author: By GRIFFITH, PJ.

text:
    KNIES, M. D., Plaintiff-Appellee, v. REISS, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5422.
    Decided October 16, 1958.
    Elliott, Hilliard & Martin, Paul W. Martin, of Counsel, Columbus, for plaintiff-appellee. ,
    Emile Reiss, Columbus, for defendant-appellant.
    (GRIFFITH, PJ, of the Seventh District; YOUNGER and GUERNSEY, JJ, of the Third District, sitting by designation in the Tenth District.)
   OPINION

By GRIFFITH, PJ.

JUDGE GRIFFITH: In the case Number 5422, in this Court, designated as Phillip T. Knies, ,M. D. against Emile M. Reiss, Defendant-Appellant, the Defendant-Appellant has this morning filed a motion challenging the jurisdiction of this visiting Court to hear and determine the matters that are presented in the Notice of Appeal. We have considered the matter of jurisdiction of this Court to hear and determine the issues and have determined that the Motion should be overruled, finding that this Court has full and complete jurisdiction to hear and determine the matters contained in the Appellant’s Notice of Appeal.

That being the case, the Appellant may now proceed, as though no motion challenging jurisdiction of the Court had been made.

MR. REISS: May I, on the record, with the Court’s permission, note exceptions and we rest on our position that this Court doesn’t have jurisdiction and, of course, it may be incumbent upon a higher tribunal to rule on that question. We prefer to remain silent on other matters concerned in this case and I still renew my request to file a brief at least to perfect the record for the higher Court. May I do so?

JUDGE GRIFFITH: This Court has no objection to your filing a brief, although it will—

MR. REISS: Thank you.

JUDGE GRIFFITH: — not be considered by this Court.

MR. REISS: I would like it of record though.

JUDGE GRIFFITH: We have passed on the matter.

MR. REISS: Thank you kindly.

JUDGE GRIFFITH: Now, the matter of this Appeal is before us without the argument of counsel for the Appellant. He, however, has filed a brief in the case and we have considered fully and carefully the contents of that brief before we came onto the Bench this morning. We have considered the Notice of Appeal, the record of the case as it stands right today, and it is our conclusion, gentlemen, that the Appellant is in this Court without a final appealable order, either as to the judgment of the Municipal Court of Columbus, or the Court of Common Pleas of Franklin County.

The Plaintiff filed his action against the Defendant-Appellant for a doctor bill of $215.00 in the Municipal Court. No judgment has ever been entered or had on that claim. It is unadjudicated.

As soon as the Plaintiff filed his action for account the Defendant filed a motion for a change of venue, I believe, from the Municipal Court. The Municipal Court overruled that motion. The Defendant-Appellant then filed an affidavit of prejudice against the Judges of the Municipal Court of Columbus and pursuant to statute, Notice of that affidavit— but in this case I think the affidavit itself was transferred to Judge Bartlett, the Presiding Judge of the Court of Common Pleas. After consideration Judge Bartlett found that there was no prejudice or passion on the part of any of the Municipal Judges to hear the matter, although he suggested, I believe, that one of the two Visiting Judges from outside the City, who were holding Court here, perhaps should hear the matter.

Now, the Appellant is before this Court this morning appealing from Judge Bartlett’s decision finding that there was no prejudice, and an anomalous situation, also appealing from the Municipal Court Judges finding that there should be no change of jurisdiction. It is sort of a double barreled appeal from the Judgment of the Municipal Court and a Judgment of the Common Pleas Court. However, I think that is wholly immaterial. Neither one of those rulings or judgments are final in any sense of the word. They are merely incidental to the progress of a case preparatory to a judgment, whatever that judgment may be.

In 60 Oh St 256, at Page 259, Paragraph 5, the Supreme Court said that an order refusing to grant a change of venue is not a final order and, therefore, not appealable. This does not determine the action nor prevent a judgment. The motion for change of venue relates merely to the trial of the main cause of action, and the entry does not accomplish anything further than to determine the Court in which the case shall be tried. The presumption of law is that any Court in this State will give a fair and impartial trial. Every litigant is entitled to a fair and impartial trial.

Then we have,'regarding the other aspect of this Appeal, the well rendered opinion in 77 Oh Ap 191, which was decided in 1945:

“A finding by the presiding judge of the Court of Common Pleas [in our case it was Judge Bartlett — the late Judge Bartlett] that the charge of bias and prejudice set forth in an affidavit filed in a mayor’s court is not sustained, is not a final order of the. Court of Common Pleas from which an appeal on questions of law may be taken to the Court of Appeals.” (Material in bracketts added.)

The Judge acts as an investigator. It is not a final judgment of a Court.

That being the case, the judgment of this Court this morning is that the Appellant’s appeal is dismissed at Appellant’s cost, for the reason that the appeal is not based upon any final appealable order.

MR. REISS: May it please the Court, may I again note exceptions on the record?

JUDGE GRIFFITH: You may.

MR. REISS: Thank you.

(The above and foregoing were all of the proceedings had on the hearing of this matter.)

YOUNGER and GUERNSEY, JJ, concur.


source: Caselaw Access Project

author: By PHILLIPS, J.

license: Public Domain

text:
    STATE, Plaintiff-Appellee, v. SMITH, Jr., Defendant-Appellant.
    Ohio Appeals, Seventh District, Columbiana County.
    No. 760.
    Decided January 2, 1958.
    G. William Brokaw, Pros. Atty., Lisbon, for plaintiff-appellee.
    Coe & Yeagley, Salem, for defendant-appellant.
   OPINION

By PHILLIPS, J.

Defendant was indicted by the Grand Jury of Columbiana County for and found guilty by a petit jury of count one of the indictment of forgery and of count two thereof of uttering and publishing a forged instrument in violation of the provisions of §2913.01 R. C., and sentenced by the trial judge to the Ohio Penitentiary for a term of from one to twenty years.

Defendant appealed to this court from the judgment of conviction of the trial court on questions of law, and contends that the trial judge erred in overruling his motion for a verdict to be directed in his favor at the close of the state’s evidence and at the close of all the evidence; and also erred in charging the jury that the alleged published forged instrument was a check.

Late on the night of January 26, 1957, defendant represented himself to the clerk of the Lape Hotel in Salem as Frank Bardawll, a registered guest of that hotel, and persuaded the clerk to cash an instrument in the form of a cheek for $22.50 drawn on the Farmers National Bank of Salem, Ohio. The clerk gave defendant $20.00 of his own money and at defendant’s request kept $2.50 as a tip. Questioned by the clerk at the time of cashing the instrument defendant admitted that he had no account in the bank in his name but stated that he had an expense account due him from the Deming Company of Salem, Ohio, and that when he received that money the next morning he would redeem the obligation. Defendant later attempted to cash another such instrument which the clerk refused to cash.

There is evidence that defendant attempted to cash a check at the Metzger Hotel in Salem at about the time he obtained the money from the clerk at the Lape Hotel, and had borrowed money from the manager of the Metzger Hotel at that time.

There is evidence introduced by the state, and denied by the defendant, and evidence of an attempt by defendant to establish an alibi to rebut state’s evidence. This presented questions for the determination of the jury and freed the trial judge of commission of error in overruling defendant’s motions for a verdict to be directed in his favor at the close of the state’s case and at the close of all the evidence.

Defendant contends that “there was a material variance between the indictment and the evidence of the state with respect to the type of instrument alleged to be forged, which alleged instrument he contends was not a check.

Defendant argues:—

“It seems quite evident from these decisions and definitions that a check is, in the last analysis, evidence of a contract.. The bank on which the check is drawn contracts with the drawer to pay on his order. The drawer in turn contracts with the payee that the bank will pay, or if they do not, that- he will pay. The check itself is evidence of these contracts. * * *
“* * * There was an express understanding by both parties after full disclosure and agreement that the bank would not and could not pay the obligation because both parties knew there was no contract between the bank and the drawer to pay upon the drawer’s order to the bank. How, then, could the instrument be considered to be an order for the bank to pay, which is the common element in all definitions of a check? * * *
“The form itself was chosen for convenience of the parties who did not intend it to be a check within the court’s definitions. * *

This argument ignores the fact that the defendant forged the name of another to the instrument in question.

