author: By BAUMANN, J.

text:
    ANGELL v. TOLEDO (City), et al.
    Common Pleas Court, Lucas County.
    No. 169563.
    Decided November 12, 1948.
    Robert N. Zanville, Toledo, for plaintiff.
    W. G. Christensen, Director of Law, Jas. Slater Gibson, Toledo, for defendant.
   OPINION

By BAUMANN, J.

Plaintiff is a non-resident of the city of Toledo, who is regularly employed within the corporation. He questions the validity of the Income Tax Ordinance of the city, and seeks to enjoin deductions from his wages, as required by the terms of the ordinance.

The city has filed a general demurrer, addressed to the petition, thus submitting the case to the court on questions of law.

These questions have been well argued and extensively briefed. Many authorities have been cited, which required examination and research by the court.

At the outset it is proper to eliminate the diversions and concentrate on the issue. The petition under consideration is an individual complaint. It is neither a ‘taxpayers suit’ nor a ‘class action’. Consequently, we are limited to those provisions of the ordinance that adversely affect the plaintiff as a wage earning taxpayer. We are not directly concerned with the employer, nor with taxpayers in other classifications.

The petition states that the plaintiff began his Toledo employment after the effective date of the ordinance. It follows that the inhibition in the Federal constitution prohibiting the passage of a law that impairs the obligation of a contract is not pertinent. It is fundamental that contracts, such as the contract of employment in this case, are subject to the existing valid laws of the community in which they are made.

Another diversion which must be eliminated is the consideration of this ordinance as something other than income tax legislation. The title of the ordinance, its substance and its effect classify it as one that levies a tax on income and it will be so considered.

The authorities of other states have been cited and discussed It was proper to do this, and the court has examined these decisions and opinions with care. We find that these cases, and especially in Pennsylvania and Missouri, are necessarily based on their respective constitutions and statutes. The Constitution of the State of Ohio differs to such an extent that we can derive little, if any, assistance from -these decisions.

Does a municipality have authority under the constitution and laws of the State of Ohio to levy an income tax on the wages of non residents employed in the city? That is the question presented here.

Article XVIII, Section 3 of the Constitution of Ohio provides that:

“Municipalities shall have authority to exercise all powers of local self government, etc.”

In State ex rel v. Carrel, 99 Oh St 220, 227, the Supreme Court of Ohio said of this section:

“We find as complete a grant of power as the general assembly has received. * * * There can be no doubt that the grant of authority to exercise all powers of local government includes the power of taxation, for without this power local government in cities could not exist for a day.”

The Constitution contains but one pertinent limitation upon this broad power. The general assembly is authorized by general laws to restrict the" power of taxation by cities. Articles XIII, Section 6. But as was well said by the Supreme Court in Walker v. Cincinnati, 21 Oh St, 14,

“The authority and duty to prevent an abuse of the powers of taxation and assessment by municipal corporations is entrusted by this section to the general assembly and not to the courts of the state.”

Whatever a court may think as to the wisdom or economic propriety of a municipal tax on income is inconsequential. The authority to act is lodged in the people or their legislative representatives.

We find no direct statutory prohibition of this type of tax. Nor has any been cited. The state has not entered the field of income taxation to result in a limitation by implication. Statutes have been called to our attention, but it would be reasoning to a desired conclusion, rather than logic, to conclude that these statutes have anything whatsoever to do with income taxation

It has been said that Sections 8 and 9 of Article XII of the Ohio Constitution deprive the municipality of this power by implication. The obiter dicta in the Carrel case is to this effect. These sections authorize the general assembly to levy an income tax with the provisional requirement that fifty percent be returned to local government. As to inheritance taxes, where the state has acted affirmatively, this is undoubtedly true. But as to income taxes, inactivity on the part of the general assembly for at least thirty-eight years, would indicate that the state intended to remain out of the field. We find the dicta in this case to be inconsistent with the reasoning of the opinion and with the conclusion.

The demurrer is sustained. Plaintiff may amend, or if no such desire is indicated final judgment will be entered.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    PRUGH, Plaintiff-Appellant, v. HUGHEL, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2051.
    Decided May 19, 1949.

      Gus W. Byttner, Dayton, for plaintiff-appellant.
    Harshman & Young, Dayton, for defendant-appellee.
   OPINION

By THE COURT:

Submitted on motion of defendant-appellee to dismiss the appeal on the ground that appellant has failed to comply with the requirements of Rule VII and that the order appealed from is not a ñnai order.

On November 18, 1948, the appellant gave notice of intention to appeal on questions of law. More than fifty days have elapsed and the record shows that appellant has failed to file assignments of error, briefs and bill of exceptions. The motion will be sustained for failure to comply with the provisions of Rule VII.

The order appealed from is specifically designated as the order overruling the motion for new trial. After the verdict of the jury was returned, a motion for new trial was filed which was overruled. No judgment was entered on the verdict. It is well settled that an order overruling a motion for new trial, without more, is not a final order from which an appeal on questions of law may be prosecuted. Vol. 2, O. Jur., Part 1, pp. 204, 205; Robertson v. Coach Lines Co., 137 Oh St 136, 138, 28 N. E. (2d) 358; Champs v. Stone, 73 Oh Ap 319, 56 N. E. (2d) 251; Mahaffey v. Stine, 28 Abs 361; Hauek v. Hauck, 29 Abs 575; Covington Building & Loan Assn. v. Yost, 31 Abs 672; Martin, Admr., v. N. Y. C. Rd. Co., 32 Abs 152. The motion to dismiss will be sustained on the ground that the order appealed from is not a final order.

Counsel will prepare the proper entry.

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


text:
    EVILSIZOR, Plaintiff-Appellant, v. SPECKBAUGH et, Defendants-Appellees.
    Ohio Appeals, Second District, Miami County.
    No. 448.
    Decided September 23, 1949.
    Michael E. Norris, Marie C. Schmuecker, Troy, for plaintiff-appellant.
    Faust & Faust, Troy, for defendant-appellee.
   OPINION

By THE COURT:

This is an appeal on questions of law from a judgment of the Common Pleas Court dismissing plaintiff’s petition. The action was instituted by the plaintiff against defendant, Speckbaugh, and Peoples’ Federal Savings & Loan Association, but as the Loan Association was the holder of a note secured by first mortgage, whose rights are not questioned by this appeal, wé will restrict our consideration to the issue between Emmett T. Evilsizor, plaintiff-appellant, and B. G. Speckbaugh. defendant-appellee, and will refer to them as the appellant and appellee, respectively.

Appellant instituted his action against appellee to recover a money judgment on a note by reason of claimed default in payment of a monthly installment therein provided and to foreclose a mortgage on' certain real estate of appellee, which mortgage had an acceleration clause providing that failure to pay a monthly installment due on said note should cause the whole of the remaining unpaid portion of said note to become due and payable. The second cause of action, which was to foreclose the mortgage, alleged that the mortgage contained a covenant whereby the appellee agreed to keep the premises insured in the sum of $5000.00 for the benefit of the plaintiff; that in default thereof appellant could procure the insurance at the expense of the appellee and that the appellant had caused the premises to be insured for one year for which he had paid a premium of $97.22. Appellant pleads that in addition to the amount due on the note, there is also due the sum of $97.22 which he had paid as premium on the insurance policy.

Appellee answered and after admitting the execution of the note and mortgage and the terms thereof, averred that the appellee was the owner of certain premises which were leased to the appellant at a rental of $165.00 per month, payable on the 15th of the month; that from the 5th of December, 1947 until November 19, 1948, Michael E. Norris was the trustee of appellee and in such capacity managed and controlled the leased premises, collected the rents and made disbursements thereof. It is further. averred that it was the practice of the appellant and the trustee of appellee to pay the monthly installment due upon the note from the appellant to appellee between the 15th and 18th of each and every month upon and out of the receipts of the rental from the appellant. Appellee further avers, and it is not disputed, that on the 20th day of December, 1948, he tendered to the appellant by registered mail $45.00 as a monthly installment for December and later in January, 1949, there was a tender to the appellant of the amount which he had paid for insurance on the rented premises. There is a further averment of facts by which it is claimed that appellant waived default if any in the payment of the installment due on the note.

The reply was a general denial that appellant had waived any of his rights under the note and mortgage.

Although there is no separate finding of law and fact, the judgment entry recites specifically the basis for the judgment in the finding that “Said defendant is not in default for payment of installments and insurance as alleged in said petition,” and that, “there is no breach of said mortgage contract.”

The note upon which the action was predicated was dated December 4, 1947, for the sum of $2950.00, payable three years after date, with interest at 5% per annum, with this clause, “Said note is payable at rate of $45.00 per month, payable each and every month,” and further provided, “If said payment be not paid when due, then whole amount of note to become due and payable at once, at option of holder of this note.” Credits for the monthly installments were made beginning January 15th and monthly thereafter not later than the 18th of any month which was in November, 1948.

