author: By MILLS, J.

text:
    TRUSTEES OF GERMAN TOWNSHIP v. FARMERS & CITIZENS SAV. BANK CO.
    Common Pleas Court, Montgomery County.
    No. 103750.
    Decided May 14, 1953.

      Mathias H. Heck, Pros. Atty., Dayton, for plaintiff.
    Cowden, Pfarrer & Crew, Dayton, for defendant.
   OPINION

By MILLS, J.

This is an action by the trustees of German Township, Montgomery County, Ohio, against The Farmers & Citizens Savings Bank Company, an Ohio corporation, with its principal office in Germantown, Montgomery County, Ohio.

Plaintiff prays, in the amended petition, that:

(a) A lease, dated March 25, 1873, between the trustees of German Township, Montgomery County, Ohio, and the late David Rohrer, also of said county and state, whereby the said trustees leased to the said David Rohrer the premises described in said lease for the term of ninety-nine years, renewable forever, from April 27, 1872, be declared null and void;

(b) A deed, dated May 6, 1910, from the trustees in bankruptcy of the said David Rohrer and conveying the leasehold interest to the defendant, be declared null and void;

(c) The defendant be directed to quitclaim to the plaintiff its interest in the leased premises, and in default of so doing, that the decree of court operate and be considered as such;

(d) The title of plaintiff in such real estate be quieted against all claims of defendant;

(e) The defendant be enjoined from interfering or depriving plaintiff of the peaceful use, possession and occupancy of the leased premises; and

(f) For such other and further relief as may be just and proper in law and in equity.

The facts in the case for the most part have been stipulated and agreed to and are not in dispute. In addition to the written stipulation of facts, the court at the hearing of April 15, 1953, received additional stipulation of facts and evidence.

The court finds from the written stipulation of facts, (1) That on March 26, 1872 the General Assembly of the State of Ohio passed an act.

“To authorize the Trustees of German Township, Montgomery County, Ohio, to lease the premises on which they have commenced the, erection of a town hall.” Reported in 69 Ohio Laws 230,

which act contains the following provisions:

“Whereas, a majority of the qualified electors of German Township, Montgomery County, voted at a general election held in said township on the first Monday in April, 1871, voted in favor of levying a tax for the purpose of erecting a town hall, for the use of said township, in accordance with an act passed April 2, 1866 (Ohio Laws, Vol. 84; S. & S. 783), and
“Whereas, a large portion of said tax has been collected, the site for said building purchased, and the foundation and cellar constructed; and
“Whereas, it appears' desirable to erect business rooms in connection with said town hall; therefore
“Section 1. Be it enacted by the General Assembly of the State of Ohio, that the trustees of German township, Montgomery County, are hereby authorized to lease the premises on which they have commenced the erection of a town hall, to be one or more individuals for a period of ninety one years, renewable forever; provided, said individual or individuals shall erect on said premises, the first story of a substantial building, in accordance with a plan to be furnished by said trustees, and shall permit said trustees to erect on said first story, a town hall for the use of said township; and provided further, that before leasing said premises as above specified, the trustees shall give fifteen days’ notice by advertisement in some newspaper of general circulation in said township, or by posting written or printed notices in at least three conspicuous places in said township of the time and place of said letting; and at the time and place specified, they shall let the same at public vendue to the highest and best bidder. The rent for said premises shall be payable semi annually for the use of the township, and the trustees shall have a lien on said premises and the appurtenances therefor.
“Section 2. Said trustees shall let said premises as above provided, on or before May 10, 1872, and the individual or individuals leasing the same shall, within ten days after said letting, enter into a bond with surety, and payable to said German township, in such sum as may be required by said trustees, conditioned for the erection of said business rooms, in accordance with the plan and specifications furnished by said trustees, on or before the 15th day of September, 1872, and the said trustees shall also be bound for and on behalf of said German township, to erect said town hall over said business rooms, or at least inclose and roof the same on or before the 15th day of December, 1872.
“Section 3. This act to take effect on its passage.”

(2) That David Rohrer, the lessee, did erect the first story of a building on the premises described in said Act of March 25, 1872, and as mentioned in the lease attached to the petition of the plaintiff, which lease is dated March 26, 1873.

(3) That the trustees of German Township erected a town hall for the use of the Township on the first story of the building erected by David Rohrer, as provided in the Act of March 26, 1872.

(4) That David Rohrer entered into possession and control of the leased premises under and in accordance with the terms and conditions of the lease, which was introduced into evidence as Plaintiff’s Exhibit A, and remained in possession and control until his interest was sold, for valuable consideration, to the defendant on May 6, 1910, which conveyance was introduced in evidence and marked “Mutual Exhibit C.” Defendant has since May 6, 1910, been in possession and control of said premises.

(5) That at the time the lease was executed the trustees acknowledged and the lease recites that David Rohrer had

“fulfilled the conditions imposed by the said Act of Legislature.”

(6) That the rentals payable for said premises to the trustees by David Rohrer and the defendant have been paid for all yearly periods beginning with the date of leasing and have been accepted by the trustees.

(7) That all taxes levied and assessed on the leasehold and the building have been paid for all years, including all taxes levied and assessed by or for the benefit of German Township.

(8) That all other terms and conditions of the lease have been performed by the lessee.

(9) That the premises leased to David Rohrer and the first story of the building erected by him on the leased premises (except so much of the first story reserved to and by the trustees) since the date said premises were leased, have been continuously and exclusively in the possession and use of David Rohrer and the defendant, and

(10) That during the period from the date of the leasing of said premises to the date of the filing of the petition herein, no action has been filed by the trustees of German Township, or any other body, to recover possession of said leased premises, to the best of plaintiff’s knowledge and belief.

The court finds from the evidence adduced at the hearing of this case on April 15, 1953, that none of the present trustees, all of whom testified, ever read any of the minutes of the trustees of German Township for the years 1872 and 1873, and that such minute books were missing, although search had been made for the book or books.

That one of the trustees, John H. Schroeder, testified among other things that he was born in the year 1870; that he remembers that the town hall building was in existence in the year 1873, one of his earliest memories; that the town hall itself has always been located on the second story of the building in question; that the first story of the building has always consisted of business rooms; that the “corner room” of said building was once occupied by a dry goods store owned by a man named Rott; and further, that until the date of the filing of this action, there was never any dispute between the defendant, or its predecessor in title, David Rohrer, concerning the leasehold.