Arguing the meaning of §1301.18 R. C., defendant contends:—

“From the language of this section it appears that ‘every contract on an instrument’ shall be incomplete and revocable until delivery ‘for the purpose of giving effect thereto.’ Under the evidence in this case there never was a delivery with the purposé of giving effect to the instrument as a check. The delivery was for the purpose of giving the instrument that effect agreed upon by the contract of the parties. The quoted section also provides that as between the parties delivery may be shown to have been ‘conditional or for a special purpose only, and not for the purpose of transferring the property in the instrument.’ This is exactly what happened here. The parties themselves never intended for this instrument to pass as a check. They did not intend for it to pass title to money already in the bank, and this section clearly allows a showing, between parties to the instrument, that the instrument is for a different purpose than is shown by the fact of the instrument. This section says in effect, that, as between the parties, the intention of the parties in certain cases is part of the contract evidenced by the instrument, and that intention, when proved, governs. Klabfell never took this instrument as a check. He took it for the special purpose of holding it for redemption.”

Finally defendant contends that the trial judge erred to his prejudice in admitting such evidence.

We are not impressed by such argument.

The indictment charges that defendant “unlawfully and with intent to defraud one Edward Klabfell, did make, draw and forge a certain check.”

The burden of defendant’s contention in arguing his assigned ground of error that “the court erred to the prejudice of the defendant-appellant in charging the jury, in effect, that the instrument introduced in evidence as state’s Exhibit No. 1, was a check” is that “it seems clear that the trial court in charging the jury that the instrument was in fact a -check usurped the function of the jury and, in fact, decided a question of fact which might more properly have been left for the jury’s decision,” and that:—

“Under the testimony given, it does not seem to be beyond the realm of possibility that the jury might have found the instrument to be a note or simple I. O. U., or they might- have found the entire transaction to be a loan rather than the cashing of a forged check. It is evident that if the instrument would have been found by the jury to have been a note, it would have a fatal variance between the indictment and the proof. If the jury found the transaction to be a loan induced by the false representations of defendant as to his identity, the crime itself would have been of an entirely different character.”

We find no error prejudicial to the defendant in the charge of the trial judge to which reference is made.

By brief counsel says “no error is claimed in the finding of fact made by the jury; this appeal being based upon rulings of the trial court with reference to the legal effect of certkin testimony given at the trial, which was uncontroverted, and the legal effect of the judge’s charge to the jury.” Now we turn our attention to a disposition of these claimed errors.

In his opinion on the overruling of the motion for a new trial thé trial judge summarized well the question presented to him, and to us, as follows:—

“It seems to me that we are dealing here with a negotiable instrument and even though there was an agreement, it is what I term a side agreement, it wasn’t incorporated in the instrument at all. For instance, if in a civil case a party sued upon a check, if the party was an innocent purchaser for value, he sued upon the check it would be no evidence to the validity of the check to say, ‘well, I gave that check to the person who negotiated it but I had a side agreement that he wouldn’t negotiate the check, that I would come in later and pick it up.’ * * *
“Now, when this defendant, and the jury must have found that he did this tó return the verdict they did, when this defendant signed the name of Bardawll, he was signing a name that was not his own and there was no evidence that he was authorized to sign it and he represented to the night clerk that he was the man Bardawll, who was a guest at the hotel that evening, that it was on the basis of this man being Mr. Bardawll that the night clerk cashed the check, or advanced the money on the basis of a check whatever you want to call it.
“It is significant, seems to me, that the defendant did not sign his own name if he was going to put it up as security, he could have signed his name and said ‘hold this until tomorrow morning and I will come in and redeem it’ but he realized that the night clerk wouldn’t have cashed it or advanced the money had he given his own name and used his own name, so he somehow got the name off the register of one of these guests and signed his name. The fact that there was a side agreement is significant only insofar as it may go to the question of what the intent of the defendant was, certainly had nothing to do with changing the character of the instrument.’

There is no variance between the check set forth in the indictment and the check introduced in evidence. The question of variance is set forth clearly by statute in Ohio in §2941.26 R. C.

A variance must be material to the merits or prejudicial to the defendant. In American Jurisprudence, Volume 23, Paragraph 53, Page 699, it is said:—

“In accord with a general principle of criminal procedure, a variance in substance between the allegations of the indictment for forgery and the proof tendered in support thereof is fatal.”

There is no error prejudicial to the defendant in the referral by the trial judge of the paper writing in question as a check in his charge to the jury.

Sec. 2945.83 R. C., provides:—

“No motion for a new trial shall be granted or verdict set aside, nor shall any judgment of conviction be reversed in any court because of:
“(A) An inaccuracy or imperfection in the indictment, information, or warrant, provided that the charge is sufficient to fairly and reasonably inform the accused of the nature and cause of the accusation against him;
“(B) A variance between the allegations and the proof thereof unless the accused is misled or prejudiced thereby;
“(C) The adimission or rejection of any evidence offered against or for the accused unless it affirmatively appears on the record that the accused was or may have been prejudiced thereby;
“(D) A misdirection of the jury unless the accused was or may have been prejudiced thereby;
“(E) Any other cause unless it appears affirmatively from the record that the accused was prejudiced thereby or was prevented from having a fair trial.”

Following the provisions of §2945.83 R. C., above quoted, the judgment of the court of common pleas is affirmed.

NICHOLS, PJ, concurs in the judgment.

GRIFFITH, J, concurs.


author: By BRYANT, J.

text:
    JOSEPH, an Infant, Plaintiff-Appellant, v. PETERSON et, Defendants-Appellees.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5979.
    Decided October 28, 1958.
    Herbert, Tuttle, Applegate & Britt, Paul M. Herbert, of Counsel, Columbus, for plaintiff-appellant.
    William J. Lohr, Columbus, for defendants-appellees.
   OPINION

By BRYANT, J.

The matter up for consideration at this time arises on a motion of defendants-appellees to strike the reply brief of appellant from the files for the reason that said reply brief has been filed out of rule. In support of this motion counsel for defendants-appellees rely upon Rule V, B, of the courts of appeals which provides as follows:

“Unless otherwise ordered by the Court or a Judge thereof, upon appeals on questions of law and fact, when all the testimony to be presented has been filed in the cause, the party having the burden of going forward shall within twenty (20) days thereafter file with the Clerk his trial brief in triplicate. The opposite party shall within (15) days thereafter file his answer brief in triplicate, and the reply brief thereto in triplicate shall be filed within five (5) days thereafter.”

Appellees say that appellant has not complied with the rule above set forth and asks this court to strike the reply brief from the files stating that appellees’ answer brief was filed August 11, 1958 and that appellant waited twenty-nine days before filing her brief.

In opposition thereto counsel for plaintiff-appellant says the initial brief of defendants-appellees was filed June 23, 1958 and the court extended the time for the appellees’ brief to August 11, 1958 and that the appellees’ brief was not filed until August 12, 1958, making it out of rule one day.

Appellant points to the fact that appellees had forty-nine days to prepare an answer brief and say that the reply brief in question was filed September 10, 1958. Appellant further contends that the rule in question makes the time limits applicable “unless otherwise ordered by the court,” that appellees did obtain an extension to August 11, 1958 and that, therefore, the rule does not apply. It is further pointed out that new and novel questions are involved in the appeal and that the matter is of great importance.

The notice of appeal in this case, filed on June 20, 1958, states that it is “her appeal to the Court of Appeals on questions of law.” It should be observed that the wrong rule has been cited. Rule V of this court deals with appeals on questions of law and fact.- It will be noted by reference to the text quoted above that Rule V, B, is applicable only “upon appeals on questions of law and fact.”

In the interest of accuracy it should be pointed out that Rule VII, A(2) governs the time for filing briefs in appeals on questions of law in civil cases. The said Rule VII, A(2) relates both to (1) “Bill of Exceptions” and (2) “Assignments of Error, and Briefs.”

The bill of exceptions in this case was filed in this court on July 7, 1958. Rule VII, A (2) is clearly applicable in this case and provides as follows:

“Unless otherwise ordered by the Court or a Judge thereof, assignments of error and briefs shall be filed as follows:
“(a) Within twenty (20) days after the filing of the bill of exceptions with the Clerk of the Court of Appeals, appellant shall file his assignments of error and brief. If a bill of exceptions is not required to portray the claimed errors, then appellant shall file with the Clerk of'the Court of Appeals his assignments of error and brief within fifty (50) days after the perfecting of the appeal as required by §2505.07 R. C.
“(b) Within fifteen (15) days after the filing of the appellant’s brief, counsel for appellee shall file his brief and also at his election assignments of error on his behalf, and brief in reply thereto shall be filed within seven (7) days thereafter. The appellee’s brief shall include such reasons and authorities in support of his assignments of error as he may desire, as well as an answer to appellant’s brief. The appellant’s reply brief may cover all matter in the appellee’s brief.”

The appellant in the usual appeal on questions of law has twenty days after the filing -of the bill of exceptions in this court to file his brief and assignments of error. While the answer brief of appellees is due fifteen days after the date of filing the appellant’s brief, it is seven days after the appellee’s brief is filed that the reply brief of appellant is due to be filed.

