author: By WATTERS, J.

text:
    MORTON v. MURPHY LUMBER & HARDWARE CO.
    Common Pleas Court, Summit County.
    No. 170419.
    Decided October 26, 1951.

      Samuel Kelly, Alexander Russell, Akron, for plaintiff.
    Gene T. Runko, Wm. Locke, Akron, for defendant.
   OPINION

By WATTERS, J.

This action, wherein the plaintiff, Florence Morton, seeks damages for false arrest or false imprisonment against The Murphy Lumber and Hardware Company, a corporation, was tried to the court, a jury being waived.

The case grows out of these facts. The defendant corporation had procured a judgment against Chase Morton, husband of the plaintiff, for $241.00 in the Akron Municipal Court, which by the filing of a. certificate of judgment came into this court. (J. L. 4139). Execution was filed and returned unsatisfied, and finally the company’s attorney caused a proceedings in aid to issue against the defendant in said case, Chase Morton, and against his wife, Florence Morton, plaintiff here. Apparently counsel sought to examine both the debtor, Mr. Morton, and his wife, as to their property, the latter presumably as a garnishee holding property belonging to her husband, the debtor. Nevertheless, Mrs. Morton and Mr. Morton were ordered to appear for examination as though they were both judgment debtors, although the judgment of course was against Mr. Morton only.

The praecipe issued to the clerk by the company’s counsel on the aid proceedings had the notation “Personal Service Requested.” There was some discussion that the above words were written in different ink than the other words. However the court cannot draw any inference from that fact. The fact remains that the clerk did not mark on the notice issued for the two Mortons that service was to be “personal” and the sheriff’s return shows only residence service on the Mortons.

Mrs. Morton denied in her testimony that she had any knowledge whatsoever of the service. Mr. Morton did not appear as a witness at all.

The fact remains that neither one of them showed up for the proceedings in aid examination hearing. Thereupon the company’s counsel caused the court to sign an-arrest order to the sheriff as and for contempt against both Mortons for their failure to appear. They were both taken into custody by the deputy sheriff and brought down to the county jail about 8:30 A. M. They were not placed in a cell, but held apparently awaiting call of the case before the court on the contempt proceedings. Mrs. Morton called her attorney, Mr. Samuel .Kelly, from the jail office, and after some time he arrived and discussed the matter with her and Mr. Morton and then went to the court house to check the records in the case. The attorney then went to the judge who issued the order, and counsel for the company was called, but before the matter was presented, it was after lunch, about 1:30 P. M., at which time the Mortons were taken over before the court and after some more or less informal discussion hereinafter set forth in some detail, they were permitted to go.

It seems to be the common belief at the bar that it is necessary, in order to punish for contempt, that the order disobeyed must have been personally served on the person charged with the contempt. However in 9 O. Jur., page 84, par. 44, it is held:

“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. This rule applies whether the person sought to be punished for the contempt is a party to the proceedings in which the order is issued or a stranger thereto.”

Thus we see that personal service of the order is not necessary. It is the better way, as the person cannot well deny notice. In the instant case the order to appear was served at the residence. On the evidence the court cannot find that she had notice of it, although she and her husband may well have had due notice thereof.

In the attachment affidavit (Plaintiff’s Exhibit 3) upon which the order of arrest was made, it was stated that personal service was had on the previous order to appear. This of course was not true, and a check of the sheriff’s return would have shown only residence service.

Counsel for plaintiff cites §11,734 GC, which appears under the Chapter on execution, and sets out those privileged from arrest. The pertinent part is as follows:

“Section (5) Females, on mesne or final process for any debt, claim, or demand arising upon contract.”

It is- insisted that the debt, claim or demand out of which the plaintiff was arrested arose out of contract and that therefore she was privileged from arrest even if she had been the judgment debtor and was guilty of contempt.

The court cannot find any interpretations of this part of the statute, and counsel have cited none. However it surely was not intended to exonerate a female person for contempt of court for failure to obey an order to appear for questioning as a judgment debtor of which order she had actual notice by personal service or otherwise. Such defiance of the court could not be tolerated.

However the attachment or arrest of plaintiff was wrongful, and due to inadvertence upon the part of the defendant corporation’s attorney and agent in failing to check the sheriff’s return, showing residence service on plaintiff on the order to appear. A further mistake of course was made in treating her as a judgment debtor rather than as a garnishee or one holding property probably belonging to her husband, the real judgment debtor.

However there is no proof of malice upon the part of the defendant corporation’s attorney and agent. Even if malice had been shown, no punitive damages should be awarded against the defendant corporation, because there was no evidence that the defendant authorized, participated in or ratified the arrest, nor any proof that the defendant failed to exercise due care in the selection of its agent, the attorney. This is the test for corporate liability for malicious acts of agents laid down by the Supreme Court in Columbus, etc. Railway v. Harmon, 109 Oh St, 528. But no actual malice — no malicious conduct was shown.

When the plaintiff and her husband came before the court on February 7, 1949, at 1:30 P. M. on the contempt order, the evidence shows that the matter was discussed more or less informally by counsel and the court regarding settlement of the manner of payment of the judgment debt. It was conceded apparently that the contempt order probably should not have been made due to the residence service on the previous order to appear, and for other reasons apparent. Some settlement of the manner of future payment was agreed upon and the Mortons were allowed to go on their way. That happened on February 7, 1949, but the journal entry which apparently disposes of the contempt proceedings was not filed of record until August 4, 1949, almost six full months after the .contempt hearing and after the instant case was filed (March 15, 1949). No reason appears for this delay. The entry (Deféndant’s Exhibit 3) J. L. 4139, was approved by counsel for all concerned. Rut nothing is said therein about the contempt disposition, but speaks of the agreement to pay the judgment debt, with the statement that Mr. Morton and Mrs. Morton offered to pay the judgment, and then providing that Mr. Morton agreed to pay and ordering him to pay five dollars per week beginning February 14, 1949.

When this entry was drawn and approved by counsel does not appear, but it was not filed until six months after the hearing, and there was no clause therein making it date back, (nunc pro tune.)

The court has studied the case of Brinkman v. Drolesbaugh, 97 Oh St 171, and its approval in Click v. Parish, 155 Oh St, 84, 44 O. O. 98. In the former case the court fully discusses the question of false arrest and false imprisonment charges against an arresting officer.

Were the case against the sheriff or deputy sheriffs, no recovery would lie as the order of arrest or attachment was apparently regular on its face. But the court finds the plaintiff has proven a technical case of false imprisonment and is entitled to some compensatory damages, though nominal. There was nothing vicious about the imprisonment. The plaintiff was not locked up. The plaintiff was technically falsely imprisoned. She was not free to go about her business for several hours. She was not mistreated or abused. Mr. Morton owed the judgment for house repair materials furnished by the plaintiff company. Many executions and proceedings in aid had been issued. Mr. Morton did not pay and has not paid anything so far.

Counsel for the plaintiff corporation made a mistake. There was nothing wilful or malicious about it.

The court finds the plaintiff entitled to recover One Hundred ($100.00) Dollars damages and costs.

Journal entry may be drawn accordingly with exceptions to both parties.


source: Caselaw Access Project

license: Public Domain

text:
    HARRIS, Plaintiff-Appellee, v. HARRIS, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4403.
    Decided February 28, 1950.

      John J. Chester, Columbus, for plaintiff-appellee.
    John W. Cooper, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

Submitted on motion by the plaintiff-appellee seeking an order dismissing the appeal on law and fact for the reason that it is not so appealable. The record discloses that the action is one for divorce which is not a chancery proceeding.

The motion will be sustained, but the cause will be retained for further proceeding on questions of law only. The appellant will be granted leave to file bill of exceptions, assignment of errors and brief as proviedd by supplement to Rule VII of this Court.

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

ON APPLICATION FOR DIVORCE

No. 4403.

Decided November 13, 1950.

By THE COURT.

This was an application for a divorce upon the ground of gross neglect of duty. After a full and complete hearing, the Court awarded the decree to the plaintiff-appellee. The only error assigned is that the evidence offered on behalf of the plaintiff was not sufficient to support the judgment. Now the record shows that the plaintiff testified that the defendant refused to live separate and apart from his own family during most of their sixteen years of married life; that he refused to take her out socially; that he spent his time with his mother and male friends; that when he did come home he ignored her presence, spending his time reading the paper; that he was quarrelsome and on one occasion he struck her and that he was selfish, satisfying only his own desires and disregarding her own. If credence were given to this testimony we think it is sufficient to establish that the neglect was gross and not mere neglect. 14 O. Jur. 14, p. 393.

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

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


text:
    GRUNDSTEIN, Plaintiff-Appellant, v. SUBURBAN MOTOR FREIGHT, INC., Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4680.
    Decided September 12, 1951.
    Carrington T. Marshall, I. M. Harris, O. H. Roth, Columbus, for plaintiff-appellant and Richard H. Grundstein, defendant-appellant.
    Dahlton R, Kincaid, William L. Schmidt, Columbus, for defendant-appellee.
   OPINION

By THE COURT.

Submitted upon motion by the appellee herein seeking an order dismissing the appeal on questions of law and fact for the reason that no appeal bond had been filed within the time provided by §12223-6 GC. The record supports the facts stated and the motion will therefore be sustained. The appellant will be granted leave to perfect the appeal on questions of law in accordance with the supplement to Rule VII of this court.

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


author: By WISEMAN, J.

text:
    GRUNDSTEIN, Plaintiff-Appellant, v. SUBURBAN MOTOR FREIGHT, INC., Defendant-Appellee, GRUNDSTEIN, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4680.
    Decided March 5, 1952.

      Carrington T. Marshall, I. M. Harris, O. H. Roth, for plaintiff-appellant, and defendant-appellant, Richard H. Grundstein.
    Dahlton R. Kincaid, William L. Schmidt, Columbus, for defendant-appellee.
   OPINION

By WISEMAN, J.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Franklin County.

