author: By MAY, J.

text:
    ANASTOS, Estate of, In re.
    Probate Court, Summit County.
    No. 81-43317-161.
    Decided June 15, 1944.

      No attorneys listed.
   OPINION

By MAY, J.

This matter came on to be heard on exceptions filed to the inventory by Gust Anagnost, the surviving partner of the decedent, in the conducting of a business on East Market Street, Akron, Summit County, Ohio.

There were three separate grounds to which exceptions were taken:

First. Certain chattels as listed in the inventory were claimed by the exceptor as his individual property, and that the decedent had no interest therein.

Second. That the appraisers had appraised the good will of said business at a grossly excessive and fantastic value.

Third. That two of the appraisers, Charles H. Clupper and Dave Goldberg, were biased and prejudiced against the surviving partner.

The evidence disclosed that the partnership was formed in August, 1940; that the surviving partner, Gust Anagnost, had certain fixtures which were moved from a former business which he conducted in South Akron, which he claimed was his individual property and were brought in to the place of business where the partnership was conducted and used in the business up to and until the death of the decedent; that the decedent contributed Seven Hundred Fifty Dollars ($750.00) in cash when the partnership was formed.

The evidence as to the exceptor’s investment is disputed. His testimony was to the fact that he contributed Seven Hundred Fifty Dollars ($750.00) in cash and loaned the fixtures to the partnership and retained title thereto. Contention of the representative of the estate was that the fixtures were his share of the contribution to the business. The evidence also disclosed that the exceptor did, at the time of taking inventory, claim title to the articles as listed in the exceptions, filed herein.

The appraisers were duly bound to appraise the fixtures, as these specific chattels were commingled with the other partnership assets. The appraisers appointed do not have any judicial powers in determining ownership that is in dispute or commingled with the assets of the decedent. The question of ownership is solely in the jurisdiction of the court upon exceptions being filed.

The evidence of the exceptor as to his ownership prior to the forming of this partnership is not disputed, but as to his retaining ownership of these chattels in the partnership is disputed.

The records of the partnership are silent as to any reference to his retaining ownership or being a part of the partnership assets. There was no record of any rentals being charged for the use in the partnership, although they were listed for intangible taxes and insured as partnership assets.

The court must hold that in the absence of any partnership record, as to the surviving partner’s claim, and his own declarations in reference to taxes and insurance, that he is now estopped from claiming any interest therein. Exceptions to this ground overruled.

The court now considering the second ground that the good will of this partnership appraised at Twelve Thosuand Dollars ($12,000.00) was excessive.

Good will is a very flexible and intangible thing. It seems that the more research is made, the more confused one’s mind becomes. There is no set rule of law which can be applied to any one case, but varies in each type of business. In all cases good will must be established on the nature of the business, the name as associated with the public; in partnership, the individuals personality and character as it affects the public’s confidence and good will towards the business; location, where the business is located in relation to the nature of the business, whether partnership owns or leases the property in which the business is being operated; if leased, the terms of the lease must be considered, net income of business, etc.

This particular partnership was conducted as a luncheon room along with the sale of groceries, beverages and notions, and was operated on East Market Street opposite the Akron City Hospital. The evidence disclosed most of the business was done with the people visiting at the Akron City Hospital and was largely transient patronage. The property was leased by the partners and had, at the time of the decedent’s death, one year and eight months to run with no renewal privileges. The books disclosed that the gross profit on an average was approximately $37,000.00 or more per year with a net profit of approximately $6719.50 per year.

The court holds that the name under which said partnership was conducted was of no intrinsic value. The value in determining the good will in this case depended to a certain extent upon the individuals and their attitude towards the consumers who came into the store. The location was the principal asset and basis in this case for determining the value of the good will. The lease must also be considered, especially in reference to the time that still remained unexpired at the time of the death of the decedent. The court must also consider that the rights of possession at the expiration of the lease would revert to the owner, unless a new lease could be negotiated. This is an uncertainty, and surely a court cannot anticipate a renewal any more than a denial of same by the lessor. There is however a reasonable certainty of the continuing income during the remainder of the lease, as the books of the partnership disclosed was steadily increasing.

There is also another factor which must be considered and which does vary, and that is the increase in cost of merchandise and expenses which can be reflected in the net profit and must be considered.

The court cannot consider assessing the value of the good will solely upon the gross income, but must consider the good will upon the net income, the location, the public’s attitude toward the partnership, the nature of the business in connection with the location, the reason for the consumers patronizing the place of business and the length of lease.

The decedent’s estate, therefore, should be entitled to some consideration for the efforts of the decedent during his lifetime in establishing the good will in this business in conjunction with his partner, the exceptor herein.

The court holds that the appraisers erred in the method of computation and assessed the value of the good will too high.

The court, therefore, reduces the good will, as set up in Schedule A of the inventory and appraisement, from Twelve Thousand Dollars ($12,000.00) to Eight Thousand Five Hundred Dollars ($8,500.00).

As to the third ground of exceptions, I do not believe the evidence disclosed any particular bias or prejudice on the part of the appraisers. It is true that one of the appraisers was associated with the attorney representing the administrator, but in the testimony of the appraisers, there was no indication that he at any time during the appraisement tried to influence the minds of the other two appraisers in arriving at their conclusions on the value as set forth in the inventory of the assets in this estate.

The court, therefore, overrules this ground of the exceptions.

A Journal Entry may be drawn in conformity to the court’s opinion rendered herein and exceptions allowed.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    DELPHOS REALTY CO., Plaintiff-Appellee, v. WILSON, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2130.
    Decided June 20, 1951.
    Hyers, Leyland & Patterson, R. William Patterson, of Counsel, Dayton, for plaintiff-appellee.
    Frederick W. Howell, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

This is an appeal on questions of law from the judgment of the Common Pleas Court of Montgomery County in which the plaintiff-appellee was granted a decree for specific performance of an agreement entered into with the defendant-appellant involving the sale of real estate.

The matter was presented to the Court on the pleadings and an agreed statement of facts. The record shows that on July 18, 1949, the Delphos Realty Company of Dayton, Ohio, plaintiff-appellee, entered into a written agreement with Charles O. Wilson, of Dayton, Ohio, defendant-appellant, whereby Charles O. Wilson agreed to sell and the Delphos Realty Company agreed to buy a certain tract of land in the City of Dayton. The agreement provided for the payment by the plaintiff of a consideration of Eight thousand seven hundred and fifty dollars ($8,750) and for the delivery of a warranty deed by the defendant, both of which provisions were complied ,with by the respective parties. Said written agreement further provided that: “Same to be clear and free of all encumbrances excepting taxes and assessments after June, 1949, installment.” The record further shows that on the date of purchase the records of the office of the County Treasurer of Montgomery County showed that there existed upon said real estate unpaid taxes and assessments amounting to One thousand one hundred eight dollars ninety-two cents ($1,108.92).

Several years prior to the sale of the real estate the defendant, Charles O. Wilson, entered into contracts under the Thomas-Zoul Act which provided for the payment of delinquent taxes and assessments over a period of ten years as authorized by §2672-3 GC. The plaintiff made numerous demands upon the defendant for the payment of said delinquent taxes and assessments, but the defendant refused to make payment and denied he was required to make payment under the terms of the agreement.

The Court must determine whether under the written agreement the defendant was required to discharge the unpaid taxes and assessments which had accrued prior to June, 1949. The record shows that the defendant has paid all current taxes and assessments and all installments of delinquent taxes and assessments under the Thomas-Zoul Act up to and including June, 1949. The sole question for determination is whether the defendant is obligated to pay the remaining installments of delinquent taxes and assessments under the terms of the Thomas-Zoul contracts. The defendant contends that after he entered into the Thomas-Zoul contracts under the provisions of §2672-3 GC, such delinquent taxes and assessments took on the character of current taxes and assessments and that under the agreement the grantees assumed and agreed to pay such taxes and assessments due and payable after June, 1949. The statutory provision does not support the contention of the defendant. Under the provisions of the Thomas-Zoul Act the taxpayer is not permitted to enter into a written contract with .respect to the payment of taxes and assessments unless and until such taxes and assessments have become delinquent and are encumbrances upon the real estate. Sec. 2672-3 GC, in part provides:

“Upon receipt of such certificate the county auditor shall note on the tax list and duplicate, and on the delinquent tax list, in such manner as the bureau may prescribe, the fact that such undertaking has been entered into; and thereafter, so long as such undertaking shall continue to be performed, the lands against which said delinquent taxes or assessments, penalties, interest and other charges are charged, shall not be entered on the foreclosure list, and shall not be published as provided in §5704 GC as part of the list of delinquent lands, anything in the statutes of this state to the contrary notwithstanding.” (Emphasis ours.)

Sec. 2672-6 GC, in part provides:

“In case of any default in the payments under the undertaking provided for in this act, the county treasurer shall enter on the duplicate the date and the fact of such default. Thereupon such undertaking shall be canceled of record in the office of the treasurer and a certificate of such cancellation shall be given to the county auditor, and such officer and all other officers authorized by permanent law in this state to act in the premises, shall proceed to enforce the payment and collection of such delinquent taxes, assessments, penalties and interest, in the manner prescribed by the permanent law of the state therefor; * * *” (Emphasis ours.)