Without laboring the question further the fact is that the proceeding has not been delayed due to the date on which the reply brief of the appellant was filed and no purpose, useful or otherwise, would appear to be served by striking such brief from the file. Perhaps the only one penalized, if such action were taken, would be the court itself in that the court would be deprived of the additional discussions and authorities cited in such reply brief.

The motion therefore should be overruled.

PETREE, PJ, MILLER, J, concur.


author: Per CURIAM:

text:
    METROPOLITAN SAVINGS ASSOCIATION, a proposed corporation, Appellee, v. BURDSALL, Supt. of the Division of Building and Loan Associations et, Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24630.
    Decided December 18, 1958.
    Van Aken, Whiting, Arnold & Nash, Walter L. Tarr, Gordon Renner, for appellee.
    William Saxbe, Atty. Geni., Walter M. Shea, Asst. Atty. Geni., for appellants.
    Alexander Mintz, Squire, Sanders & Dempsey, Amici Curiae.
    (HUNSICKER, PJ, STEVENS, J, of the Ninth District, MCLAUGHLIN, J, of the Fifth District, sitting by designation in the Eighth District.)
   OPINION

Per CURIAM:

This proceeding is an appeal on questions of law by the defendants below, Burdsall, Supt., etc., Carroll, Dir. of Commerce, and Brown, Secy, of State, from the judgment of the Court of Common Pleas of Cuyahoga County, rendered on July 17, 1958.

That judgment, by its terms, determined that the order of defendant-superintendent Burdsall, of August 16, 1957, refusing to certify the Articles of Incorporation of plaintiff (appellee) to the Secretary of State of Ohio, was arbitrary, capricious and unlawful, because not supported by reliable, probative and substantial evidence.

A motion to dismiss the appeal has been filed by appellee, Metropolitan Savings Association, for the following reasons:

(1) Sec. 119.12 R. C., authorizes an appeal by an administrative agency only on questions of law relating to the constitutionality, construction or interpretation of statutes and rules and regulations of the agency.

(2) No question of constitutionality, construction or interpretation of statutes, rules or regulations of the agency was involved in the hearing of this case, or in the opinion of, or in the journal entry signed by, the trial judge.

Upon authority of Katz, et al., v. Department of Liquor Control, 166 Oh St 229, the motion to dismiss the appeal will be sustained, because the appeal presents no question of constitutionality, construction or interpretation of statutes, rules and regulations of the agency.

Accordingly, the appeal does not fall within the authorization contained in §119.12 R. C.

Appeal dismissed.

HUNSICKER, PJ, STEVENS and MCLAUGHLIN, JJ, concur.


author: By HORNBECK, J.

text:
    STATE, Plaintiff-Appellant, v. DEAN, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5983.
    Decided August 5, 1958.
    Samuel L. Devine, Pros. Atty., Earl W. Allison, Jr., Albert G. Giles, George R. Wolfe, Asst. Pros. Attys., Columbus, for plaintiff-appellant. Robert G. Jack, Columbus, for defendant-appellee and amicus curiae.
    (HORNBECK, PJ, of the Second District, sitting by designation in the Tenth District.)
   OPINION

By HORNBECK, J.

This is an appeal on questions of law from an order of the Presiding Judge of the Court of Common Pleas sustaining defendant-appellee’s motions for new trial. We hereinafter refer to defendant-appellee, Homer Jack Dean, as Dean. The motions for new trial were originally filed after Dean’s conviction by the verdict of a jury of murder in the first degree. His sentence and judgment had theretofore been reviewed on appeal and affirmed.

The error assigned is that the court abused its discretion in sustaining the motions and granting a new trial to Dean.

The brief in favor of sustaining the action of the court in granting the motions for new trial is filed by Robert G. Jack, as amicus curiae, who, at the time of the oral presentation of his motion to dismiss the appeal and upon its merits, indicated his intention to withdraw as counsel for Dean. From his statement in open court, it is evident that he has rendered extensive and continuous legal services for many months, much of which has been without financial remuneration. We are appreciative of his willingness to brief the errors assigned by appellant. In doing so, he advances two propositions:

1. The court does not have jurisdiction to consider the attempted appeal.

2. The record does not show an abuse of discretion.

We have heretofore decided the first proposition adversely to appellee’s contention.

Fortunately, for this court, the Supreme Court of Ohio, in both the majority and dissenting opinions in the prohibition action, State, ex rel. Devine, Prosecuting Attorney, v. Harter, Judge, 167 Oh St 51, has expressed itself on the law controlling the errors assigned. How much of these opinions relate to the immediate question adjudicated in the prohibition case is not for us to- say because we are quite willing to accept as controlling the conclusions of the upper court on all matters at issue here in which the majority participated.

The majority opinion, which is a Per Curiam by four members of the court and therefore the expression of all who participated, says:

“In any event, it is difficult to see how it Tthe Common Pleas Court] can again pass on the motion for new trial which had previously been overruled and which overruling had been reviewed and affirmed by the Court of Appeals.
“However, if there is an error in again passing on the motion for a new trial, it will be only an error. * * * If it [the Common Pleas Court] commits error in again passing on the motion for new trial, such error might constitute a technical abuse of discretion which could be made the subject of an appeal by the relator to the Court of Appeals from the judgment of the Common Pleas Court sustaining a motion for a new trial. Heidtman v. City of Shaker Heights, 163 Oh St 109, 121, 126 N. E. (2d) 138. See, also, concurring opinion by Taft, J., in Lehman v. Haynam, 164 Oh St 595, 602, 133 N. E. (2d) 97.”

Chief Justice Weygandt, in the dissent, after reciting the proceedings in the Dean case, including the review and affirmance by the Court of Appeals of the judgment of conviction, said:

“Subsequently the judge who is the respondent in the instant prohibition case announced that he would proceed to gra.nt the motion for a hew trial which had been overruled six years before. He further stated that he would proceed to try the defendant a second time although the defendant had been convicted in his first trial, and that conviction had been affirmed six years previously and still is in full force and effect, and although the journal entry of the Court of Appeals in the habeas corpus action makes no mention of a remand to the Court of Common Pleas or any mention of further consideration of the motion for a new trial.”

Upon the foregoing opinions, we hold that the error assigned is well made. The abuse of discretion here involved is that which Judge Stewart, in the opinion of Heidtman v. Shaker Heights, supra, defined as “a technical abuse of discretion * * * an abuse of discretion in no way reprehensible or involving wrong motives.”

We might well say that if the judge who granted the motions for a new trial had authority to pass upon them, he advances cogent reasons to support his conclusion that errors, not mentioned or considered on the former appeal, prejudicial to Dean intervened in his trial.

What we have heretofore said is an adjudication of the one and only question immediately before us on the merits of this appeal. However, in view of the comment that the Dean habeas corpus case and subsequent proceedings in this and other cases have provoked and particularly because of the status of Dean and the proper steps to be taken to implement the habeas corpus order, we would be remiss if we did not discuss them.

Some basic facts need to be stated at the outset. The habeas corpus writ is unreversed and unmodified and is the law of that case. At no time has it been challenged by any appropriate legal procedure. Whether the order was correct or made with or without a full appreciation of the facts is immaterial at this time. The facts are fixed. The writ operates on them as they are.

The operative language of the writ of habeas corpus is:

“* * * the court being fully advised * * * finds that the entry of commitment for petitioner, Homer Jack Dean is void * * * and that he is therefore being illegally detained by respondent, [the Warden of the Ohio Penitentiary] * * *.
“It is therefore ORDERED * * * that a writ of habeas corpus * * * be * * * granted forthwith and that petitioner be and hereby is remanded to the custody of the Franklin County Sheriff for further proceedings according to law.” (Emphasis ours.)

Manifestly, the word “authorized” is, by implication, written into the order making it to read “remanded * * * for further authorized proceedings according to law.” To date, no such proceedings have been instituted. ’

The Sheriff of Franklin County and his legal counsel, the Prosecuting Attorney, are within the jurisdiction of the Common Pleas Court of that county, where Dean was tried and convicted.

The Court of Appeals of the Second District heard, tried, and decided many more habeas corpus cases than any other Court of Appeals in the State of Ohio. Notwithstanding the averment of the Dean petition, manifestly, that court knew that the mittimus directed to the Warden of the Ohio Penitentiary, which was the authority under which Dean was held by that officer, did not have to be signed by the judge who tried and sentenced Dean and that, by law, it should be made up and certified by the Clerk of Courts. (Sec. 2949.12 R. C.) But, the certification of the clerk is made to the sentence and judgment entry and not to the bench docket minute made by the trial judge. In the certification in the mittimus, it is proper for the clerk to carry, without his signature, the name and title of the judge whq, it is certified, signed the entry. But the clerk made affidavit that the judgment and sentence entry was not signed by the trial judge, so that the journal entry was first prepared by the clerk and then the mittimus, neither of which was signed by the trial judge. It is thus obvious that the basis for the writ of habeas corpus was the invalidity of the judgment entry because it was not signed and authenticated by the trial judge. If the entry was invalid, then the commitment was without effect.