The claim of the appellant is that a monthly installment was due from the appellee on his note on the 4th of December, 1948. It is the claim of appellee that he had all of the month of December to make payment of the monthly installment. The' trial judge took this view of the issue and further was of opinion that the note was ambiguous and the parties had construed it to mean that payment could be made during the whole of the month succeeding the 4th day thereof. The court was also of opinion that because of the facts appearing it would be inequitable to decree foreclosure.

Manifestly, the parties had by practice paid and accepted payments from January to November inclusive, on or about the 15th of each month but if the appellant had the right by the language of the note to be paid the monthly installment on the 4th of each month, upon reasonable notice to the appellee of his purpose thereafter to insist upon such payment the practice theretofore followed would not bind the appellant to continue the arrangement. Appellee ple'ad that he had had no notice of any intention on the part of the holder of the note to exact payment of the installment due in December on the 4th day thereof. However, upon the trial, a letter was offered, dated November 26, 1948, in which the appellant notified the appellee that he would thereafter insist that the monthly installments be paid when due and that the next payment was due on the 4th of December and it was admitted by counsel that the appellee had received this letter.

The first question, therefore, is whether or not there was any basis for the determination that there was no default on payments on the note and this must be determined from the instrument itself if it can be done. The proviso is to effect that the note is payable at the rate of $45.00 per month, payable each and every month. This is the equivalent of saying that the note is payable at the rate of $45.00 per month each and every month after its execution. If the installment on the note dated November 4th was not payable on the 4th of December, there would be no payment in a month after the giving of the note. This would have been contrary to the expressed term of the note and its manifest meaning. Almost without exception the term “month” is held to mean “calendar month”. The word,, unexplained, is synonymous with calendar month. Where the word “month” occurs in the statute, it means a “calendar month,” unless the contrary be particularly expressed. Kimball v. Lamson, 2 Vt. 138, 141. Webster’s New International Dictionary defines calendar month as, “The time from any day of such a month to the corresponding day, if any; if not, to the last day of the next month”. The cases cited by the appellant support this view.

But it is asserted that the appellant could have set off the monthly installment from his monthly rental payment as tenant of appellee. The cases are not in agreement as to this right, assuming that there was an indebtedness due and owing from the appellant to the appellee on the 4th of December. Baker v. Wilkes (Idaho) 51 A. L. R. 1256. Salinger v. Lincoln National Life Insurance Company, 52 Fed. (2d) 1080, annotated 80 A. L. R. 246. But the difficulty with appellee’s position on this claim is that there was no cross indebtedness of the appellant on the 4th of December and no money in his hands which could properly have been withheld because he owed the appellant nothing until the 15th of December. Appellant’s rent was due monthly in advance and his payment on November 15th was in full until the 15th of the succeeding month.

Appellee insists that if an installment was due on the note on the 4th of December it had been waived by prior conduct of the parties and the acceptance of the rent on the 15th of each month. The courts hold that a provision such as found in the note here will be enforced unless to do so would be unconscionable. Federal Land Bank v. Wilmarth (Ia.) 94 A. L. R. 1338; Graf v. Hope Building Corporation (N. Y.) 70 A. L. R. 984, 993.

There are facts appearing here which appeal to the sympathy of the court in favor of the appellee but that the conduct of the appellant, under all the circumstances appearing, was unconscionable we can not find. Fraud is not pleaded nor is it established if it had been set up. It is true that, in probability, the appellant knew or should have known that the appellee was in no financial condition to meet his December payment but this unfortunate condition would not preclude reliance upon the express language of the note. The trustee at no time prior to the termination of the trust represented the appellant and was not in position to bind him to any agreement had any been claimed. The payment and acceptance of the installments on the 15th seems to have been a mutual agreement but on the part of appellant was a concession for which there was no consideration and no consideration appears which would support the claim that appellant waived or was estopped to assert his right to insist upon payment of the $45.00 installments on the 4th of each month if a purpose so to do was made known to the appellee.

We can not find that the facts here appearing support the judgment for the appellee either upon the theory of estoppel or waiver by contract extending time of payment. See annotations to Tsesmelis v. Sinton State Bank, 85 A. L. R. 327; Fried v. Fisher 115 A. L. R. 152; Re. Campbell, 124 A. L. R. 1248.

We have searched this record with cáre and can find no support for the judgment when the conclusion is reached that there was a default upon the terms of the note, which default to us seems manifest.

The decree of foreclosure should have been entered in behalf of the appellant.

The court may very properly accord to the appellee a reasonable time under all the facts appearing in which he may exercise his equity of redemption. The time within which an order of sale is to be issued is largely within the discretion of the Judge making the order. King v. Longworth, 7 Ohio 232; Owen v. Miller, 10 Oh St 148; Stagg v. Harbeson, 13 O. Dec. Rep. 745, 2 C. S. C., R. 23.

We hold against the appellant on the claim that he was entitled to foreclosure because of the breach -by appellee of his agreement to keep the property insured because the breach was not invoked as a basis for foreclosure.

The judgment will be reversed with instructions to enter judgment for plaintiff in accord with this opinion.

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


author: By ALLEN, CJ.

text:
    KULY et al v. WHITE MOTOR CO.
    United States Court of Appeals, Sixth Circuit.
    No. 10805
    Decided May 16, 1949.
    Anthony Gaughan, William J. Corrigan, Joseph B. Corrigan and Timothy F. McMahon, Cleveland, A. M. Oliver, Pittsburgh, Pa., for appellants.
    John T. Scott, John H. Watson, Jr., Robert W. Wheeler, Cleveland, for appellee.
    Before HICKS, Chief Judge, and ALLEN and MARTIN, Circuit Judges.
   OPINION

By ALLEN, CJ.

This case was filed on behalf of appellants and other employees of appellee similarly situated, all being foremen paid monthly salaries, seeking to recover overtime -compensation and liquidated damages under Section 16(b) of the Fair Labor Standards Act, 29 U. S. C. §216 (b), 29 U. S. C. A. §216 (b).

The answer set up, among other defenses, that the alleged causes of action for overtime compensation for work performed by each of the original plaintiffs and for liquidated damages with respect thereto, and the alleged causes of action for overtime compensation for work performed by each of the intervening plaintiffs and for liquidated damages with respect thereto, are barred by limitation under §11225 GC.

The District Court held that §11225 GC, applies and bars recovery under the three-year period of limitation therein provided. The court therefore ordered that the amended complaint be dismissed as to the period of time allowed by the provisions of §11222 GC, and that the causes of action for overtime compensation and liquidated damages be limited to the three-year period preceding the institution of their causes of action as provided by §11225 GC.

A motion to dismiss the appeal is made upon the authority of Section 225, 28 U. S. C. [see Revised Judicial Code, 28 U. S. C. A. §§ 1291-1294], and Rule 54(b) of the Federal Rules of Civil Procedure as amended, effective March 19, 1948, 28 U. S. C. A., which in their pertinent portions read as follows:

Section 225.

(a) “The circuit courts of appeal shall have appellate jurisdiction to review by appeal final decisions—

“First. In the district courts, in all cases save where a direct review of the decision may be had in the Supreme Court under section 345 of this title. * * *

(b) “The circuit court of appeals shall also have appellate jurisdiction—

“First. To review the interlocutory orders or decrees of the district courts * * * which are specified in section 227 of this title.

“Second. To review decisions of the district courts, under section 159 of Title 45.”

Rule 54 (b).

“Judgment Upon Multiple Claims. When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims.”

The District Court in the order appealed from did not expressly determine that there was no just reason for delay, and made no express direction for the entry of judgment, as required by Rule 54 (b), and therefore appellee contends that the appeal clearly must be dismissed. Cf. Lockwood v. Hercules Powder Co., 8 Cir., 172 F. 2d 775 announced February 28, 1949. Appellants do not claim that the order is interlocutory but appealable under the provisions of Section 225, above quoted. They contend that the judgment is final as to certain of the claims pleaded. They rely upon decisions which hold that the failure to pay overtime under the Fair Labor Standards Act gives to employees causes of action which .accrue at every regular payday. In this case, in which the .appellants were foremen, paid monthly salaries, they claim that separate and distinct causes of action accrued in their favor every month during the period from May 6, 1940, to May 6, 1946. Cf. Smith v. Continental Oil Co., D. C., 59 F. Supp. 91; Reid v. Solar Corp., D. C., 69 F. Supp. 626. They urge that as to the causes of action accruing prior to the three-year period the District Court has in effect rendered definite and separate judgments in its order.

Bearing in mind the fact that the causes of action averred arise out of different occurrences and transactions, which form the basis of separate units of judicial action, and that from this angle each appellant’s separate claim might be the basis of a final judgment within the holding of the Supreme Court in Reeves v. Beardall, Extr., 316 U. S. 283, 62 S. Ct. 1085, 86 L. Ed. 1478, we think this consideration is not dispositive of the question presented. The Reeves case was decided prior to the amendment of Rule 54 (b), which governs here. At that time, the trial court was not required, as it is now, to make an express entry of judgment and an express determination that there is no just reason for delay, in order that final judgment may be entered.