Under the provisions of these sections the encumbrance on the real estate was not removed by the defendant entering into an undertaking to pay such delinquent taxes and assessments over a period of ten years under the ThomasZoul Act. Such unpaid delinquent taxes and assessments did not become current taxes and assessments. The provisions of the statute (Thomas-Zoul Act) simply stays any further proceeding by the proper officers “authorized by permanent law in this state” to enforce the payment and collection “in the manner prescribed by the permanent law.” The ThomasZoul Act does not supersede §5704 GC, but merely suspends its operation so long as the taxpayer does not default in the payments under the undertaking. The delinquent taxes and assessments on the property in question still remained an encumbrance and such encumbrance existed at the time the contract was entered into. Under the written agreement the defendant was obligated to discharge this encumbrance. Vol. 11 O. Jur., pp. 932, 937.

Finding no error in the record the judgment is affirmed.

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


author: By THOMPSON, J:

text:
    SAVE-WAY INC., Plaintiff-Appellant, v. NEW YORK CENTRAL RAILROAD, Defendant-Appellee.
    Ohio Appeals, Sixth District, Lucas County.
    Nos. 4587, 4602, 4607.
    Decided December 14, 1951.
    Fuller, Harrington & Seney, Toledo, for plaintiff-appellant.
    Doyle, Lewis & Warner, Toledo, for defendant-appellee.
    (SKEEL, PJ, HURD, J, THOMPSON, J, of the 8th District sitting by designation in the 6th District.)
   OPINION

By THOMPSON, J:

Three cases are in this Court on questions of law as result of a judgment in favor of the plaintiff in the Common Pleas Court of Lucas County, in a negligence action brought by Save-Way Inc., against The New York Central Railroad Company.

On June 5, 1951, the Common Pleas Court entered judgment on a verdict of a jury in favor of plaintiff and against defendant in the sum of $18,510.66 and costs. On June 12, 1951, the defendant, railroad company, filed a motion for new trial. This motion was overruled by the trial court on June 29. The defendant thereupon filed a notice of appeal on July 17, and the case was docketed in this Court under Court of Appeals No. 4587. No bill of exceptions was filed by the defendant by August 8th which was the fortieth day after the overruling of the motion for new trial, and no further action of any kind in the case was taken by defendant, subsequent to the notice of appeal on July 17 until September 6th. On the latter date, defendant filed a motion in the Common Please Court to vacate the trial court’s order of June 29, overruling defendant’s motion for new trial, and requested an oral hearing on the motion.

On September 7, 1951, over plaintiff’s objection, and after oral hearing, the trial court granted defendant’s motion to vacate the order of June 29, 1951, which had overruled the motion for new trial and thereupon set that motion for new trial for rehearing at two o’clock in the afternoon of the same day. Subsequently, on the same date, the trial court again overruled the motion for new trial.

On September 24, defendant filed a notice of appeal from the trial court’s order of September 7th, which had overruled the motion for new trial, and this appeal was docketed in this Court as Court of Appeals Case No. 4602. On September 26, plaintiff in turn filed a notice of appeal from the court order of September 7th which had granted defendant’s motion to vacate the order of June 29, which appeal is docketed in this Court as Court of Appeals Case No. 4607.

On October 10, defendant’s bill of exceptions was filed in the Common Pleas Court. On the same day, plaintiff, in Court of Appeals Case No. 4587, filed a motion to dismiss defendant’s appeal on the ground that the latter had failed to file assignments of error, brief, and a bill of exceptions within the time required by Rule VII of the Court of Appeals. Also, on October 10th, in case No. 4602 in this Court, plaintiff moved to dismiss the appeal for the reason that no notice of appeal was filed in the trial court within the time limited by §12223-7 GC.

On October 26, defendant’s bill of exceptions was filed in Court of Appeals case No. 4602, and on the same date plaintiff filed its bill of exceptions in case No. 4607.

On November 13, plaintiff filed a motion to strike the bill of exceptions in Case No. 4602 on the ground that the bill of exceptions had not been timely filed.

The foregoing recitation of facts will indicate that this Court, therefore, now has before it for decision, three motions and one case on its merits.

All of the pertinent facts sufficient for understanding of the grounds for decision of the motions have been recited but to make clear the precise question raised by the case pending for decision on the merits (Court of Appeals No. 4607) and the alleged error of the trial court, we should note certain additional facts contained in the Bill of Exceptions taken at the oral hearing before the trial judge on September 6, 1951, on defendant’s motion to vacate the entry of June 29, and for rehearing of the motion for new trial. The motion to vacate filed on September 6, was not accompanied by affidavit and merely moved the Court for an order vacating the entry of June 29, and for an oral re-hearing “for reasons to be presented to the Court on hearing.”

At the hearing on September 6, in support of its motion asking the trial court to vacate its entry of June 29, overruling the motion for a new trial, defendant offered the professional statement of its attorney concerning the reasons why a bill of exceptions had not been filed within the forty days period subsequent to June 29, and this statement was accepted by plaintiff’s counsel. Under the circumstances, the facts disclosed in the professional statement constitute evidence. These facts show that the original request to have the trial court vacate its entry of June 29, overruling the motion for new trial, was to secure an extension of time for filing the bill of exceptions.

Defendant’s counsel in his professional statement to the trial court, prefaced his remarks with the explanation that, due to circumstances over which he had no control, it had not been possible to file a bill of exceptions within the period limited under §11564 GC.

Counsel for defendant then referred to various matters he was handling subsequent to June 29, and admitted working at his law office daily from June 29 to July 26. He stated that he worked eight nights and apparently also every day during that period, on three or four separate pending cases, although suffering considerable physical discomfiture. Rest and medical treatment had been prescribed by a physician and counsel was out of his office for three days after July 26. He was again in his office attending to law business on July 30, and left for Canada at 3:00 o’clock that afternoon to take a rest urged by his physician. He was back at his office on August 9. He admitted working at his office August 15 and 16th and the morning of August 17th. He was then away for a few days but was back at his office on August 23, and was there each day from August 27 through August 31.

The foregoing abbreviated statement concerning the time spent at his law office on legal work does not cover counsel’s reference to the court reporter. As to the latter, there was a purported conversation suggesting that the court reporter was at some time intending to take a vacation, but there is no statement that he went on a vacation or was ill or that he was in any way responsible for failing to prepare the bill of exceptions.

Defendant’s counsel concluded his professional statement with the plea that on the basis of circumstances beyond his control, his health and other matters which he did not believe could be possibly construed as wilful neglect or base negligence on his part, the Court ought to vacate the ruling theretofore made.

Despite a reference to the court reporter, the record shows that defense counsel in argument before the trial judge frankly declared that his own inattention and indisposition was the primary reason for failure to file a bill of exceptions. He further frankly conceded that the sole purpose of asking the trial court to vacate the entry of June 29, overruling the motion for new trial and of having the order re-entered on September 7, 1951, was to extend the time for filing the bill of exceptions. The situation involved was one naturally arousing the sympathy of the trial court, and of this Court, for Courts are reluctant to see a case finally disposed of on a basis other than the merits.

The question for our decision, however, is the extent of discretion vested in the trial court under the statutes of this State, which provide for the time within which a bill of exceptions shall be filed and an appeal perfected. Sec. 11564 GC, with reference to the time for filing a bill of exceptions, declares:

“When the decision is not entered on the record, or the grounds of the objection do not sufficiently appear in the entry, or the objection is to the decision of the court on a motion to direct non-suit, or to arrest the evidence from the jury, or for a new trial for misdirection to the jury, or because the verdict, or if a jury is waived, the finding of the court-is against the law and the evidence or on the admission or rejection of evidence, the party excepting must reduce his objections to writing and file them in the cause, not later than forty (40) days after the overruling of the motion for new trial, or the decision of the court, when the motion for new trial is not filed * *

Examination of the foregoing language fails to reveal any opportunity for the exercise of discretion by the trial court in interpretation of the statute, either in the interest of substantial justice or otherwise. There is no provision giving the court the right, for good cause shown, or due to unavoidable accident, or to prevent a miscarriage of justice, to extend the forty day period for filing the bill of exceptions. Employment of the word “must” in the statute, in connection with the provision for filing the bill of exceptions within forty days, evidences the mandatory character of the requirement. That the time mentioned is mandatory has been held in numerous Ohio cases. Pace v. Volk, 85 Oh St 413; Amicon v. City Railway Co., 86 Oh Ap 186; Brainard v. F. H. L. Corp., 55 Oh Ap 127.

The only question then remaining is whether the trial court is elsewhere vested with such authority over its own orders that it may vacate them as or when it sees fit, in such fashion as to be able to accomplish indirectly what it cannot do directly. To declare that although a bill of exceptions must be filed within forty days after the entry of a judgment or order but to find at the same time that a court may vacate its judgments or orders at will, and re-enter them again at a later date to accommodate counsel who have not filed a bill of exceptions within the period prescribed, would be to permit a court to do by indirection what it has no authority directly to accomplish.

In the instant case, the attempted vacation of its previous order by the Common Pleas Court was during term, a period as to which a court recognizedly has greater authority than with respect to judgments and orders sought to be vacated after term. As to the latter, §11631 GC is controlling. In the case of vacation of judgments and orders during term, the authority of the common pleas court is limited by common law principles. To the effect that it has not been regulated by statute, see Martinka v. Cleveland Railway Co., 133 Oh St 359.