That a court speaks through its journal is one of the oldest precepts of the law. In the recent case of Hower Corp. v. Vance, et al., 144 Oh St 443, Judge Bell cites sixteen recent Ohio cases in support of the proposition “that a court of record speaks only through its journal.” (Emphasis ours.) Admittedly, all of these cases grew out of civil actions.

Sec. 2725.01 R. C., provides:

“Whoever is unlawfully restrained of his liberty, * * * may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment, restraint or deprivation.”

Evidently, it was reasoned that, if the commitment of Dean to the penitentiary was unauthorized, because not based on valid sentencing and judgment entry of the trial court, the Warden was holding him illegally.

No purpose can be found in the habeas corpus order to release Dean, except from the custody of the Warden, unless and until further proceedings justified such release. Dean had been convicted of murder by a jury which authorized the Sheriff of Franklin County to hold him for further proceedings according to law. That was also Dean’s status when he was returned to the custody of the Sheriff of Franklin County.

The Court of Appeals of the Second District may have been of the opinion that §2725.05 R. C., cited by appellant, had no application in the habeas corpus proceeding. This statute reads:

“If it appears that a person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or magistrate, or by virtue of the judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the process, render the judgment, or make the order, the writ of habeas corpus shall not. be allowed. * * *”

It will be noted that “jurisdiction to issue the process” is connected to the other essentials of the section by the correlative “and.” Jurisdiction to issue the process is not the full test under this statute to determine when the writ shall not issue.

In this case, there is a verdict of record, motion for new trial interposed and overruled, and there is a notation on the bench docket of the trial judge making a minute of the sentence imposed upon Dean. This fact, in probability, was developed subsequent to the habeas corpus hearing. Notwithstanding, the habeas corpus writ was issued in the face of the fact that there was such an entry on the bench docket. This knowledge was available to the Prosecuting Attorney and to the members of the Court of Common Pleas. By the language of the writ of habeas corpus, the entry of sentence and judgment was ineffective to support the commitment because it was not signed by the trial court. This order was effective and easily followed.

Pursuant, then, to the habeas corpus order that the Sheriff hold Dean “for further proceedings according to law,” the Prosecuting Attorney, as the legal representative of the State of Ohio and advisor of the Sheriff, could, on his behalf, then and now, make application to the Common Pleas Court for the preparation of a new entry of sentence and judgment. This could and can be accomplished by the preparation nunc pro tunc of an entry of sentence and judgment in conformity to the minute on the bench docket, which entry should be signed by a judge of the Common Pleas Court. A new mittimus could then issue wherein the Clerk of Courts could make the certificate attesting the fact that it was a true copy of the sentence and judgment. It may be that the preparation of a new commitment only, as suggested by Chief Justice Weygandt in the dissent in the prohibition case, will be sufficient, but it would not conform to the order in the habeas corpus writ. The Prosecuting Attorney, in this court, suggests the procedure substantially as we have outlined it. In part he urged this procedure at the time of the hearing of the motion for new trial.

It may be that the Dean habeas corpus writ was issued improperly. Judge Miller and the Second District Court of Appeals, in a case similar in its facts, No. 5630, Franklin County, Herbert Reiter v. Alvis, Warden (unreported), did not follow it. Judge Leach of the Common Pleas Court of Franklin County, in Foglio v. Alvis, Warden, 75 Abs 228, refused to follow it, and the Chief Justice of the Supreme Court, in the dissent in the prohibition case, criticized it, none of which affects the binding effect of the habeas corpus order. Notwithstanding the foregoing, there is considerable support, in reason, for the Dean habeas corpus writ.

The criminal code is silent as to the necessity that a trial judge, after verdict, sign an entry to make a judgment thereon effective. In civil procedure, now and for several years, in like situations, the signature of the trial court is requisite to a judgment entry. (Sec. 2321.19 R. C.) Except for the fact that there is no specific statutory requirement in the criminal code that a judgment and sentencing entry, after verdict, be signed by the trial court, no good reason appears for such holding. A sentence and judgment involving imprisonment and. even the death penalty would seem to rise to equal dignity with a judgment for money only.

There is a dearth of decision upon- the question here under consideration. In Pittsburgh, C. C. & St. L. Ry. Co. v. Johnson, 49 Ind. App., 93 N. E. 683, 686:

“The court or bench docket is not a record of the court in which its official entries are kept, but is merely a docket for the convenience of the court, and the notes of the judge are not the record entries to be incorporated in a transcript for the appeal of the case, and in determining what the record discloses the entries on such docket may not be considered.”

Whether or not the law specifically enjoins upon a trial judge the necessity of signing an entry of sentence and judgment after a defendant has been convicted by the verdict of a jury or by his own plea, we are not required in this proceeding to say. Such practice is scrupulously followed in many of the trial courts of the State. It is held in State of Washington, ex rel. Echtle v. Card, Judge, Washington Supreme Court, 148 Wash. 270, 268 Pac. 869, 59 A. L. R. 519, second paragraph of the syllabus:

“Whether an accused is found guilty or pleads guilty, judgment should be in writing signed by the judge,- under statutes providing that when defendant is found guilty the court shall render judgment, and that after verdict of guilty the court must pronounce judgment.”

We are not unmindful that certain opinion is extant that Dean is innocent of the charge of which he stands convicted. This issue, of course, transcends all others but cannot be reached in this proceeding.

Under our law there is no procedure by which he may now be granted a new trial. Sec. 2945.80 R. C., authorizing a motion for new trial beyond the customary three days after verdict, on the ground of newly discovered evidence, grants an extender only to within one hundred twenty days from the return of the verdict. This time has elapsed for Dean. The terms of this limitation on the right to file a motion for new trial may, in some instances, work an injustice, but over all, it is probably sound legislation.

Dean’s recourse at this time, if he has substantial evidence of his innocence, is by application for pgrdon to the Governor, which procedure could afford him opportunity to be heard and to present his evidence.

PETREE, PJ, MILLER, J, concur.


text:
    STATE, Plaintiff-Appellant, v. DEAN, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5983.
    Decided August 5, 1958.

      Samuel L. Devine, Pros. Atty., Earl W. Allison, Jr., George Wolfe, Asst. Pros. Attys., Columbus, for plaintiff-appellant.
    Robert C. Jack, Columbus, for defendant-appellee.
    (HORNBECK, J, of the Second District, sitting by designation in the Tenth District.)
   OPINION

By HORNBECK, J.

Submitted on motion of defendant-appellee to dismiss the “purported appeal for the following reasons”:

1. The Common Pleas Court of Franklin County lost jurisdiction of the defendant-appellee and their case No. 29648 prior to the filing of the purported entry which is the subject of this attempted appeal.

2. This court does not have jurisdiction of the person or the subject matter of this attempted appeal.

3. The Prosecuting Attorney of Franklin County elected the remedy for the State of Ohio in November, 1956, his attempted appeal is not timely and he is now estopped from further delaying this cause, and unlawfully confining this defendant-appellee.

4. The Prosecuting Attorney of Franklin County has not complied with the statutory requirements for an s attempted appeal herein.

5. The purported journal entry of the Franklin County Common Pleas Court filed on June 23, 1958 is not a final judgment from which the State of Ohio can appeal.

The order to which the notice of appeal is directed is the sustaining of the motion of appellee, defendant below, for a new trial.

The judge who heard and decided the motion had made his finding that it would be sustained, but the formal entry effectuating the finding was not filed until June 23, 1958. Because of a proceeding in the Supreme Court seeking to prohibit the judge who heard the motion from proceeding further in the matter, he had declined to formalize his order. The entry journalizing the order was signed by the presiding judge of the same court of which the judge who decided the motion was a member. We assume that the presiding judge had sufficient notation on the bench docket to enable him to approve the entry journalizing the order from which the appeal is taken. The appeal is regular in form and filed within any statutory period which could have application. The court speaks through its journal, and notwithstanding the delay in preparing the entry sustaining the motion for a new trial, until it was prepared and filed, the State had no order from which its appeal could be taken.