Moreover, appellants are not suing here upon claims pleaded .as monthly causes of action. They have cumulated their various items into one action running over six years. Since they did not plead each monthly period as a separate cause of action, the dismissal did not constitute a final disposition of any separate cause of action. What the District Court actually did was to rule that there can be recovery for only part of the period involved. Not only did the court make no express direction for the entry of judgment, but it indicated by its order that no judgment was intended. The direction to file an amended pleading demonstrates that the actions still are pending in the District Court. Since disposition was not made either of one or more, or of less than all the claims, Rule 54 (b) does not apply. It was a partial disposition only of all the claims. Hence there is no answer to the proposition advanced by appellee that we are asked here to review an order which is not final and does not fall within the class of interlocutory orders made appealable under Section 227, 28 U. S. C. Section 225, 28 U. S. C. [see Revised Judicial Code, 28 U. S. C. A. §§1291-1294], governs the case, and compels us to sustain the motion.

The appeal is dismissed.

       The order reads as follows:
      “* * * The Court having previously considered the issue of the applicability of the provisions of Ohio General Code Section 11222 and the claimed invalidity and inapplicability of the provisions of Ohio General Code Section 11225, and the Court having rendered its Finding and Opinion on March 2, 1948, that Section 11225 of the Ohio General Code is constitutional and applicable to the causes stated in plaintiffs’ Amended Complaint,
      “It is therefore ordered that plaintiffs’ Amended Complaint filed herein be dismissed as to the period of time allowed by the provisions of Ohio General Code Section 11222, and that their causes of action for overtime compensation and liquidated damages be limited to the three year period preceding the institution of their causes of action as provided for by the provisions of Ohio General Code Section 11225. * * *”
      The form of Section 11225, referred to in order and throughout the opinion is found in 120 Ohio Laws, 616. This statute, effective September 20, 1943, and in effect when the complaint and amended complaint were filed, provided a three-year limitation. The statute was later amended (122 Ohio Laws, 671) to provide a two-year limitation, which is not applicable here.


author: By THE COURT.

text:
    GRIEB, Plaintiff-Appellee, v. DEPARTMENT OF LIQUOR CONTROL et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4255.
    Decided May 9, 1949.
    Cowan & Adams, Mr. Adams of Counsel, Isadore Topper, Columbus, Amicus curiae, for plaintiff-appellee.
    Hon. Herbert S. Duffy, Atty. Geni., John J. Nolan, Asst. Atty. Geni., Columbus, for defendants-appellants.
   OPINION

By THE COURT.

This is an appeal on questions of law from the Common Pleas Court of Franklin County, Ohio, which rendered judgment for the plaintiff in an action for a declaratory judgment. .

The case was submitted to the trial court on the pleadings and an agreed statement of facts. Prior to March 1, 1946, plaintiff was the holder of a D-5 permit and operated a cafe in Springfield, Ohio, under said permit. On March 1, 1946, the Board of Liquor Control revoked said D-5 permit. Immediately the Department of Liquor Control entered plaintiff’s premises and seized intoxicating liquors having an alcoholic content of 3.2% by weight to 21% by volume and spirituous liquor having a higher alcoholic content, of the approximate value of $5000.00. Said liquor was legally manufactured and was legally acquired by the plaintiff. The Department of Liquor Control proposes to sell and dispose of such liquor as provided in §6064-40 GC. Plaintiff contends that §6064-28 GC, which authorizes a seizure of the liquor on the premises upon revocation or cancellation of a permit, and §6064-40 GC, which provides for the disposition of said liquor without first making compensation to the owner, are unconstitutional in that they authorize the taking and confiscating of private property without due process of law and without compensation in violation of Sections 16 and 19 of Article I of the Constitutional of Ohio and the “due process” clause of the Fourteenth Amendment of the Constitution of the United States. The trial court upheld this contention and declared and decreed that the plaintiff was entitled to have said liquor returned to him or to recover the fair value thereof. Appellant contends that said judgment is contrary to law.

We are in accord with the judgment of the trial court. In our judgment the contention of the appellant that the seizure of the liquor and disposition thereof without compensation to the owner was a valid exercise of the police power of the State, cannot be supported. It must be observed that the liquor was legally manufactured and acquired. Under the law legally acquired liquor does not become contraband or a nuisance per se upon the revocation or cancellation of a permit. The plaintiff had a property right in this merchandise at the time .it was seized of which he could not be deprived except according to law. 8 O. Jur. 482, Sec. 349; McKown v. City of Atlanta, 190 S. E. 571, 184 Ga. 221; Murphy v. St. Joseph Transfer Co., 235 S. W. 138 (Mo.); Huston v. Walton, 129 P. 263, 23 Colo. App. 282. See, also, In re Weisenberg, 147 Oh St 152, 70 N. E. 2d, 269. The fundamental requirements of due process were not followed and are not provided for in the sections of the code under consideration. 8 O. Jur. 715. See, also, Anderson National Bank v. Luckett, 321 U. S. 233, 88 L. Ed. 449, 151 A. L. R. 824; Truax v. Corrigan, 257 U. S. 312, 66 L. Ed. 254; Rowland v. State of Florida, ex rel. Martin, 176 So. 545 (Fla.), 114 A. L. R. 443; People v. Marquis, et al., 291 Ill. 121, 125 N. E. 757, 8 A. L. R. 874. See, also, Edson, et al. v. Crangle, et al., 62 Oh St 49, 56 N. E. 647.

The seizure of the liquor legally acquired in which the plaintiff possessed a property right, and the attempt to dispose of said liquor as provided in §6064-40 GC, was a clear violation of the “due process” clause of the Fourteenth Amendment of the Constitution of the United States. Sec. 6064-28 GC, which authorizes the seizure of the liquor and that part of §6064-40 GC, which provides that the liquor so seized shall be distributed to the state welfare institutions is in violation of Article I, Section 19 of the Constitution of Ohio, which provides that,

“Where private property shall be taken for public use, a compensation therefor shall .first be made in money.”

Finding no error in the record prejudicial to the rights of the appellants, the judgment is affirmed.

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


text:
    BUSSARD, Plaintiff-Appellee, v. KENNEDY et, Defendants-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    No. 2023.
    Decided May 2, 1949.
    Clarence J. Stoecklein, Dayton, for plaintiff-appellee.
    Drewey H. Wysong, Dayton, for defendants-appellants.
   OPINION

By THE COURT.

This action was instituted in the Municipal Court of Dayton, Ohio, in which the plaintiff sought to recover the value of the use of his premises occupied by the defendant-appellant, Elwood Wysong. The record discloses that the plaintiff obtained a judgment in forcible entry against this defendant; that an appeal was prosecuted, the defendant remaining in the premises by reason of having given a bond for stay of execution. The action is for the value of the premises while so occupied by the defendant.

The statement of defense admits the indebtedness to the plaintiff, but claims there is owing to him a balance of $128.09 for labor and material furnished to the plaintiff.

On the issues joined the Court found for the plaintiff and further found that the statements of defense were not supported by the evidence. They were accordingly dismissed. Upon the appeal to the Common Pleas Court for Montgomery County the judgment was affirmed and it is to this ruling that this appeal is directed.

The only error assigned is that the Court of Common Pleas erred as follows:

“1. By sustaining the trial court in the many errors committed therein, as the record of the same clearly indicates upon its face.”

Our attention has been called to no specific errors and our examination of the record discloses none. It appears that the only question presented to the trial court was a factual one. We do find, however, that the judgment is not against the manifest weight of the evidence, as it is amply sufficient to support the judgment.

We find no error in the record and the judgment is affirmed.

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


author: By HILDEBRANT, J.:

text:
    GREEN et, Plaintiff-Appellees, v. GREEN, Admrx., et, Defendant-Appellants.
    Ohio Appeals, First District, Hamilton County.
    No. 7052.
    Decided May 31, 1949.
    Clark & Robinson, John F. Hellebush, Cincinnati, for plaintiff-appellees.
    Walter K. Sibbald, Cincinnati, for defendant-appellants.
   OPINION

By HILDEBRANT, J.:

This is an appeal on questions of law from the judgment of the Common Pleas Court, setting aside the will of George C. Green, deceased, in conformity to a jury verdict.

The Court has carefully read the voluminous record of nearly five hundred pages, and has concluded that the verdict here is manifestly against the weight of the evidence. In fact, the close question appearing to the Court is whether or not a verdict sustaining the will should not have been directed.

The attack on the will was made on the basis of lack of testamentary capacity and undue influence.

As to the lack of capacity, the record is most meagre. Plaintiffs introduced the coroner’s report of an autopsy, finding death due to coronary arteriosclerosis and disclosing a slight narrowing of the middle cerebral arteries due to the arteriosclerotic condition.

Plaintiffs called Dr. Striker, who never saw testator during his lifetime, as an expert witness. He answered a hypothetical question, the last paragraph of which is:

“Now assuming all this, would you say that in your opinion, based on your experience, that this man on October 29, 1947, two days before his death, the day on which he signed a paper writing purporting to be his last will and testament, had sufficient mind and memory to comprehend generally and would you say that the mind of this person on that day was so altered that he could be restrained from disposing of this property in accordance with his own independent judgment and wisdom?”