A discussion of the authority of the common pleas court over its judgments and orders during the term of their rendition is found in 33 O. Jur., “Judgments” Section 959, pg. 1117 and Section 1121, pg. 1216. The latter section, discussing the power of the common pleas court to vacate or modify its judgments during term, declares:

“It is a general rule that courts of record or of general jurisdiction, such as the courts of common pleas, possess the inherent power of controlling their own judgments, and of correcting, modifying, or vacating such judgments during the term at which they were rendered. This is an inherent power, which in no way is regulated or abridged by statute in Ohio.”

Although the common pleas court has common law authority to vacate or modify its judgments and orders during term, the law in Ohio recognizes that such court may not vacate an order overruling a motion for new trial, and re-enter the same at a subsequent date, for the sole purpose of extending the time provided by law for the filing of a bill of exceptions and that to do so constitutes an abuse of discretion. On this subject, see 2 O. Jur., “Appeal and Error” Section 387, pg. 441 as follows:

“A Common Pleas Court may not vacate an order overruling a motion for new trial and re-enter the same ruling as to such motion at a subsequent date, for the sole purpose of extending the time provided by law for the filing of a bill of exceptions in an appeal of the cause on questions of law, even though such entries are made within the same term of court, and to do so constitutes an abuse of discretion. A purported bill of exceptions filed under such procedure but more than forty days from the date of the first order is not filed within time. Also, where a motion for new trial is overruled and a formal judgment on the verdict duly entered, and without any attempt during that term of the court to change or expunge from its record or journal the formal judgment so entered, the trial court later puts on another entry overruling the motion for a new trial and entering formal judgment in practically the same language as the previous entry, a bill of exceptions not filed within the statutory period after the first entry overruling the motion, although within such period after the second entry, is not filed within the statutory time and will be stricken on motion. The power of the court over its entries, judgments, and decrees does not encompass the right to extend or change statutory procedural rules. Such action re-entering an order to assist in the perfection of an appeal beyond the time prescribed by law would constitute judicial legislation and cannot be sustained. If a court has no power to extend such time directly, it cannot do it indirectly by changing the date of its overruling of a motion for new trial for that sole purpose.”

That the Ohio law follows the law generally on this point, see American Jurisprudence, “Appeal and Error” Section 418, as follows:

“Extension of Time. — The trial court has no inherent power to extend the time for taking an appeal or error proceeding, either directly or indirectly. Thus, where an appeal has not been taken within the required time, the court has no power indirectly to extend the time for appealing by vacating, for such purpose, the judgment, order, or decree, and entering it as of a later date, by a repetition or renewal of an order or judgment, a nunc pro tunc order, an amendment of judgment, notice of appeal, or assignment of errors, a resettle order, a writ of error, or a motion for reargument.”

See also exhaustive notes on the inability of a trial court indirectly to extend the time for appeal in 89 A. L. R. 941 and 149 A. L. R. 740 and cases cited.

Among the cases cited in 2 O. Jur., Sec. 387, pg. 441 in support of the foregoing proposition, is Schnitzler v. Lake Shore Coach Co., 69 Oh Ap 265 (8th Dist. 1942). In that case a common pleas court forty-two days after judgment, and during the same term, granted a motion to vacate its own order overruling a motion for new trial and thereafter re-entered the same order, it having been admitted by the moving party that the motion to vacate was filed due to the inadvertence of attorneys for plaintiff in failing to file a bill of exceptions. On appeal on questions of law to the Court of Appeals, that court found that the trial court had committed an abuse of discretion. In the opinion by Judge Skeel, it was declared:

“There can be no question that the sole purpose of the plaintiff’s motion requesting the vacating and re-entering as of a later date the entry of July 18th overruling plaintiff’s motion for a new trial, was to extend the’ time for filing the bill of exceptions beyond the forty days allowed by §11564 GC * * *. Ohio recognizes to the full extent of the common law rule the power of a court over its judgment during term. * * * But the power of the court over its entries, judgments and decrees, does not encompass the right to extend or change statutory procedural rules. Such an act constitutes judicial legislation and cannot be sustained. In the instant case, the plaintiff, for reasons not explained in the record, except that by her motion of August 29th she alleged that it was ‘overlooked’ did not flle her bill of exceptions within the forty days, as provided by §11564 GC. If the court, in the sound exercise of its discretion, when considering the facts and circumstances of the case, after the motion for new trial had been overruled and after more than forty days had passed from the date of overruling such motion but yet within term, should find that justice had not been done, the entry could have been vacated, the motion granted and the case ordered re-tried. But it is quite a different matter to attempt to assist in the perfection of an appeal beyond the time prescribed by law. If the court has no power to extend such time, directly, it cannot do it indirectly by changing the date of overruling the motion for new trial for that sole purpose.”

For other cases indicating that the action of the trial court in vacating an order overruling a motion for new trial, for the sole purpose of extending the time for filing a bill of exceptions, constitutes an abuse of discretion, see: Friedman v. Brown, 35 Oh Ap 450 (Court of Appeals 1st Dist. 1930) (Motion to certify overruled 4/3/30); Sullivan v. Cloud, 62 Oh Ap 462 (Court of Appeals 1st Dist. 1939); Cleveland Provision Co. v. Murphy, 17 Abs 392 (Court of Appeals, 7th Dist. 1934).

Counsel for defendant have argued that the recent decision of the Supreme Court of Ohio in Tims v. Holland Furnace Co., 152 Oh St 469, supports the view that a trial court, during term, may vacate its order overruling a motion for new trial, for the sole purpose of extending the time for filing a bill of exceptions, and that that case is controlling of the case before us. We have, therefore, re-examined the Tims case with care to ascertain whether the views of the Ohio Supreme Court are indeed contrary to the cases we have cited, including the Schnitzler case. We find no conflict between them.

The Tims case .sets forth the law as understood by this Court and lends added support to the reasoning in the Schnitzler case. In the Tims case, there was a failure to file the bill of exceptions within forty days after the original order overruling the motion for new trial, the failure being due to the illness of the court reporter and not due to inadvertence of litigants or counsel.

The plaintiff Tims recovered a verdict against the Holland Furnace Company. A motion for new trial was overruled and on November 23, 1948, a judgment was rendered for the plaintiff. Subsequently on Dec. 3, 1948, counsel for defendant advised the court that the court reporter who took the testimony in the case was ill and would be unable to prepare a transcript of the record within the statutory period for filing the same in the Court of Appeals, and that, unless such time could be extended, there would be no practicable way of having the bill of exceptions prepared and filed. The trial judge thereupon advised counsel that, since he had control over his orders during term, he would vacate the entry of November 23 and that such entry would again be made as soon as the court reporter had recovered from his illness and was- able to prepare the transcript. Accordingly, the order of November 23rd was vacated on December 3rd, and the same order was re-entered on December 23, 1948. Notice of appeal on questions of law to the Court of Appeals was thereafter filed by the defendant on Jan. 8, 1949. Plaintiff then filed a motion in the Court of Appeals to dismiss the appeal on the ground that it was not filed in time, the notice of appeal having been filed on January 8, 1949, within twenty days of the December 23rd judgment entry, but not within twenty days of the November 23rd judgment entry which the plaintiff contended was the final judgment date. The Court of Appeals granted the motion to dismiss. Motion to certify was filed in the Supreme Court of Ohio. That Court reversed the judgment of the Court of Appeals. The first and second paragraphs of the syllabus of the case by the Supreme Court declare as follows:

“1. To permit the preparation and timely filing of a bill of exceptions by a litigant who is without fault, the Court of Common Pleas, for good cause shown, and in the exercise of sound discretion may vacate its judgment during the term in which it was rendered and before an appeal has been instituted, and, later, during the same term, may enter a new judgment, from the date of which latter judgment the period for perfecting an appeal will begin to run.

“2. Such procedure does not contravene §12223-7 GC, which provides that an appeal from the Court of Common Pleas to the Court of Appeals shall be perfected within twenty days after the filing of the journal entry of the judgment.”

The differentiating features between the Tims case and the present case may be noted:

1. In the Tims case, the sole cause of the inability to have the bill of exceptions filed within forty days after the original order was because of the illness of the court reporter, the litigant himself, and his counsel being without fault, while in the present case, the extension of time for perfecting an appeal was sought by counsel to correct and aid his own inadvertence.

2. The illness of the court reporter in the Tims case, was called to the attention of the trial court before a notice of appeal was filed, and before the expiration of the forty day period within which the bill of exceptions was to be filed.

3. In the Tims case the vacation of the order complained of, that of overruling the motion for new trial, was for good cause shown, i. e., the illness of the court reporter, while in the instant case no good cause was shown and the sole reason for vacating the order was to re-enter .the order as of a later date and thereby to extend the time for perfecting an appeal.