This brings us to consideration of the fifth and second branches of the motion to dismiss. It is urged that the order to which the notice of appeal is directed is not a judgment within concept of §§2953.02 and 2953.05 R. C. If the court abused its discretion in sustaining the motion for new trial, it would clearly be a final order if the rule in civil cases applies. Hoffman v. Knollman, 135 Oh St 170, second paragraph of • syllabus: Webster v. Pullman Co., 51 Oh Ap 131; 2 O. Jur. 2d, 641, 643. These are citations from civil actions but in view of the provisions of §2953.02 R. C., no good reason appears to differentiate them from criminal actions. Sec. 2953.02 R. C., authorizes an appeal in criminal cases from the Common Pleas Court to the Court of Appeals from “a judgment or final order of a court * * * inferior to the court of appeals.”

A more serious question arises because of the language in §2953.05 R. C., which we discuss in State v. Gossler, et al., 40 Abs 587. The tenor of the majority opinion in State, ex rel. v. Harter, 167 Oh St 51, 54, is to the effect that there is no doubt about the right of the State to appeal from the action of the trial judge in granting the motion for a new trial. It may be that the State had some misgivings as to its right to appeal when the proceeding had only reached the stage where the motion for new trial was sustained, which might explain the action in prohibition instead of an appeal.

This disposes of the fifth and second branches of the motion. The first branch of the motion is based upon the claim that in returning defendant Dean to the jurisdiction of Franklin County he was denied the benefit of an extradition hearing in violation of the Fourteenth Amendment to the United States Constitution and Section 16, Article I, Ohio Constitution.

The question thus raised, if pertinent at all, should be considered on the merits of the appeal and not on a motion to dismiss the appeal which is regular in form and noted from what is claimed to be a final order.

The third branch of the motion must be overruled. It is obvious that the election of the Prosecuting Attorney of an improper procedural remedy will not preclude his invocation of the proper remedy.

In support of the fourth branch of the motion §2945.68 R. C., is cited. If this statute has application to any aspect of this case, it cannot relate to the right of appellant to lodge his appeal in this court. It only purports to relate to the manner of filing the bill of exceptions. It does not affect jurisdiction. An appeal may be and frequently is determined without a bill of exceptions.

We find no ground of the motion to dismiss the appeal well made. It will be overruled in all branches.

PETREE, PJ, MILLER, J, concur.


author: By KINDER, J.

text:
    WOODS, Estate of, In re.
    Probate Court, Cuyahoga County.
    No. 438785.
    Harry A. Gillis, Eugene J. Chesney, George E. Rich, for the applicants.
    Ralph S. Locher, Joseph H. Crowley, Andrew R. Sarisky, for Cleveland City School District Public Library.
   OPINION

By KINDER, J.

This matter concerns two applications filed for counsel fees, one by the executor for attorney’s fees for legal services rendered the estate by Harry A. Gillis, and two, an application filed by Eugene J. Chesney for attorney’s fees for services also rendered the estate.

The case is this: There was an application filed here to probate the will of Nathaniel H. Woods, which will is hereinafter referred to as the 1944 will. The probate of this will was granted by this Court on August 8, 1950, and the executor, Mervyn R. Wolff, under the terms of that 1944 will, qualified.

Upon the same day, or shortly thereafter, there was brought into Court a document purporting to be the last will and testament of Nathaniel H. Woods. In that will, dated in 1948, Henry N. Walkden was named executor. The probate of this latter will was denied. That ruling was taken to the Court of Appeals where it was reversed and sent back. The 1948 will was again proffered and its probate was again denied. Again this ruling was taken to the Court of Appeals and again the ruling was reversed. The final result was that the will of 1948 was admitted to probate in this Court on April 10, 1953.

Under the 1948 will of Mr. Woods, Henry N. Walkden was not only a beneficiary, but was named as executor. Within six months of the probate of the 1944 will, Walkden in his personal capacity and as legatee under the 1948 will, filed an action in the Common Pleas Court to. contest the 1944 will, which action was later successful. Under the circumstances, it is not perceived by this Court how he could otherwise have maintained his position under the 1948 will or his rights under it either as an executor or as a legatee. The Court regards that to have been an appropriate and proper step by Walkden and a service to the estate. The Court does not consider that Walkden is to be criticized for doing what was necessary to preserve the rights under the 1948 will, later admitted to probate on April 10, 1953, and which was in turn attacked by way of a will contest. As a result of this litigation involving the 1944 and 1948 wills, the latter will was ultimately sustained and the former will was set aside.

The two wills were different in terms of devise and bequest. Under the 1944 will the Cleveland City School District Public Library, hereinafter referred to as the Library, was not a beneficiary and took nothing under its terms. Under the provisions of the 1948 will, which was ultimately established by the litigation referred to, the Library was a beneficiary and on the gross estate basis stands to benefit in the sum of approximately $100,000.00. It, therefore, would only benefit in the event that the 1948 will was validated.

It is under these circumstances that counsel for the Library object to the allowance of any fees for services of counsel rendered prior to April, 1953, when the 1948 will was probated. This position would limit compensation to counsel for services rendered since that date.

I do not think this position is tenable either as a matter of law or equity. The Court considers that the statutes regulatory of executors and trustees and the decisions of the courts thereunder authorize the Court to charge as expenses of this estate the fees and cost necessary to the establishment of this last will and testament of the testator. The two appeals from the rulings of this Court and the hearings in the Court of Appeals in the establishment of the validity of the 1948 will are to be considered as necessary expenses, and likewise the cost of services rendered in the contest of the 1944 will are to be regarded as a necessary expense of the estate. The Court feels that the provisions of §§2107.62 and 2113.36 R. C., and the cases construing such sections afford adequate grounds for the conclusion reached.

There is an additional ground on which this estate be required to compensate these counsel in such amount as the Court shall ultimately fix as a fair and reasonable value for these services.

Sec. 2101.24 R. C., defines the jurisdiction of the Probate Court. Among its provisions is the following:

“The probate court shall have plenary power at law and in équity fully to dispose of any matter properly before the court, unless the power is expressly otherwise limited or denied by statute.”

Counsel for the Library take the position that as to all services rendered by applicants prior to April, 1953, these applicants are remitted to an action in equity in the Common Pleas Court having for its object the determination of whether or not applicants should be compensated by the estate and incidentally by the beneficiaries under this will. The Court does not agree, but on the contrary holds that under such grant of jurisdiction it has the right to pass on such question in this instant proceeding. The Court holds that the applicants are entitled to be compensated according to the reasonable value of the services rendered.

The Court finds that under all of the facts and circumstances that fair and reasonable value of the services rendered by Mr. Chesney is $3,250.00. Mr. Gillis was the chief counsel in this litigation and the fair value of his services is fixed at $33,500.00, of which he has already received the sum of $8,500.00.

Findings of fact and conclusions of law have been requested. Counsel will submit to the Court such findings of fact and conclusions of law as they feel that the facts and law require. Upon the determination by the Court of the appropriate findings of fact and conclusions of law, the proper journal may be prepared in accordance therewith.


author: By YOUNGER, J.

text:
    CORWIN et, Appellants, v. BOARD OF LIQUOR CONTROL, Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5903.
    Decided January 12, 1959.
    Francis M. Marley, for appellant.
    William Saxbe, John W. Leibold, for appellee.
    (GRIFFITH, J, of the Seventh District, YOUNGER and GUERNSEY, JJ, of the Third District, sitting by designation.)
   OPINION

By YOUNGER, J.

This case is before the Court on an appeal from the decision of the Common Pleas Court of Franklin County affirming the decision of the Board of Liquor Control in denying appellant’s application for a D-5 permit.

Appellants have had D-I and D-2 permits for some time, and according to the record, have operated in a lawful and orderly manner, and with no complaints directed against them.

Appellants’ place of business is located within three hundred twenty-five (325) feet of a church, which church moved to its present location subsequent to appellants receiving D-l and D-2 permits, and upon receipt of the application in question a written notice was given to the church, pursuant to §4303.26 R. C., advising of the application and the time for hearing.

At the hearing, the church was represented by the minister, who objected to the issuance of the permit applied for, and on being questioned as to the reasons stated as follows: “Well, first, is the religious organization concerned. We are strictly against, for moral purposes, we feel that our duty, as a church and as a trust that’s committed to us to oppose all traffic in intoxicating liquor. We feel, for that reason, that we must oppose it. Then we feel that for the second reason, as a group, we have invested a lot of money. We have in excess of $250,000.00 in property. We feel that it is not a very good influence, that it isn’t the proper thing, to have a saloon, or a liquor spot, right so close to the church.”

The contention of the appellee is shown from the following quotation from page four of its brief:

“In the instant case, the church objected both at the hearing before the Director and at the hearing before the Board. This fact, coupled with the fact that the church lies only three hundred twenty-five feet from appellant’s premises, supplies reliable, substantial, and probative evidence to support the order of the Board to the effect that the Director did not abuse his discretion in rejecting appellant’s application.”