The written stipulation of facts was introduced into the record and marked “Mutual Exhibit B.” A certified copy of the lease of March 25, 1873, was introduced as “Mutual Exhibit A,” and a certified copy of the deed of May 6, 1910, from the trustees of David Rohrer, bankrupt, to the defendant, was introduced and marked “Mutual Exhibit C.”

It was stipulated and agreed by counsel that Defendant’s Exhibits 1, 2, 3, 4 and 5 are photostatic copies of pages of newspapers published and of general circulation in German-town and German Township, Montgomery County, Ohio, the originals of which newspapers are in the possession and custody of the Dayton Public Library.

Defendant’s Exhibit 1 is a photostat of page 2 of the April 5, 1872 issue of the Germantown Weekly Dollar Times.

Defendant’s Exhibit 2 is a photostat of page 3 of the April 12, 1872 issue of the Germantown Weekly Dollar Times.

Defendant’s Exhibit 3 is a photostat of page 3 of the May 3, 1872 issue of the Germantown Weekly Dollar Times.

Defendant’s Exhibit 4 is a photostat of page 3 of the May 24, 1872 issue of the Germantown Weekly Dollar Times.

Defendant’s Exhibit 5, is a photostat of page 3 of the April 11, 1873 issue of the Germantown Times.

Each of these newspapers is more than eighty years old and the originals are in the custody and possession of the Dayton Public Library, the natural depository of all items of local history.

Each of these exhibits was offered into evidence by counsel for defendant over the objection of counsel for plaintiff. It is the opinion of the court that they should have been received as exhibits not only as the originals of the publications required to be made by the trustees by the Act and by general law as then in effect, but also by reason of the fact that such exhibits, by reason of age, alone, and unquestioned authenticity, qualify as ancient documents.

Defendant’s Exhibit 1 dated April 5, 1872 contains the local publication of the Act of March 26, 1872, an item of local historical importance.

Defendant’s Exhibit 2, dated April 12, 1872 is the original of the notice by advertisement required by the Act and discloses that the letting by “public vendue to the highest and best bidder” was scheduled to take place April 27, 1872, and further that:

“The plans and specifications of the building to be erected thereon and the conditions required of the lessee, can be seen at the Township Clerk’s office.”

Defendant’s Exhibit 3, dated May 3, 1872, under the caption “Those Business Rooms,” discloses that:

“The letting of the foundation cellar, &c., of the Town Hall site, took place on Saturday last. At first it looked as if nobody would bid, but finally the contest became warm, ending with David Rohrer, who now has the same for ninety nine years renewable forever, at $81 per annum. Work will be commenced at once, as the building will be under roof before the opening of another autumn.”

Defendant’s Exhibit 4, dated May 24, 1872, is the original of an advertisement by the trustees of German Township, first published May 10, 1872, for proposals for the mason work of the town hall to be erected by the trustees. This exhibit contains the following item of local notoriety and historical importance:

“The contract for building the Town Hall was awarded to Christian Dechance on Monday evening, at $12 per thousand brick in the wall. Only two bids were received on Saturday and the Board refused to act until further conference. Work will be commenced just as soon as stone can be got and the brick burned.”

Defendant’s Exhibit 5 dated April 11, 1873,- is a matter of local notoriety and historical importance, and discloses that a New Fancy Dry Goods Store, operated by one E. Rott, had been opened in the New Town Hall Building.

The court finds that the lease, while dated and apparently executed March 25, 1873, specifies and recites:

(a) That the period of the lease is for ninety nine years from April 27, 1872, and

(b) That David Rohrer, as the second party, had “fulfilled the conditions imposed by the said Act of the Legislature.”

April 27, 1872, was the date specified as the date of letting at public vendue as disclosed by the advertisement contained in Defendant’s Exhibit 2. It was also the date when David Rohrer became the successful bidder as disclosed by Defendant’s Exhibit 3. Thus it must be concluded, and it is the court’s opinion, that the date of beginning of the period of the lease, and as specified in the instrument itself, was actually the date of letting at public vendue as provided in the Act of March 26, 1872, under authority of which the lease was made. It is apparent from the circumstances that the actual date of acquisition of the leasehold interest by David Rohrer was April 27, 1872. In no other manner can the apparent difference between the date of execution of the lease instrument on March 25, 1873, and the date of the beginning of the period of the lease be explained.

Defendant’s Exhibit 4 shows that the trustees first advertised for proposals for the mason work on the town hall on May 10, 1872, and the contract was let to Mr. Dechant on May 20, 1872. While Exhibit 5 shows that the building constructed by Rohrer was occupied on April 11, 1873, a date but seventeen days later than the date of apparent signing of the lease instrument.

In view of the recital in the lease instrument itself that David Rohrer had fulfilled all the conditions imposed by the Act, the burden of proof to establish the falsity of such a statement, assuming that evidence to that purpose could be admissible, would be with the plaintiff. But even so, the accuracy of the recital is fully established by the exhibits submitted by the defendant. Thus, it seems to the court, all elements of conjecture are removed. The plaintiff, not being able to produce any evidence that the contract between the trustees and David Rohrer was not let on April 27, 1872, will now be estopped from denying that said contract was let upon that date because of the acknowledgement in the lease executed between the trustees and Rohrer.

See City of Cleveland v. Raynolds, 76 Oh St 619, 81 N. E. 1182; 77 Oh St 631, citing Ensel v. Levy, 46 Oh St 255, 259, 19 N. E. 597; Kinney v. Cincinnati, L. & N. R. Co., 77 Oh St 609, 84 N. E. 1129.

In Village of Kent v. Dana, 6 Cir., 100 F. 56, 57, the court held:

“A municipal corporation having the power to issue bonds for the refunding of its indebtedness, and having exercised that power by passing an ordinance * * * to that purpose, and by issuing negotiable bonds in due form, reciting that they are issued in conformity with the statute, and that all the requirements of the law have been duly complied with, and all the conditions precedent exist, cannot deny its obligation as against a bona fide holder, who purchased such bonds for value, before maturity, and defeat recovery thereon, by showing that the recitals are false, and were made for the purpose of enabling the corporation to market the bonds, which were in fact issued for an unauthorized and illegal purpose.”

And in Clapp v. Village of Marice City, 6 Cir., 111 F. 103, 108, the court said:

“* * * and when it is recited, as it is in these bonds, that all the preliminary steps required by law had been taken by the village, its officers and agents, the village is estopped from objecting that the certificate of some of its officers, which was by law required to be filed as a preliminary step, was not in fact filed.”