The, plaintiff filed an action for a declaratory judgment requesting the Court to declare the rights of the parties arising out of a purported lease entered into between the defendant-company and plaintiff’s grantors. The defendant-company filed an answer and cross-petition in which it prayed for specific performance based upon an option to purchase which was contained in the lease.

In the cross-petition defendant alleged that Richard H.' Grundstein is the husband of the plaintiff, Yetta B. Grundstein, and claims, an inchoate dower interest in said premises. Defendant prayed that the husband be ordered to release his inchoate right of dower and for general equitable relief. The trial court entered a decree in favor of the defendant.

A recitation of the facts is necessary for an appreciation of the issues involved. On September 15, 1942, the defendant-company made a written offer to lease certain real estate owned by Berkhemer and White, at an annual rental of Three Thousand Dollars, payable at the rate of $250.00 per month, in advance on the first business day of each month. With respect to the duration of the term of the contract provided:

“for a term of the duration of the present war and six (6) months thereafter, beginning October 1, 1942.”

The rental contract contained other provisions usually found in a lease. • The last two paragraphs being as follows:

“Lessee to have privilege of purchasing the above described premises at any time during term of occupancy at a consideration price of Twenty-Five Thousand Dollars ($25,000.00) by giving lessor sixty (60) days notice in writing of its intention so to do.

“It is understood that this agreement is to be effective in lieu of formal lease.”

The document was signed by the defendant-company by James R. Riley, President, in the presence of two witnesses. On September 17, 1942, Berkhemer and White agreed and accepted the proposition in writing, both signing in the presence of two witnesses. The document was not acknowledged by either of the parties, neither was it recorded. The defendant entered into possession and paid the rent according to the terms of the rental contract, and still retains possession. On October 28, 1947, Berkhemer and White conveyed the premises by general warranty deed to the plaintiff, Yetta B. Grundstein, and' on the same date executed an assignment on the original rental contract as follows:

“ASSIGNMENT BY LESSOR

For value received, the undersigned hereby sells, assigns and transfers to Yetta B. Grundstein and assigns, all interest in the within lease and the rents thereby secured. Signed, Oct. 28, 1947

Wm. F. Berkhemer

H. R. White”

The defendant paid rent to the plaintiff from November 1, 1947, up to January 31, 1950, after which the rent was tendered to plaintiff.

The events which provoked this litigation are as follows: On December 6,1949, plaintiff served on the defendant a notice to leave the premises which was based on her conclusion that the rental contract had terminated. On December 27, 1949, plaintiff notified the defendant in writing that the rent on and after February 1, 1950, would be $400.00 per month. On January 5, 1950, the defendant gave notice in writing to the plaintiff that it had elected to exercise and accept the option to purchase the real estate for $25,000.00. On February 16, 1950, the plaintiff refuséd in writing to recognize the exercise of the option and refused the tender of the rent at the rate of $250.00 per month. The action was instituted February 21, 1950. On March 31, 1950, the defendant paid into court the sum of $25,000.00, the option price mentioned in the rental contract, which amount is still being held by the Clerk of Courts pending the outcome of this litigation.

The trial court decreed:

(a) That there was a valid rental contract subsisting between plaintiff and defendant;

(b) That the meaning and effect of the provision “for duration of the present war and six (6) months thereafter” as used in the contract, describes the term of the lease, which became effective October 1, 1942, and does not terminate until six months alter there has been a formal declaration of peace between the belligerent nations;

(c) The option to purchase could be exercised by defendant at any time during the term of the lease, viz.: until six months after a formal declaration of peace between the belligerent nations;

(d) That defendant had the right to exercise the option on January 5, 1950;

(e) That defendant was not a month to month tenant but occupied said premises under a valid and subsisting lease.

Tlie Court further found that the defendant duly exercised the option to purchase, including the proper tender of the purchase price, but that Yetta B. Grundstein and Richard H. Grundstein, her husband, have failed and refused to convey said premises to defendant. The Court further decreed that Yetta B. Grundstein and Richard H. Grundstein, who was ordered to join in said conveyance for the purpose of releasing his inchoate right of dower in said premises, shall execute and deliver to defendant a good and sufficient deed for said premises and that upon their failure so to do within ten days from date of entry, the decree shall operate as such conveyance. The Court ordered the $25,000.00 placed on deposit with the Clerk of Courts delivered to Yetta B. Grundstein upon the delivery of the deed or the recording of the decree by the County Recorder. The Court further- found that Yetta B. Grundstein had retained a check for $250.00 tendered by the defendant for the rent for the month of February, 1950; and that there is due plaintiff the sum of $50.00 as rent for the period from March 1, 1950, to March 6, 1950, for which sum the Court rendered judgment against the defendant.

The first question raised involves the validity and the legal effect of the rental contract or lease. We have no difficulty in finding that the rental contract was intended by the parties to be a lease. The last paragraph of the contract provides that the agreement is to be effective in lieu of a formal lease. At the outset it is well to state that the issues presented must be determined upon equitable principles. “Equity looks to the substance, and not to the form.”

The rights of the parties under the contract and the equitable relief granted would be the same whether the Court denominated the document a lease or a rental contract. A defectively executed lease is treated in equity as a contract to make a lease. Lithograph Building Company v. Watt, 96 Oh St 74. In a declaratory judgment action, and especially where defendant in its cross-petition for specific performance, the rights of the parties will be declared, whether in law or equity. R. K. O. Distributing Corporation v. Film Center Realty Company, 53 Oh Ap 438, 449. What was the duration of the term? The lease provided: “for a term of the duration of the present war and six (6) months thereafter beginning October 1, 1942.” The Court will take judicial notice that the war referred to is World War II. It is agreed by counsel for both plaintiff and defendant that the words “duration of the present war” are ambiguous. Plaintiff contends that the words “duration of the present war” mean the continuation of hostilities and that the parties intended to give this meaning to the words used. Hostilities ceased on August 14, 1945, and six months thereafter would be February 14, 1946, which is the date the plaintiff claims the lease terminated. If the lease terminated February 14, 1946, the exercise of the option came too late.

Where there is an ambiguity parol evidence is admissible to show the intention of the parties. Hoover v. Sandifur, 25 Wash. (2d) 791, 171 P. (2d) 1009, (1946), 168 A. L. R. 170. Under this rule testimony was taken to show the intention of the parties at the time the lease was- executed. The evidence shows that the premises then occupied by the defendant-company were taken over by the United States Gov-eminent under a lease, the term of which was “for duration of the war and six (6) months thereafter.” The defendant-company being compelled to vacate desired to secure other premises to conduct its business. The president of the defendant-company wanted a lease with respect to duration similar in its terms to the lease taken by the Government of the premises which it then occupied. This information was conveyed to the broker who drew the lease here involved. The agents of the defendant-company clearly stated that it wanted a lease “for the duration of the present war and six (6) months thereafter.” The defendant-company wanted this provision in the lease for the very obvious reason that it desired to occupy the new premises as long as the United States Government occupied the premises which it leased. The words were deliberately chosen to accomplish a definite purpose. The evidence shows that the broker was the agent for the lessors.

The fact that the United States Government relinquished possession of the premises formerly occupied by the defendant sometime prior to the time that difference arose between the parties hereto, is irrelevant and cannot be considered in determining tjie intention of the parties at the time the contract was executed. The United States Government might still be occupying the premises under the terms of its lease. Malbone Garage, Inc. v. Minkin, 272 App. Div. 109, (1949), 72 N. Y. S. (2d) 327, affirmed without opinion in 297 N. Y. 677. On page 15 of the record one of the lessors White, testified as follows:

“Q. Do you remember why those words were used in the lease? * * *

“WITNESS: I would say because they wanted the property six months after the war, that is what my idea of the thing was, that is to be able to move out.”

The plaintiff contends that the parties intended to enter into a temporary lease and that the words under construction were intended to give the defendant the right of occupancy during hostilities and for six months thereafter. It does not appear that the defendant-company ever intended to give this meaning to the words used. The evidence bearing on the intention of the parties supports the contention of the defendant, and the trial court could not on the basis of this testimony reasonably conclude that the parties intended to give the words “duration of the present war” any meaning other than what they legally connote. On the basis of the evidence presented the trial court was justified in concluding that the intention of the parties was to use these words in their technical legal sense. Ellis v. Fraternal Aid Union, 108 Kan., 819, (1921), 197 P. 189, 190. Furthermore', it is a well established principle of law that where words are susceptible of more than one meaning, the courts will adopt that interpretation which the parties themselves have placed upon them by their subsequent acts. Courtright v. Scrimger, et al, 110 Oh St 547; Cincinnati v. Gas Light and Coke Co. 53 Oh St 278; Fagan v. Ulrich, 166 App. Div. 342, (1915), 152 N. Y. S. 37. In the application of this principle of law it is well to observe that over eighteen months after February 14, 1946, the date on which the plaintiff claims the lease terminated, the lessors in a letter to the defendant-company recognized the validity of the lease and that it still was in effect by requesting the defendant-company to do some work and stated: “This is your responsibility as outlined in our contract. We are sure you see the value of having the needed work finished before the winter months arrive.” Also, in the assignment of the lease, dated October 28, 1947, the lessors considered the lease still in effect.

In a legal sense the existence of World War II continues until terminated by ratification by peace treaties or proclamation of competent authority. Ellis v. Fraternal Aid Union, supra; Vol. 56 Am. Jur., page 142, Sec. 13. (Cases cited) A research discloses that the courts in other jurisdictions have given different interpretations to the words “duration of the present war.” Vol. 13, Words and Phrases, Permanent Edition, P. 641, 1951 Cumulative Supplement, P. 168; Vol. 168 A. L. R. 173, and 1951 A. L. R. Blue Book, P. 683. However, an examination of these authorities will show that the courts always attempted to ascertain the intention of the parties and give effect thereto. In cases where the court construed the words “duration of the present war” or “duration of the war” to mean the continuation of hostilities, such interpretation was based on some piece of evidence which indicated that the parties intended to give this meaning to the words used. On this issue we are in accord with the judgment of the trial court.

