragraph one:

“Syl. 1. A village marshal may not arrest without a warrant any person whom he finds violating the laws relating to motor vehicles outside the limits of the village in which he is elected, where such violation amounts only to a misdemeanor.”

The opinion furnished to Col. Lynn Black, Supt. of State Highway Patrol on August 22, 1939:

“Dear Sir:

“Your recent request for'my opinion reads as follows:

“The State Highway Patrol has found a practice existing in certain parts of the State, wherein certain village marshals make deliberate patrols outside their villages, for the purpose of making arrests and taking the offenders into any court in the county they desire.”

That was the problem to which the opinion related. It is the old “speed trap” procedure, being operated by the village marshal for state-fee costs, outside the marshal’s village. It was a matter of making arrest for profit.

After quoting §§4386 and 13432-1 GC, the opinion says:

“Neither of these two sections places any territorial limits upon the power of a village marshal to make arrests without a warrant in cases of misdemeanor. However, as a general rule, a peace officer has no authority to make arrest without a warrant outside his territorial jurisdiction * * *. (Emphasis is ours.)

The problem posed in the opinion of General Herbert to Col. Black is distinguished readily from the instant case. In the opinion cited, the marshal made “deliberate patrols” on the highway “outside” his village, where he sought his victim and where he made the arrest. In the instant case, the defendant was “found violating” the state law inside the City of Piqua. The arrest was made beyond the city limits after continuous and uninterrupted pursuit of the offender as part of one transaction, which had its inception in the city and in the presence of the police officer. The two situations are far apart legally.

Therefore, in conclusion, we feel compelled to overrule defendant’s plea in abatement, upon the state of facts existing in this case — facts easily distinguishable from any other Ohio case with which we are informed.

That similar problems may be avoided in the future, we respectfully admonish all peace officers in making arrests for misdemeanors, without warrant, not to do so, unless the offender is “found violating” the state law or city ordinance, in his presence or to his knowledge; that the arrest, under these circumstances, should not be made upon the hearsay testimony of bystanders as to what happened in the absence of the officer and after the alleged offense had become fully accomplished.

Let the defendant save his exception in an entry overruling his plea and the cause will proceed upon its merits.


author: By WOODS, Referee. By WOODS, Referee.

text:
    MITCHELL, Bankrupt, In re.
    IN THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION.
    No. 68366.
    Decided October 18, 1951.

      Marvin L. Gardner, Cleveland, for trustee.
    John W. Dilgren, Elyria, for trustee.
    Robert Merkle, Cleveland, for Michigan National Bank.
    Milton M. Lang, Cleveland, for bankrupt.
   MEMORANDUM

By WOODS, Referee.

At Cleveland, in said District, on the 18th day of October, 1951.

This comes on for hearing on the Petition to Sell of Theodore R. Spilka, Trustee, to which an Answer and Cross-Petition was filed by the Michigan National Bank claiming that it has a first and best lien on the house trailer sought to be sold by the trustee; that if the property is to be sold, all the amount received therefrom up to the amount due the bank, $3,090.64, should be paid to the said answering defendant on its lien.

The controversy concerns a glider house trailer purchased by the bankrupt from Roamer Trailer Mart in January of 1951, upon which bankrupt and his wife, Doris I. Mitchell, gave a chattel mortgage to C. W. Littlefield, doing business as Roamer Trailer Mart, for $3,418.25; and a certificate of title was issued to Pearl W. Mitchell by Leonard F. Fuerst, Clerk of Courts of Cuyahoga County, Ohio, on March 20, 1951, upon which there is a notation of said bank having a first lien as follows: “First Lien — Nature of lien, chattel; Amount, $3,418.25; Held by, Michigan National Bank; Holder’s address in full, Grand Rapids, Mich.,” signed by Leonard F. Fuerst, Clerk of Courts of Cuyahoga County.

The facts establish that the bankrupt resides at 35157 Center Ridge Road, which is across the line in Lorain County and not in Cuyahoga County where the certificate of title was issued. Evidence further shows that the trailer has been continuously in Lorain County following its purchase and before the issuance of the certificate of title by the clerk of Cuyahoga County.