That the decision in the Tims case turned upon the features mentioned and that it is clearly to be differentiated from the present case, is seen in the following language from the opinion by Judge Zimmerman:

“Because of the temporary disability of the reporter who had recorded the evidence at the trial, it was impossible to have prepared and filed, within the period prescribed by statute, a bill of exceptions containing the evidence. Recognizing the dilemma in which the defendant found itself, the Court of Common Pleas, during the same term in which the judgment against the defendant had been rendered, vacated such judgment and later entered a new one to afford the defendant the review which, if possible, should be preserved to it. * * *

“In our view of the matter, then the Court of Common Pleas, in the exercise of a sound discretion, in the furtherance of justice and before the filing of an appeal, possessed the power to vacate its judgment during term, in order to permit the official reporter, temporarily incapacitated, to prepare a complete bill of exceptions, which was necessary to enable defendant to have the Court of Appeals pass on assigned errors; and such vacation of the judgment and the entry of a new one did not operate to extend the time for appeal in contravention of §12223-7 GC, which provides that an appeal from the Court of Common Pleas to the Court of Appeals shall be perfected within twenty days after the filing of the journal entry of the judgment.

“We submit that a difference exists between arbitrarily re-entering a judgment for the sole purpose of extending the time for appeal and vacating a judgment for good cause, such as the one disclosed in the instant case, and entering judgment at a later time during the same term to save to a litigant, who is without fault, the privilege of appeal — a valuable and substantial remedy.” (Emphasis of last quoted paragraph ours.)

We recognize that the statutory limitations requiring a notice of appeal to be filed within twenty days and a bill of exceptions within forty days after final judgment have frequently caused hardship to litigants and counsel. Throughout the entire field of law, both with respect to presentation of claims and commencement of actions and perfection of appeals, we find time limitations which have often tolled actions and caused severe hardships to litigants, and these same statutes are likely to continue to be vexatious in the future. Yet the hardship in application of a rule in a particular case cannot blind us to the wisdom or necessity of rules. Uncertainty, which the law aims to guard against, would inevitably prevail and there would be wide-spread confusion if a statutory time limit observed by the diligent were to be set aside in the interests of a few. Until Absolute Justice can be guaranteed, absolute rules in the form of time limitations governing appeals must be enforced if we are to approximate equal justice for all. To give to the trial judge the right to vacate judgments and final orders, for the sole purpose of permitting one of the litigants to perfect an appeal he had neglected to take during the statutory period, would open the door to grave abuse and ignorance of rights by courts and litigants and counsel, in a field which should be clear and understood by all.

No one would have means of knowing when litigation would be terminated or what might be their rights with respect to prosecution of appeals.

It should be stated that, at the time of hearing of the instant case this court also heard arguments in the case of Norma Hebert v. New York Central Railroad Co., Court of Appeals No. 4608, in which questions similar to the questions herein were argued. We therefore refer to our opinion in that case for a further discussion of the law on the subject, in the opinion by Judge Hurd, rendered of even date herewith.

It is our decision in case No. 4607, on the merits, that the trial court abused its discretion in granting defendant’s motion for an order vacating its previous order overruling a motion for new trial, and final judgment is entered in favor of plaintiff appellant.

With respect to plaintiff’s motion to dismiss defendant’s appeal in case No. 4587, the motion is granted for failure of defendant to file his bill of exceptions within the statutory period.

In case No. 4602, plaintiff’s motion to dismiss defendant’s appeal is granted on the ground that no notice of appeal was filed within the time provided by §12223-7 GC. Plaintiff’s motion to strike the bill of exceptions in the same case is likewise granted.

Counsel may prepare a journal entry accordingly for submission to the Court. Exceptions noted.

SKEEL, PJ, HURD, J, concur.


author: By THE COURT.

text:
    ROUSH et, Plaintiffs-Appellants, v. BARTHALOW, Aud. et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4592.
    Decided October 19, 1951.
    Thomas W. Maxson, Columbus, for plaintiffs-appellants.
    Richard W. Gordon, City Attorney, Baxter Evans, Chief Counsel, Hugh K. Martin, Senior Asst. City Atty., Columbus, for defendants-appellees.
   OPINION

By THE COURT.

This is a law and fact appeal submitted upon the record made in the Court of Common Pleas. The appellants are seeking an order enjoining the appellees from proceeding further in the matter of annexing certain territory to the City of Columbus, which has had the approval of the County Commissioners of Franklin County. Our finding of facts and conclusions of law are in accordance with those of Judge Rutherford who, in a well-considered opinion, discusses all of the legal questions presented here, finding,

1. That the proceedings before the County Commissioners were in conformance with the statutory requirement.

2. That the appellants failed to establish themselves to be parties in interest.

3. That even though their interest were established, the evidence does not disclose that as to them the annexation to Columbus would not have been right, just and equitable. Judgment will be rendered for the defendants.

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


author: By MILLER, J.

text:
    BORGMAN, Estate of, In re: BORGMAN, Plaintiff-Appellant, v. DILLOW, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4554.
    Decided May 24, 1951.

      Hartell F. Denmure, Aurora, Indiana, Charles A. Eberly, Columbus, for appellant.
    Richmond & Richmond, London, for appellee.
   OPINION

By MILLER, J.

This is a law appeal from a judgment of the Probate Court refusing to admit the purported will of Etta M. Borgman to probate for the reason that her signature was not attested in accordance with the requirements of §10504-3 GC. Upon this question the record reveals that the instrument was written in the testatrix’s own handwriting and properly signed at the end thereof upon a printed form customarily used in this state; that the signature was not made in the presence of the witnesses and they were not told by her that she had signed it; they were merely asked to witness her will.

The record reveals further that the attestation clause was on the back side of the form and therefore in order for the witnesses to see the signature it would have been necessary for them to turn the instrument over for this purpose. Both of them testify that from the manner in which it was presented to them they could not see the face of the instrument and no effort was made by them to examine the same; hence, they did not know whether the testatrix’s signature was on the instrument at the time they signed it. The attestation clause for the testatrix as well as that for the witnesses bears the same date of November 18, 1948.

The statute controlling in this case is §10504-3 GC, which provides:

“Except nuncupative wills, every last will and testament shall be in writing, but may be handwritten or typewritten. Such will shall be signed at the end by the party making it, or by some other person in his presence and by his express direction, and be attested and subscribed in the presence of such party, by two or more competent witnesses, who saw the testator subscribe, or heard him acknowledge his signature.”

The appellant urges that this statute must be liberally construed, citing §10214 GC, which is as follows:

“The provisions of part third and all proceedings under it, shall be liberally construed, in order to promote its object, and assist the parties in obtaining justice. The rule of the common law, that statutes in derogation thereof must be strictly construed has no application to such part; but this section shall not be so construed as to require a liberal construction of provisions affecting personal liberty, relating to amercement, or of a penal nature.”

But our Supreme Court has held that the statutory requirements must be complied with regardless of the apparent intention of the testatrix.

In Sears v. Sears, 77 Oh St 104, the first syllabus provides:

“In the interpretation of the statute regulating the execution of wills the intention of the legislature controls, and a will that is not executed as required by statute is invalid notwithstanding the intention of the testator.”

We are of the opinion that since the witnesses signed at the request of the testatrix who produced the instrument for the purpose of the acknowledgment, all of the requirements of the statute were met, providing the testatrix had previously signed the same. Blagg v. Blagg, 55 Oh Ap 518. It seems fundamental that the testatrix must sign her name to the will before the witnesses are requested to sign their names, or at least the signing must be one continuous transaction, for otherwise they would have no signature to attest. In Slemmons v. Toland, 5 Oh Ap 201, the Court held that a will otherwise regularly executed in conformity with the provisions of the statute is not invalidated by the fact that one of the subscribing witnesses to the will signed as a witness before the testator signed, where the signing was one continuous transaction. At page 207 the Court says:

“The object of requiring the execution of wills to conform to a statutory formula in order to render them valid is to prevent fraud upon heirs at law in the distribution ®f the estate of their ancestors, and courts in the construction of these provisions should have this object in mind, in order to sustain the execution, and should not place such a liberal construction that the object of the statute would be destroyed. But when all the provisions of the statute are followed, the order in which the signatures of the testator and the witnesses are affixed to the will is not essential.”

In Keye v. Feuchter, 56 Oh St 424, the Court.says:

“One essential to the admission of a paper writing purporting to be a will to probate is that it shall have been acknowledged by the maker as his will, and his signature also acknowledged, in the presence of the two subscribing ’witnesses.”

The facts in this case are somewhat similar to the case at bar in that one of the attesting witnesses signed before the testator and who did not sign immediately thereafter. At page 432 the Court says:

“One of the subscribing witnesses having deceased, his signature was duly proven. This had the effect in law of proof that the purported will had been duly acknowledged in the presence of that witness. By the testimony of the other witness it was shown affirmatively that the alleged will was not executed and acknowledged in accordance with the statute, in that there was no acknowledgment by the maker either of the paper as his will; or of his signature thereto, in the presence of that subscribing witness.”

It has been held in the absence of evidence to the contrary, it will be presumed ordinarily that the testator signed the will before the witnesses subscribed their names thereto. 39 A. L. R. p. 934; Peverett’s Goods, L. R. (1902) Prob. (Eng.) 205; Mundy v. Mundy (1858) 15 N. J. Eq. 290; Allen v. Griffin (1887) 69 Wis. 529, 35 N. W. 21. See also Thomson v. Hall (1852) 16 Jur. (Eng.) 1144; Welty v. Welty (1855) 8 Md. 15. But this presumption does not prevail where it appears that the witnesses did not see the testator sign and that only the attestation clause of the will was exhibited to them at the time they subscribed, the balance of the will being concealed from them. Tobin v. Haack (1900) 79 Minn. 101, 81 N. W. 758; Re Mackay (1888) 110. N. Y. 611, 1 L. R. A. 491, 6 Am. St. Rep. 409, 18 N. E. 433, affirming (1887) 44 Hun, 571.