The Supreme Court of Ohio, in the case of Shoemaker v. Trustees of Goshen Township, 14 Oh St 569, at page 588, said:

“The claims of good faith and common honesty are as obligatory upon corporations and communities as upon individual natural persons. And that they may be thus estopped is not an open question in this state.”

See also 16 O. Jur. 575, Section 23.

The lease instrument, the deed and defendant’? exhibits one through five are ancient documents and prove themselves. The rule concerning particular instruments as ancient documents is stated in 20 Am. Jur. 786, “Evidence,” paragraph 934, as follows:

“Generally speaking, any writing or document otherwise admissible as evidence, which appears to be more than thirty years old and to have come from proper custody, may be offered as an ancient document without proof of its execution. Under this rule letters, leases, deeds, title bonds and other bonds, powers of attorney, receipts, official maps, and public surveys, which are of sufficient age, valid on their face, bear no indication of having been altered or are otherwise free from suspicion and which come from the proper custodian, are admissible in evidence without further proof.”

Thus, Mutual Exhibit A, the lease instrument, qualifies as an ancient document, as does the deed of May 6, 1910. Each proves itself.

And wholly aside from the fact that Defendant’s Exhibits 2, 3 and 4 are original advertisements by the trustees of German Township for bids and proposals for the letting of the premises and the building of the town hall, they too are ancient documents, relevant to the subject of inquiry, and admissible into evidence, and prove themselves.

For the same reasons, and by virtue of the same circumstances, the news items of local notoriety and historical importance shown in Defendant’s Exhibits 1, 3, 4, and 5 are ancient documents, relevant to the inquiry, admissible into evidence and prove themselves.

That the subjects of these news items were public matters of local notoriety and historical importance is evidence on the face of the exhibits themselves, and in this regard such items are the subject of judicial notice since they deal with the community at large.

In the case of Commonwealth ex rel. Ferguson v. Ball, 277 Pa. 301, 121 A. 191, 192, 29 A. L. R. 626, at page 629, the Supreme Court of Pennsylvania, in discussing the ancient document rule and matters of local history said:

“Judicial notice may be taken of the existence of public matters, such as general history known to the community at large, or salient facts of local history known generally in the particular community.”

Whatever the honest doubt may be or have been in the minds of the present trustees, successors to the trustees of 1872 and 1873, concerning compliance with the provisions of the Act of March 26th, 1872, such honest doubt should be entirely removed by the exhibits introduced into the record of this case. Nothing has been introduced into the record to contradict or cause any doubt on the subject.

The. Act of March 26, 1872 found in Volume 69, Ohio Laws, page 230, was local in its nature, but was pursuant to a series of Acts amending an Act passed February 24, 1948, which is reported in Swan & Critchfield, page 1481, which authorized the township trustees, in every township in the state of Ohio, to erect town halls under certain conditions, and one of the conditions, was that it be submitted to the general public.

While it was a local law, it was of general application throughout the state for all townships and villages. The Act of 1848, and ensuing acts, including the one under which the town hall of Germantown was built, were held to be constitutional. See State ex rel. Hibbs v. Board of County Commissioners, 35 Oh St 458, decided in 1880.

However, on April 20, 1896, the Supreme Court of Ohio, in Hixson v. Burson, 54 Oh St 470, 43 N. E. 1000, 1001, in deciding a special act authorizing the commissioners of a given county to construct a particular road, overruled at least in part the decision in the Hibbs case, but differentiated between acts of a local nature and those of a general nature. The court says:

“But how are we to determine whether a given subject is of a general nature? One way is this: If the subject does or may exist in, and affect the people of, every county in the state, it is of a general nature. On the contrary, if the subject cannot exist in, or affect the people of every county, it is local or special. A subject-matter of such general nature can be regulated and legislated upon by general laws having a uniform operation throughout the state; and a subject-matter which cannot exist in, or affect the people of, every county, cannot be regulated by general laws having a uniform operation throughout the state, because a law cannot operate where there can be no subject-matter to be operated upon.”

See also Norton v. Trustees of Montville Twp., decided 1894, 8 Ohio Cir. Ct. R. 335.

Thus, there can be no question that the Act of March 26th, 1872, was local in its nature and not prohibited by Section 26, Article II, of the Ohio Constitution. Langdon v. Trustees of Columbia Township, XIV W. L. B. 325; Hopple v. Trustees of Brown Tp., 13 Oh St 311; Trustees of Harrison Tp. v. Harrison Tp., 5 Ohio N. P., N. S., 354, decided by Judge Snediker of the Common Pleas Court of Montgomery County, Ohio.

Assuming that the Act of March 26, 1872 is unconstitutional and is a violation of Section 26, Article 2 of the Constitution of Ohio, the courts have held that townships, cities and villages would be estopped from setting up such a defense.

In the case of City of Mt. Vernon v. State, 71 Oh St 428, 73 N. E. 515, the court held:

“Where a municipal corporation has entered into a contract with an individual under and by virtue of a statute which is unconstitutional, and the subject-matter of the contract is not ultra vires, illegal, or malum prohibitum, and the facts are such, as against the corporation, as would estop an individual from setting up as a defense the unconstitutionality of the statute, the municipal corporation will also be so estopped.”

Counsel for defendant stress the statute of limitations as one of their defenses as a bar to plaintiff’s recovery, claiming they have held adversely for more than twenty-one years, and complying with all the elements of adverse possession.

Quoting from 1 O. Jur. 2d, page 769, Art. 88, page 770, Art. 89:

“The elements of estoppel were present in one of the early cases holding that municipalities are subject to the statute of limitations in the same manner as natural persons, and many subsequent cases indicate a willingness to follow the early decisions, not on the principles of adverse possession, but on the principles of equitable estoppel where the necessary elements are present.”

This court is of the opinion the necessary elements of estoppel are present in the instant case.

In making a lease a township is the agency of the state, the same as a county is the agency of the state acting through its commissioners; the township acts through its trustees, and when the township as an agency of the state acts in the buying or selling or leasing of property, it acts within its proprietary capacity and not within its governmental capacity. Estoppel applies even against the state under such circumstances. State v. Ex’r of Buttles, 3 Oh St 309; State ex rel. Upper Scioto Drainage & Conservancy Dist. v. Tracy, Auditor of State, 125 Oh St 399, 181 N. E. 811.