It is further the appellee’s contention that the case of Codic v. Board of Liquor Control, 98 Oh Ap 388, is decisive under the facts here, and requires an affirmance of the decision of the Common Pleas Court.

Speaking for the Common Pleas Court, Judge Reynolds criticized the Codic case and stated as follows:

“It is difficult for this Court to attach to the statute the meaning contended by the State and, but for the decision of our own Court of Appeals in the case of Codic v. Board of Liquor Control, 98 Oh Ap 388, the decision in the case of Brewer v. Board of Liquor Control, 66 Abs 191, would be followed.”

After further discussion of the Codic case, Judge Reynolds said further:

“At best, this decision leaves some uncertainty which should be resolved in a proper case, and the instant case appeals to the Court as one in which the question may be definitely settled, without the interjection of an observation which was irrelevant and uncalled for by the evidence, and it is suggested that this case be appealed to the Court of Appeals.”

The second syllabus in the Codic case is as follows:

“2. There is substantial probative evidence to support the action of the Board of Liquor Control in refusing to issue a liquor permit, where the permit premises are to be operated within a distance of five hundred feet from a church.”

The section of the Revised Code involved in this case is §4303.26 R. C., and, omitting the inapplicable parts, is as follows:

"No permit shall be issued ... if the business specified in the permit applied for is to be operated within five hundred feet from a . . . church . . . until written notice of the filing of said application has been personally served upon the authorities in control of said church . . . and an opportunity provided said authorities for a complete hearing before the Director . .. upon the advisibility of the issuance of the said permit.”

The writer of this opinion believes the decision in the Codic case is inherently wrong, as it is contrary to the expressed intention of the legislature. The legislature did not say that no permit should be issued if the premises were within five hundred feet of a church. Neither did the legislature say that no permit should be issued unless the church consented to the issuance of the permit. If the legislature had intended to say that the mere presence of a church within five hundred feet of the permit premises should prevent the issuance of the permit either with or without the consent of the church, it would have said so in plain and simple language. If the fact of proximity alone is sufficient, what else is left upon which to hold a full and complete hearing? Surely not as suggested by the appellee: the questions merely of whether or not the church involved is a bona fide religious organization, or whether the distances were computed correctly.

The vice in the Codic decision is that it takes one factor involved, which factor is common to and present in every case that could possibly arise under this section of the Revised Code, and which factor in and of itself is insufficient as a matter of law, and uses that single common and insufficient factor as the only yardstick to measure whether or not there was substantial probative evidence to support the order denying a permit. Consequently, under the Codic decision it does not appear that there could ever be a successful appeal based upon any of the other matters involved in determining the advisability of issuing a permit.

Any action taken by the Director in rejecting an application for a permit based solely upon the fact that the permit premises are within five hundred feet of a church, or in adopting a policy by which all such applications are denied, would be an abuse of discretion and unreasonable, as being beyond and in conflict with the intention of the legislature.

However, under the statute, all appeals from the Board of Liquor Control go to the Common Pleas Court of Franklin County, and all appeals therefrom are before the Court of Appeals of Franklin County. While the members of this present Court are from other appellate judicial districts, they are now sitting in this case by assignment in the Tenth Appellate Judicial District, and for all intents and purposes are, for the time being, members of the Court of Appeals of Franklin County.

If the writer of this opinion were sitting in his own judicial district, he would not hesitate to join in deciding this case differently and certifying the decision to the Supreme Court, as being in conflict with the Codic decision.

Although the members of this Court disagree with the Codic decision they feel that it is their duty to affirm the judgment of the court below, and, in support of their position, quote the following from 14 O. Jur. 2d, page 650, Courts, paragraph 220:

“While a Court of Appeals has the power to re-determine a decision made by the judges of another district, sitting in the district of the forum, it has been stated that the former court should adhere to the former decision unless it is very clearly erroneous.” (Emphasis added.)

The record in the case before us does not show affirmatively that the Director or the Board rejected the application for the permit solely on the grounds that the permit premises were located within five hundred feet of a church, and it does not affirmatively appear that the Director did not exercise the broad discretion bestowed upon him by law. On the facts of this case we cannot, therefore, determine that the decision in the Codic case is “very clearly erroneous,” although we disagree with it in principle.

An entry may be drawn accordingly, affirming the decision of the court below.

GRIFFITH, PJ, GUERNSEY, J, concur.


text:
    KARUN, d. b. a.. FRANK’S CAFE, Plaintiff-Appellant, v. DEPARTMENT OF LIQUOR CONTROL, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6012.
    Decided December 23, 1958.
    H. David Lefkowitz, Cleveland, for plaintiff-appellant.
    William Saxbe, Atty. Geni., Chester Hummell, Asst. Atty. Geni., Columbus, for defendant-appellee.
   OPINION

By BRYANT, J.

Frank Karun, dba Frank’s Cafe, 619 East 140th, Street, Cleveland, Ohio is the holder of Classes C-2, D-l and D-2 permits issued by the Department of Liquor Control. He - was charged with two sales of whiskey without being the holder of a permit authorizing such sales and after a hearing before the Board of Liquor Control, his permits were revoked effective September 13, 1957.

On appeal to the Common Pleas Court of Franklin County, the final order of the Board of Liquor Control was affirmed and appeal has been taken to this court by the permit holder.

The matter now pending before us arises upon a motion by the appellee to dismiss the appeal for failure of appellant to file an assignment of errors in this case. We have examined the papers filed by counsel for the appellant and find one of them described on the cover thereof, “ASSIGNMENT OF ERRORS AND APPELLANT’S BRIEF.” On the inside thereof following the index, the same words appear as' a caption in the case.

In answer to this motion, counsel for the appellant has filed an affidavit to the effect that by inadvertence and due to the mistake of an inexperienced secretary, a portion of the brief was omitted including the assignment of errors. In as much as at two places in the document, which was filed, reference is made to the assignment of errors, it would appear that the oversight as claimed by counsel for appellant occurred in the manner described in the affidavit. The motion to dismiss therefore will be overruled and counsel for appellant will be permitted to amend the brief to include the assignment of errors.

PETREE, PJ, MILLER, J, concur.


author: By CRAMER, J.

text:
    AERONCA INDEPENDENT UNION, Plaintiff v. AERONCA MANUFACTURING CORPORATION, Defendant.
    Common Pleas Court, Butler County.
    No. 76440.
    Decided September 22, 1958.

      Sol Goodman, Stanley Goodman, Cincinnati, for plaintiff.
    Edwin B. Pierce of Fitton, Pierce & Black, Hamilton, Gordon J. Wolf of Cohen & Wolf, Cincinnati, George Bott, Washington, D. C., for defendant.
   OPINION

By CRAMER, J.

This cause has been submitted to and is before the Court upon the pleadings, the evidence, oral arguments, and briefs of the parties.

The plaintiff has demurred to the first, second, third and fourth defenses set forth in the defendant’s amended answer. The Court reserved a ruling on the demurrer and evidence was offered in support of the defenses on the theory that if the Court overruled the demurrer the evidence so submitted would be available for consideration by the Court on the merits of the entire case.

The facts as gleaned from the pleadings, admissions and stipulations of the parties are as follow:

Plaintiff is an unincorporated association of employees in the plants of the defendant and the action is brought by such plaintiff as the agent and representative of all the employees in the plants of the defendant and for and on behalf of said employees, members of plaintiff.

On March 3, 1955, plaintiff and the defendant entered into a labor agreement, the plaintiff being the collective bargaining representative of defendant’s employees. This agreement contained a Maintenance of Membership and Check-off provisions set forth in paragraphs two and three of Section C thereof.

Said paragraphs two and three of such agreement are as follow:

“2.) During the term of this agreement the company, for said employees shall deduct from the last pay period of each month the Union dues for the current month and promptly remit the same to the Treasurer of the Union providing the employee has worked forty hours or more during the month. If the employee has no pay coming for the last pay period of the month, or has worked less than forty hours during the month, it shall be deducted from the first pay check thereafter.
“3.) The Union shall promptly furnish the company a card authorizing all pay deductions in a form agreeable to the Company and the Union.”

Pursuant to the provisions of the agreement plaintiff furnished the defendant with the written authorization cards signed by employees of the defendant — the pertinent provisions of which were to the effect that the defendant was authorized to deduct from the employees’ earnings monthly dues not to exceed fifty cents; that any sums so deducted were to be remitted by the Company to the plaintiff Union in accordance with the provisions of the bargaining agreement by the Company and the. Union; the authorization was to remain in effect until revoked by the employee and was irrevocable for a period of one year from the date thereof or the termination date of the collective bargaining agreement of the Company and the Union, whichever occurred sooner.