* # * # *

“Q. Would you say that the mind of this person on that day, that is, October 29, 1947, was so altered that he could be restrained from disposing of his property in accordance with his own independent wishes and judgment?

“A. I would say, yes. May I qualify?

“Q. Yes.

“A. Yes — in view of the history, the medical history and the facts of the postmortem, chronic hypertrophic gastritis, showing that he has had a long standing chronic alcoholism as manifested by the gastritis. Secondly, by the very marked fibrosis of myocardium, replacement of normal tissues; third, by the evidence of coronary artery insufficiency as manifested by thickening arteries of the coronary and lastly by changes in the middle cerebral artery of his brain.

* * * * *

“Q. Now doctor, assuming this same man that I have just described to you, would you say that in your opinion, on October 29, 1947, two days before his death which was the last day — which was the day he signed this paper writing purporting to be his last will and testament, would you say from the history and your own experience that this man had sufficient mind and memory to hold in his mind the names and identity of those who had natural claims upon his bounty?

* * * * *

“A. I would say this man could not exercise normal judgment in view of these particular circumstances.

* * * * *

“Q. I put the same question to you and ask you whether or not in your opinion, this same man on that same day had the sufficient mind and memory to be able to appreciate his relation to the members of his family?

* * # * *

“A. I would say this man, that the same explanation applies to that question. He would not have the capacity to exercise normal cerebral mental function.”

No other evidence as to the mental condition at time of making the will in question is in the record, except testimony that some two hours after making his will his wife called Dr. Hess to attend to him while in bed in a drunken condition.

The answers of the expert are not too responsive to the questions put and certainly fall far short of being direct testimony impeaching testator’s capacity to make a will. The answer directed to undue influence is subject to the same defect. At the time the will was executed by testator himself, the record shows that the two witnesses, who were ladies rooming in the house, were called from their second floor rooms by testator himself, and while the second wife was in the room, there is no evidence of any influence being exerted on her part at the time. Both witnesses testify testator was not then drunk, and the witness Miller stated:

“Q. Did he make any statements to you at the time the will was being written?

“A. Yes, he wanted Consetta to have everything that she was very, very good to him. I saw that myself.”

The witness Gallenstein, now a Railway Mail Clerk, a fellow worker with decedent up to the time of his death, seeing him every day, testified testator was the best salesman the Company ever had, and he had declared to him on three or four occasions that his first wife and boys had taken his fruit business away from him, robbed his bank box, and if he made a will he didn’t want them to receive any part of his estate.

One of the plaintiffs saw his father about ten days before his death and testified he was sober, well dressed, apparently in good health, and was making a business call on the same customer as the son at the time.

There is much conflicting testimony in the record, from which different inferences might be drawn, as to whether or not the second wife generally had an influence over testator, frustrating a desire to return to his former family. Also, the records reveals many inconsistencies in action on his part from his quoted statements concerning his feelings for both his original family and the second wife, and made while both drunk and sober. It, therefore, seems a jury question is presented.

From a careful consideration of the whole record, however, we conclude that the evidene is insufficient to justify a finding of lack of testamentary capacity or undue influence and that the verdict is, therefore, manifestly against the weight of the evidence, and the judgment is reversed.

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


author: By McNAMEE, J:

text:
    LONARDO, Ex Parte: AMATO, Ex Parte, Petitioners.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21660.
    Decided September 26, 1949.
    J. Prank Azzarello, Louis Pernberg, Cleveland, for petitioners.
   OPINION

By McNAMEE, J:

Petitioners invoke these proceedings for the purpose of being admitted to reasonable bail. They are now confined to jail in default of bail fixed by the Municipal Court of Cleveland in the sum of $75,000.00 as to each petitioner. Each of the petitioners is charged with being a suspicious person in violation of the ordinances of the City of Cleveland. The maximum penalty for conviction upon this charge is a fine of $50.00 and imprisonment for thirty days.

The petitioners previously have been convicted of serious crimes on one or more occasions. The assistant Prosecutor represents that petitioners are members of an organized band of law. breakers currently under investigation by the public authorities and that their release on bail at this time would constitute a menace to the peace and safety of this community. Also, it is stated that at an early date the prosecuting attorney proposes to present evidence to the grand jury which may result in charges of serious violations of the criminal law against these petitioners.

The petitioners’ bad reputations as evidenced by their criminal records, and the representations as to their dangerous and lawless proclivities are factors that enlist the sympathetic understanding of this court in the effort of the law enforcement agency to keep the petitioners confined in jail. We are aware of the difficulties encountered by public officials in the investigation and prosecution of crime. Also, we recognize the worthy motives that impel conscientious law enforcement officers to ask for high bail on minor charges against persons suspected of committing major crimes. But such considerations must yield to the imperious voice of the Constitution which the courts are sworn to support.

Article I, Section 9 of the Constitution of Ohio and the Eighth Amendment of the Constitution of the United States both provide that “excessive bail shall not be required.” The provision of the Ohio Constitution reads:

“Section 9. Bailable offenses: Of bail, fine and punishment:

All persons shall be bailable by sufficient sureties except for capital offenses where the proof is evident or the presumption great. Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted.”

From these constitutional provisions there derives the general principle governing the allowance of bail that the amount thereof shall be reasonable. The primary purpose of bail is to secure the appearance of the accused at the trial, but in determining- the amount of bail, the following factors, among others, may be considered: The nature of the offense; the penalty upon conviction thereof; the character and reputation of the accused, and the probability of his appearance for trial.

In the leading case of People ex rel Sammons v. Bernard W. Snow, 340 Ill, 464; 72 A. L. R. 798, the petitioner was charged with vagrancy under the law of Illinois. The maximum penalty upon conviction of this charge was imprisonment -at hard labor for six months or a fine of $100.00. It appeared that the petitioner in that case had a long criminal record. In 1900 he was sentenced to the Pontiac Reformatory for rape and subsequently paroled; in 1904 he was sentenced to the Joliet Penitentiary for robbery; on May 28, 1904 he was taken from the penitentiary, was tried and convicted of murder and sentenced to be hanged on June 17, 1904, but was reprieved on June 16, 1904, and his sentence commuted to life imprisonment. On June 10, 1917 he escaped but on October 4, 1917 he was returned from his escape. On July 28, 1923 he was paroled and was discharged on January 28, 1926. On August 12, 1927, he was sentenced to the Federal Penitentiary at Leavonworth and fined $1500.00 for conspiracy against the laws of the United States. At the time of the vagrancy charge there was also pending against him three indictments for assault with intent to murder, driving while intoxicated and carrying concealed weapons. In reducing the bail on the charge of vagrancy from $50,000.00 to $5000.00 Chief Justice Dunn, speaking for the Supreme Court of Illinois, said:

“The constitutional right to be admitted to reasonable bail cannot be disregarded. The judge has no more right to disregard and violate the Constitution than the criminal has to violate the law. It is the duty of courts to support and maintain the Constitution and if the judges, who have taken an oath to support the Constitution, openly violate it, how can they expect the courts to retain the confidence and respect of the people? A criminal may have forfeited his right to liberty, but neither the courts nor any other power have the right to deprive him of it except in accordance with the law of the land. Under the circumstances of this case, in which the extreme penalty is imprisonment at hard labor for six months or a fine of $100, the action of the court in requiring $50,000 bail was unreasonable and violated the constitutional right of the petitioner to be bailed by sufficient sureties.”

The foregoing pronouncements have a peculiar and forceful application here, where a conviction on the charge of suspicious person carries with it a lesser maximum sentence than the charge of vagrancy under the Illinois statute.

It is a matter of common knowledge that ordinarily on the charge of suspicious person, bail is fixed in a small amount. Departure from this customary practice is warranted in cases where the accused is a person of criminal propensities as evidenced by repeated convictions for the commission of crime. But where the accused is charged with a violation of a city ordinance constituting a misdemeanor, he cannot be required to give bail in an amount proportioned to other and more serious charges which subsequently may or may not be made against him. If, by adhering to the constitutional mandate, as we must, an advantage accrues to those who deserve it least, such a result is to be deplored. But greater potentialities for enduring harm lie in an evasion of judicial duty that would impair the integrity of one of the fundamental guarantees of liberty contained in the Bill of Rights.

It is our opinion that bail in the sum of $75,000.00 on the charge of being a suspicious person is grossly disproportionate and excessive and ought to be reduced. In view of the records of criminality of the petitioners we deem the sum of $15,000.00 to be reasonable and adequate bail.

Writ allowed upon each of the petitioners furnishing bail in the sum of $15,000.00. Order see journal.

SKEEL, PJ, HURD, J, concur.


text:
    STATE, Plaintiff-Appellee, v. WILBERMUTH, Defendant-Appellant.
    Ohio Appeals, Second District, Shelby County.
    No. 148.
    Decided August 13, 1949.
    Rodney R. Blake, Pros. Atty., Carrol V. Lewis, Sidney, for plaintiff-appellee.
    Sam J. Hetzler, Sidney, for defendant-appellant.
   OPINION

By THE COURT:

Submitted on motion of plaintiff-appellee to dismiss the appeal and affirm the judgment of the trial court upon the ground that the bill of exceptions was not filed within the time prescribed by law.