Thus far we have discussed the provisions of the lease and the rights of the parties from the standpoint of a legally executed lease. The lease in the instant case did not fall within the provisions of §8517 GC, which provides that leases for a term not exceeding three years are not required to be executed as provided in §8510 GC. The defendant seeks relief during a period beyond the three years. People’s Building Loan & Savings Co. v. McIntire, et al., 14 Oh Ap 28, 31. Sec. 8510 GC provides that a lease must be in writing, signed, attested by two witnesses and acknowledged by lessors. The lease is defective in that it was not acknowledged by the lessors. What are the rights of the parties under a defectively executed lease where the term exceeds three years? In Ohio the principle is well established that at law if the lessee takes possession under a defectively executed lease and pays rent, a tenancy is implied. The duration of the term of the tenancy which is implied depends upon the provisions for the payment of the rent. Wineburgh v. Toledo Corporation, 125 Oh St 219, 222; Lithograph Building Company v. Watt, 98 Oh St 74; Toussaint Shooting Club v. Schwartz, et al., 84 Oh St 440; Baltimore & Ohio Railroad Company v. West, 57 Oh St 161; R K O Distributing Corporation v. Film Center Realty Company, 53 Oh Ap 438, 449; Shell Petroleum Corp. v. Jackson, 77 F. (2d) 340, (1935, U. S. C. C. A., 6th Circuit); J. J. Newberry v. Marshall, 125 F. (2d) 973, (1942, U. S. C. C. A., 6th Circuit); Vol. 24 O. Jur. Sec. 54, pages 789, 790. See also Vol. 6 A. L. R. (2d) pages 685, 695.

If the rent is reserved annually, although payable in monthly installments, as in the instant case, a tenancy from year to year is implied. Baltimore & Ohio Co. v. West, 57 Oh St 161, 185. This principle of law rests on the theory that in law a defective lease does not create a legal estate. A tenancy is implied and all provisions of the lease are effective except the duration of the term. Lithograph Building Company v. Watt, 96 Oh St 74, 88; Baltimore & Ohio Railroad Company v. West, 57 Oh St 161, 165; The People’s Building, Loan & Savings Co. v. McIntire, et al, 14 Oh Ap 28, 32. Thus, at law the defendant held a tenancy from year to year. On October 1, 1949, the defendant entered a new year and on January 5, 1950, when defendant exercised its option, it did so “during term of occupancy,” as provided in the rental contract. The plaintiff, however, strongly urges that the defendant held under a tenancy from month to month, or at best from year to year and that relief can be granted only under such a tenancy. This result would obtain at law. Even at law under a tenancy from year to year the defendant properly exercised the option to purchase; but we are in a court of equity, where equitable principles must be applied and where a more complete remedy is afforded. R K O Distributing Corp. v. Film Center Realty Co,. 53 Oh Ap 438, 446; Hennessy v. Moreland, 90 Oh Ap 178.

The plaintiff strongly relies on Wineburgh v. Toledo Corporation, 125 Oh St 219, and claims that the principle announced in that case controls and that defendant holds under a monthly tenancy. We do not agree. In that case the action was at law and not in equity; the rent was reserved monthly and not annually as in the instant case. The court recognized this distinction in its opinion when it said on page 223 the following:

“Whether reformation dr other equitable remedy is available to the landlord under this or similar circumstances, it is not necessary to decide in this action, for that question is not here presented.”

In equity part performance takes the instrument out of the operation of the • statute. Possession taken under the lease constitutes part performance. The trial court properly invoked its equity powers, in decreeing that in equity the defendant was occupying the premises under a valid and subsisting lease which did not terminate until six months after a formal peace treaty had been signed by the belligerent nations or a formal proclamation by a competent authority had been made ending the war.

In the instant case the defendant did not specifically pray for a reformation of the rental contract, neither did the Court decree a reformation, although the facts would warrant such reformation. If a reformation had been asked for and decreed it could only have affected the acknowledgment. No reformation was required with respect to the terms of the lease.' In certain instances, and this is one, a reformation of the instrument is not a prerequisite to granting equitable relief thereunder. The Globe Insurance Company v. Elizabeth W. Boyle, et al., 21 Oh St 119, 130. The fourth syllabus is as follows:

“When in such case the record shows that the petition and the facts found by the court, warrant an order of reformation, and that, without such formal order, the proper final judgment has been rendered, it is not error in a reviewing court to affirm the judgment.”

The court on page 131 states that the failure to grant reformation was not prejudicial; it was only a matter of form, for which the judgment cannot be reversed.

We hold that where the defect in the lease consists in the failure of lessors to acknowledge the lease, as, provided in §8510 GC, and where the provisions and terms of the lease do not require reformation, a reformation of the lease with respect to the acknowledgment is not a necessary prerequisite to granting equitable relief thereunder.

The plaintiff contends that she is not responsible for the alleged contract entered into between the defendant-company and Berkhemer and White on the ground that she assumed no responsibility. The defendant took possession under the lease and is still in .possession. The plaintiff purchased the property from Berkhemer and White while the defendant was in open and notorious possession. The plaintiff took an assignment of the interest of Berkhemer and White in the lease, with knowledge of the lease, its terms, and possession by the defendant. Any right which defendant could assert against Berkhemer and White may be asserted and enforced against the plaintiff. Kemp v. Feldman, 84 Oh Ap 154; Dunkel v. Hedges, 15 Oh Ap 259; Schloss v. Brown, et al., 13 Oh Ap 294. In the latter case the Court on page 296 holds:

“The lease to Schloss, though not attested as required by §8510 GC, was good between the parties as a contract. An imperfectly executed lease may operate to- create an equitable estate in the lessee, if it be plainly shown that the instrument was intended as a lease and was accepted and treated as such by the lessee.” (Cases cited)

“If Brown was not a bona fide purchaser, he would take the property subject to the equitable right which is now admitted to have existed against Holzberger. It is the settled rule in Ohio that a purchaser of land which is in the actual possession of the third party, known to him, is chargeable with notice of any equitable title of the party in possession whatever the same may prove to be.” (Cases cited)

On page 297 the court finally held:

“The undisputed evidence shows that Brown was aware of the possession of the premises by Schloss. He, therefore, acquired the ownership from Holzberger, subject to the equitable rights of Schloss arising under the unrecorded contract of lease.”

See also Vol. 24 O. Jur., page 747, Sec. 13.

The contention is made that the trial court erred in rendering judgment against Richard H. Grundstein requiring him to release his inchoate right of dower. In the cross-petition, Richard H. Grundstein, husband of plaintiff, was made party-defendant, although erroneously mentioned in the' record at several places as a party-plaintiff. The defendant, Richard H. Grundstein, filed a waiver of service of summons and entered his appearance, but filed no answer. The allegation in the cross-petition is that Richard H. Grundstein is the husband of the plaintiff, Yetta B. Grundstein, and claims an inchoate dower interest in said premises. A part of the prayer of the cross-petition is that Richard H. Grundstein be ordered to execute the deed with his wife releasing his claim for dower. There are no provisions in the lease, nor in the option which would indicate that the lessors were married and agreed to'convey free of dower and much less with respect to the plaintiff as the grantee and assignee of the lessors. The defendant, in its cross-petition, did not attempt to make this matter an issue and no evidence was taken thereon. The allegation contained in the cross-petition to the effect that Richard H. Grundstein was the husband of the plaintiff and claimed his right to inchoate dower is in accord with the facts.

Was it proper to enter a decree against Richard H. Grundstein requiring him to join in a deed with his wife for the purpose of releasing his inchoate right of dower? We do not think so. Inchoate right of dower is a contingent interest in the land of the consort and is of substantial value. The right to inchoate dower cannot be taken away nor barred by any act of the consort. Sec. 10502-1 GC; Vol. 14 O. Jur., page 679, Sec. 66. In the instant case the husband has the same right to inchoate dower as the wives of the lessors would have had if the lessors were married. The fact that the husband was made a party to the action is of no legal consequence; no decree can be entered against the husband unless on the whole record there is some support for it. Neither the pleadings nor the evidence supports the decree. The People’s Savings Bank Co. v. Parisette, et al., 68 Oh St 450; Jewett v. Feldheiser, 68 Oh St 523, 530; Urbanski v. Szelaszkiewicz, 15 Oh Ap 4; Caple v. Crane, et al., 10 Oh Ap 461; Edmund v. Boring, et al., 30 O. C. A. 238; Koester v. McKinney, 17 Abs 441. In Koester v. McKinney, (opinion by Judge Hornbeck) the wife joined the husband in a mortgage which was foreclosed and in the action the wife was made party-defendant. It was held that she may assert her inchoate dower against the mechanic’s liens holders who were made party defendants, even though she filed no answer to the petition. In Edmund v. Boring, it was held that where the husband did not sign a contract of sale with his wife, the owner, the land will be ordered transferred in a suit for specific performance, subject to the husband’s right of contingent dower. In the Urbanski case, it was held that where an option to purchase is not signed by the wife of the owner, and the purchaser seeks specific performance, subject to the wife’s dower, a decree will be granted. In the case of Caple v. Crane, the court found from the evidenpe that the option to purchase provided for conveyance free of dower, and the wives of the owners not being made parties, the cause was remanded. The court on page 467 states the question for determination as follows:

“This presents an important and somewhat difficult question, namely: Shall a decree of specific performance be entered against the defendants requiring them to execute a deed in which their wives shall join; or, if the wives refuse to join, a decree of specific performance against the husbands, with an abatement from the purchase price sufficient to cover the present worth of the contingent right of the dower of the wives?”