The courts have also held that the doctrine of estoppel, where the state is acting in a proprietary capacity, is applicable even if the law under which it is proceeding is unconstitutional.

The court finds that German Township of Montgomery County, Ohio, having received all benefits of the lease for a period of more than eighty years, and having by their conduct repeatedly ratified the terms of the lease, common honesty and the claims of good faith serve to estop the trustees from questioning the validity of the lease in question.

The court, therefore, finds that all relief prayed for in plaintiff’s petition be denied, and that plaintiff’s petition be dismissed at plaintiff’s costs.


source: Caselaw Access Project

author: By THE COURT: By THE COURT:

license: Public Domain

text:
    STATE, ex rel. SIMONS, Plaintiff-Appellant, v. KISER, Defendant-Appellee.
    Ohio Appeals, Second District, Darke County.
    No. 684.
    Decided September 14, 1951.
    Spidel, Staley & Hole, Greenville, for plaintiff-appellant.
    T. A. Billingsley, Greenville, for defendant-appellee.
   OPINION

By THE COURT:

Submitted on ipotion of defendant-appellee to dismiss the appeal for want of jurisdiction.

The appeal is taken from an order of the trial court sustaining a motion for new trial. After this Court announced its opinion in this matter our Supreme Court, in Greene v. Acacia Mutual Life Insurance Company, 156 Oh St 1, held that an order sustaining a motion for new trial is not a final order and that the provision in §12223-2 GC, that “an order vacating and setting aside a judgment and ordering a new trial, is a final order” is in conflict with Section 6, Article LV, of the Ohio Constitution.

No. 710.

Decided March 27, 1953.

This Court is without jurisdiction to entertain the appeal.

Motion to dismiss is sustained.

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

ON MOTION TO DISMISS APPEAL

OPINION

By THE COURT:

Submitted on motion of appellee to dismiss the appeal.

The only error assigned by the appellant, Helen Simons, is that the trial court committed error in overruling her motion for judgment non obstante veredicto.

This is a bastardy case. The case was first tried in 1950, which resulted in a verdict in favor of relatrix, and motion for new trial was sustained. Prom the order sustaining the motion for new trial an appeal was taken to this Court. After the Supreme Court held, in Green v. Acacia Mutual Life Insurance Company, 156 Oh St p. 1, that an order sustaining a motion for new trial is not a final order, this Court dismissed the appeal. Abuse of discretion was not involved.

The case was again tried in 1952, which resulted in a verdict for respondent. The appellant-relatrix filed a motion for judgment non obstante veredicto on the ground that it now appears there was no error in the first trial, and that judgment should now be rendered for relatrix. Prom the order overruling the motion this appeal was taken.

No bill of exceptions has been filed. A motion for judgment non obstante veredicto at the end of the second trial is necessarily directed to the proceedings on the second trial. In allowing such motion the trial court cannot consider any favorable legal position accruing to appellant in the first hearing. The granting of a new trial eliminates from further consideration all such matters.

Prom the state of the record the appeal should not be dismissed, but the proper order for this Court to make is an affirmance of the judgment.

So ordered.

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


author: By MILLER, J:

text:
    KNOWLES, Plaintiff-Appellee, v. ROBERTS et, Defendants-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    No. 2183.
    Decided April 16, 1952.
    H. J. T. Herzog, Dayton, for plaintiff-appellee.
    Hon. C. William O’Neill, Atty. Geni., John W. Hardwick, Leon M'. Render, William M. Gemmill, Asst. Attys. Geni., Columbus, for defendant-appellant, Board of Review.
   OPINION

By MILLER, J:

This is a law appeal from the judgment of the Common Pleas Court reversing the decision of the Referee and Board of Review holding that the claimant had voluntarily quit his work without just cause and therefore was not entitled to unemployment compensation under the provisions of the Act.

The record discloses that Elte Knowles, the claimant herein, was a member of Local 768, United Electric Workers, which had a contract with the claimant’s former employer, the G. H. & R. Division of the Dayton Malleable Iron Company; that Article IV, Section 4, subsection b, effective June 1, 1948, as amended June 1, 1949, regarding absenteeism, provided in effect that an employee’s seniority shall cease and his employment with the company shall terminate if he is absent unexcused from work for reasons of his own a total of 10 working days in any 6 consecutive calendar months; that the 10th day in this case fell on Saturday, August 6, when the claimant did not report for work and for which no excuse was tendered.

The record further discloses that the employer had scheduled work on this Saturday, and that the plant was in operation.

It is urged by the claimant that under the agreement existing between the Union and the employer that Saturday was not a regular working day and therefore there could be no violation of the contract. Whether or not it was, was a factual question primarily within the province of the Board and the Board of Review can only be reversed by a reviewing court when found to be contrary to law or against the manifest weight of the evidence. Brown-Brockmeyer v. Roach, 148 Oh St 511. We are of the opinion that the finding by the Board of Review that Saturday, August 6, was a regular working day is not against the manifest weight of the evidence.

The next question presented is whether the claimant voluntarily quit his work without just cause. Sec. 1345-6 d (9) GC provides that one who voluntarily quits his work is not entitled to be paid benefits. The Board of Review was of the opinion that the claimant “lost his seniority rights by reason of his conduct in being absent 10 working days without proper excuse therefor during six consecutive calendar months. By his own action, he forced his separation from the payroll and as such same must be and is herein considered to be a voluntary quit in connection with his work * *

The appellant cites the case of Baker v. Powhatan Mining Co., 146 Oh St 600, wherein the Court defines the underlying purpose of the Unemployment Compensation Act. However, the facts in this case do not seem to be parallel with those in the case at bar, it there appearing that the claimant was a Union coal miner, that the contract of employment had terminated and the claimant, as well as all other Union employees refused to work without a new contract although work was available under the terms of the old contract.