The issue is whether the Michigan National Bank has a valid lien and prior claim to that of the trustee in bankruptcy. The trustee relies upon the Bankruptcy Act, Sec. 70 (c), for the basis of his claim that the lien claimed by the Michigan National Bank because of the certificate of title issued by the clerk of Cuyahoga County should have been issued in Lorain County being the residence of bankrupt, and because of this failure, the claimed lien is invalid'. The statute provides:

Bankruptcy Act, Sec. 70 (c).

* * * The Trustee, as to all property in the possession or under the control of the bankrupt at the date of bankruptcy or otherwise coming into the possession of the bankruptcy court, shall be deemed vested as of the date of bankruptcy with all the rights, remedies, and powers of a creditor then holding a lien thereon by legal or equitable proceedings, whether or not such a creditor actually exists . . . .”

Section 70 (c) thus confers upon the Trustee “by force of law” the status of the ideal or “perfect” creditor, irreproachable and without notice armed with every right and power which is conferred by law of the State upon its most favored creditor. Such hypothetical status depends for meaning upon the substantive law which it does not explicitly indicate, but which it incorporates by reference. Hence, the Trustee’s powers in every case governed by this portion of Sec. 70 (c), are those which the State law would allow to a supposed creditor of the bankrupt, who had at the date of bankruptcy completed the process for the perfection of a lien upon property in the bankrupt’s or the Court’s possession. Whether a Trustee is entitled to such a status, and the conditions under which he may attain it, are Federal questions covered by the Bankruptcy Act, but the extent of the Trustee’s rights, remedies and powers as a lien creditor, are measured by the substantive law of the jurisdiction governing the property in question — that is, in this case, the law of the State of Ohio. The foregoing follows a discussion of this subject in Collier on Bankruptcy, 14 Ed., Vol. 4, p. 1261 et seq. See also Remington on Bankruptcy, Vol. 4, Chap. XXX-A, Sec. 1599-1601.

Since the amendment by the Chandler Act of 1938, this section, which was formerly in Sec. 47a (2), is now recast as a part of Sec. 70c of the Bankruptcy Act, and is sometimes called the “strong arm clause in Sec. 70c.” This right of the Trustee in the Bankruptcy Act, as so amended is discussed in Commercial Credit Company, Inc. v. Davidson, (C. A. 5-1940), 112 F (2) 54, 42 A. B. R. ns 688; Janey v. Bell (4 C. A. 5-1940), 111 F. (2) 103, 42 A. B. R. ns 20.

As was recognized by Judge Dobie in Janey v. Bell, supra, Ohio, among other states, has adopted a Certificate of Title Law, §6290-2 to 6296 GC, containing registration provisions which were recently amended by the last general assembly, effective May 20, 1951.

In many states this Motor Vehicle Code did not supersede mortgage lien statutes. The Ohio Code, as now in effect, §6290-9 GC, provides that the provision of §8560 to §8572 GC “shall never be construed to apply to or to permit or require the deposit, filing or other record whatsoever of a chattel mortgage, conveyance intended to operate as a mortgage, trust receipt, conditional sales contract, or other similar instrument made hereafter and covering a motor vehicle.”

The present law as to the registration of motor vehicles in §6290-9 GC provides as to mortgage liens as follows:

“Any mortgage, conveyance, trust receipt, conditional sales contract, or other similar instrument made hereafter and covering a motor vehicle . . . .shall be valid as against the creditors of the mortgagor whether armed with process or not, and subsequent purchasers, mortgagees and other lien-holders or claimants but otherwise shall not be valid against them . . . .”

Also, it should be noted that in the present law the term “motor vehicle” by §6290-2a GC for the purpose of the Motor Vehicle Code includes a house trailer, and the Code also applies to a certificate of title for house trailers.

The particular section of the Motor Vehicle Code which concerns the transaction here is to be found in §6290-5 GC which is entitled “Application for certificate of title; duties of clerk of courts,” and the language is as follows:

“Application for a certificate of title shall be made upon a form hereinafter prescribed by this chapter; and shall be sworn to before a notary public or other officer empowered to administer oaths; and shall be filed with the clerk of courts of the county in which the applicant resides if the applicant be a resident of this state or if not such resident, in the county in which the transaction is consummated; .... The Clerk of courts shall use reasonable diligence in ascertaining whether or not the facts in said application are true by checking the application and documents accompanying same with the records of motor vehicles in his office; and if satisfied that the applicant is the owner of such motor vehicle and that the application is in the proper form, the clerk of courts shall issue a certificate of title over his signature and sealed with his seal, but not otherwise.”