The defendant was charged, tried and convicted of operating a motor vehicle while under the influence of intoxicating liquor. A motion for new trial was filed, which was overruled May 7, 1949. The bill of exceptions was not filed in the-trial court until June 14, 1949. Thus it appears that the bill was filed more than thirty days after overruling of the motion for a new trial. The period of time prescribed in §13445-1 GC within which a bill of exceptions may be filed in a criminal case is mandatory. Where the bill is not filed' within the statutory time the trial judge is without authority to allow and sign the bill. Luff v. State 112 Oh St 102, 146 N. E. 892; Kenney v. State, 18 Abs 76; State v. McFarland, 36 Abs 97; State v. Kenney, 43 Abs 63. It appearing that there are-no errors complained of which can be considered in the absence of a bill of exceptions the reviewing court has no alternative but to affirm the judgment. Vol. 2 O. Jur., Part 2, page 1713, Section 920; Luff v. State, supra; State v. Kenney, supra; Leitzy v. State, 6 Abs 427.

An examination of the record shows that the defendant duly filed a notice of appeal and, also, within thirty days after sentence and judgment filed in this court his motion for leave to appeal and a petition on appeal requesting the court to review the order and judgment of the trial court. Presumably the motion and petition were filed under §13459-4 GC, which provides for such procedure after thirty days from sentence and judgment. No showing is made which would require this, court to give favorable consideration to the motion or petition, both of which are denied.

Judgment affirmed.

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


author: By GESSAMAN, J.

text:
    HERSHBERGER, eto. et al., v. OHIO AVIATION BOARD.
    Common Pleas Court, Franklin County.
    No. 176856.
    Decided July 22, 1949.
    Flynn, Py & Kruse, Sandusky, Adams, Rapp & McCann, Columbus, for appellants.
    Herbert S. Duffy, Atty. Geni., Joseph F. Ford, Asst. Atty. Geni., Geraldine Larkin, Toledo, for the appellee.
   OPINION

By GESSAMAN, J.

This is an appeal from an order of the Aviation Board in which the board approved the application of the Village of Kelleys Island for a certificate for an airport for commercial purposes and granted said certificate. The appellants, Milton Hershberger and Air Tours, Inc., of which Mr. Hershberger is president, were and are the only objectors to the issuance of the certificate. Mr. Hershberger owns and operates an airport only a few hundred feet south of the Village Airport.

The jurisdiction and authority of this court in an appeal of this nature is defined by the Administrative Procedure Act, specifically §154-73 GC, as interpreted by the Supreme Court in the recent case of Farrand v. State Medical Board, 151 Oh St, 222, 39 O. O. 41. If there was any doubt before, it was settled by that decision that

“The court may not substitute its judgment for that of the agency but is confined to determining the rights of the parties in accordance with the statutes and other law applicable.” (Syl. 1).

Furthermore, that case has established the fact that the-right of a party to an administrative proceeding has been limited on appeal, by the General Assembly to a

“* * * review of the administrative procedure to ascertain-whether the rights of the parties have been determined by the administrative agency in accordance with the statutes, appropriate to the proceeding before the administrative tribunal.”

With these limitations in mind, the court has carefully read the 513 pages of the transcript of the testimony and the numerous exhibits that were admitted at the two day hearing before the board. While it is true that there is conflicting-testimony as to the need for a municipal commercial airport, on the Island and while it is also true that there is conflicting testimony as to whether a hazardous condition will result by the close proximity of the two airports, it is nevertheless, true that there is ample evidence to warrant the board in reaching the conclusion which it announced. Therefore, we-find no abuse of discretion on the part of the board. Furthermore, the record discloses that the rights of the parties were-determined by the board in accordance with the appropriate statutes.

It is urged by counsel for the appellants that there is no-evidence to the effect that the Village Council authorized the-filing of the application. The board found that the application was regular on its face and expressed the opinion that if there was no legislation authorizing the application, in that event “any interested party had an available remedy in the courts.”

It is true that the applicant did not offer any resolution or ordinance of council authorizing the filing of the application. Nevertheless, no authority has been cited to the effect that such authorization must be proved in connection with an application to an administrative body. The applicant did offer as witness the Mayor and four of the members of the Village Council, all of whom urged the granting of the-certificate. It offered, and the board admitted, an ordinance. Number 73, of the Village Council (Applicant’s Exhibit 35) in which the deed for the land in question was accepted and the property therein described was dedicated “to be used for a Village Airport and for no other purpose.” It also offered, and the board admitted, Exhibit No. 30, which was a resolution of the council urging the “Ohio Aviation Board to approve its application for certification for commercial operation for the Kelleys Island Municipal Airport.” Under such circumstances, and in the absence of a finding to the contrary by a court of competent jurisdiction, we are of the opinion that the board was justified in assuming that authority existed for the filing of the application.

It should be observed that the Clerk of the Council testified that the resolution above referred to was not “posted” in any manner. We are of the opinion that the fact alone need not alter the board’s assumption.

It is the opinion of the court that the order of the' Aviation Board should be and, therefore, is affirmed.

If a motion for a new trial is filed, the same may be considered as overruled.


author: By HORNBECK, J.: By THE COURT:

text:
    SCHUMETH, Plaintiff-Appellee, v. SCHUMETH, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2045.
    Decided May 2, 1949.
    Walter L. Connors, William Swaney, Dayton, for plaintiffappellee,
    Wilbur D. Spidel, Hugh A. Staley, Greenville, for defendant-appellant.
   OPINION

By HORNBECK, J.:

This is an appeal on questions of law from a judgment of the Common Pleas Court, awarding the custody’ of a child of the parties, Robert John Schumeth, aged six years at the-time of trial, to the plaintiff and. until further order of the court, and subject to the continuing jurisdiction of the court,, as the child’s best interests may indicate and granting to the defendant the right to have the child with him over the last weekend of each month and for thirty days” period of visitation during each summer vacation period.

There are four assignments of error, but appellant’s brief argues but one, namely, that the judgment is not supported by and is contrary to the manifest weight of the evidence. As a matter of fact, that is the -only assignment which would have any standing upon the record which is before us.

The question whether or not the judgment is against the manifest weight of the evidence must be determined upon the strength of the plaintiff’s case. It is not necessary to cite to eminent counsel in this ease any authority for the proposition that a reviewing court may not reverse a judgment on the weight of the evidence unless it is manifestly against its weight and so contrary to the evidence as to-shock the sensibilities of the court. Applying this test, we may not reverse this judgment. This record, as most such cases, presents a very serious question for adjudication. The custody of children, where it is, necessary to award them either to a father or a mother, always presents a difficult situation. It is especially so here because of the fact that the mother on two occasions has been committed to an institution for the treatment of mental cases. The experienced trial judge was fully cognizant of the problem with which he was confronted and no doubt gave careful and mature consideration to its solution'.

The plaintiff for much of her life has been an underprivileged person. In 1939, following an emotional upset caused by the drowning of her brother, she was committed to Dayton State Hospital for manic depressive psychosis. It is significant that in the same year she was released as cured. Eight years later she was again committed upon the same charge. Manifestly, the question confronting the trial judge was her mental condition at the time of the trial and what it would, in probability, continue to be in the light of the possibility that she would be awarded the custody of her child.

The record discloses that the second commitment of the plaintiff followed shortly after she had arrested her husband for assault and battery and it further appears that she gave every indication of having been badly beaten. The doctors who supported her commitment at the inquest, instituted upon‘the affidavit of her husband, did not appear to testify at the trial as to her mental condition. Dr. E. L. Hooper, who was in charge of the institution to which she was committed, and an alienist of wide experience, stated, without qualification, that the plaintiff suffered from no mental disease when she was committed to the institution the second time, was not so afflicted nor treated for such a condition at any time while there, but worked in a normal manner in a kitchen in the institution. The doctor expressed the opinion that the mother was well qualified to properly care for and rear the child.

Upon this development, and other facts in the record, the trial judge was well within his province in concluding that the mother was mentally sound and, inasmuch as she could give the child supervision and attention, it was to his best interests and proper to award his custody to the mother. Although each parent has an equal right at law to the custody of their children, courts generally, unless there is some compelling reason to hold otherwise, are disposed to place the custody of young children with their mother for the manifest reason that normally the mother is better suited and qualified than the father to accord to a young child the attention which it requires.

There was conflict in the testimony on every material issue concerning the award of custody. The court resolved it in favor of the plaintiff which he had full right to do.

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

MILLER, PJ, and WISEMAN, J, concur.

ON APPLICATION FOR REHEARING

No. 2045. Decided May 19, 1949.

By THE COURT:

An application for rehearing in the above entitled case has been forwarded to the members of the court.

Our rules, as now effective, 81 Oh Ap xli, make no provision for an application for rehearing.