In discussing the nature of the remedy afforded to the purchaser and the character of the decree to be entered the court discussed at length and followed the case of The People’s Savings Bank Co. v. Parisette, et al., supra. The court finally held that the wives of the owners not being made parties to the suit, a decree for specific performance requiring conveyance free of dower could not be entered and remanded the case to the lower court. The court in The People’s Savings Bank Co. v. Parisette, et al., supra, had before it a state of facts similar to those presented in the instant case and discusses the character of the decree which may be entered. We quote from the court’s opinion, beginning on page 460:

“What was the contract specific performance of which plaintiff demanded, and what the breach, if any? The parties were the vendor, the husband, and the vendee, the plaintiff.' The paper itself carries the information that it was when drawn contemplated to be executed by some one other than the vendor, and since the plaintiff was aware that he had a wife living, the inference is natural that she was the person whose signature had been expected. The paper further showed' that she had not signed, and the fact found is that she had made no agreement to sign or sell the property, or release her inchoate right of dower. Furthermore, the absence of her signature would suggest a refusal by her. The Company knew, therefore, that it was dealing with the husband alone as to his right and title in the property, it knew that the wife could not be compelled to sign, and that, therefore, the contract was impossible of specific execution if construed to include her dower. It knew that it was accepting a contract which on its face did not purport to sell any interest but that of the husband, and especially did not purport to sell or agree to convey any inchoate dower of the wife. In this situation of affairs the Company chose to agree to pay the stipulated price for just what the option purported to sell. No fraud, or overreaching, or mistake of any kind is charged. The vendor is ready to convey just what the stated terms of his contract obligate him to convey. How can the Company reasonably demand that the court import into the contract a stipulation to convey by a deed containing a covenant against this dower right, when no agreement of that character, nor respecting incumbrances of any kind, is expressed, and when in all probability, had such a demand been made of the vendor, he would have refused to comply with it? We think it cannot. The effect of the construction contended for by counsel would be either to attempt to arrive at a sum to be deducted absolutely by a process admittedly speculative, or to suspend the payment of a considerable portion of the purchase money to the grantor during the joint lives of himself and his wife, which, it seems to us, could never have been within the contemplation of the parties when this optional contract was signed. Plaintiff was in a court of equity pressing an inequitable demand. We think it was properly refused. On the plaintiff’s own construction of the option the Company is in the attitude of one who takes the promise of another to do that which it is known he cannot perform except by the concurrence of a third person. Such purchaser contracts with full notice of the uncertainty attending the seller’s ability to perform, and, not having been misled to his injury, cannot now ask the extraordinary aid of a court of conscience in repairing such loss, if any, as he has sustained by the vendor’s failure to complete his contract.”

See, also, Barnes v. Christy, 102 Oh St 160, 174; Vol. 46 A. L. R. 748. 756. In the Parisette case it must be observed that the purchaser who instituted the action sought a decree against the wife in the same manner as the purchaser in the instant case seeks a decree against the husband. In that case the wife did not sign the contract of sale with the husband who was the sole owner. The lower court decreed that the plaintiff was not entitled to relief against the wife and that the plaintiff was not entitled to a deed from the husband, except upon payment of the entire purchase money provided for in the option. In the application of the law laid down in The People’s Savings Bank Co. v. Parisette, et al., to the facts in the instant case, we are of the opinion that the defendant is not entitled to ■ a decree against the husband. Richard H. Grundstein. On this issue the judgment is reversed.

Plaintiff contends that the trial court erred in rendering a money judgment for $50.00 for á portion of the month of March, 1950. The trial court found that the plaintiff had retained a check for rent for the month of February, 1950, and also rendered judgment against the defendant for $50.00 for rent from March 1, to March 6, 1950. The sixty day period stated in the lease after giving notice of the exercise of the option expired March 6, 1950. Apparently the court' concluded that defendant owed rent up until the expiration of the sixty day period at the termination of which the exercise of the option became effective. We are in accord with the judgment of the trial court in finding that the defendant owed rent up until March 6, 1950,' at the rate stipulated in the lease and was not obligated to pay rent thereafter.

In her petition, the plaintiff did not ask for consequential or coercive relief. Such additional relief may be given if properly pleaded. American Life & Accident Insurance Company of Kentucky v. Jones, Admr., 152 Oh St 287, 297. Whether the trial court could grant coercive relief by entering a money judgment is not properly presented to this Court for determination. On this question the plaintiff cannot be heard to complain as the judgment was in her favor and she is not prejudiced thereby. The defendant did not file a cross-appeal.

The contention of plaintiff that it would be inequitable to enforce specific performance in a period of advancing values after a lapse of eight years is not tenable. The fact that the property has increased or decreased in value since the contract was executed will not of itself warrant a refusal to enforce its terms. Thompson on Real Property, Vol. 3, page 500, Sec. 1335.

We have considered all errors assigned, although not separately discussed, and find no errors assigned well made, except Number ten which relates to the judgment erroneously entered against • Richard H. Grundstein. On this issue the judgment is reversed. Because of the unsatisfactory condition of the record on this question the cause will be remanded for further proceedings according to law.

'HORNBECK, PJ, MILLER, J, concur.

ON APPLICATION FOR REHEARING

No. 4680.

Decided March 22, 1952.

By THE COURT.

Application for rehearing is denied.

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


author: By BADER, J.

text:
    SHIPPING ROOM SUPPLIERS, INC., v. SCHOENLAUB et.
    Common Pleas Court, Hamilton County.
    No. A-121001.
    Decided February 7, 1951.
    Gorman, Silvefsteen & Davis, Sol N. Wolfson, Cincinnati, for plaintiff.
    Louis J. Schneider, Jr., Cincinnati, for defendants.
   OPINION

By BADER, J.

This case came before the Court on the citation for Sam Schoenlaub to show cause why he should not be punished for contempt of Court.

The evidence adduced at the hearing and the affidavit indicate that Harry R. Schoenlaub, one of the defendants, was employed by the plaintiff, Shipping Room Suppliers, Inc., under a written contract of employment wherein it was agreed “that for a period of two years” after he (Harry Schoenlaub) leaves the employment of T. M. Sasser, that he will not engage in the manufacture, handling, servicing or distribution of material handling equipment, such as two and four wheel trucks, linen trucks and other items now manufactured and handled by the Shipping Room Suppliers, Inc. This also includes stapling, tacking and stitching machines and other items as now handled, serviced, sold or manufactured by the Shipping Room Suppliers, Inc.

It appears further from the evidence adduced that immediately after leaving the employ, Harry R. Schoenlaub and his brother, Sam Schoenlaub, who was not a party to the contract of employment, entered into a partnership agreement for the manufacture of articles similar to those manufactured by the Shipping Room Suppliers, Inc. and carried on their business under the firm name and style of “H. & S. Schoenlaub Mfg. Co.”

Suit was filed by the Shipping Room Suppliers, Inc. against Harry R. Schoenlaub and Sam Schoenlaub, individually and as partners doing business as the H. & S. Schoenlaub Mfg. Co. seeking to enjoin them among other things from manufacturing selling or offering for sale trucks, etc., which are manufactured by the plaintiff.

On October 5, 1950 the Court, after a lengthy trial, made the following order: “It is, therefore, ordered, adjudged and decreed that the defendant, Harry R. Sehoenláub, individually, and that Harry R. Schoenlaub and Sam Schoenlaub as partners doing business as H. & S. Schoenlaub Mfg. .Co. be and they are hereby enjoined from manufacturing directly or indirectly through others similar types of trucks, stapling devices, and packaging systems now manufactured by plaintiff for a period of two years from March 3, 1950.”

The unrefuted testimony before the Court is that Harry R. Schoenlaub and Sam Schoenlaub, doing business as H. & S. Schoenlaub Mfg. Co. dissolved their partnership on September 27, 1950. Sam Schoenlaub individually went into a like business for himself and Harry R. Schoenlaub no longer has any interest in the business and has no connection with or influence therein and Sam Schoenlaub is the sole owner of the business operated by him as the Schoenlaub Mfg. Co. '

Sam Schoenlaub is now before the Court on a citation to show cause why he should not be punished by the Court for contempt for continuing to manufacture as an individual those things which he was enjoined from manufacturing and selling as a partner of Harry R. Schoenlaub doing business as the H. & S. Schoenlaub Mfg. Co.

The authorities cited by counsel for both sides have been carefully read by the Court as have many more not cited by counsel.

Counsel for the plaintiff cites, among others two Ohio cases. The one, Miller v. Toledo Grain & Milling Co., 21 Ohio Cir. Ct. R. 325 had to do with a certain design. The respondents were agents for Friedman when he was enjoined and had knowledge of the injunction and the order of the Court and can be distinguished from the facts at bar.

In the other Ohio case, Farmers’ Fertilizer Co. v. Ruh, 7 Oh Ap 430, the enjoined corporation dissolved and then reincorporated under the same name, same officers and stockholders and carried on the same work. The Court in that case said, 7 Oh Ap on page 432: “The new corporation was controlled by officers and agents and stockholders who were bound by the injunction, and who were acting under a charter. Looking at the new company as a collection of individuals, it would be subject to the injunction. It is a case, therefore, where the fiction of reincorporation should, as to the injiinction, be disregarded.”

The Court cannot go beyond the order of the trial Court and a violation of that order, whether it be right or wrong, just or unjust, by any of the parties bound by it is punishable as contempt against the Court.

For the Court to determine there has been an actual breach of the injunction, whether any of the orders have been violated, it is important to study the relief which was granted by the Court to plaintiff as well as the circumstances in connection therewith. It appears to the Court that each case must stand “on its own feet.” A search of the law indicates that we have very little law on the subject in Ohio and nowhere can there be found a case which is on “all fours” with the case at bar.

The question before the Court is whether or not Sam Schoenlaub, who is enjoined as a partner doing business as H. & S. Schoenlaub Mfg. Co., can carry on the same kind of business as an individual, under a different name and as sole owner and in which Harry R. Schoenlaub has no interest or connection.

In the case of Berger v. Superior Court, 175 Cal. 719, on page 721, 167 P. 143, on page 144, 15 A. L. R. 373, the Court said: “But despite expressions in some authorities that at first blush lend support to the contention of respondent, it is generally held that a theory of disobedience of the injunction cannot be predicated on the act of a person not in any way included in its terms or acting in concert with the enjoined party and in support of his claims.”