Here the claimant was denied work after presenting himself for the same on the Monday following the Saturday of his absence. The decision of the Referee which was affirmed by the Board contains this language: “By his own action, he forced his separation from the payroll and as such same must be and is herein considered to be a voluntary quit * * We cannot agree with the Referee on the aforesaid conclusion. We think the finding should have been that by his own action he caused the contract to be terminated, but can compensation be denied solely because of the termination of the employment contract? We do not think so, as long as the claimant meets the requirements of §1345-6 GC, et seq., and has not voluntarily quit his work without just cause. The rights of the claimant to benefits under the Unemployment Compensation Act must be determined under the provisions of said Act and not under the terms of an agreement with his employer for any agreement tending to reduce the statutory benefits would be void as being against public policy. The word “voluntary” imports an exercise of the will. Here it consisted of choosing not to work on Saturday and because of such the claimant was discharged under the provisions of the contract. Since its terms may not be considered in arriving at the benefits' to which the claimant is entitled, it must follow that he did not voluntarily quit his work. The discharge appears to be a disciplinary action on the part of the employer and not a voluntary quit by the employee. The discharge was justifiable under the contract. But this fact does not prevent the employee from receiving the benefits to which he is entitled under the law and which must be liberally construed. Carter v. Division of Water, City of Youngstown, 146 Oh St 203; State, ex rel. Merion, Supt., etc., v. Unemployment Compensation Board, 142 Oh St 628.

Finding no error in the record, the same will be affirmed.

HORNBECK, PJ, WISEMAN, J, concur.


author: Per CURIAM.

text:
    REXROAT, Appellant, v. REXROAT et al, Appellees.
    Ohio Appeals, First District, Hamilton County.
    No. 7666.
    Decided December 15, 1952.

      Sol Goodman, Harry Falk, Cincinnati, for appellant.
    Andrew O. Haefner, Paul J. Hengge, Cincinnati, for appellee.
   OPINION

Per CURIAM.

This is an action to declare a resulting trust in certain real estate.

The parties heretofore were formerly husband and wife, their marriage having been terminated in a contested divorce suit tried upon a petition and an answer and cross-petition, with the divorce being granted to the defendant on her petition for the husband’s aggressions and his cross-petition in that suit heard and dismissed.

This suit was terminated in the trial court upon plaintiff’s motion for judgment on the pleadings, testing the sufficiency of the answer to plead facts sufficient to show that all issues as to title of the real estate involved were adjudicated in the divorce court, and, hence, establish the defense of res adjudicata. The motion was overruled.

It is contended here that since the record-legal title to the real estate at the time of the divorce action was in the defendant and a divorce awarded to her for plaintiff’s aggression, the divorce court lacked the general equity jurisdiction necessary to award to plaintiff any part of the real estate standing in the name of the wife.

If that were the situation here — the contention has been upheld by this court in Owens v. Owens, 85 Oh Ap, 414, 40 O. O. 264.

But the allegations of the amended answer reveal a different situation.

The amended answer denies plaintiff paid all the consideration and alleges that the real estate was purchased during the marriage of the parties and the title taken in her name. That in the divorce action this plaintiff, in his answer and cross-petition, alleged that he was the sole owner of the property,. describing it, and sought to have the court decree it to him, which contention was in dispute with the petition, wherein the real estate was also described by metes and bounds; that the court decided that question adverse to the claims of the plaintiff’s petition and dismissed the same, so that all issues as to title are now res adjudicata.

For the purposes of the motion, the allegations of the amended answer are taken as true and appear to the court to establish the fact that plaintiff’s cross-petition put the issue of title squarely before the divorce court so that his contention, referred to above, is untenable under the allegations contained in the amended answer.

The judgment is, therefore, affirmed.

Judgment affirmed.

HILDEBRANT, PJ, MATTHEWS, J, concur.


author: By THE COURT:

text:
    MIAMI SAVINGS AND LOAN COMPANY, Liquidation, In re.
    Ohio Appeals, Second District, Montgomery County.
    No. 2066.
    Decided October 6, 1950.
    Mason Douglass, Dayton, for the Miami Savings & Loan Company, appellee.
    Shocknessy, Summers & Denton, Columbus, for appellants.
   OPINION

By THE COURT:

Submitted on motion of Miami Savings and Loan Company to withhold entry on the decision heretofore made in the appeal in this case on questions of law until the determination of the appeals on questions of law and fact.

After due consideration the Court is of the opinion that it would be for the best interests of all parties to the case to withhold the entry until the determination of the law and fact appeals.

Motion sustained.

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


text:
    CRYDER, Plaintiff-Appellant, v. ELLIOTT COMPANY, Defendant-Appellee.
    Ohio Appeals, Second District, Clark County.
    No. 497.
    Decided June 6, 1952.
    Robert S. Olinger, Springfield, Richard C. Gerken, Cleveland, C. Wilbur Hatch, Greenfield, for plaintiff-appellant, Contra the Motion.
    Corry, Durfey, Martin & Browne, Springfield, for defendantappellee, For the Motion.
   OPINION

By THE COURT:

Submitted on motion of appellee to dismiss the appeal for the reason that appellant has not conformed to the statute §11564 GC and with Rule VII of this Court.

The appeal is noted as upon questions of law. The motion for new trial was overruled January 31, 1952. At the time of the filing of this motion, May 16, 1952, no bill of exceptions had been filed in this court and, presumably, none had been filed in the trial court as provided in §11564 GC. Assignments of error or briefs have not been filed in this court as required by Rule VII.

Inasmuch as we have no assignments of error we cannot say whether or not a bill of exceptions would be required to exemplify the errors intended to be urged in this court.

Rule VII of this court has not been observed.

The second branch of the motion will, therefore, be sustained.

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


author: By MILLER, J.

text:
    MATTHEWS, Plaintiff-Appellee, v. MATTHEWS, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4598.
    Decided September 27, 1951.
    John F. Seidel, Columbus, for plaintiff-appellee.
    Milton L. Farber, Columbus, for defendant-appellant.
   OPINION

By MILLER, J.

This is a law appeal from the judgment of the Court of Common Pleas dismissing the plaintiff’s petition to vacate a judgment entered on January 27. 1950, awarding the plaintiff a divorce and permanent alimony. The grounds upon which the vacation is sought is fraud in the procurement of the same.

The record reveals that while the original action was pending the parties entered into a separate agreement in which they sought to settle all their marital and property rights. Both parties complied with all of the covenants in said agreement except that the defendant failed and neglected to pay the sum of $100.00 agreed as expense money. The defendant was notified several times of his default and was also notified that unless the same was paid by a certain date the court would be asked to rescind the contract and award the plaintiff permanent alimony. After the expiration of said date plaintiff and counsel appeared before the court, the defendant being in default for answer, and upon hearing being had the court awarded the plaintiff a divorce and as to the property settlement found: “The court finds from the evidence adduced and the contract that said contract is not fair and equitable, and therefore sets said contract aside as of no effect between the parties.” Counsel for the appellant urges that the court received no evidence as to whether or not the settlement agreement was fair and equitable and which it was required to do. Citing Brewer v. Brewer, 84 Oh Ap 35.