Counsel for the appellant have cited numerous cases none of which are on all fours with the case at bar. In each of its cited cases it appears that at least one of the subscribing witnesses either saw the testatrix’s signature or saw the face of the paper containing the same. Here neither of the subscribing witnesses saw the testatrix’s signature to the will at any time and no other proof was offered tending to show that it was signed by the testatrix prior to that of the witnesses. Since the presumption does not prevail here that the testatrix signed the will before the subscribing witnesses, it became necessary to produce evidence tending to establish this fact and which was not forthcoming.

Finding no errror in the record the judgment of the Probate Court will be affirmed.

HORNBECK, PJ, and WISEMAN, J, concur.


text:
    ATLAS-BUTLER FURNACES, Inc., Plaintiff-Appellee, v. SMITH, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4355.
    Decided January 30, 1950.
    Carlisle O. Dollings, Columbus, for plaintiff-appellee.
    Schorr, Chastang, Edwards & Stanley, Charles J. Chastang, of Counsel, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is a law appeal from the Municipal Court of Columbus, Ohio, which rendered judgment for the plaintiff.

No bill of exceptions has been filed. The trial court rendered its separate findings of fact and conclusions of law. After giving this matter careful consideration this Court is of the opinion that the trial court properly applied the law to the findings of fact.

In the findings of fact the trial court found “Defendant’s truck was damaged in the sum of $387.97.” There is no finding that plaintiff’s truck was damaged. The defendant did not file a cross-petition and obviously the use of the words “defendant’s truck” instead of “plaintiff’s truck” was a typographical error. This case will be remanded to the trial court for correction of the record. If the finding is corrected showing a damage to plaintiff’s truck, the judgment will be affirmed on the record as corrected.

So ordered.

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


author: By HORNBECK, J.

text:
    STATE, Plaintiff-Appellee, v. ELLIS, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4542.
    Decided February 6, 1951.
    Ralph J. Bartlett, Pros. Atty., Edmund B. Paxton, Henry L. Holden, Asst. Pros. Attys., Columbus, for plaintiff-appellee. Lyman & Lyman, Columbus, for defendant-appellant.
   OPINION

By HORNBECK, J.

The defendant was charged, tried, convicted and sentenced on a charge of murder in the second degree. Appellant assigns four grounds of error specifically set out under two claims:

1. That the verdict of the jury is against the manifest weight of the evidence.

2. Error in the general charge as given and in the failure to charge upon the subject of included offenses.

Defendant pleaded not guilty and specially urged the defense of self defense. The testimony on behalf of defendant tended to show either that he killed the decedent’ with a shotgun which was accidentally discharged or that he killed the deceased in self defense. The trial judge properly placed the burden upon the State of establishing by the requisite degree of proof all of the elements of murder in the second degree, including a purposeful and malicious killing. This enabled the jury to consider that testimony which tended to show that the killing may have been accidental and not purposeful or malicious. The instruction as to self defense presented another theory, namely, a purposeful killing which was justifiable because the defendant was acting in self defense.

The defense developed testimony tending to prove that decedent was quarrelsome, dangerous and at times carried weapons upon his person and at the time that he was killed he had a sawed-off ball bat in his clothing. His tendencies and propensities were fully developed before the jury. On the other hand, were shown the circumstances attending the killing, the fact that no quarrel had ensued on the day of the homicide to which the defendant and the deceased were parties; that no bad blood existed between them; that no express-threats were shown to have been made by the deceased against the defendant, although some of the statements and gestures of decedent could be interpreted as implied threats; that the decedent was shot back of the left ear; that at no time was he closer than 17 to 20 feet from the defendant at the time of the shooting. Other facts were developed showing a quarrel and a fight between the common-law wife of decedent and another woman, the coming onto the scene by decedent and violence used by him against one of the participants of the fight, his later return to the place of business of defendant in search of his wife — in fact, the record is voluminous and fully presented to the jury all circumstances preceeding and attending the killing. Although the evidence would support an acquittal, the jury was well within its rights in resolving the facts against the defendant and in concluding that there was a purposeful and malicious killing and that self defense was not established.

The first assignment of error is, therefore, not well made.

Upon the second assignment appellant urges that the trial judge acted to the prejudice of the defendant in failing to charge the offenses of manslaughter and assault and battery.

There is no question but that the charge of second degree murder includes within its terms the offenses of manslaughter, assault and battery and assault, but it is likewise true that before a trial judge is required to instruct the jury upon these included offenses the factual development must be such as would, if true, support a conviction of such included offense. An examination of the many cases cited by counsel on the subject of included offenses discloses the application of the principle which we have suggested. State v. Cochrane, 151 Oh St 128, is cited. In this case there was a striking of the deceased by the defendant which would have supported a conviction of assault and battery. The evidence was in dispute if the blow caused the death of decedent.

In the instant case there was no issue as to the cause of death and no assault but the shooting. Note this distinction in the opinion in Marts v. State, 26 Oh St 169.

The facts in the opinion in the cited cases of Howard v. State, 25 Oh St 399, and Heller v. State, 23 Oh St 582, are too meager to be of value here.

Counsel for the parties argue at considerable length the claimed error of the Court in failing to charge included offenses. The State proffers affidavits of the assistant prosecutor and the trial judge to the effect that the failure of the judge to charge included offenses was by the consent of counsel for the defendant. This fact is denied by the professional statement of counsel for the defendant. We do not consider these affidavits for any purpose whatever because they are not made a part of the bill of exceptions. If what transpired as set out in the affidavits tendered by the State is correct it could have been incorporated in the bill of exceptions originally or by diminution of the record. Affidavits may not be employed to provide subject matter which properly should be carried into the bill of exceptions.

It might be found that the killing was unintentional and in violation of law under 12422 GC and therefore constituted manslaughter although in view of the exception clause in that section it shall not extend to a case where firearms are used in self defense. But it is not sufficient to say that the factual development in the trial of the cause is such as would have supported the submission to the jury of the question of the guilt or innocence of the defendant of the included offense of manslaughter.

At the conclusion of the general charge this appears:

“THE TRIAL JUDGE: Counsel for the State, has the Court incorrectly stated any proposition or has the Court omitted to state any proposition that occurs to you at this time?

MR. HOLDEN: The State is satisfied, Your Honor.

THE COURT: Counsel for the defense, what have you to say?”

(Court and counsel confer at the Bench.)

“THE COURT: Is counsel for the defense satisfied?

MR. LYMAN: We are.

THE COURT: Members of the Jury, you may retire.”

It will be noted that no exception, general or special, was made to the charge by counsel for defendant and no request for charges on included offenses.

In Todor v. State, 113 Oh St 377, the defendant was charged with murder in the first degree. The Court charged the jury on murder in the first degree, recommendation of mercy, and second degree, but did not charge upon the subject of manslaughter. In the per curiam, page 378, it is said:

“Manslaughter having thereby become an issue, the duty of the court to charge the jury with reference thereto was not different from his duty to charge the jury with reference to the issues of murder in the first degree and murder in the second degree.”

Thus the Court concedes that upon the record a charge on manslaughter would have been appropriate, but that inasmuch as counsel for the defendant made no request for a charge upon the subject of manslaughter, and as the general charge as given was correct, the judgment could not be reversed for the failure of the Court to charge further. Citing State v. McCoy, 88 Oh St 447.

As we interpret this decision the trial judge here did not commit reversible error if it be conceded that the facts as developed would have supported a charge upon included offenses. Counsel for appellant seek to avoid the effect of Todor v. State by the language .of §13449-5 GC. It is true that Todor v. State was decided in 1925, four years before the enactment of §13449-5 GC, but the effect of this statute does not overcome the strength of the pronouncement in the cited case. As late as State v. Tudor, 154 Oh St 249, the majority of our Supreme Court affirmed the principle of Todor v. State. The only applicable language in §13449-5 GC is “no judgment of conviction shall be reversed for any misdirection of the jury unless the accused was or may have been prejudiced thereby.” There was no misdirection of the jury in the charge in this case, as given. The only possible claim is that the Court could properly have charged further.

The second branch of this assignment of error, namely, that the Court erred in failing to provide but two forms of verdict, namely, “Guilty of murder in the second degree” and “Not guilty” is answered by our conclusion as to the first branch of the assignment.

It is further urged that the trial judge did not properly charge the law of self defense. The charge followed in the main the instructions which have been approved, directly and inferentially, in Marts v. State, 26 Oh St 162; State v. Mueller, 6 O. L. R. 542; and Nelson v. State, 42 Oh Ap 252.

The trial judge properly instructed the jury to apply the subjective test to the conduct of the defendant as it related to his defense of self defense. He said to the jury:

“I suggest to you that in determining this you place yourselves in so far as you are enabled so to do in the shoes of the defendant as he was then and there at the time of the occurrence, and all of the facts and circumstances in evidence before you at that time, and ascertain and determine did the defendant act in self defense as I have defined self defense to you.”

This charge authorized the jury to consider the physical and mental makeup of the defendant including his weakness and his injuries. Upon the whole the charge is correct and fair to the defendant. Although it does not include the very last words of the 2nd syllabus of Marts v. State, it does in substance incorporate the meaning of that language.