In the case of United States Playing Card Company v. Spalding, C. C., 92 F. 368, the defendants were enjoined as manufacturers of A. G. Spalding Company. This did not enjoin them from manufacturing the same articles for other agents.

In differentiating the Lennon case [Ex parte Lennon], 166 U. S. 548, 17 S. Ct. 658, 41 L. Ed. 1110, the Court said, 92 F. on page 369: “* 4 * is as broad as any; but it must be read, as it was used, with reference to the case, which was against a locomotive engineer, the servant of a corporation enjoined about hauling cars, who was not named in the suit or the injunction, nor served upon, but had notice. The case does not show that he would have been held if he had done the same thing, after the notice, upon another road.”

In the case of Dadirrian v. Gullian, C. C., 79 F. 784, 785, the Court held: “Syl. 2. An injunction forbidding the defendants and their ‘agents, servants,’ etc., from doing specified acts, binds the agents only while acting as such for the defendants/ and not in their personal capacity after they have ceased to be defendants’ agents or. servants, or have become agents or servants of someone else.”

The Court held in Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania Co., C. C., 54 F. 730, Syl. 5, 19 L. R. A. 387: “The employes while in the employ of the defendant company, must obey this mandatory injunction, but may, without contempt of court, avoid or evade obedience thereto by ceasing to be such employes; otherwise the injunction would, in effect, be an order compelling the employes to continue the relation of servant to the complainant, — a kind of order never yet issued by a court of equity.”

In the case of Mexican Ore Co. v. Mexican Guadalupe Mining Co., C. C., 47 F. 351, Syl. 3, at page 352, the Court said: “The director would not be deemed guilty of contempt where it appeared that after service of the injunction on the corporation he resigned his office, and sued it upon a bona fide indebtedness due him, and caused a sale of its property in satisfaction of the judgment obtained.” On page 356 of 47 F. the Court said: “So much of the order of July 10, 1889, as applies to Mr. Clayton is to be found in the enjoining clauses of that order, which was directed not only to the companies defendant, but as well to their officers, directors, trustees, agents, employes, workmen, and servants; and it is admitted that at that time and up to April 10, 1890, Mr. Clayton was a director and vice-president of one or all of the defendant corporations. By the tender and by the acceptance of his resignation his connection with such corporations lawfully ceased on that day. It is undoubtedly true that an injunction or an enjoining order against a corporation and its officers, although the officers are not named personally, and are not parties to the record in any way, is binding upon them; but the scope of such an injunction or enjoining order is to restrain the officers from doing the act prohibited in their official capacity as an officer of the corporation, or in their individual capacity, for the benefit or in the interest of the corporation enjoined.”

See also Hoover Co. v. Exchange Vacuum Cleaner Co., Inc., D. C., 1 F. Supp. 997, Syl. 1.

See Aluminum Colors Incorporated v. Empire Plating Co., D. C., 5 F. Supp. 687, Syl. 4. On page 688 of 5 F. Supp. the Court said: “If che defendant of record had retained any interest in the new company or had taken any part in its infringing acts, or if since the decree there has been merely a continuation of defendant’s former acts and trespass, the situation would be quite different from what we find'it.”

In the case at bar, while Sam Schoenlaub was made a defendant both individually and as a partner doing business as the H. & S. Schoenlaub Mfg. Co., he is only enjoined as a partner and not an individual. Sam Schoenlaub did not have a contract with plaintiff and there is no privity so far as he is concerned. The contract was with Harry R. Schoenlaub and it is only he or those with whom Harry R. Schoenlaub conspired and acted either as an employee, servant or partner whom the plaintiff can expect to adhere to the ruling. The partnership was dissolved prior to the entry of the decree. Harry R. Schoenlaub has not in any way been associated with Sam Schoenlaub in his new business since September 27, 1950. There is no evidence of collusion or conspiracy to violate the order of the Court.

It is the opinion of the Court that Sam Schoenlaub was enjoined only as a partner of Harry R. Schoenlaub doing business as the H. & S. Schoenlaub Mfg. Co., and not as an individual, in the same manner as directors, employees, officers, agents, etc., can be enjoined. If he were still a partner of Harry R. Schoenlaub he may be guilty of contempt.

To hold that Sam Schoenlaub, under the set of facts presented, is guilty of contempt of Court would be allowing the plaintiff to accomplish through a citation for contempt that which he could not realize through an action in equity.

The Court is of the opinion that no order of Court has been violated, that Sam Schoenlaub is not guilty of contempt. The contempt proceedings are dismissed at the cost of the plaintiff. ■


text:
    HUFFER, Plaintiff-Appellee, v. GUGLE, Defendant-Appellant, and THOMAS, d. b. a. BEMAN THOMAS & COMPANY, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4511.
    Decided March 5, 1951.
    Pealer & Reed, Columbus, for appellee.
    Wilson & Rector, Columbus, for appellant.
   OPINION

By THE COURT.

Submitted on motion of the appellant seeking an order requiring the appellee to comply with a previous demand for permission to make an inspection and copy of certain documents. The appellee has submitted an answering memorandum in which he states it does not appear that he has refused, but that he is willing to comply with the demand at any reasonable time. Therefore, there seems to be no substantial difference between the parties on this question, but for the purpose of the record the motion will be overruled at this time for the reason that no refusal has been established. Sec. 11552 GC.

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


author: Per CURIAM:

text:
    BLANCHET, Admr., Plaintiff-Appellant, v. CUYAHOGA VALLEY RAILROAD COMPANY, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21906.
    Decided February 13, 1951.
    Harrison, Thomas, Spangenburg & Hull, Cleveland, for plaintiff-appellant.
    Bulkley, Butler & Pillen, Cleveland, for defendant-appellee.
   OPINION

Per CURIAM:

Because of the absence of appropriate safeguards for a look-out on the rear car of a “drag of buggies” it is to be doubted that Rule No. 30 was intended to be applicable except in cases involving the operation of standard railroad equipment. However, in view of the unrestricted terms of the rule itself we are of the opinion that it was error to exclude Exhibit No. 9 from the jury.

We are unable to find that such error' was prejudicial to the plaintiff.

Conceding the duty to provide a look-out there is no evidential fact from which an inference can be drawn that the decedent’s death wás caused proximately by defendant’s negligence in this regard. Whether decedent’s body was on the rails at a time when it should and could have been seen by a look-out is a matter of surmise and conjecture.

Judgment affirmed. Exc. Order see journal.

8KEÉL, PJ, McNAMEE, J, HURD, J, concur.


author: By BLYTHIN, J.

text:
    HARRISON v. WEBB.
    Common Pleas Court, Cuyahoga County.
    No. 599996.
    Decided June 18, 1951.
    Moss & Metzenbaum, Jerome Klein, Robert Disbro, Cleveland, for plaintiff.
    Calfee, Fogg, McChord &■ Halter, John B. Calfee and Carl Schlenderberg, Cleveland, for defendant.
   OPINION

By BLYTHIN, J.

This cause came to trial and at the outset the defendant presented her motion for a dismissal on the ground that the facts stated in the amended petition are not sufficient to support a cause of action.

The facts alleged are simple and undisputed insofar as necessary for adjudication of the issue raised by the motion. Plaintiff occupied, as a tenant, and as her home, certain premises owned by defendant. She was notified to leave, and action was instituted in a Justicé of the Peace court to evict her. The sole basis of the action was stated in the notice and in the court complaint as follows:

“the plaintiff and her husband now have an immediate and compelling need to occupy said premises themselves.”

A writ of restitution was issued and it is alleged in the petition in this cause that it was issued on the basis of the statement contained in the notice and petition, already herein quoted.

It is claimed by plaintiff in this cause that defendant (plaintiff in the eviction action) did not thereafter occupy the premises but held same vacant for some period of time and then sold the same. Applicable to the relation of the parties hereto when landlady and tenant was Section 209 (a) (2) of the Housing and Rent Act of 1947, providing that no such tenant could be evicted unless for specific reasons or purposes, one of them being:—

“(2) The landlord seeks in good faith to recover possession of such housing accommodations for his immediate and personal use and occupancy as housing accommodations.”

Plaintiff now claims that the use of court process to evict her on the ground stated constituted a fraud upon her and upon the court and prays for the damages she claims to have been suffered by her.

If this cause is tried on the merits there will be defenses urged by defendant beyond the question here being discussed, but defendant claims that the basis of the claim asserted in the petition is res judicata and that such fact clearly appears on the face of the petition itself.

The real issue being decided on the motion can be stated as follows:

May the plaintiff recover damages in this cause on the •basis of her claim that the facts stated in the forcible entry and detainer action and upon which her eviction was brought about, were false, untrue and amounted to a fraud upon her. In other words, is the truth of those facts res judicata and beyond further judicial inquiry between the same parties?

Taking plaintiff’s arguments somewhat in their inverse order we first come to consideration of §10450 GC. It is plaintiff’s claim that the provisions of that section afford to her a right to seek relief in this cause.

“Sec. 10450 GC. Judgments under this chapter either before the justice, or in the court of common pleas, shall not be a bar to a later action brought by either party.”

The word “chapter” refers to “Chapter 13, Forcible Entry and Detainer.” Plaintiff stresses the fact that the provisions of the quoted section must refer to cases beyond mere forcible entry and detainer because the right to bring a “later action” is saved to “either party.” It stands to reason that a tenant would not bring as a later action — a suit for eviction. While it is true that a tenant would not institute an eviction action he might well find it necessary to bring an action involving, or arising from, the tenancy. In a forcible entry and Retainer action under the chapter mentioned, the sole issue is the right to present possession. To determine that the landlord or lessor is entitled to possession could very well leave rights between the parties undetermined and it could well be that lessee would wish those rights determined and, for the purpose, appeal to a court of competent jurisdiction for appropriate relief. Neither the wording of the statute, nor any rational interpretation of its language can possibly sustain a claim that it declares an exception to the doctrine of res judicata so as to enable a second inquiry into facts already determined in a proper judicial proceeding within the jurisdiction of the adjudicating court.