The aforesaid bargaining agreement between plaintiff and defendant was for a term of three years and was to continue in full force and effect until March 3, 1958, and thereafter for an additional term of three years unless notice of any change was given by either party.

On and after July 1, 1957, the defendant refused to deduct union dues from the paychecks of its employees, but paid said employees their respective wages without making the deductions provided for by the contract and authorization cards.

In January of 1958, 645 employees delivered to the defendant written revoeationsiof its authority to make pay deductions of said Union dues. That in the case of each employee who executed such revocation a period of one year from the date of the authorization card had expired prior to June 20, 1957. Said revocations contained statements to the effect that the employees withdrew from membership in the plaintiff Union. Therein the defendant was likewise notified that it was to make no deductions from the employees’ pay for dues or assessments for membership in the plaintiff after June 1, 1957.

It appears by stipulation of the parties here that if the defendant had checked off the total amounts from the employees wages to be paid over to the Union between the months of July, 1957 and February of 1958, that a total would have been $3677.00.

It is further stipulated that if the Court would find that the foregoing revocations were valid the amount which would have been checked off from the wages of the employees not so revoking said authorization, would have been the sum of $1108.50.

During the trial of the cause the defendant offered exhibits “4” and “5." The plaintiff objected to said exhibits going in to evidence solely for the reason that the same were not relevant. The court reserved a ruling to the admission of said exhibits at the time, but now finds that the objections thereto on the ground stated should be overruled and the same are received in evidence.

It appears from the evidence that Exhibit “5,” which is a handbill entitled, “They Couldn’t Help You,” and contains statements of a past President and the then current President of plaintiff, calling upon the membership to support the UAW-CIO Union. These leaflets were distributed immediately prior to the National Labor Relations Board election of August 2, 1957, at defendant’s plan by members of the U.A.W. and the then President of plaintiff.

The Court now admits into evidence the stipulation entered into between the parties that if witnesses were called with respect to a speech made by the President of plaintiff on the radio on the eve of the National Labor Relations Board election they would testify that said President made the statement, “That after the election was over, that the independent Union could distribute its funds — they could have a party, or give the money to charity — whatever it had in the treasury— or that they could bury it in the ground.”

We likewise now admit into evidence the agreement between the parties to the effect that if witnesses were called they would testify that no officer of the plaintiff at the last National Labor Relations Board election campaigned as an officer of the independent Union for a “no” vote. That is, with respect to the U.A.W. as an organization, it did not campaign for a “no” vote.

Exhibit No. 4 is a “U.I.W. news-letter” wherein the officers and ooard of the plaintiff “apologize again for the Company’s actions.”

On August 2, 1957, the National Labor Relations Board conducted an election. The vote was in favor of “no Union” and on May 2, 1958, the National Labor Relations Board made its finding that “petition (plaintiff) is not the exclusive representative of the effected employees for purposes of collective bargaining.”

The defendant sets up five defenses, the fifth being a general denial.

Under its first defense the defendant claims that the plaintiff’s petition puts in issue the question of whether defendant’s conduct with respect to the bargaining agreement under the circumstances constituted an unfair labor practice on the part of the defendant within the meaning of the National Labor Relations Act and that exclusive jurisdiction of the subject matter of plaintiff’s petition is vested in the National Labor Relations Board and that this court has no jurisdiction of the subject matter of this action.

In support of this contention the defendant has submitted an able and exhaustive brief containing many respectable authorities.

We must admit that this defense is quite persuasive and has considerable merit. However, we remain unconvinced that the law, in respect to this issue, is as the defendant asserts it to be.

The following recent cases of our own Supreme Court and of the United States, while they were actions involving claims by an employee against his Union, and in that respect not comparable to the case at bar, nevertheless came to. conclusions respecting the jurisdiction of state courts wherein unfair labor practices are involved:

Perco, Appellant v. Local 207, et al, etc., 168 Oh St p. 161 (July 7, 1958 issue Ohio Bar); International Association of Machinists, etc., et al, Petitioners, v. Marco Gonzales, 78 S. Ct., 923; International Union, et al., Petitioners, v. Paul S. Russell, 78 S. Ct., 932.

(Both of these causes decided by Supreme Court of the United States on May 26, 1958)

Justice Frankfurter in the Gonzales case supra made this observation:

“The statutory implications concerning what has been taken from the States and what has been left to them are of a Delphic nature, to be translated into concreteness by the process of litigating elucidation.”

We cannot but conclude that the federal law has not preempted the field so as to exclude the State Courts from determining whether or not a “contract” — even though it be a collective bargaining agreement — has been breached, and if so, to give a remedy therefor to the party damaged by such breach.

We therefore sustain the demurrer of the plaintiff to the defendant’s first defense on the ground that it does not set forth grounds constituting a defense.

Under the second defense, the allegations of which plaintiff’s demurrer admits, it is alleged that during the continuance of this contract and prior to July 1. 1957 a rival Union — the United Automobile, Aircraft and Agricultural Implement Workers of America, Congress of Industrial Organizations (hereinafter referred to as UAW-CIO) had filed petitions with the National Labor Relations Board seeking to have itself declared the representative of the employees of the defendant for purposes of collective bargaining; that an election was ordered held on August 2. 1957; that the officers and trustees of plaintiff association deliberately and intentionally refused to sign the necessary “Non-Communist” affidavits and financial statements with the National Labor Relations Board, intending thereby to prevent the plaintiff association from securing a place on 'the ballot, thereby better enabling the UAW-CIO to secure a majority of the votes cast and substitute itself for the plaintiff Union. It is further alleged in this defense that the officers of plaintiff association publicly stated that the plaintiff association had abandoned its representation of defendant’s employees and that it had abandoned its representation.

It is then urged that the purpose of the bargaining agreement between plaintiff and defendant as set forth in “Article II — Purpose of Agreement,” was to promote “orderly industrial relations.” That the plaintiff association, as shown by the statements of its officers could not and was not functioning as a representative of the employees, and that the same constituted an abandonment and repudiation of the agreement, all of which justified the defendant in its refusal to further perform its obligations under the agreement.

In respect to the failure of, or the refusal of the plaintiff’s officers to sign the necessary Non-Communist affidavits and financial statements with the National Labor Relations Board and to comply with Section 9 (f), (g), and (h) of the National Labor Relations Act as amended, the case of United Mine Workers of America, et al, Petitioners, v. Arkansas Oak Flooring Co., 351 U. S., 62, is most helpful.

In that case a majority of the employees of an employer, subject to the National Labor Relations Act, as amended, chose as their bargaining representative a union which had failed to file with the Secretary of Labor their financial and other data required by Section (f) and (g), and with the National Labor Relations Board the Non-Communist affidavits required by Section 9 (h). To compel the employer to recognize the Union the employees struck and set up a peaceful picket line. The Louisiana State Courts enjoined such picketing.

In an opinion by Burton, J., seven members of the Supreme Court held that the State courts had no power to enjoin the picketing. The decision was rested on the ground that under the federal act the employer was bound to recognize the union as the bargaining representative of its employees and that while the union, because of its noncompliance with Section 9 (f), (g), and (h), could not resort to the National Labor Relations Board, it could take other lawful action, such as peaceful picketing.

In the course of the opinion Justice Burton stated the following:

“The issue before us thus turns upon the effect of the union’s choice not to file the information and affidavits described in Section 9 (f), (g) and (h). The state court misconceived that effect. The union’s failure to file was not a confession of guilt of anything. It was merely a choice not to make public certain information. The Act prescribes no fine' or penalty, in the ordinary sense, for failure to file the specified data and affidavits. The Act does not even direct that they be filed. The nearest to such a direction in the Act is the statement, in Section 9 (g), that it shall be ‘the obligation’ of all labor organizations to file annual reports ‘bringing up to date the information required to be supplied in the initial filing by subsection (f) (A) of this section, and to file with the Secretary of Labor and furnish to its members annually financial reports in the form and manner prescribed in subsection (f) (B).’ However, neither subsection (f) (A) nor (f) (B) of Section 9 requires any initial filing to be made. Each merely describes what is required to be filed in the event that a labor organization elects to seek the advantages offered by subsection (f).”
“There is no provision stating that, under those circumstances, the union may not represent an appropriate unit of employees if a majority of those employees give it authority so to do. Likewise, there is no statement precluding their employer from voluntarily recognizing such a noncomplying union as their bargaining representative.”
“Subsections (f), (g) and (h) of Section 9 merely describe advantages that may be gained by compliance with their conditions. The very specificity of the advantages to be gained and the express provision for the loss of these advantages imply that no consequences other than those so listed shall result from noncompliance.”
“The noncompliance of the union with Section 9 (f), (g) and (h) in the instant case precludes any right of the union to seek certification of its status by the Labor Board. Such elimination of the Board does not, however, eliminate the applicability of the National Labor Relations Act, as amended, and does not settle the issues as to the right of the state court to enjoin the employees and their union from peacefully picketing the employer’s plant for the purpose of securing recognition.”
“Under those sections and by virtue of the conceded majority designation of the union, the employer is obligated to recognize the designated union. Upon the employer’s refusal to do so, the union, because of its noncompliance with Section 9 (f), (g) and (h), cannot resort to the Labor Board. It can, however, take other lawful action such as that engaged in here.”