Following the above sections appears §6290-13 GC entitled “Form of ‘Certificate of Title,’ ‘memorandum certificate,’ etc.,” which recites that the certificate of title (to be issued by the clerk) shall be printed in the form which follows in the same section of the statute.

The form does have a blank for the address of the applicant, and nowhere in the form is it indicated whether the address given is the residence of the applicant or that he is a resident or non-resident of the State of Ohio. Thus, arises an open question and makes possible the controversy which has arisen as to the validity of the lien of the cross-petitioner, Michigan National Bank, in this proceeding, the fact that this bankrupt resides in Lorain County and the certificate of title is on file in Cuyahoga County.

It is elementary and axiomatic that where a statute has been enacted prescribing how a lien may be effected, that any party seeking to perfect such a lien must comply with the terms of the statute, i. e. to say as the courts hold the terms of the statute must be strictly complied with.

The Court of Appeals of Cuyahoga County in Lazerick v. Associates Investment Co., 30 Abs, 112 (1939), had before it a replevin case involving the right to possession of an automobile where the note and mortgage alleged to have been given by the owner had been forged. After seizure of the automobile by the mortgagee, the lower court held that replevin would lie and the Court of Appeals reversed, which is one of the few reported cases involving the rights of parties under the Ohio Certificate of Title Law. In reversing the lower court, Judge Morgan said, p. 114:

“It is our view that the statement as to a lien appearing on the certificate of title to an automobile puts the world on notice of the claim of the lien but does not guarantee the accuracy of the statement or constitute conclusive proof of the validity of the lien.”

And, later, in the same case, on an application for rehearing, Judge Morgan further said:

“As stated in our previous opinion, the notation of the lien served only as notice to those who might have dealings with the automobile in the future, and did not give any greater validity or effect to the lien than it otherwise would have possessed.”

Thus, the rule seems to be that the statements contained in the certificate of title, and likewise in the application for certificate — as here the application stated that Mitchell, the bankrupt, resided in Cuyahoga County when he in fact resided in Lorain County — cannot be considered as controlling; and the effect of the notation of the lien noted on the certificate serves only as notice that such a lien is claimed. The validity of the lien, itself, is a matter to be determined by the courts on the basis of the actual facts in the event the certificate of the county clerk is in error or improperly issued. The Syllabus of the Court of Appeals is as follows:

Syll. 1. A statement as to a lien appearing on a certificate of title to an automobile puts the world on notice of the claim of the lien but does not guarantee the accuracy of the statement or .constitute conclusive proof of the validity of the lien.

Syll. 2. The “certificate of title” law simply provides another method of recording a lien, but gives the lien no greater validity than it enjoys under the old recording acts, under which an instrument cannot be recorded legally, and if recorded, will not be any protection against the owner of the property.

The argument in the brief of the counsel for the Bank as lien claimant overlooks the fact that there is a failure to comply with the provisions of §6290-5 GC as to registering the title to the motor vehicle, i. e., here, a house trailer, bought by this bankrupt. The statute requires that the application for registration should be filed “with the clerk of courts of the county in which the applicant resides if the applicant be a resident of this state or if not such resident, in the county in which the transaction is consummated.”

The proof shows that Mitchell, the bankrupt, was and is a resident of Lorain County; so, under the statute, that is the only county in which a certificate of title could properly be issued by the clerk of courts under the Ohio Motor Vehicle Registration Law. That Mitchell, as the applicant, or the clerk of courts in issuing the certificate of title, were in error cannot help this lien claimant, for the burden is upon it to establish its right as against a trustee in bankruptcy. Needless to say, the mortgage might be good between the bank and the mortgagor; but this cannot help the bank in its claim of lien against the trustee in bankruptcy.

The counsel for the Bank urges that the Trustee is estopped to contest the claim of the Bank as a lienholder. In this connection there is the language of Mr. Justice Douglas in Pepper v. Litton, 308 U. S. 295, 41 A. B. R. ns 279, where the High Court disallowed claims which had been put in judgment in a state court where he said:

“This court has held that a bankruptcy court has full power to inquire into the validity of any claim against the estate and to disallow it if it is ascertained to be without lawful existence.”

In that case the claims had been reduced to judgment and were set aside. Here, only a mistake was made in applying for a certificate in the wrong county; so, there can be no merit in the argument that the trustee is estopped or that he should be prevented from showing the real facts as to the residence of the owner of the mortgaged trailer.