Williams v. Gordon, 53 Abs 464 (86 N. E. [2] 34) (Court of Appeals of Cuyahoga County, Ohio, Jan. 31, 1949.).

This case is a perfect example of what has just been stated. The cause was instituted in the Municipal Court of Cleveland and it was held that its jurisdiction in forcible entry and detainer was not greater than that of the J. P. courts. For that reason a question of title or an equitable defense could not be'entertained.

Syll. 1. “In the trial of a forcible entry and detainer case the procedure to be followed by the Municipal Court of Cleveland is that provided for. in a court of the justice of the peace.”

Syll. 3. “The court of the justice of the peace has no jurisdiction to try question of title as a defense in forcible entry and detainer case.”

Syll. 4. “In action of forcible entry and detainer the Municipal Court of Cleveland was without power to consider the defendant’s defense of a parol lease which was offered at argument of motion for new trial and such defendant was entitled to ,enjoin execution of writ of restitution pending determination of his rights under such lease as determined in court of competent jurisdiction.”

Here is an action properly brought by defendant (lessee) after adjudication by the justice in the forcible entry and detainer action and coming as a clear example of an action by the “either party” of the statute.

After citing a number of authorities treating the question of jurisdiction the court says:

“From these inconsistent authorities, it would seem from the better reasoned of them, that the mere fact plaintiff might be required to offer evidence in the first instance of his title, as is frequently necessary, to show his right of possession when defendant is not estopped to deny title, does not defeat the jurisdiction of the justice; but evidence on behalf of defendant as to any equitable defense should be admitted for the purpose of defeating plaintiff’s case, and when such evidence, or. the pleadings or evidence of plaintiff, disclose a bona fide controversy as to title, on which right of- possession depends, or other equitable defense, the justice is without jurisdiction and should dismiss the action, or he should render judgment for defendant, which is no doubt another way of saying he is without jurisdiction to adjudicate such issues. Such a judgment could not be res judicata. (Sec. 10450 GC.)”

The court later quotes with approval from the case of Schmidt v. Schmidt, 1 O. N. P. (N. S.) 177 as follows:

“The petition herein plainly invoked the equity powers of this court by pleading facts and praying relief which a justice of the peace has no power to” give. While this action may involve a review of the adjudication of the justice, yet there is no objection to such a proceeding for §10450 GC expressly provides ‘judgments either before the justic.e or in the court of common pleas under this chapter (Chap. 9, Title III, regulating forcible entry and detainer) shall not be a bar to any action brought by either party’.”

Before the paragraph last above quoted the court said in 1 Ohio N. P. (N.S.) 177 and 178:

“The defendants plead, by way of defense, that the matter and things set up in the petition are res judicata, having been submitted to a justice and a jury, in the action of forcible entry and detention, and passed upon adversely to the plaintiff. * * * And in Gladwell v. Hume, 18 C. C., at p. 848, the court reasons well on the practical independency of such a proceeding before a justice and such an action as the one at bar.

“It may be interesting to inquire why §8601 GC (now §10450 GC) should contemplate that a defendant in an action of,forcible entry and detainer might desire to bring an ‘after action,’ for it expressly provides that judgment shall not be a bar to ‘any after action brought by either party.’ Our reason is suggested by the questions involved in this very case at bar. If an equitable defense may be interposed in an action of forcible entry and detainer, it is difficult tc see why the judgment of the justice, if free from errors of law, should not be conclusive. If, however, such a defense can not be interposed in such an action,, it is readily seen why some ‘after action’ might be necessary, on the part of the defendant to secure his rights.” (Emphasis by the court.)

For a helpful discussion of the' principle involved we refer also to Gladwell v. Hume, 18 C. C., 845, supra.

Bieler v. Rist, 18 O. N. P. (N. S.) 534:

Syllabus: “A tenant who surrendered possession of premises after a judgment of eviction had been rendered against him by a magistrate has no claim against the landlord in tort for damages because of an unjustifiable eviction.”

At page 536 the court said:

“Counsel for the cross-petitioner cites §10450 GC, reading: ‘Judgments under this chapter, either before a justice of the peace or in the court of common pleas, shall not be a bar to a later action brought by either party.’ This refers to an action in forcible entry and detainer and can not have any reference at all to a tort growing out of an alleged eviction where it was made pursuant to the judgment.”

This court has failed to find a single authority, and none has been called to his attention, in which it is even suggested that the “later action” by “either party” of §10450 GC, refers to any proceedings permitting a reinquiry into facts presented to a justice in a matter within his jurisdiction. The statutory provision keeps the door wide open to consideration and adjudication of issues between the parties which were not within his jurisdiction. The court must therefore hold that the provisions of §10450 GC, do not authorize the present action.

Is the issue res judicata?

The doctrine of res judicata is widely recognized and is one of public policy and can be oppressive in a particular case, but is deemed to be so necessary and beneficial generally as to call for a complete disregard of those comparatively few instances in which its application would appear penalizing. The Supreme Court of Ohio in Wright v. Schick, 134 Ohio St., 193, 12 O. O. 6, adopted the usual definition of it as follows: Page 198—

“Briefly stated, the doctrine of res judicata is that an existing final judgment or decree, rendered upon the merits, and without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, question, and facts in issue, as to the parties or their privies, in all other actions or suits in the same or any other judicial tribunal of concurrent jurisdiction.”

The above is a general, over-all definition and it will be noted that a judgment, to be final, must be “without fraud or collusion.” That expression is true within certain very narrow limits and is not applicable in cases such as this. It is applicable only in those cases in which the fraud is such as to deprive or divest the court of jurisdiction. In such cases the judgment, on perfectly apparent grounds, is void. In all other cases it is merely voidable.

49 C. J. Secundum 859. Sec. 434:

“Where the fraud alleged was inherent in the cause of action, or in the character or procurement of the instrument sued on, it does not furnish a legitimate ground for impeaching the judgment in a collateral proceeding; and there are many decisions stating the broad general rule that, where the court has jurisdiction, it is not permissible for a party or privy to attack a judgment in a collateral proceeding because of fraud, such a judgment being voidable only, and not void.”

If plaintiff'in the instant case can proceed to trial at all she will, and must, proceed on the sole ground and theory that the testimony offered by plaintiff (defendant here) in the justice court was .false and perjured.

49 C. J. S. 861 Par. No. 434c:

“It is no ground for impeaching a judgment collaterally that the testimony on which it was based was false or perjured unless the fraud goes to the jurisdiction of the court.”

Freeman on Judgments, Vol. 2, 5th Edition, Sec. 731, page 1544. The section deals with “Fraudulent or Collusive Judgment.” At page 1546 it is said:

“Nevertheless it must be borne in mind that so far as the parties and their privies are concerned, a domestic judgment cannot be collaterally impeached for fraud not going to the jurisdiction, but relief on this ground must be obtained in some direct proceeding by motion or suit in equity except in those jurisdictions where fraud or mistake may excuse the splitting of a cause of action. And the fact that a judgment was by consent or confession or was the result of a friendly suit or a default, does not defeat its operation as res judicata.”

Haynes v. United Ins. Co., 48 Oh Ap 475:

Syll. 2. “The ground for vacation of a judgment that was secured by perjured testimony is not available until after conviction of the witness against whom the charge of perjury is made.”

Syll. 3. “If fraud is relied upon to vacate a judgment it must be predicated on acts outside of, collateral and extrinsic to, the matter concerning which the judgment or decree was rendered.”

The Court, at page 481 said:

“As to the claim that the judgment was secured by perjured testimony, this ground for vacation is not available until after conviction of the witness against whom the charge of perjury is made. Mason v. Tremayne, 115 Oh St, 398, If fraud is relied upon it must be predicated upon acts outside of, collateral and extrinsic to, the matter actually tried by the first court, and not related to the matter concerning which the judgment or decree was rendered. Michael v. Am. Nat. Bank, 84 Oh St, 370. Minetti v. Einhorn, 36 Oh Ap, 310.

Michael v. Am. Nat. Bank, 84 Oh St, 370:

Syll. 2. “The fraud or undue advantage for which a court of equity will set aside a judgment or decree must consist of extrinsic acts outside of and collateral to the matter actually tried by the first court and not related to the matter concerning which the judgment or decree was rendered.”'

At page 384 the court said:

“The mischief of endless litigation in which nothing is finally determined, is a thing more to be dreaded than an occasional miscarriage of justice. If by allegation in a bill in equity, that false testimony had been given, or forged documents introduced or new evidence discovered, controversies which had been regularly adjudicated could be opened up, there could be no assurance of the conclusive effect of final judgments.”

The cases just cited were those in which a direct attack was being made and the courts held that such direct attack, if to be successful, must be on grounds of extrinsic rather than intrinsic fraud. If that is true in those cases it must be doubly true in an effort to launch a collateral attack. It is urged upon the Court that the case at bar does not constitute a collateral attack on the original judgment in the eviction case. With this claim the Court cannot agree.

The question of whether or not the plaintiff in the eviction proceeding (defendant here) did, at the time of that trial, in good faith need the premises for her own and family occupation was the sole issue in the justice court. It was decided in favor of plaintiff there. That court had jurisdiction to fully determine that issue, and, there having been no appeal therefrom, this court is now bound by that judgment. The order made stands as a valid order. The question that was there involved is the foundation of this action. To say that the methods used — lack of good faith or perjury — is the question here is simply an evasion of the real issue. Whatever they were, they became a part of a judgment that is in effect and binding on the parties.

It will not be claimed that relief can be secured here without directly disproving what was proven in the court of the justice of. the peace. If the order of the justice stands as a valid order there can be no action based upon execution of it or upon its effect.

It is argued — and some courts have dwelt upon it — that “good faith” is an intangible and that it is difficult, if not indeed impossible, to disprove it before the original court and .prior to the eviction. That may be true, but, as a practical matter, it is just as intangible after eviction as it was before, and, in any event, the situation is one created by Congress with full notice of its effect and without providing a remedy for any evil resulting from it. It is proper to note that a remedy was provided for rent overcharge — triple damage. It is not the function of a trial court to create a remedy in such situations and it is worthy of note that the Legislatures of some States have enacted legislation to grant a remedy in cases in which it can be shown that the eviction under Rent Control Law. was not in good faith.