The facts, however, are not borne out by the record, the plaintiff testifying that she did not remember if anything was said about the separation agreement at the former trial, stating that she had been worried over illness in her family. However, her counsel testified that he explained the entire transaction and set forth all the facts fully to the court. The court in its judgment also recites that from the evidence it finds the agreement neither fair nor equitable. Clear and convincing evidence of fraud must be produced before a judgment will be vacated upon this ground. Kight v. Boren, 39 Abs 96, by this court. In the case at bar we find no evidence of any fraud being practiced by the successful party.

The next question presented is whether the court erred in finding the defendant guilty of contempt. The record reveals that the defendant was not present at the trial when the alimony award was made; that he was served no copy of the order and he testified that he had no knowledge of the order prior to the citation in contempt being served upon him. It is essential to the punishment of a person for contempt for the violation of a court order that he have notice of the order, either actual or by service of the same upon him. See 9 O. Jur. 84, Section 44 and cases cited.

We find no other assigned errors well taken.

The judgment dismissing the petition to vacate will be affirmed and that finding the defendant guilty of contempt is reversed.

HORNBECK, PJ, WISEMAN, J, concur.


author: By THE COURT.

text:
    LAIR, Plaintiff-Appellant, v. COUNTY COMMISSIONERS OF FRANKLIN COUNTY; BUCK et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4683.
    Decided November 13, 1951.
    Ernestine B. Powell, Columbus, for plaintiff-appellant.
    Ralph J. Bartlett, Pros. Atty., Robert P. Barnhart, Asst. Pros. Atty., Columbus, for defendants-appellees.
   OPINION

By THE COURT.

Submitted upon motion of the appellees seeking an order dismissing the appeal for failure to file bill of exceptions, assignment of errors and brief within fifty days after filing the notice of appeal. The record discloses that notice of appeal on questions of law was filed on July 27, 1951, and nothing further has been filed up to the time of the filing of the motion on October 10, 1951. The appellant urges that a bill of exceptions is not necessary as the errors complained of are exemplified upon the face of the record. Under such circumstances the failure to file bill of exceptions is not fatal to the appeal.

The appellant next urges that the law was thoroughly briefed in the Probate Court; that the same is on file with the transcript, and that no further brief is necessary.

There is no objection to the use of the same briefs in this Court, but when that is done they should either be re-filed in this Court, or some statement filed advising the Court and opposing counsel of the intention. It will be noted that Rule VII gives the appellees fifteen days after the filing of the appellant’s brief in which to file answer brief. Therefore, the date of filing should be fixed in some manner. It is to be further noted that no assignment of errors has been filed. This is necessary in- a law appeal and no good cause being shown for the failure to comply with the Rule, the same becomes-fatal.

The. motion will be sustained.

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


author: By DOYLE, J.:

text:
    KRIZANEK et, Plaintiffs-Appellees, v. KRIZANEK et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 10116.
    Decided May 14, 1952.
    Marshman, Hollington & Steadman, Cleveland, for plaintiffsappellees.
    Edmiston & Zellmer, for defendants-appellants.
    (DOYLE, J, of the Ninth District sitting by designation in place of HURD, J.)
   OPINION

By DOYLE, J.:

The following motion is presented to this Court for decision:

“Now comes the defendant-appellant, K. McKinley Smith, by and through his attorneys, Edmiston and Zellmer, Esq., and moves this Honorable Court for an order staying all proceedings in this cause in the Court of Common Pleas of Cuyahoga County, Ohio, until such time as the appeal pending in this Court in this cause is finally determined herein.”

It appears in the record that pursuant to motions in the Court of Common Pleas to advance this case for trial, judges of that court sustained the said motions and the case was ultimately ordered advanced for trial. From the last order on the motion to advance, appeal was taken to this court on the stated ground that the granting of the motion constituted an abuse of discretion. The motion in this Court set out above, is filed pursuant to this appeal.

We are of the opinion that the order of the judge who advanced the case for trial to a day certain does not constitute an abuse of discretion and is not an appealable order. He performed only a ministerial act which determines none of the substantial rights of the parties.

The fact is that when the case comes on for hearing, the trial judge will have before him every part of the litigation and it will be his duty within his jurisdiction to stay the proceedings or to hear the case upon a showing there made, which will include the question of the necessity of taking depositions and a determination of other substantive rights of the parties. In fact there is now pending in the Court of Common Pleas a motion to stay the proceedings which will come before that trial judge based upon said-grounds.

The trial court’s ruling on the now pending motion to stay the proceedings, may or may not constitute an abuse of discretion. If it does, it may be an appealable order — certainly it would constitute error. However, the motion has not as yet been heard and there is nothing before this court except the order placing the case on the active list and the motion heretofore set forth.

It is not the province of the Court of Appeals to supersede the powers vested originally in the trial court and which powers that court has had as yet no opportunity to exercise. The motion will be denied.

SKEEL, PJ, THOMPSON, J, concur.


author: By HORNBECK, PJ.

text:
    TONTI, Plaintiff-Appellee, v. TONTI et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4688.
    Decided November 2, 1951.
    Estel O. Gifford, Columbus, for plaintiff-appellee.
    Estel O. Gifford, James W. Huffman, Columbus, for the receiver.
    Edward F. Lynch, Folkerth & Folkerth, Columbus, for defendants-appellants.
    (NICHOLS, J, of the Seventh District sitting by assignment.)
   OPINION

By HORNBECK, PJ.

This is an appeal on questions of law from an order of the Common Pleas Court appointing a receiver for the defendants. The notice of appeal is given on behalf of defendants without designation. During the proceedings incident to the hearing on the motion for the appointment of receiver, Mr. Huffman said that he had represented all of the parties and Mr. Gifford stated that he represented three of the parties and in one place, some of the defendants indicated that he might have represented five of the parties. So that, the identity and the number of the defendants who actively prosecute the appeal do not clearly appear.

Counsel for appellants assign thirteen grounds of error and argue most of them at considerable length citing authority for the propositions advanced from Ohio and elsewhere. Most of the assignments are of a technical nature and many of them would have application if the suit was to subject the assets of an individual to a receivership.