Five grounds are set up in the application the first of which is to the effect that our opinion contains conclusions not supported by facts in the record. The first three paragraphs apparently are intended to support this ground of the application. The first two of these paragraphs do not refute but establish as true what was said on the subjects in the opinion. The third paragraph wherein we are quoted as saying that Dr. Hooper said “that the patient suffered from no mental disease when she was committed to the institution a second' time”, may not be exactly in accord with the Doctor’s testimony but it is certain that during plaintiff’s incarceration she-was given no treatment consistent with mental disease, permitted to conduct herself as one entirely sane and finally discharged with the conclusion that she was sane.

The second ground of the application is: “Because the principal evidentiary fact in question, that the mother was suffering from a recurring mental disease is undisputed in the record”. If, by this, it is meant that at the time of the-trial there was no dispute that the mother was suffering from a recurring mental disease, counsel are clearly mistaken. The greater part of all the testimony was directed to this disputed fact. The trial court, no doubt, did and had full right to conclude that at the time of the trial the plaintiff suffered from no mental disorder and that it was not probable that there would be any recurrence of the disturbance from which she once suffered.

The third and fourth grounds require no special consideration. The fifth is,

“The undisputed facts taken from the entire record of the-case can not help but disclose that the best interests of the child would be served by the placing of this child with the-father, which is the ultimate issue.”

This is the ultimate issue which the trial judge resolved against the defendant. According to the judge’s prerogative as trier of the facts, he was well within his province in his determination that his judgment protected the best interest of the child.

The observations of the court herein contained are not to be treated as a consideration of the application for rehearing as such but are advanced in courtesy to counsel who are-assiduous in their efforts in behalf of their client, and, no. doubt, are convinced that his cause is just.

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


author: By PHILLIPS, J.

text:
    COWDERY, Plaintiff-Appellee, v. HARBOR CONSTRUCTION CO., INC., Defendant-Appellant.
    Ohio Appeals, Seventh District, Lake County.
    No. 464.
    Decided September 13, 1948
    S. C. Copperman, Painesville, for defendant-appellant.
    T. R. Beckwith and Giblin & Giblin, Painesville, for plaintiffappellee.
   OPINION

By PHILLIPS, J.

Defendant appealed to this court on “questions of law from a judgment rendered by the Court of Common Pleas in the above entitled cause on the 3rd day of June, 1948”, which judgment was journalized as follows:—

“This cause came on to be heard this 3rd day of June, 1948, upon the motion of the plaintiff to the defendant’s answer and cross petition for an order of the Court to strike certain matters from the defendant’s answer set forth in paragraphs numbered one through three of said motion and for an order of the Court to require the defendants to separately state and consecutively number the alleged several causes of action in defendant’s cross petition; and upon due consideration thereof, the Court finds said motion well-taken in all respects and therefore sustains the same. It is therefore ordered and adjudged that the defendant amend his answer and cross petition in the respects set forth in said motion. Exceptions noted for defendant. Defendant is given leave to amend on or before June 24, 1948.”

Subsequently the judge of that court caused the following entry to be journalized: —

“This cause came on to be heard this 22nd day of June, 1948, upon the defendant’s application for an order vacating the order of the Court heretofore rendered heréin under date of June 3, 1948; and upon due consideration of said motion, the Court finds the same not well-taken and therefore overrules said motion. Defendant is given leave to amend its answer and cross-petition in accordance with the order of the Court of June 3, 1948, on or before July 13, 1948. Exception noted for defendant.”

A perusal of the transcript of the docket and journal en-’ tries and all the papers submitted to us for review fails to disclose that defendant amended its “answer and cross petition” in accordance with the leaves granted by the trial judge nor elected not to plead further.

Plaintiff filed a motion in this court “to dismiss the alleged appeal herein for the reason that there is no final order involved herein”, and now we proceed to dispose of that motion.

A final order is defined by §12223-2 GC, as amended effective September 30, 1947, as:—

“An order affecting a substantial right in an action when in effect it determines the action and prevents a judgment, or an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, or an order vacating or setting aside a judgment and ordering a new trial, is a final order which may be reviewed, affirmed, modified or reversed, with or without retrial, as provided in this title.

“When a court makes such order granting a new trial, setting aside or vacating such judgment, the court upon the request of either party, shall state in the order the grounds upon which the new trial is granted and the judgment vacated or set aside.”

Tested by the definition of a final order we are satisfied that the* order appealed from in this case lacks the characteristics of finality for the reason that it does not determine the action and prevent a judgment.

Accordingly the appeal is hereby dismissed.

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


author: By WISEMAN, J.

text:
    STATE, ex BREWER, Relator, v. INDUSTRIAL COMMISSION, Respondent.
    Ohio Appeals, Second District, Franklin County.
    No. 4210.
    Decided September 28, 1949.
    Maurice H. Shapiro, Edward A. St.endel, Cleveland, for relator.
    Hon. Hugh S. Jenkins, Herbert S. Duffy, Attys. Geni., R. Brooke Alloway, V. A. Ketcham, T. Vincent Martin, Columbus, Hugh P. Brennan, Cleveland, for respondent.
   OPINION

By WISEMAN, J.

This is an action in mandamus filed against the Industrial Commission of Ohio in which the relator seeks a peremptory writ requiring said Commission to set aside its finding denying the claim of the relator.

It is conceded that the writ may not issue unless a gross abuse of discretion is shown. State, ex rel. Bevis v. Coffinberry, et al., 151 Oh St 293, 296, 85 N. E. (2d) 519. Relator alleges facts which he claims constitute a gross abuse of discretion on the part of the Commission in denying his claim to compensation. He alleges that he was employed by the National Acme Company, Cleveland, Ohio, from May, 1942, to July 9, 1946, as a grinder; that on the latter date, because of contracting silicosis while employed by said company, he became incapacitated for work and totally disabled. The medical report shows that the relator suffered from “silicosis, moderately advanced”.

There was evidence presented by the manufacturer of the .grinding wheels that the wheels contained only three-tenths to four-tenths of one per cent of free silica. The relator submitted an unsigned analysis of the wheels which showed a larger per cent of free silica. The safety advisor who inspected the operation on which relator worked found that the grinding machines had a vacuum connection to suck the dust away as formed and that there was no silica sand or silica flour or other material containing free silica in the area where the relator worked. The evidence further shows that the relator in October, 1946, while the claim was pending, returned to work and was employed by said company as a bench worker in the toolroom. This employment continued until after the final order was made by the Commission.

Under §1465-68a, Subdivision 22, GC, relator is not entitled to compensation because of having contracted silicosis unless it be shown that he had been subject to injurious exposure to silica dust (silicon dioxide) in his employment in Ohio; that he was thus exposed to silica dust preceding his disablement for at least three years, some portion of which shall have been after the effective date of the act (Act effective October 12, 1945); and only in the event of temporary total disability or permanent total disability.

On the evidence presented the relator cannot successfully claim that compensation should be allowed under Subdivision 23 (All other occupational diseases) of §1465-68a GC.

In light of the statutory requirements and the factuasituation presented we now consider the orders made by the Commission in order to determine whether a gross abuse of discretion has been shown. The claim was referred to the Cleveland Board of Claims which on March 11, 1947, found that the claim should be disallowed for the reason that the proof failed to show “that claimant has suffered three years of exposure to silica dust in his employment in the State of Ohio, and for the reason that proof shows that claimant has returned to work and is not totally disabled”. On application for reconsideration the Commission, on May 26, 1947, affirmed the order made on March 11, 1947. On an application- for review filed by the relator the Commission, on September 23, 1947, found that the proof failed to show “that the claimant has suffered three years of exposure to silica dust in his employment in the State of Ohio”, and that “the disallowance of this claim under date of May 26, 1947, is based upon jurisdictional matters and does not involve the medical issues”. In our judgment the order of the Commission under date of September 23, 1947, was not based on a miscalculation as to time, as contended by relator, but on other valid grounds.

In view of the factual development in this case the Commission was required to and did exercise its discretion in determining whether the proof was sufficient to make a finding that the relator was injuriously exposed to silica dust for three years in his employment in the State of Ohio. Likewise, the Commission was required to determine whether the relator was totally disabled by the disease of silicosis. On the evidence presented we cannot say that the Commission in resolving these issues against the relator abused its discretion. A finding against the relator on either of the grounds stated would require a denial of the claim. Mandamus will not lie where there is a factual issue to be determined and cannot be used to control the exercise of judicial discretion. Sec. 12285 GC; State, ex rel. Bevis v. Coffinberry, et al., supra; State of Ohio; ex rel. Cook v. The Industrial Commission of Ohio, 53 Abs 497, 82 N. E. (2d) 128; State of Ohio, ex rel. Jones v. Industrial Commission of Ohio, 30 Abs 65.

Writ denied.

MILLER, PJ, and HORNBECK, J, concur.


author: By THE COURT. By THE COURT.

text:
    KROMER, Plaintiff-Appellee, v. KEAR, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4318.
    Decided August 8, 1949.
    E. Searles Morton, Columbus, for plaintiff-appellee.
    Henry A. Reinhard, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

Submitted upon motion by the plaintiff-appellee for an order dismissing the appeal on the following grounds:

(1) -The appeal is noted as one upon law and fact and the same is not a chancery case.