The Congress, Senate and House, had this precise question presented on debate, but the Congress was not then strengthening the Rent Control law but was weakening it — almost killing it. 93 Cong. Record, 7162. Discussion of provisions of the Act in the House. After reciting several of his objections to the Act, Mr. Spence came to the causes for eviction as they now appear in the Act, and said:

“What are the causes for eviction under this law? The causes for eviction are all of the causes now prescribed in the State laws where the action may be brought. In addition to these causes for eviction, it is provided by this act that if the tenant uses the property for immoral or illegal purposes, or if he commits a nuisance, they shall be causes for eviction and they are perfectly legitimate causes for eviction. * * * In addition to that, if the landlord in good faith wants to obtain the property for his own use * * * he can obtain possession of the property, and all of these are causes of eviction. Now, good faith is an intangible thing. How are you going to search the conscience of a landlord to ascertain whether or not he in good faith wants it for his own purposes? He may in good faith evict the tenant and after he gets possession of the property he may see some objection to using it for his own purposes. There is no penalty against him for that, but he does get the tenant out. * * *”

93 Cong. Record 7297 (Senate). Discussion in U. S. Senate on “Extension of Rent Control — Conference Report.” Discussion of June 19, 1947 on Act in question in this cause.

Sen. Taylor, page 7300:

“The eviction provisions have been changed so that a tenant can be gotten rid of for any number of reasons, five or six of them. For example, if he is a nuisance; if he is using the place for immoral purposes, or if the owner decides he wants to move into the house, he can kick out the tenant. But there is nothing in the bill which provides that the owner must move in. If he does not move in, there is no penalty attached to it. * * *”

The conference report was agreed to.

The President, when signing the Act, Doc. 370, 80th Cong., 1st Session 1947, expressed himself on that feature, — among other things he said:

“The act also weakens the protection against eviction, which is necessary for effective rent control, and completely removes the protection of rent control in many cases where it is still badly needed. * * *”

47 Columbia Law Review, 1118 (1154). Article on “The Federal Housing and Rent Act of 1947,” by John W. Willis. At page 1154 the author says-:

“The Act is completely lacking in sanctions so far as its eviction provisions are concerned. If the landord evicts the tenant on the ground of “self-occupancy” or occupancy by a purchaser or alteration and remodeling, and then fails to go through with his plans, the tenant has no remedy under the Act. The Emergency Price Control Act was not strong on this point; it gave the injured tenant no civil remedy; but eviction on false grounds was á violation of a regulation issued under that Act, and hence made the landlord liable to criminal sanctions, and the Price Administrator could, and did, resort to the injunctive process to restrain unlawful evictions, uninhibited by the usual restrictions on enjoining state courts. The present Act, as has been noted provides no criminal penalties, indeed does not even declare “unlawful” an eviction not in accordance with its terms as it does the demanding of an excessive rent; and the injunction provisions expressly apply only to cases involving excessive rents.”

Under previous Acts (Price Control Act and 1942 Rent Control Act) there were steps to be taken by landlord which are not required at all. Under the Price Control Act the administrative agency controlled the situation and could apply penalties. Under the 1942 Rent Control Act the landlord had to secure from the Agency a certificate before he could proceed to a court action. These were protective of the tenant’s rights but were completely removed by the 1947 Rent Control Act. (47 Columbia Law Review 1152 — Remedies and Sanctions.)

62 Harvard Law Review, 153. “Recent Statute.”

This article deals with remedial statutes enacted to meet the situation before us. (New York and Massachusetts) and, at Page 154, it is said:

“Moreover, res judicata is not the only obstacle to recovery. A necessary element of a deceit action by the tenant is proof of reliance on the representations of the landlord. Although he wholly disbelieves a landlord, a tenant is still compelled to move if he loses the eviction case. It would seem, therefore, that the tenant actually vacates not in reliance on the truth of any representations by the landlord, but rather as a result of judicial or administrative proceedings. Nor would any false testimony by the landlord in such proceedings give- rise to a civil cause of action for fraud or perjury. * * * Since the federal housing legislation does not provide any relief * * * the instant State statutes are necessary for adequate protection of tenants. The Massachusetts statute imposes a criminal penalty on the landlord but does not provide for compensation to the tenant for his damages. * * *

“The New York legislation, by allowing the tenant to recover his damages for removal without establishing bad faith of the landlord in the original eviction litigation, has eliminated the common law problems of res judicata and reliance.” Por a discussion and clear statement of the principle involved re fraud and perjury, see 31 Maine 435, Dunlap v. Glidden. This is an old case (1850) but the principles are discussed and the discussion is helpful.

Courts of last resort in several jurisdictions have had before them the precise question here to be decided, and have issued pronouncements from which one must take his choice. The Court of Appeals of Montgomery' County, Ohio, decided a case in 1946 under the Rent Control Act of 1942.

Jackson v. Richards, 70 N. E. (2) 692. Under that Act a certificate was required from the O. P. A. Area Rent Director. The Court of Appeals held such certificate to be conclusive on the subject of its content and that a trial court in an eviction action must accept it as conclusive. If the finding of an administrative officer is binding a fortiori is the finding of a court binding?

In the interest of brevity we refrain from quoting from that decision. However, we urge perusal of it. See also Wright v. Schick, 134 Oh St, 193, 12 O. O. 6, (Syll. 3) supra.

Rabe v. Thrasher, 197 S. W. (2d) 1. (Court of Appeals of Tennessee.) Decided 1946 under 1942 Act.

Syll. 1. “The defense raised by tenant in unlawful detainer action that the deed executed to plaintiff by her mother was not made in good faith, but a subterfuge to enable her to evict tenant, was foreclosed by action of the O. P. A. rent director in issuing certificate of authority to institute the proceedings, which certificate could only be attacked in the Emergency Court of Appeals.”

David v. Flayman, 298 N. Y. Rep. 669 (1948). This was a damage action originally tried in the Supreme Court and in which trial the plaintiff prevailed. Trial court was reversed by the Appellate Division (273 App. Div. 408) and the decision of the Appellate Division was affirmed. The action was one for recovery of damages for fraud and deceit, and conspiracy to defraud. Plaintiff had been a tenant .(home) of the defendant and was evicted—

“upon a representation that defendant required possession solely for occupancy by himself and his family.”

Plaintiff alleged that said representation was knowingly and falsely made in bad faith in that defendant did -not intend to obtain possession for himself and family but for another who entered into possession when plaintiff vacated.

Appellate Division held that plaintiff could not collaterally attack the proceedings in the lower court since the fraud was instrinsic and related to the very issues which were or might have been litigated before the O. P. A., and before the lower court. There was another element in the proceeding. The court (N.Y.) held that there was no legislative sanction for the action at the time of its commencement.

This Court has been informed that since the adjudication in the above cause the Legislature of the State of New York has enacted a statute authorizing actions for damages in such cases and that some other states have such statutes but not Ohio.

Rosenbluth v. Sackadorf, 298 N. Y. Rep. 761. This was á case in which the same issue , was raised, and in which the petition was dismissed on authority of David v. Flayman, supra.

Noyes v. Shanahan, 91 N. E. (2) 841, (Supreme Court of Massachusetts, 1950) — Action for damages on two grounds (1) Illegal Eviction (2) Abuse of Process. The first is on all fours with the case at bar. The court dismissed that action on the opening statements:

Syll. 2. “Where former tenant offered to prove that landlord had acquired title to premises and-had obtained certificate of eviction under federal rent regulations for housing permitting landlord to recover possession in good faith for his own immediate occupancy, and offered to show that landlord had. succeeded in summary process action but had thereafter failed to take possession, tenant could not recover damages on theory of tortious eviction.”

Syll. 3. “In order that there be a cause of action for abuse of process, it must appear that process was used to accomplish some ulterior purpose for which it was not designed or intended or which was not the legitimate purpose of the particular process employed.”

Holding that the plaintiff had not stated a cause of action the court said — page 843:

“The great and insuperable difficulty with the plaintiff’s case is that it is an attempt to go behind the judgment in the summary process action and to rest a new case upon issues which must necessarily have been decided heretofore against the plaintiff. * * * Whatever view is taken of the effect of the certificate, the plaintiff in this case who relies solely upon‘alleged bad faith of the defendant in prosecuting the summary process action, in which the defendant was successful, is in no position to show such bad faith.”

Similar cases are cited: 324 Mass. 321; 324 Mass. 390, in which plaintiffs failed for the same reason.

The Court deems it fair to refer very briefly to the authorities cited in their brief by able counsel for the plaintiff in this cause.

Murphy v. O’Toole, 76 Atl. (2) 313 (Superior Court of Delaware).- This is not a case decided by a court of last resort but it does squarely hold that an action for fraud and deceit in a case such as the instant case may be maintained.

Price v. Insande, 20 Oh Ap 19:

Syllabus: “A judgment in favor of a landlord, in an action in forcible entry and detainer, under which a writ of restitution is issued and the tenant evicted from the property, is not a' bar for damages by the tenant against the landlord for a breach of contract. (Emphasis ours.)

This is a case which is a perfect example of the purpose of §10450 G'C. The court said, at Page 22:

“By the special provisions of the statutes of this state, a judgment rendered in forcible entry and detainer before a J. P., or in the Court of Common Pleas, is not a bar to a later action brought by either the landlord or the tenant. (Sec. 10450 GC.) This statute is an exception to the general rule relative to res judicata and leaves open for further consideration in a proper court disputes between the partiés growing out of the same subject matter, * * (Emphasis ours.) The court did not have before it the question involved in the instant cause at all.

19 O. Jur. 175 (Brief quotes the following):

“The action for the forcible entry and detention, or the forcible or unlawful detention only, of property may be defined as a summary civil remedy provided by statute in certain cases, intended to affect only the question of possession of real property. (Emphasis ours.)