The second assignment of error is not sustained in any of its branches. The judgment will be affirmed.

MILLER, PJ, WISEMAN, J, concur.


author: By NICHOLS, J:

text:
    NEWMAN, Plaintiff-Appellee, v. NEWMAN, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22165.
    Decided December 17, 1951.
    Ralph R. Levenson, Cleveland, for plaintiff-appellee.
    Spieth, Spring & Bell, Cleveland, for defendant-appellant.

      (HUNSICKER; PJ, DOYLE, J, of the 9th District; NICHOLS, J, of the 7th District, sitting by designation in the 8th District.)
   OPINION

By NICHOLS, J:

The parties to this proceeding were divorced by decree of the Court of Common Pleas of Cuyahoga County, entered on May 15, 1945, and the custody of their two children, Robert and Patricia, was awarded to the father. Both parties have re-married, and have established separate homes with their respective consorts.

Subject to the divorce decree and original order, the mother filed several motions, some for custody of the children, and others for citation of the father for contempt of court. Disposition of one of said motions was made by the court pursuant to the agreement of the parties, whereby custody of the boy, Robert, was awarded to the mother, and of the girl, Patricia, to the father, with right of visitation to each party.

Subsequent to the last mentioned order, the mother filed a new motion asking the court to award the custody of the daughter, Patricia, to her, basing her claim largely on the alleged abuse and mistreatment of this child by the new wife of the father.

Under §11979-4 GC, the trial court directed its duly appointed officer to make investigation and report of its finding, after which the motion was heard by the court upon the testimony of a number of witnesses, presented on behalf of the mother, and upon the report and recommendation of the investigating officer, the admission of such report as evidence being expressly authorized by §11979-4 GC, and its admission in evidence also agreed to by both parties.

After hearing all of the evidence adduced, together with the report of the investigator, no witnesses being produced on behalf of the father, the court, on its own motion, and apparently concurred in by both parties, took the child Patricia, then aged eight years, into his chambers and privately interviewed her and subsequently dictated into the record the result of such interview, after which on motion of the father, the court dismissed the mother’s motion for change of custody of the child Patricia.

From the order of the court dismissing such motion, appeal on questions of law has been prosecuted to this Court by the mother of that child.

We will refer to the mother as appellant, and to the father as appellee.

Although no motion has been made by appellee to dismiss this appeal on jurisdictional grounds, this court has given consideration to the matter of its jurisdiction to entertain the appeal, and has arrived at the conclusion that the order of dismissal may be reviewed herein on appeal on questions of law, in accordance with the decision of the Supreme Court of Ohio in the case of Neil v. Neil, 38 Oh St 558, the second paragraph of the syllabus of that case being as follows:

“2. An order dismissing a petition in a proceeding to modify a final order with respect to the custody of children in a divorce suit, may be reviewed on error.”

It is no longer debatable that in making custodial orders relating to minor children of divorced parents, the paramount consideration is the best interests of said children.

Without setting forth herein the evidence contained in the testimony of the witnesses, or the report of the investigator who strongly recommended the change of custody of the child Patricia, from the appellee to appellant, this Court finds overwhelming and uncontradicted evidence of abuse and misuse of Patricia by appellee’s present wife and her lack of affection for this child, whereby she is little less than a scullery servant and required to look after and care for the small children of appellee and his present wife, who curses and beats her for apparently trivial causes, whereby the child lives in constant fear of her stepmother, making it no longer for her best interests but positively against her best interests, to allow her to remain in the custody of the appellee.

This Court further finds that the appellant and her present husband have provided a proper home for Patricia where she will have the loving care of a mother and the companionship of her brother, Robert.

As shown by the bill of exceptions filed herein by appellant, the trial court sets forth therein the result of his interview with Patricia, stating that the child did not know the nature of an oath but that the court believed that she knew what it is to tell the truth and that she stated she desired to stay with her father. The result of such interview lead the court to dismiss the appellant’s motion for change of custody. It is thus seen that the trial court in effect permitted this eight year old child who was not capable of being sworn as a witness, to make choice of custody as between her parents, whereas by statute, §8033 GC, effective January 1, 1946, the child may do so only after arriving at the age of fourteen years.

We find the order of the trial court in thus dismissing the appellant’s motion for change of custody to be prejudicially erroneous, against the best interests of the child Patricia, and that the best interests of this child demand the change of her custody.

Coming now to make the order which the trial court should have made under the overwhelming and uncontroverted evience, the motion of appellant filed in the trial court is sustained and the custody of the child Patricia is awarded to the appellant. The appellee shall have the same rights of visitation with this child as he now has, by order of the common pleas court, in relation to the child, Robert.

The judgment of the Common Pleas Court is reversed and final judgment is entered for the appellant as above indicated. Exceptions. Order see journal.

HUNSICKER, PJ, DOYLE, J, concur.


text:
    MATTHEWS, Plaintiff, v. RUSSELL, Supt. of the Dayton Workhouse, Respondent.
    Ohio Appeals, Second District, Montgomery County.
    No. 2072.
    Decided January 17, 1950.
    Louis C. Capelle, Cincinnati, for plaintiff.
    Herbert S. Beane, City Atty., William P. Keane, Asst. Prosecutor, Dayton, for respondent.
   OPINION

By THE COURT:

This is a motion to certify this cause for the reason that the decision is in conflict with 31 Oh Ap 307, Brannon v. City of Wilmington. We recognize the conflict, but since the decision in the cited case the Supreme Court has announced the rule of law applicable in the case of Village of Struthers v. Sokol, 108 Oh St 263, which we followed. After the Supreme Court has established the rule of law, any such conflict with a decision of another Court of Appeals is of no consequence. Whipp v. Industrial Commission, 136 Oh St 531.

The motion will be overruled.

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


author: By SKEEL, PJ.:

text:
    GONGOLEWICZ, Plaintiff-Appellee, v. CLEVELAND (City), Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22325.
    Decided January 14, 1952.
    Corrigan, McMahon & Corrigan, Cleveland, for plaintiffappellee.
    Robert F. Mooney, Cleveland, for defendant-appellant.
   OPINION

By SKEEL, PJ.:

This appeal comes to this court on questions of law from a judgment entered in the Common Pleas Court of Cuyahoga County in favor of the plaintiff.

The plaintiff was a passenger on one of the transit system’s trolley buses which was going south on Broadway. He was seated on a side seat on the left-hand side of the bus directly behind the operator. There was a glass partition between this seat and the seat provided for the operator.

The plaintiff’s petition alleges that “solely by reason of the negligence and recklessness of the defendant as hereinafter set forth, said trackless trolley was caused to lurch and jerk in such a violent, unusual and unnecessary manner as to cause the plaintiff to be thrown violently against the glass partition behind the driver’s seat and seriously injuring him * * V’ It is further alleged that the defendant’s negligence consisted of—

1. Causing the bus suddenly to jerk and lurch in a violent, unusual and unnecessary manner.

2. In failing and neglecting to have and keep its bus under control.

3. In failing to maintain a lookout or to make observation to ascertain the position of the plaintiff in its bus before causing same to suddenly lurch and jerk in the manner aforesaid.

4. In failing to apprise the plaintiff of its intention to cause its bus to move in such a violent and unusual manner.

The answer of the defendant admitted the plaintiff was a passenger on the trolley bus and denied generally all of the allegations of the petition not otherwise admitted to be true which in legal effect put in issue all the claims of negligence, proximate cause, and damage as alleged by the plaintiff By its opening statement, the defendant admitted that the bus at the time and place, stopped suddenly, but denied that it was negligent in doing so under the circumstances.

The plaintiff in describing the manner in which he was injured testified that the bus came to a “sudden stop,” causing his head and shoulder to hit the glass partition.

On cross-examination the plaintiff testified he did not see what happened out in front of the bus and that the .place where the sudden stop was made was not at a regular stopping place.

The court overruled a motion for a directed verdict at the conclusion of the plaintiff’s case holding in effect that the sudden stopping of the bus was sufficient evidence of the alleged acts of negligence in the way in which the bus was operated to take the case to the jury.

The defendant, in explanation of the sudden stop produced four witnesses all of whom, with some variation, testified that as the bus was proceeding out Broadway and had almost reached Aetna Road, a metal tank (by the witnesses described as about 1% feet in diameter and from four to eight feet long, painted a green or olive color used for storing gas) fell off the back end of a truck going north or in the opposite direction from the bus, and rolled toward and into the path of the bus whereby an emergency stop was necessary to avoid the sudden danger thus created.

The witness testified that the bus was going between 20 and 25 miles per hour, that the tank when it fell off the truck was from 30 to 60 feet away from the bus and rolling toward the side of the street upon which the bus was being operated, that is, into the path of the bus, and that the tank hit the left front wheel of the bus as or at the time it came to a stop.

The plaintiff did not attempt to contradict the defendant’s explanation of the cause for the sudden stopping of the bus.

The defendant claims the following errors:

1. Error in overruling defendant’s motion for judgment or directed verdict and in overruling defendant’s motion for judgment non obstante veredicto and its motion for new trial.