(2) That no notice of appeal was filed within twenty days after the judgment of the Court of Common Pleas of Franklin County, Ohio.

The record discloses that the action is one in forcible entry and detainer, which is not a chancery case and is therefore not appealable on law and fact. See Shafer, et al. v. Stein, et al., 78 Oh Ap 47.

Now considering the second branch of the motion, the appellant would be permitted under §11564 GC to perfect his appeal on questions of law providing the notice of appeal was filed within the statutory period. The appellee contends that it was not and therefore this court has no jurisdiction to hear the appeal. The record discloses that the action arose in the Municipal Court of Columbus, Ohio, and upon appeal on questions of law to the Court of Common Pleas the judgment was affirmed on April 30, 1949. On May 5, 1949, a motion for a new trial was filed which was overruled on June 6, 1949. The notice of appeal was filed on June 14, 1949. The question here presented is when the statutory twenty day period begins to run. We are aware of no provision in the Code for the filing of a motion for a new trial in an appellate court in a case where the appeal is on iaw only. Sec. 11575 GC defines a new trial as follows:

“A new trial is a re-examination, in the same court, of the issues, after a final order, judgment or decree by the court.”

A trial is a formal examination of the matter in issue on a cause before a competent tribunal for the purpose of determining such issue, which may be one on law or fact or both. The trial was therefore had in the Municipal Court and §11575 GC requires that the new trial, if granted, must be in the same court. We are therefore of the opinion that the provisions of §12223-7 GC with reference to the filing of notice of appeal within' twenty days after the entry of an order overruling or sustaining a motion for a new trial means a motion for a new trial in the trial court. It does not refer to a motion for a new trial in an appellate court, where the appeal is on questions of law only. Since the notice of appeal was not seasonably filed, the motion to dismiss will be sustained.

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

ON APPLICATION FOR REHEARING

No. 4318. Decided August 18, 1949.

By THE COURT.

Application for a rehearing is denied.

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


text:
    COBB, Plaintiff-Appellee, v. COBB, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4214.
    Decided August 8, 1949.
    John J. Chester, Columbus, for plaintiff-appellee.
    George E. Tyack, Irving M. Gertner. Columbus, for defendant-appellant.
   OPINION

By THE COURT.

Submitted on motion by the plaintiff-appellee seeking an order to dismiss the appeal for the reason that the appeal is noted as one on law and fact directed to a decree in a divorce proceeding; that said matter is not a chancery proceeding and is therefore not appealable on law' and fact.

The. motion is well taken and the law and fact appeal will be dismissed but as required by §12223-22 and §11564 GC the cause will be retained for determination on questions of law only and the appellant will be granted the time designated in supplemental, Rule VII of this court for the perfecting of the appeal and filing assignments of error and briefs.

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


author: By THE COURT: By MILLER, PJ.:

text:
    LIBERTY FOLDER COMPANY, Plaintiff-Appellee, v. ANDERSON et, Defendants-Appellants.
    Ohio Appeals, Second District, Shelby County.
    No. 145.
    Decided March 21, 1949.
    Pickrel, Schaeffer & Ebeling, Dayton, Cummins & Boiler, Sidney, for plaintiff-appellee.
    Sidney G. Kusworm, Dayton, D. F. Mills, Rodney P. Blake, Sidney, Robert D. Tourvelle, Meyers & Meyers, Celina, for defendants-appellants.
   OPINION

By THE COURT:

Submitted on motion of defendants-appellants for an order of diminution of the record. It is claimed that the bill of exceptions which has been filed, through accident or error, does not contain all of the evidence submitted to the trial court on the matters at issue to be presented to the reviewing court. This claim is not disputed. Whether the bill is complete will be determined by the trial court.

The court orders the bill of exceptions remanded to the trial court for any correction which the trial court considers proper. Sec. 11572-a GC.

Counsel will draw the proper entry.

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

LIBERTY FOLDER COMPANY, Plaintiff-Appellee, v. ANDERSON et, Defendants-Appellants.

Nos. 145, 146. Decided August 5, 1949.

OPINION

By MILLER, PJ.:

The amended petition in this case alleges that the defendant C. R. Anderson, while an officer and director of the plaintiff corporation, embezzled various sums of money in the aggregate of over $300,000.00; that with such embezzled funds the defendant purchased several farms in Shelby County, Ohio, which he now claims to own. An accounting of the embezzled funds is sought and that the farms so purchased with these funds be declared to be held in trust for the plaintiff. The petition further prays that any inchoate dower interest claimed by the defendant, Mary J. Anderson, the wife of C. R. Anderson, be barred as to such lands so purchased with embezzled funds. Both of the defendants have answered denying the allegations contained in the petition and Mary J. Anderson has filed a cross-petition in which she asks that her inchoate dower interest in the said lands be protected and preserved.

Upon application and good cause being shown the Court of Common Pleas appointed receivers for all of the property of the defendant, C. R. Anderson. The report of the receivers showed that the management of the farms was most unprofitable, the books of Mr. Anderson showing that he had lost in excess of $10,000.00 per year for the last five years. The record discloses further that the United States of America filed a tax lien and an intervening petition claiming the sum of $360,000.00 by reason of false and fraudulent income tax returns alleged to have been made by the defendant, C. R. Anderson. The claims of other creditors also filed with the receiver made a grand total of over one million dollars in the event all claims, were allowed and paid. It therefore became apparent to the receivers that the estate of C. R. Anderson was insolvent. In view of these circumstances the receivers filed their application to sell three of the farms which the Court allowed and ordered the sale to be made free and clear of all claims, but with the reservation that in addition to other enumerated claims the inchoate dower interest of Mrs. Anderson should be transferred to the funds derived from the sale pending the later judicial determination by the court of the various interests of the parties. It is from this order that these appeals are being taken. The appellant, Mary J. Anderson, is objecting to the sale under the above conditions, but is claiming that her dower interest in the farms be set off to her in kind. The question, therefore, presented is, when does the inchote dower interest, if any, become vested in the wife? On January 1, 1932, §10502-1 GC was enacted which superseded former §8606 GC which made provision for dower to a widow or widower. The repeal of this section and the enactment of §10502-1 GC virtually abolished all vested dower except in such real estate, (a) conveyed during coverture without the spouse joining in the deed, and (b) to the extent that such real property during coverture was encumbered by mortgage without the spouse joining in the mortgage, or by judgment lien or otherwise without the surviving spouse having relinquished or been barred of dower. To these exceptions another one was added by amendment effective September 2, 1935. This exception referred to “real property alienated during marriage by judicial or other involuntary sale, the surviving spouse not having relinquished or been barred of dower therein”. Sec. 10502-1 GC now provides:

“A spouse who has not relinquished or been barred of it shall be endowed of an estate for life in one-third of all the real property of which the consort was seized as an estate of inheritance at any time during the marriage, but all such dower interest shall terminate and be barred upon the death of the consort except:

(a) To the extent that any such real property at any time during the marriage was conveyed by the deceased consort, the surviving spouse not having relinquished or been barred of dower therein; and

(b) To the extent that any such real property at any time during the marriage was encumbered by the deceased consort by mortgage, judgment, lien (except tax lien), or otherwise, or aliened during the marriage by judicial or other involuntary sale, the surviving spouse not having relinquished -or been barred of dower therein. In the event any of the real property of which the deceased consort was seized as an estate of inheritance at decease was so encumbered, or so aliened prior to decease, the dower interest of the surviving spouse therein shall be computed on the basis of the amount of the encumbrance at the time of the death of such consort or such alienation, as the case may be, but not upon an amount exceeding the sale price of such property in any event.

In lieu of such dower interest as terminates and is barred pursuant to the provisions of this section, a surviving spouse shall be entitled to the distributive share provided by the statute of descent and distribution.

All dower interest shall terminate and be barred upon the granting of an absolute divorce in favor of or against such spouse by a court of competent jurisdiction within or without this state.

Wherever dower is referred to in any other section of this act (§10500-1 to §10512-25 GC), it shall mean the dower to which a spouse is or may be entitled by the provisions of this section.”

This section abolished all dower rights except those falling under the exceptions noted. These rights, we think, were retained subject to the same interpretation as under §8606 GC. The last sentence in the above section (b) defines the dower interest of the consort. It will be noted that only the interest of the surviving spouse is defined. This must clearly indicate that the interest vests only after the death of the consort. The same rule was applicable under the common law and under all statutes previously enacted in this state. In McArthur v. Franklin, 16 Oh St 193, it was held that the right of dower did not accrue to the wife in any form until the death of the husband. See also 14 O. Jur. Sec. 61, p. 673. We are of the opinion that Mary J. Anderson at this time has no vested right of dower in the land under consideration and therefore cannot claim the land in payment of an expected right. Just what her interest in this land is we are not required to pass upon and could not, for it has not been determined whether or not the land is being held in trust for the plaintiff by the defendant, C. R. Anderson. If it is declared to be trust property, it is apparent that the wife can have no dower interest therein. The alleged dower interest being a mere chose in action and all the necessary parties, being in court, the court had the right under general equitable powers to decree the sale of the land providing it properly protects the appellant's interest in the proceeds thereof. The appellants have cited numerous Ohio cases where lands have been set oS by metes and bounds representing the dower interest of the widow, but we have been cited no cases where this has been allowed prior to the death of the consort.