The statement again discloses the réason for §10450 GC.

Spillner v. Guenther, 58 Atl. (2) 540. (Supreme Court of New Jersey, Hudson County. Brown, Supreme Court Commissioner.) This case cannot possibly be authority to be followed in the case at bar, for the simple reason that the court referred to the statute in New Jersey. New Jersey has a Landlord and Tenant Act, referred to in the syllabus and the oninion and such act provided that—

“Proceedings had by virtue of Section 2832-265 of this title shall not be appealed, nor removed by certiorari, but the landlord shall remain liable in an action at law for any unlawful proceedings under Sections 2:32-265, 2:32-277 of this title.”

The court said at page 542:

“Evidently the Legislature, in providing for’summary proceedings by a landlord to obtain the right to immediate possession of a property recognizes that the claim of the landlord might not have been justified, and consequently, the Legislature enacted that the landlord shall ‘remain’ liable in an action at law in the nature of a suit for trespass for any unlawful proceeding under the Act.”

Lyster v. Berberich, 65 Atl. (2) 632; Williams v. DeFabio, 65 Atl. (2) 858; Hirschberg v. Golattly, 76 Atl. (2) 912.

These cases are New Jersey cases. The legislature of New Jersey had provided a remedy for a tenant evicted without cause. While the remedy was probably provided without reference to the federal rent control provisions it nevertheless established a right and a public policy. The dispossession was under the state law.

Alabiso v. Schuster, 273 N. Y., App. Div., 655:

This was an action under the Control Act of 1942, and under that Act it was necessary for a landlord to secure a certificate from the O. P. A., before he could institute his proceedings to dispossess. Such a certificate was secured and the court held that such certificate if secured on false statements would constitute extrinsic as distinguished from intrinsic fraud. In other words it was not part of the trial, it was secured before the trial, and it was binding on the court so that there was no judicial inquiry by any court into the good faith, motives or plans of the landlord. Syllabus 4:

“The fraud complained of is extrinsic, not intrinsic, and the fact that the certificate is final unless attacked under the Price Control law does not bar a common law action for fraud and deceit, the issuance of the certificate being only a step in the fraud. The tenant does not seek to set the certificate aside, but instead recognizes its finality.”

The court said at page 658:

“Mo.st of the cases involving the question as to whether fraud is extrinsic or intrinsic have arisen on proceedings to vacate or set aside judgments. It was said in United States v. Throckmorton, 98 U. S., 61, 66. Tn all these cases and many others which have been examined, relief has been granted, on the ground that, by some fraud practiced directly upon the party seeking relief against the judgment or decree, that party has been prevented from presenting all of his case to the court.’ A good illustration of this rule is found in El Reno Mutual Fire Ins. Co. v. Sutton (41 Okla. 297). In this case, of course, there is no judgment but simply a certificate of the rent director moving the prayer to eviction proceedings. * * * The fraud is essentially in the deceitful method employed to obtain the certificate and in its use.”

Nyullais v. Mozer, 193 Pac. 2 (Superior Court of Los Angeles County, California on Appeal from Muni. Ct. of Los Angeles.). A|ain we have a case based upon the O. P. A. certificate, and again we have a remedy under the statute — Section 1709 of the Civil Code of California. It is quoted on page 168:

“One who wilfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers.

“Section 1710, Civil Code, says that — ‘A deceit, within the' meaning of the last section is either: 1. The suggestion, as a fact, of that which is not true by one who does not believe it to be true; * *

Teare v. Sussman, 210 Pac. (2) 446. (Supreme Court of Colorado.) In this case there was no court proceeding of any kind, therefore the question involved in the case at bar was not present at all. The question involved could not be res judicata when it had never been filed or heard in any court.

Trepanier v. Hujher et al., 134 Conn. 25 (54 Atl. [2] 275). This was an -action for unlawful eviction on ground of fraud, and without fraud combined in one count, and no question such as those presented by the case at bar were raised or even considered. It apparently was assumed that there was a right to recover and such,¿has been the situation in a number of cases in Ohio. The question now before this court has not been raised and some courts have rendered judgments upon the assumption that there was a right to recover if it was shown that the eviction had been made for a purpose not supported by good faith.

Tranchina v. Arcinas, 178 Pac. (2) 65. (California District Court of Appeals.) Again we find a cáse under the 1942 rent control law. Syllabus 4:

“Where defendants acting in bad faith procure certificate from O. P. A., permitting eviction of plaintiffs and obtaining judgment in unlawful detainer action .for an ulterior purpose in circumvention of wartime regulations of Congress, and not for the purpose of occupying premises themselves, the perversion of writ of possession to purposes forbidden by law amounted to an actionable abuse of process of court. The fact that defendants had obtained O. P. A. certificate and unlawful detainer judgment did not bar plaintiffs from relief under res judicata doctrine.

Bille v. Manning, 210 Pac. (2) 254. (California.) Again we have a case in which the question in the.case at bar was not even raised. The entire issue was that of nature of damages, general and punitive.

The case at bar is brought under the provisions of the Act of 1947.. This act did not require any certificate of the O. P. A., as a prelude to institution of action to evict. There was, therefore, no adjudication by any bureaucrat of anything, and the entire adjudication was by the court so that the doctrine of res judicata is to' be considered in an entirely different sense to consideration of it under the 1942 Act. Under the 1942 Act the decision of the O. P. A. in issuing the certificate was binding on the court but the O. P. A., was authorized to impose penalties for improper eviction. It was the intention of Congress by the 1947 Act to weaken in every possible respect the protections to the tenant under the 1942 Act. The Congress was very much inclined to entirely abolish the Rent Control provisions in 1947 and the weak 1947 Act was passed only because the Congress could not quite bring itself to repealing the entire Rent Control Act.

The court’s attention has been called to two eases decided by the Court of Appeals of Cuyahoga County, but they are not helpful at all. The first is cause No. 22045 in said court, Heck v. Hlavin. It was a case which developed from a claim of overcharge of rent. The court would naturally have jurisdiction to determine that question for the simple reason that the act of Congress itself provides the remedy, to-wit — triple damages. The'real difficulty of the plaintiff -in the case at bar is that the Congress provided a means of evicting her without furnishing to her a remedy if she was evicted without just cause by those means. The State Legislature in Ohio has likewise failed to enact legislation giving her a remedy in such case.

The’second case is No. 21214 Miller v. Moss, and while we do not have the complete record before us, it is quite clear that the question in issue here was not in issue there. Brief of counsel for the appellee, page 5, sets forth the issues presented as follows:

“E. The issues Presented

“The ultimate issues presented by the appellant (Appellant’s Brief, pp. 5, 10, 11) are:

“(1) Whether or not the finding of fraud by the Municipal Court of Cleveland is supported by the evidence or contrary to the manifest weight of the evidence.

“(2) Whether or not the action of the president and sole stockholder of a corporation can be imputed to the corporation itself so as to impose liability upon such corporation for the acts of such officer.

“(3) Whether or not the fraud established by the evidence in the present case is sufficient to justify the award of punitive or exemplary damages.”

In the case at bar there was but one issue in the court of the Justice of the Peace: — Did the landlady in good faith want the premises for her own occupancy? No administrative officer had decided anything pertaining to that issue or any other in fact, and the issue was squarely before the court and it was the duty of the court to inquire into it, which it undoubtedly did. It resolved that issue in favor of the plaintiff in the justice court, — defendant here.

As between the parties that issue until reversed is wholly binding and is res judicata and is also binding on this court for the simple reason that the justice court was vested with jurisdiction to determine that issue. If this cause is tried in this court it will have to be on the basis of a brand new inquiry between the same parties into the truth or falsity of the facts in issue in the .justice court.

On the basis of principles enunciated from time to time by the Supreme Court of Ohio, and especially on the basis of the pronouncement of the courts of last resort in the State of Massachusetts and of New York, in cases on all fours with the one at bar, the court is led to the conclusion that the plaintiff in this cause cannot recover and an order will be made granting the motion of the defendant for judgment.

The Court deems it proper to mention that it is very doubtful if the Amended Petition in this cause states a cause of action in any event. The only attempt made to state a cause is the following, on page 2:

“Plaintiff further says that the defendant, Mae A. Webb, by procuring the assistance of the court in evicting the plaintiff on the ground that the defendant needed the premises for her “immediate and compelling” use and then never occupying said premises either for herself or her immediate family, committed a fraud both upon this plaintiff and the court.”

It is nothing beyond a mere conclusion to say that procuring the assistance of a court to evict on a certain ground and to fail, later, to carry out the stated purpose, is a fraud. The court merely mentions this matter so that the plaintiff may be on guard in case this cause is finally called for trial in this court.


text:
    McMULLEN, Plaintiff-Appellant, v. F. & R. LAZARUS & COMPANY et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4640.
    Decided July 11, 1951.
    Cowan & Adams, Columbus, for plaintiff-appellant.
    Wiles & Doucher, Columbus, for defendants-appellees.
   OPINION

By THE COURT.

Submitted on motion of the appellee seeking an order dismissing the appeal on law and fact for the reason that this Court does not have jurisdiction to entertain such an appeal. The action is one for damages and is therefore not a chancery case. The motion will be sustained, but the case will be retained for determination on questions of law only as required by §11564 GC. The appellant will be granted leave to file bill o'f exceptions, assignments of error and brief in accordance with Supplement to Rule VII of this Court.

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

ON MOTION TO DISMISS APPEAL ON LAW AND FACT

No. 4641.

Decided July 11, 1951.

OPINION

By THE COURT.

Submitted on motion of the appellee seeking an order dismissing the appeal on law and faót for the reason that this Court does not have jurisdiction to entertain such an appeal.

The action is one for damages and is therefore not a chaneery case. The motion will be sustained, but the case will be retained' for determination on questions of law only as required by §11564 GC. The appellant will be granted leave to file bill of exceptions, assignments of error and brief in accordance with Supplement to Rule VII of this Court.

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