2. Error in the admission and exclusion of evidence.

3. Error in the court’s charge to the jury.

4. Misconduct of counsel for plaintiff, together with error and gross abuse of discretion by the trial court.

The plaintiff’s case was bottomed entirely on his own testimony without corroboration, that the trolley bus came to a “sudden stop” at a place other than a usual stopping place causing his shoulder and head to hit and shatter a glass partition whereby he was injured. While his verbal description of the stop would not (standing alone) make out a case, yet the surrounding physical circumstance that the momentum created by the “sudden stop” threw the plaintiff into the glass partition with such force as to cause it to be shattered injuring him would be, with the plaintiff’s testimony, sufficient to create an inference of negligence in the operation of the bus.

In the annotation to the case of Teche Lines Inc. v. Pittman reported in 138 A. L. R. 220 (4 So. 2nd 293 Miss. Sup. Ct. 1941) at page 226, the author says:

“Proof that a jerk or jolt is of such suddenness and violence that negligence of the carrier causing it may be predicated thereupon may be inferred from certain physical facts in connection with such jerk or jolt.

“Thus, proof that a passenger was thrown from the seat in which he was sitting at the time of a jolt or jerk of the bus in which he was riding may give rise to the inference that the jolt was of such a violent nature as to subject the carrier to liability. Robinson v. Connecticut Co. (1936) 122 Conn. 300, 189 A. 453; Buckalew v. Eaton (1937) 118 NJL 188, 191 A 773; Shedlock v. Wyoming Valley Autobus Co. (1941) 340 Pa. 377, 17 A. (2d) 384; Bickle v. Reed (1935) 118 Pa. Super. Ct. 335, 179 A. 762; Roy v. United Electric R. Co. (1933) 53 RI 122, 164 A. 513, 32 NCCA 653; Wiggins v. North Coast Transp. Co. (1940) 2 Wash (2d) 446, 98 P (2d) 675.”

We must conclude, therefore, that the court correctly overruled the defendant’s motion for a directed verdict at the conclusion of the plaintiff’s case.

As indicated above, the defendant by its opening statement admitted that the trolley bus was caused to make a sudden and unusual stop. In explanation of such admitted fact the defendant’s evidence, which is not challenged by any contradictory proof on the part of the plaintiff, tended to establish that in making the sudden stop its driver was in the exercise of his full duty in guarding the safety of its passengers because of a sudden emergency which occurred and for .which it was in no way responsible.

It is for the most part true that a jerk or jolt exceeding in intensity such as is reasonably necessary and usually experienced in stopping and starting a vehicle of a public carrier of passengers can be said to be the result of the failure to exercise the highest degree of care consistent with the practical operation of the system, and the carrier held to be negligent because of such sudden and unusual jerk or jolt. However, circumstances frequently arise where, in the exercise of the highest degree of care consistent with the practical operation of the system, it becomes necessary to stop a vehicle being operated as a common carrier of passengers with great suddenness to avoid a danger created by an emergency not coming about through the fault of the carrier.

In the case of Teche Lines, Inc. v. Pittman, supra, a hog ran into the road within seventy five feet of the oncoming bus. The headnotes of the case provide:

“1. It is the duty of one operating a passenger bus on a pavement only 20 feet wide at a speed of 35 miles per hour, upon seeing a hog in the road only 75 feet ahead, to apply the emergency brakes, and any injury to a passenger resulting therefrom is not actionable.

“2. The fact that a passenger is standing or walking in the aisle of a bus, regardless of the reason by which he came to be there, does not affect the duty of the driver to apply the emergency brakes when necessary to avoid an accident, the driver’s duty being to all the passengers, not merely to one of them.”

And, on page 229 of the annotation, the rule is stated as follows:

“The inference of negligence on the part of the operator of a motor vehicle that arises from evidence of a violent and unusual jerk or jolt of the vehicle may be rebutted by proof that a sudden stop or turn was necessary to avoid a collision or some other unexpected emergency. Blennerhassett v. Connecticut Co. (1938) 124 Conn. 687, 199 A 443; Lyons v. Southeastern Greyhound Lines (1940) 282 Ky 106, 137 SW (2d) 1107, 7 NCCA (NS) 637; Gongales v. Toye Bros. Yellow Cab Co. (1940, La App) 198 So 379; TECHE LINES v. PITTMAN (Miss) (reported herewith) ante, 220; McLaughlin v. Union Transp. Co. (1936) 177 Okla 115, 57 P (2d) 868; Tochek v. Monongahela Transport Co. (1930) 109 W Va 20, 152 SE 776.”

In the case of Cleveland Ry. Co. v. Osborn, 66 Oh St 45, the plaintiff claimed damages because of injury sustained when a streetcar on which he was a passenger came to a sudden stop. A sudden stop was admitted by the defendant, said defendant claiming it was necessary in the exercise of the highest degree of care consistent with the operation of the streetcar because the driver of a baking wagon drove directly into the path of the oncoming streetcar and such stop was made necessary to avoid a collision. The court held:

“1. In an action to recover for personal injury occasioned by negligence of the defendant, the plaintiff cannot recover by merely proving an act of the defendant which was the proximate cause of the injury; but to authorize a recovery, the plaintiff must also show that such act resulted from culpable negligence by the defendant.

“2. Where a passenger on a street railway car was thrown from the car and injured by the sudden stopping of the car in the effort to avoid a collision, and by the shock of a collision which was not brought about by the negligence of the defendant, it is damnum absque injuria.”

And, on page 48 of the opinion the court said:

“Now it is claimed that because he did endeavor to avert the collision, he did it too vigorously and that the plaintiff in error should pay for a result which was unusual and which could not have been anticipated. It is true that the plaintiff in error was required to exercise toward the defendant in error, as a passenger, the highest practicable degree of care, or, to state it in another way, the highest degree of care possible under the circumstances; but we are sure that the gripman did no more than he ought to have done, and we are not able to conceive what else he could have done under the circumstances. The jury was not authorized to infer negligence from the proven facts.”

The Osborne case, supra, was followed by the Supreme Court in the case of The Cleveland Ry. Co. v. Orwig and Cleveland Ry. Co. v. Ingledew, reported in 124 Oh St 135. On page 137 the court said:

“It is apparent from the undisputed facts that the collision would not have occurred but for the locking of the steering wheel of the car, causing its driver to so lose control over it that it careened to the wrong side of the highway. This and not the conduct of the bus driver was the proximate cause of the accident. It is evident from the record that in the sudden emergency which confronted him the bus driver did what he could to avoid the collision, as he was in duty bound to do. In the situation here presented, the cases are determined upon the principle announced in Cleveland City Ry. Co. v. Osborn, 66 Oh St, 45, 63 N. E., 604.

“In both cases, the trial court should have sustained the motion of the defendant for a directed verdict; and the Court of Appeals should have rendered final judgment for the railway company. For failing so to do, the judgment of the Court of Appeals in each case is reversed, and final judgment rendered in favor of the plaintiff in error.”

See also, Jones v. Columbus & Southern Ohio Electric Co., 82 Oh Ap 46, Beard v. City of Cleveland (unreported) decided by this court Nov. 7, 1949.

It seems clear from the foregoing authorities that the inference of negligence that might have been drawn from the sudden stop of the bus and the injuries sustained by the plaintiff was completely rebutted by the uncontradicted evidence of circumstances showing a sudden emergency requiring the bus driver to do everything in his power to avoid the oncoming gas tank. The proximate cause of the damage sustained by the plaintiff can not be attributed to the defendant in attempting to avoid the dangers caused by the gas tank falling from a truck and rolling directly into its path when the bus in so far as the evidence from either side is concerned was then being driven in a lawful manner. We therefore sustain the defendant’s first assignment of error.

The last three assignments of error seem to be well taken but because of our holding that final judgment must be entered for the defendant because of the failure of the court to grant defendant’s motion for a directed verdict at the conclusion of the taking of all the evidence and for error in overruling the defendant’s motion for judgment notwithstanding the verdict, there seems to be no need to give extended consideration to the questions therein presented.

For the foregoing reasons the judgment is reversed and final judgment entered for the defendant. Exceptions. Order See Journal.

HURD, J, THOMPSON, J, concur.


text:
    HOEFLER & STOECKLEIN CO., Plaintiff-Appellee, v. PIONEER BUILDINGS OF OHIO, INC. et, FRANK C. CLEMENS PLUMBING CO., Defendants-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    No. 2089.
    Decided March 28, 1950.
    Curtner, Brenton & Benjamin, J. Paul Brenton, of Counsel, Dayton, for The Hoefler & Stoecklein Co., Plaintiff-Appellee.
    Shaman, Winer & Shulman, Paul Ziegler, of Counsel, Dayton, for J. W. Bickel, one of the defendants-appellants.
   OPINION

By THE COURT:

Submitted on motion to dismiss the appeal on the ground that no bill of exceptions, assignments of error or briefs-had been filed in accordance with Rule VII. Rule VII has no application to appeals on law and fact. Appeals on law and fact are controlled by Rule V.

Motion to dismiss is hereby overruled.