The suit here is instituted on behalf of a member of a partnership. The relief sought is an. accounting with the parties defendants and individuals whom it is alleged are members of the partnership and the corporations which it is averred are owned by the partnership. It is averred that on December 31, 1950, the plaintiff withdrew from the partnership under an agreement that he was to receive his interest in cash or equity; that he had originally invested the sum of $1800.00 and was to share equally with eight other members of the partnership in the benefits arising by reason of the operation of the partnership. It is averred that although the plaintiff has on many occasions demanded full statement of the assets of the partnership, he has been unable to secure it; that the records of the business are not properly kept; that there are numerous unpaid creditors; that the partnership owns many properties all of which are encumbered by mortgages and that the funds of the partnership are being diverted to the personal use of several of the partners; that the rents from the properties are being collected and are, plaintiff believes, being diverted to the personal use of some members of the partnership. It is averred that it is necessary for its preservation that a receiver be appointed to take charge of the property and collect the rents until such time as the interest of the plaintiff can be determined.

The prayer is for an accounting between the defendants and the plaintiff and there was a motion for the appointment of a receiver for the property and assets of the partnership. Summons was issued to designated defendants together with the notice of the motion of the plaintiff for the appointment of a receiver and the time for the hearing of the motion. Most of the defendants were served with summons, individually and as partners. One defendant, Alfred Tonti, at the time of the hearing was in Europe and the return of the Sheriff shows that he could not be found. This return as to the defendants other than Alfred Tonti clearly subjects them to the jurisdiction of the court. The Oil Well Supply Company v. Scott, 11 O. N. P. (N. S.) 123.

Upon hearing, the plaintiff supported the material averments of his petition by his testimony and, although certain defendants were represented by counsel, no testimony was offered to refute the statements of the plaintiff. Defendants moved for a dismissal at the conclusion of plaintiff’s case which motion was overruled.

We shall not discuss the' assignments of error separately but are satisfied to say that no error has intervened to the prejudice of the defendant which would require the setting aside of the appointment of the receiver.

The suit for an accounting is recognized as an equitable proceeding which supports the appointment of a receiver. Two grounds of §11894 GC appear either or both of which would support the action of the trial judge. They are No. 1 and No. 6.

Every presumption attends the validity and regularity of the order appointing a receiver. Euclid Roxford Co. v. Bogar, 4 Abs 733.

It is urged that in the absence of service upon all members of the partnership, the appointment of the receiver was not justified. This does not follow because numerous members of the partnership were served, not only with summons but with notice of the hearing and appeared and made such defense as would avail the partnership in its entirety. It should be noted that the receiver is merely the administrative arm of the court who takes charge of the assets of the partnership for the purpose of conserving them to the ends of equity and for the benefit of creditors generally. Coe v. Cols. P. & I. R. Co., 10 Oh St 372; Merchants’ Bank v. McLeod, 38 Oh St 174.

The receiver does not take title to the property but merely the possession and the right to possession. No judgment can be taken against any defendant unless and until he is properly within the jurisdiction of the court. The trial judge shortly after the appointment of the receiver and directing him to take possession of designated assets of the partnership, released two of the corporations and twelve other pieces of real estate from the receivership. Thus it is obvious that the trial judge is carefully protecting all interests and that no property will be sequestered which it does not reasonably appear belongs to the partnership or unless the partnership has a substantial interest in such property.

The business operations of this partnership are involved and extensive and upon the facts developed there is presented a case which clearly comes within the cognizance of the equity arm of the Court. It is typical of that class of cases wherein a receivership would seem to be the only feasible manner by which the respective interests of the partners and their creditors may be properly protected and determined.

Objections are urged to the individual who is named as receiver and to the attorneys who were named to represent her. All of these appointments were within the discretion of the trial judge and we find no abuse thereof. One of counsel for defendants indicated that he would not accept an appointment as counsel for the receiver if tendered to him.

The judgment will be affirmed.

MILLER, J, and NICHOLS, J, concur.


author: By HORNBECK, PJ.:

text:
    STATE, ex rel. SHAW, Relator, v. SWITZER, Supt., Respondent.
    Ohio Appeals, Second District, Montgomery County.
    No. 2177.
    Decided March 19, 1952.

      Harvey Crow, St. Paris, for relator.
    Herbert S. Beane, Cecil Edwards, Dayton, for respondent.
   OPINION

By HORNBECK, PJ.:

This is an action seeking a writ of habeas corpus to the respondent releasing the relator, a prisoner at the Dayton Workhouse under judgment and sentence of Lyman P. Clark, Mayor of the Village of Alger, Hardin County, Ohio.

The parties have stipulated the material and controlling facts upon which the determinative question depends, viz: whether or not the Mayor of Alger had jurisdiction to pronounce the sentence under which the relator is held.

From the stipulation, it appears that relator was, on the 11th day of June, 1951, arrested for operating a motor vehicle on the public highways of Hardin County, Ohio, while under the influence of alcohol; that on June 12, 1951, C. E. Graham, a State Highway Patrolman, “prepared an affidavit” which was signed and sworn to by Graham in Kenton, Ohio, before Clark, Mayor; that the seal of the Mayor of Alger was not attached to the affidavit signed by Graham; that the affidavit was given to the Mayor in Kenton, Ohio; that Shaw was brought from the County Jail to the City Building in Kenton, Ohio; that the warrant for the arrest of Shaw was issued in Kenton to Graham and that the hearing on the affidavit was held by Clark, the Mayor, in Kenton; that Shaw signed a waiver of jury in Kenton; that Shaw was found guilty by the Mayor and sentenced to 6 months in the Dayton Workhouse and fined $500.00 and costs; that Clark, the Mayor, now claims and did claim in September, 1951, that the original affidavit, warrant and written waiver of jury trial has been misplaced and cannot be located.

From these facts it is urged by the relator that no affidavit ever was filed with the Mayor of Alger, an incorporated Village, because it did not carry the seal of the Village of Alger, as provided by law, and the pretended affidavit and warrant were executed in the City of Kenton by the Mayor of Alger; that the hearing of the relator by the Mayor in the City of Kenton and the sentence imposed there were void and finally, that the sentence imposed was grossly excessive.

The meager facts appearing in the stipulation afford no support for the contention that the fine and sentence is so excessive as to be unreasonable and a violation of relator’s constitutional rights.

Relator has some substantial support for the claim that the failure of the Mayor to place the seal of the Village of Alger on the affidavit for the arrest of relator rendered it a void instrument. In the early case of Lessee of Boal, et al v. King, et al, 6 O. R. 11, the Court held that:

“A writ of fi. fa., issued without seal from a court having and using a seal, is void. A levy on such writ, and a sale on a subsequent valid writ, conveys no title.”