Prior to the enactment of the Motor Vehicle Registration Law in Ohio requiring filing with the clerk of courts of the county of residence of the owner, it was held that a chattel mortgage of an automobile bought in Michigan to be used in Ohio, which was filed in Michigan as required by the law of that state, did not effect a lien in favor of the mortgagee when the automobile was brought to Ohio where the owner resided. Such was the holding in Saunders of Ohio, Inc., Bankruptcy Case No. 19976, in this District, where this Referee so held, and no review was sought by the lien claimant. In that case lien was claimed by the mortgagee by virtue of §8560-1 GC; and under the rule of Boyer v. Knowlton, 85 Oh St 104, as adopted by the Sixth Circuit Court of Appeals in Potter Mfg. v. Arthur, Tr., 220 Fed. 843, 34 A. B. R. 75, the Referee followed such rulings. So, had there been no Motor Vehicle Registration Law as now obtains in Ohio, under the former law, there would have been no valid lien for the mortgage claimant on the facts and law in the present case.

The order will be entered granting the Trustee’s Petition to Sell and denying the Cross-Petition • of the Michigan National Bank for lien, and allowing its claim as cross-petitioner as a general claim in the amount of $3090.64.

JOURNAL ENTRY ON TRUSTEE’S PETITION TO SELL

By WOODS, Referee.

At Cleveland, in said District, on the 18th day of October, 1951.

This cause came on for hearing upon the Trustee’s Petition to Sell and the Answer and Cross-Petition of the Michigan National Bank, and upon said hearing had and the briefs filed by counsel herein,

The Court finds that the bankrupt resided in the County of Lorain; that the mortgage of the Michigan National Bank was recorded in the County of Cuyahoga; that the bankrupt at no time resided in the County of Cuyahoga; that according to the provisions of Certificate of Title Laws and Statutes of the State of Ohio, §6390-2 to 6295 GC, it is required that the chattel mortgage and certificate of title be recorded in the county in which the mortgagor resides.

The Court further finds that the mortgage set forth in the Answer and Cross-Petition of the Michigan National Bank is void as to the Trustee in Bankruptcy because said mortgage was not recorded in Lorain County, the residence of the bankrupt as. required by law of the state of Ohio.

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the mortgage of the Michigan National Bank on the glider house trailer as set forth in the Answer and Cross-Petition does not create a valid lien because said mortgage was recorded in Cuyahoga County and not Lorain County, which was the residence of the bankrupt, and that the petitioner, the Michigan National Bank, has a valid general claim against the estate in the sum of $3,090.64 as set forth in their Answer and Cross-Petition.

IT IS FURTHER ORDERED that the Trustee sell said trailer at public sale for the highest price obtainable, to all of which the cross-petitioner, Michigan National Bank, excepts.


text:
    CENTRAL GREYHOUND LINES INC. OF NEW YORK, Plaintiff-Appellee, v. CLEVELAND (City), Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22214.
    Decided October 29, 1951.
    Hartshorn, Thomas, Abele, Mitchell, Edelman & Leuck, Cleveland, for plaintiff-appellee.
    Robt. H. Shoup, J. F. Lombardo, Cleveland, for defendant-appellant.
    (METCALF, J, of the 4th District sitting by designation in place of HURD, J.)
   OPINION

By THE COURT:

This appeal on questions of law involves §6307-21 GC, known as the “Assured Clear Distance Ahead Statute.” While the testimony is conflicting, there is substantial evidence in the record to support the finding and judgment of the trial court, it being the trier of facts, a jury having been waived, insofar as the liability of the defendant for the physical damages to plaintiff’s bus is concerned. However, there is a failure of proof to establish the loss of use of plaintiff’s bus while it was being repaired.

It seems to this Court that the trial court used the wrong factors in arriving at this loss, by way of rental value of its substitute bus, when the testimony of plaintiff offered thereon includes many items not chargeable under the law. In fact, there is no evidence in the record from which a just and correct formula can be taken to compute this rental value. Any amount fixed would be merely conjecture.

This Court, therefore, modifies the judgment of the trial court by deducting therefrom the award of $120.00 for loss of use of the damaged bus, leaving the judgment stand at $238.53 and as so modified, the judgment is affirmed. Exceptions. Order see journal.

SKEEL, PJ, METCALF, J, THOMPSON, J, concur.