In Dick v. Bauman, 73 Oh Ap 107, at page 109, it is said:

“While the Probate Code Act of 1932 enlarged the share of a surviving spouse in the real estate of the one predeceased in lieu of the former dower, it placed no new restraints upon the rights of one in life to dispose of his or her property, and only preserved to the survivor a vested dower estate in any lands conveyed during the marriage in which such survivor had not relinquished or been barred of dower.” (Emphasis, ours.)

We are in accord with the ruling of the trial court and the judgment is ordered affirmed.

HORNBECK and WISEMAN, JJ, concur.


text:
    WEIRICH, Plaintiff-Appellee, v. HANE, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4052.
    Decided October 8, 1948.

      Little & Little, Columbus, for plaintiff-appellee.
    Hedges, Hoover <Sz Tingley, Stewart A. Hoover and John Benson, of Counsel, Columbus, for Garnishee-Appellant, The Market Exchange Bank Company.
   OPINION

By THE COURT.

This is an appeal on questions of law from an order of the Municipal Court of Columbus, Ohio, ordering The Market Exchange Bank as garnishee to pay into the Clerk’s office the sum of $160.93.

The record discloses that on February 21, 1947, the plaintiff-appellee filed a petition seeking a judgment on a promissory note to which was attached the usual and regular power of attorney of the maker of the note to confess a judgment. An answer for the defendant was filed by an attorney at law confessing judgment for the sum of $160.93. On the same day there was filed on behalf of the plaintiff-appellee an affidavit stating that The Market Exchange Bank had in its possession property of the defendant consisting of money on deposit which was not exempt from execution. On the same day the plaintiff-appellee caused an order to be issued to The Market Exchange Bank to appear and answer as to its liability to the defendant. This order was served upon the bank on February 24, 1947, which was the next business day.

The record discloses further that on February 21, 1947, Joe Hane, the defendant, executed his certain promissory note to The Market Exchange Bank for the principal sum of $350.00 which contained the following clause:

“The undersigned do hereby authorize and empower the said Bank, at its option at any time to appropriate and apply to the payment and extinguishment of any of the above named obligations or liabilities whether now existing or hereafter contracted, any and all moneys now or hereafter in the hands of said Bank, on deposit or otherwise, to the credit of or belonging to the undersigned, whether the said obligations or liabilities are then due or not due.”

The aforesaid note by its express terms was due thirty days after date. After the receipt of the order to appear and answer, but within the same business day, to wit, February 24th, The Market Exchange Bank Company applied all the balance of the account of Joe Hane to the payment of his note. The Bank filed its answer to the garnishment proceedings stating there was nothing due from it to the defendant, Joe Hane. On this state of facts the trial court issued the order appealed from.

The sole assignment of error relied upon by the appellant-garnishee is that under the evidence the Court erred in ordering the garnishee to pay into Court the sum of $160.93. The Bank is contending that it had a right to set-off and apply the deposit of the defendant Joe Hane on the debt due the appellant after service of an order in aid of execution, citing §11321 GC, which provides:

“When cross-demands have existed between persons under such circumstances that if one had brought an action against-the other a counter-claim or set-off could have been set up, neither can be deprived of the benefit thereof by assignment by the other, or by his- death. The two demands must be deemed compensated as far as they equal each other.”

It will be noted that this section provides that when cross-demands have existed a counterclaim or set-off is allowed. Now did the Bank have a cross-demand against the defendant, Joe Hane, at the time the process was served upon it? The note by its express terms was not due and the Bank had not exercised its option to apply this money on the note. Under this state of facts we are of the opinion that §11321 GC has no application. A careful examination of authorities-noted by the appellant discloses that in each case the debt was due or in default in some manner. Such not being the case in the case at bar, they are not applicable.

In the case of Union Trust Co. v. Nusbaum, 7 Abs. 660,. under a state of facts similar to this case, Levine, J., said:

“It will be observed that on May 15, the obligation of the note did not yet mature, and in our opinion The Union Trust Company could not apply the money in its hands to the payment of a'note which as yet did not mature.”

We find no error in the record and the judgment is affirmed,

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


text:
    COLUMBUS METROPOLITAN HOUSING AUTHORITY, Plaintiff-Appellee, v. SIMPSON, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4235.
    Decided March 25, 1949.
    Wm. Harvey Jones, Columbus, for' plaintiff-appellee.
    H. B. Yarnell, Columbus, for defendants-appellants.
   OPINION

By THE COURT.

This is an appeal on law from the Municipal Court of Columbus which rendered judgment against the defendants-, appellants in a forcible entry and detainer action. The defendants assign as error that the judgment is contrary to law and that the Court erred in refusing to enter a separate finding of facts and conclusions of law requested by defendants,

The plaintiff, The Columbus Metropolitan Housing Authority, introduced the lease under which the defendants occupied the premises and a fifteen days’ notice that the iease was terminated, the statutory three days’ notice to leave the premises, both notices being properly served on defendants, and rested. No defense was interposed.

The lease, which was executed in February, 1946, contained a provision that the léase was automatically renewed from month to month unless terminated by either party upon giving fifteen days’ notice in writing. The evidence shows that the fifteen days’ notice was served on September 15, 1948, terminating the iease as of September 30, 1948. The three days’ statutory notice was served on October 1, 1948, and suit was instituted on October 7, 1948. Judgment was rendered on October 20, 1948. On October 23, 1948. a motion for new trial was filed which was overruled on November 8, 1948. On November 9, 1948, the defendants filed a request for a separate finding which was on that date denied.

The request for a separate finding was not seasonably made and no error resulted in denying the request.

The plaintiff contends that the serving of the fifteen days’ notice terminated the iease according to its terms and that thereafter the defendants held over their term: and that plaintiff is entitled to restitution under the law of this state. The defendants contend that even though the fifteen days’ notice has been given, terminating the iease, they cannot be evicted without some cause being shown other than the termination of the iease.

The plaintiff, The Columbus Metropolitan Housing Authority, is a corporation organized under the laws of the State of Ohio.

Section 209(a) of the Housing and Rent Act of 1947 sets forth in six separate paragraphs grounds on which a tenant may be evicted. However, Section 209(b) of the same Act became effective July 1, 1947 (Public Law 129-80th Congress) and provides as follows:

. “Notwithstanding any other provision of this act, the United States or any State or local public agency may maintain an action or proceeding to recover possession of any housing accommodations operated by it where such action or proceeding is authorized by the statute or regulation under which such accommodations are administered: Provided, That nothing in the subsection shall be deemed to authorize the maintenance of any such action or proceeding upon the ground that the income of the occupants of the housing accommodations exceeds the allowable maximum unless such income, less any amounts paid to such occupants by the Veterans’ Administration on account of service-connected disability or disabilities, exceeds the allowable maximum.” (Emphasis ours.)

The effect of subsection (b) of Section 209 was to remove Housing Authorities from the necessity of complying with the provisions of Section 209(a). Under the provisions of Section 209(b) a Housing Authority may maintain an action to evict a tenant “where such action or proceeding is authorized by the statute or regulation under which such accommodations are administered”. This particular provision was preserved in Public Law 301 known as the McCarthy Act, effective July 31, 1947. It was also preserved in Public Law 901 (Housing Act of 1948) passed by Congress on August 10, 1948, amending the National Housing Act. (See Section 502(b), Title V, Housing Act of 1948.)

Consequently, the plaintiff could maintain the action if authorized by the Statute of Ohio or a regulation under which such accommodations are administered. In the instant case, the lessees were bound by the provisions of the lease which permitted the Housing Authority to terminate the lease upon giving fifteen days’ written notice. In Brand v. Chicago Housing Authority, 120 F. (2d) 786, (U. S. C. C. A.), where a number of tenants sought an injunction against eviction, the Court, in discussing the provisions of the lease which gives the right of either party to terminate the lease on fifteen days' notice, on page 788 held:

“It is our opinion that this provision with reference to the termination of the tenancy is valid and binding upon plaintiffs in the same manner as though the lessor had been a private person rather than a Governmental Agency.”

The lease being legally terminated according to its terms, the lessees held over their term and have no right of occupancy thereafter. Sec. 10449 GC.

The bringing of the action to recover possession was authorized by the statutes of this state and the provisions of the lease which may be construed as a regulation binding on the parties. Therefore, the judgment of the trial court was not contrary to law.

Finding no error in the record the judgment is affirmed.

The filing of the application for rehearing, for which no provision is made by rule, has been brought to the attention of the Court. The Court has carefully reconsidered the matter and rendered this as the only official opinion of the Court. The former opinion which has been forwarded to counsel is hereby withdrawn.

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

ON APPLICATION FOR REHEARING

No. 4235. Decided April 5, 1949.

By THE COURT.

Submitted on application for rehearing. All matters presented in the application were considered by the Court in rendering its opinion.

Application for rehearing will be denied.

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