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


text:
    HOEFLER & STOECKLEIN CO., Plaintiff-Appellee, v. PIONEER BUILDINGS OF OHIO, INC. et, Defendants-Appellees, and FRANK C. CLEMENS PLUMBING CO., Defendant-Appellant.
    No. 2089.
    Decided August 21, 1950.
    Curtner, Brenton & Benjamin, J. Paul Brenton, of Counsel, Dayton, for Hoefier and Stoecklein Co.
    J. D. Chamberlain, Jr., Dayton, for Hoosier Mortgage Service, Inc.
    Shaman, Winer & Shulman, A. Paul Ziegler and James W. Drake, of Counsel, Dayton, for J. W. Bickel.
    Louis W. Makley, Dayton, for The Frank C. Clemens Plumbing Co.
   OPINION

By THE COURT:

This is an appeal on questions of law and fact from the judgment of the Common Pleas Court of Montgomery County, Ohio, This is an action to foreclose a mechanic's lien on two pieces of real estate located in the City of Dayton, Ohio. Certain lien holders and claimants were made parties defendant. The real estate was ordered sold and the rights of all parties were transferred to the fund. Subsequently, the court coming on to marshal liens found the lien of the defendant-appellant, The Frank C. Clemens Plumbing Company, a cross-petitioner, to be invalid. The fund was ordered distributed to parties holding valid liens in the proper order of priority.

By stipulation this matter was submitted to the Court on so much of the record taken below as affects the claim of the appellant, and additional testimony taken before a special master commissioner appointed by this Court.

The sole question for the Court to determine is whether any labor was performed on the job within sixty days prior to the date of the filing of the lien.

The appellant failed to show a valid lien with respect to Lot Numbered 56484,. and part of Lot Numbered 56485, and this part of the claim is not pressed.

With respect to Lot Numbered 56471 and part of Lot Numbered 56472, the evidence submitted shows conclusively that the last labor was performed by the appellant on January 9, 1947. No charge was made for labor performed after that date. The lien was filed on April 19, 1947, which was more than sixty days after the last labor was performed.

Appellant claims that the lien is valid due to the fact that final inspection of the plumbing was made by the Chief Plumbing Inspector of the City of Dayton in March, 1947, the exact date not being stated, and within sixty days prior 2 to the filing of the lien. The act of final inspection by the City Inspector of work done by the appellant does not constitute labor performed by the appellant within the meaning of that term in the mechanic’s lien law. See §8314 GC.

A decree similar to that entered in the court below may be entered, holding the purported lien of the appellant to be invalid.

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


author: By THE COURT: By MILLER, J: By MILLER, J:

text:
    TRICKEY, Plaintiff-Appellant, v. TRICKEY, Defendant-Appellee.
    Ohio Appeals, Second District, Miami County.
    No. 455.
    Decided January 4, 1951.
    Forrest L. Blankenship, Troy, for plaintiff-appellant.
    John A. Benjamin, Dayton, for defendant-appellee.

      Forrest L. Blankenship, Troy, for plaintiff-appellant.
    Curtner, Brenton & Benjamin, John A. Benjamin, of Counsel, Dayton, for defendant-appellee.
   OPINION

By THE COURT:

Submitted on motion of defendant-appellee to remand bill of exceptions to the trial court for the purpose of amending and perfecting the record.

Motion sustained.

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

APPEAL ON QUESTIONS OF LAW

No. 455. Decided April 18, 1951.

OPINION

By MILLER, J:

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Miami County. The controversy involves the custody of a child, Linda Lou Trickey, now four and one-half years of age. Effie P. Trickey Bodiker, plaintiff-appellant, and John C. Trickey, defendant-appellee, are the parents of the child. We will refer to them hereafter as plaintiff and defendant.

The record reveals that on May 19, 1948, the defendant was granted a divorce from the plaintiff, awarding the custody of the said child to the plaintiff, the entry providing, “that the plaintiff shall have the care, custody and control of said minor child, Linda Lou Trickey, until further order of the court, * * *.”

The court further ordered that the defendant be required to pay to the plaintiff $30.00 per month for the support of the child. At the time of this order the plaintiff was living in Tipp City, across the street from her parents, while the defendant was a Private in the Army stationed at Ft. Knox, Kentucky. Following the divorce both parties remarried. The plaintiff and her husband have established a home in Piqua, Ohio, and to this marriage a child has been born. The defendant and his wife have established a home in Louisville, Kentucky.

In May, 1949, the defendant filed a motion seeking a change of custody, asserting that he had remarried and that he was now able and desirous of having the child with him, and that the best interests of the child would be served thereby. After full and complete hearing the court partially sustained the motion of the defendant and temporarily divided the custody of the child between the parties for a period of three months until the child should reach school age. In accordance with this order the child joined the defendant and his wife in Louisville for a period of several months and was then returned to the plaintiff. Due to the fact that the defendant was being transferred to an Officers’ Candidate School at Ft. Leavenworth the court, upon defendant’s own motion, modified the order of August 3, 1949, again granting custody to the plaintiff for the six months period during which the defendant would be in the Officers’ Training School. Upon being commissioned a second lieutenant the defendant filed his application for permanent custody of the child and after another hearing the court journalized the following entry:

“This cause came on to be heard upon the application of defendant and upon the evidence presented in open court, both parties being present and represented by counsel; the Court being fully advised in the premises finds it is for the best interests of the child, Linda Lou Trickey, that permanent custody be awarded her father and that the application of defendant for permanent custody of Linda Lou Trickey is well taken and should be granted * * *.”

Upon motion to vacate this order being overruled, the plaintiff’s notice of appeal was filed and it is on this order that the case is before this Court.

The defendant urges that the granting of the custody of the child to the plaintiff at the time of the divorce decree was only a temporary order and not intended to be permanent, for the reason that the decree specifically provides for the custody of the child only “until further order of the Court.” This statement, we think, is without significance for a divorce decree providing for custody of minor children during minority continues the court’s jurisdiction for such period without reservation. Corbitt v. Corbitt, 123 Oh St 76; Rauth v. Rauth, 73 Oh Ap 56; Arnold v. Arnold, 67 Oh Ap 282. In Dailey v. Dailey, 146 Oh St 93, it is stated that the court is not' warranted in modifying a previous order fixing the custody of children where there is neither a change of conditions nor a discovery of material facts existent at the time of entering the previous order and then unknown to the court; but upon proof of such a change or discovery of material facts, the court is empowered to make an order of modification when warranted by the evidence.

In the case of Elford v. Elford, 36 Abs 397, 44 N. E. (2d) 124, this Court held that an order for the custody of a minor child made upon a divorce hearing is conclusive upon the parties until such time as changed conditions affecting the welfare of the child have rendered it appropriate that the custodial order be changed.

The only question, therefore, presented is whether or not there has been a change of condtions requiring that a change be made for the best interests of the child. On this question we have examined the entire record made at the various hearings on the motions. There is nothing in the record to indicate that the plaintiff is not properly qualified, both morally and financially, to give this child the care and attention to which it is entitled. She has an established home, consisting of four rooms, in the city of Piqua, Ohio; is married, her husband being employed and earning approximately $300.00 per month. He testified that he was willing to help his wife provide for this child. The only evidence the defendant offered on the subject of changed conditions concerned his promotion in the Army from rank of a Private to that of a Second Lieutenant, whereby his income has been increased to approximately $370 per month; that he did not think the child was being properly cared for, for the reason that when he got her upon one of the visitation periods he thought her clothing was bad, soiled and needed some buttons. He also thought she did not have the proper kind of food, because she wanted to eat hot dogs and drink cokes; that after she had been with him for a period of six weeks she gained five pounds in weight.

The record reveals that the child has had considerable sickness and he thought that his being in the Army she would be able to receive better medical attention, although there is nothing in the record to show that the child had not received proper medical attention while under the mother’s care. We think that none of these changed conditions have application to the welfare of the child and therefore do not constitute sufficient grounds for a change of custody. The order will be reversed and cause remanded.

HORNBECK, PJ, WISEMAN, J, concur.

ON MOTION OF COURT REQUESTING WRITTEN OPINION

No. 455. Decided May 18, 1951.

OPINION

By MILLER, J:

Submitted on motion of the defendant-appellee requesting that the Court in arriving at its decision in this case give consideration to the written opinion of the trial court; that the Court clarify its opinion by specifying which order of the trial court shall be determinative; that a rehearing be granted and that the Court assess one-half the costs of this appeal against each party.

The first branch of the motion is not well taken for a court speaks only through its journal entry and not through its written opinion.

As to the second branch of the motion the record reveals that on May 19, 1948, the plaintiff was awarded the custody of the child. Later, upon application of defendant-appellee, an order was journalized dividing the custody, which order was further modified by the Court on defendant’s motion granting custody of the plaintiff-appellant for the six months period during which the defendant-appellee would be in an officers’ training school. Upon completion of this training a motion for permanent custody was made and which is the order appealed from. We found from reviewing the entire record that none of the alleged changed conditions had application to the welfare of the child and therefore did not constitute sufficient grounds for the custodial change, and that in so doing the trial court abused its discretion. It is our conclusion that the judgment entry of May 19, 1948, is the determinative one which is the only final order made in the case, with the exception of the one to which this appeal is directed.' The two succeeding orders were merely interlocutory and not final. The application for a rehearing will be denied and since defendant-appellee instituted this proceeding and, being unsuccessful, should bear the burden of the costs.

Although our rules do not provide for an application for a rehearing, we entertain the same at our discretion.

The motion of the plaintiff-appellant to dismiss the application for a rehearing is therefore overruled.

HORNBECK, PJ, WISEMAN, J, concur.