This authority was followed and used to support the judgments in Lenarcie v. State and Park v. State, 23 O. C. C. N. S. 73, holding that:

“A warrant for arrest issued by the mayor of a municipality without affixing to it his official seal, as provided in §1536-,773a GC, R. S., is invalid.”

Contra these cases are Mignery v. State, 10 Oh Ap 232, and State v. Elson, 16 Oh Ap 184. In both of these latter cases motions to certify were overruled in the Supreme Court. We appreciate that the overruling of a motion to certify is not tantamount to an affirmance of a judgment. However, it is highly improbable that these later judgments would not have been certified had there been any substantial question as to their validity. Without quoting from the opinions of Judge Richards in the Mignery case or Judge Houck in the Elson case, we are satisfied to say that we are in accord with their reasons for the adjudications. We commend a reading of these opinions, especially that of Judge Houck. We are not prepared to hold that the mere failure of the Mayor to affix his official seal to the affidavit by which the relator was brought into Court renders nugatory and void the action taken by the Mayor upon the plea of relator and his waiver of trial by jury. But over and beyond the narrow question of the validity of the warrant, we believe that the jurisdiction of the Mayor to hear and determine the charge against the relator was grounded upon the affidavit and not upon the warrant.

The other questions raised relate to the action of the Mayor of Alger in receiving the affidavit, issuing the warrant, presiding at the trial and pronouncing the sentence in the City of Kenton. It is stipulated that both the Village of Alger and the City of Kenton are in the County of Hardin.

We believe that the questions presented have all been inferentially determined by the syllabi in the case of Stiess, et al v. State, 103 Oh St 33. In these cases the police justice of the Village of North Randall had in. the city of Cleveland conducted trials and pronounced judgments and sentences against defendants for violation of certain liquor laws. The Court held in the 3rd syllabus that:

“The jurisdiction of a police justice is coextensive with the county in which the village is located, and such justice may hold court any place in the county, even outside of the limits of the village where he is appointed and holds his office, although such place of holding court may be within the limits of another incorporated city or village within such county.”

Chief Justice Marshall writing the opinion, at page 37, said that the jurisdiction of police justices was the same as those conferred upon Mayors of municipal corporations and referred to §4536 GC defining the jurisdiction of a mayor as follows:

“He shall have final jurisdiction to hear and determine any prosecution for a misdemeanor unless the accused is by the constitution entitled to a trial by jury. His jurisdiction in such cases shall be co-extensive with the county.”

Judge Marshall then considers and discusses the question and answers it as heretofore quoted in the 3rd syllabus.

Another case inferentially follows the adjudication in Stiess v. State, viz: State v. Pape and other defendants 105 Oh St 515. Inasmuch, as the Mayor of Alger had jurisdiction to try, and pronounce sentence upon, the relator in the City of Kenton it follows that he had authority to accept the affidavit and to issue the warrant in said city.

In probability, the section under which relator was tried and convicted was §6296-30 (c) GC, a misdemeanor of which the Mayor of Alger had jurisdiction by authority of §4536 GC.

Relator urges that inasmuch as §4216 GC orovides that

“When the Mayor is absent from the village or is unable for any cause to perform his duties, the president pro tem of counsel becomes acting mayor, and shall have the same powers and perform the same duties as the mayor,”

the Mayor was without any authority in this case because it would result in two Mayors of Alger acting at one and the same time. This, of course, does not follow and we are not required to say that both the Mayor and the president pro tem of counsel could simultaneously act as Mayor of the Village of Alger. The act here under considerration was not performed in the Village of Alger and upon the cases citen the Mayor would have jurisdiction to act in that capacity in the City of Kenton.

We cannot hold that the Mayor was without jurisdiction to pronounce the sentence and issue the commitment under which the relator is held by the respondent.

The writ, therefore, will be denied.

WISEMAN and MILLER, JJ, concur.


author: Per CURIAM:

text:
    BENTLEY, Estate of, In re: BENTLEY, Plaintiff-Appellant, v. BENTLEY et, Defendant-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22187.
    Decided September 17, 1951.
    Weitz & Weitz, Cleveland, for plaintiff-appellant.
    Louis H. Wieber, David A. Christopher, Cleveland, for defendants-appellees.
    (DOYLE, J, of the 9th District sitting by designation in place of HURD, J.)
   OPINION

Per CURIAM:

This cause is in this Court on appeal on questions of law from the decision of the Probate Court of Cuyahoga County overruling a motion to vacate certain orders approving various executor accounts. Appellant, a sister, and one of the beneficiaries under the will of Wm. T. Bentley, deceased, filed her motion and affidavit in the Probate Court seeking to vacate orders previously entered by the Probate Court approving three partial accoufits and the final account of the Executors named in the will.

The first partial account, filed on May 9, 1947, had been approved by the Court on June 16, 1947; the second partial account filed on May 17, 1948, was approved June 28, 1948; the third partial account filed on June 16, 1949, was approved August 6, 1949. The final account of the executors was filed on May 23, 1950 and approved July 10, 1950. On October 20, 1950, the motion to vacate the orders approving the four accounts aforesaid was filed in the Probate Court.

In her affidavit supporting the motion to vacate the orders of the Probate Court, appellant alleged that service of notice was had upon her by publication as to the filing of the four accounts and that she had no actual knowledge of the proceedings for the approval of any of the accounts until August 9, 1950.

The rights of the appellant in seeking the vacation of the orders here in question are governed by §10506-40(c) GC.

Appellant testified that she was a non-resident of Ohio and had no knowledge of the filing of any of the accounts prior to August 9, 1950. The testimony of the two witnesses in opposition, namely, one of the executors and an attorney who had represented appellant along with various other heirs in certain phases of the administration of the estate, including an action for a declaratory judgment, was vague and unsatisfactory on the subject of actual notice to appellant. Under the provisions of §10506-40 GC, the knowledge of the proceeding on the part of the party affected means actual knowledge of the filing of the accounts by the party or his duly authorized agent.

After examination of the bill of exceptions setting forth the testimony in the Probate Court,, this Court unanimously finds that the judgment of the Probate Court overruling the motion of the appellant, is against the manifest weight of the evidence, and it is, for that reason, reversed.

Judgment reversed and cause remanded. Exc. Order see journal.

SKEEL, PJ, DOYLE, J, THOMPSON, J, concur.