We therefore conclude that the plaintiff’s failure to file the affidavits and data with the National Labor Relations Board cannot be taken advantage of by the defendant in this action, nor does it constitute a breach of the agreement in question on the part of the plaintiff so as to preclude it from seeking the relief prayed for, if plaintiff is otherwise entitled to such relief.

Now as to the claim of the defendant that the described conduct of plaintiff’s officers in switching their allegiance to the UAW-CIO as constituting a repudiation and abandonment of the agreement in issue, we merely state that such activities and conduct on the part of the officers and trustees of plaintiff Union could not and did not operate as a repudiation and abandonment of the agreement herein.

There is no evidence here from which we could find that the officers conduct' was authorized, approved or confirmed by the members and certainly such conduct was not within the scope of authority of such officers, so as to bind the entire membership if we view their relationship to the Association as agents of their principal, the plaintiff herein.

Furthermore, all during this time plaintiff still remained the recognized bargaining agent and did not cease to become such until after the expiration of the agreement, when on May 2, 1958, the National Labor Relations Board determined that plaintiff no longer was the representative of the employees for the purpose of collective bargaining.

The situation found here is comparable to that found when a considerable portion of the electorate becomes dissatisfied with and critical of an elected public official. It cannot be said that such complaints and dissatisfaction, wide-spread though they may be, are of themselves sufficient to deny the official the status he has achieved by having been ejected to the office he is then filling.

We therefore conclude that the conduct and activities of the officers of the plaintiff Union, though perhaps subject to condemnation, is likewise insufficient to constitute a defense, to defendant’s failure to comply with this bargaining agreement and insufficient to deny plaintiff a recovery on the contract if it is otherwise entitled thereto.

What we have hereinbefore stated in respect to our conclusions as to the second defense likewise is applicable and with equal force to the defendant’s third defense which, to some extent, is a re-assertion of the matters set forth in the second defense with the additional claim that plaintiff’s authority to act for the defendant’s employees having ceased, a failure of consideration arose which relieved the defendant from complying with the agreement.

We find, for the reasons hereinbefore stated, that the third defense does not state facts sufficient to constitute a defense. We therefore sustain plaintiff’s demurrer to both the second and third defenses.

Under its fourth defense the defendant asserts that it made no deductions for the month of August 1957 or thereafter from the paychecks of the plaintiff’s members on account of the dues claimed by the plaintiff association and that the amounts which would otherwise have been deducted were paid directly to the members of the plaintiff and that since the within action is brought by the plaintiff on behalf of its members and the plaintiff has no entity separate from that of each of the members, there can be no recovery unless it be for nominal damages only.

The defendant argues that since it no where admits that it is indebted in any sum to the plaintiff, the burden of course is upon it to establish what sum, if any, might be owing to it.

It is further asserted that at most plaintiff can recover only a sum equal to the pay deductions which it was authorized to make under the unrevoked authorizations, that is, the sum of $1108.50.

Secondly, it is claimed that defendant can have been guilty at most of only a nominal breach of contract and no special damages having been proven, the plaintiff, being an unincorporated association, can recover no more than nominal damages and costs.

The plaintiff asserts that the withdrawal of the authorizations for pay deductions by the employees could not operate so as to be effective retroactively. Since such authorizations were not executed until January 1958, they could only operate prospectively and not back to July 1, 1957.

It is our view, however, that since the defendant made no deductions from the pay of the employees executing the revocations after July 1, 1957, the revocations, when actually delivered to it by the employees affected in January 1958, were effective to and did constitute a ratification of the defendant’s acts in failing to make pay deductions. This must be so since each of such employees were paid direct after July 1, 1957, the sums which would otherwise have been deducted from their pay to be given over to the plaintiff.

It must be pointed out that the authorizations for the pay deductions provided that the same were revocable after the expiration of a certain period of time.

It is likewise apparent that plaintiff’s position has not been worsened by the fact that the deductions were not made during the period in question for the reason that the dues of such employees are still owed to the plaintiff. This situation prevails if we consider that such employees withdrawal from membership in the Union (the pay deduction authorizations also constituting withdrawals from membership) did not become effective as such until January 1958.

It is therefore our finding that the revocations of the employees were effective as of July 1, 1957 and if plaintiff is otherwise entitled to recover, such recovery would be limited to the sum of $1108.50.

It is contended, as hereinbefore pointed out, that plaintiff can recover, if at all, only nominal damages since defendant could have been guilty at most of only a nominal breach of contract and no special damages were proven.

There was, of course, no evidence as to any special damages offered by plaintiff as a result of the breach of contract.

Ordinarily, in an action of this kind, plaintiff’s recovery would be limited to a sum equal to the pay deductions which it was authorized to make (that is, by the unrevoked authorizations), and did not make.

Plaintiff here is an unincorporated association and has no entity separate and distinct from its individual members, and in this case the employees from whose pay no deductions were made.

We do not regard unincorporated associations as legal entities, under the law, except to the extent that they are so recognized by statute. Such associations have no status distinct from the persons composing them. They are considered merely as constituting groups of individuals under a common name and bound together by contractual relationship.

See 5 O. Jur., second, Section 3, pages 436-7

It is true that by virtue of certain statutory provisions an unincorporated association may sue on behalf of those who are members and in its own behalf and be sued as an entity under the name by which it is commonly known and called.

See §1745.01 R. C.

In that case, however, the members are the real parties in interest.

An association, such as the plaintiff herein, must be considered identical with its membership. Our Supreme Court, in the case of Koogler v. Koogler, 127 Oh St 57, held that an association cannot be made liable for a tort committed by it upon one of its members, since the member would be in effect suing himself.

We find, in the Annotation, Volume 14, A. L. R., second, page 473, the following:

“This rule as to the proper mode of suing an unincorporated association, which is primarily a rule of procedure, applicable alike whether the suit is by a third person or by a member against the association, should not, however, be confused with the substantive question as to the right of a member to sue the association to recover damages for a tort committed against him by the association or by another member thereof. The former question does not arise until the latter question has been answered affirmatively.”

We agree with counsel for the defendant in its claim that the contract here in question created no trust “of which either the plaintiff association or the individual members were beneficiaries;” nor was such a trust otherwise created.

We are further in agreement with the defendant in its contention that “no debt is created by the terms of the contract relied on by the plaintiff association.”

No debt was created by the terms of the contract itself since the pay deductions were to be made by the defendant only upon the same being earned and that, of course, was to take place in the future. . No obligation to make payment of wages arose until after the same were earned and until that time no debt ran from the defendant to the individual employee.

Furthermore, even if the plaintiff association be considered as an entity separate and apart from its Qiembers (which is not true here), still it had no right as a creditor to the wages of the employees which should have been but were not withheld. Plaintiff merely had the contractual right to have the same withheld by the defendant.

A debtor and creditor relationship existed between the defendant and the individual employees when and as the wages were earned. Here, the defendant discharged such obligation by paying to each of the employees his full wages without deductions therefrom.

Upon breach of the agreement by the defendant to withhold, a cause of action in favor of plaintiff arose giving it a right to recover the amount not withheld. Such breach of contract did not create an obligation to pay the money not so withheld.

The employee members of the plaintiff have already received full payment of all wages due them. They are not entitled to have paid to them any further sums which result would obtain if the defendant were required to pay to plaintiff the dues not withheld.

Insofar as the evidence shows, as hereinbefore stated, the individual employees are still indebted to the plaintiff for their dues during the period here in question, at least those employees who did not withdraw from membership would still owe such dues.

These employees certainly are not entitled to a double satisfaction which would result if the defendant was required to pay plaintiff the amount it seeks to recover as such dues.

It is our conclusion that we have here a situation wherein plaintiff has sustained a legal injury without damage (injuris absque damnum).

The defendant has been guilty of but a nominal breach of contract, and no special damages having been shown, it is entitled to recover nothing more than nominal damages.

It follows from what we have hereinbefore stated that the plaintiff’s demurrer to this particular defense must be overruled.

We therefore find, upon the issues raised by the fourth and fifth defenses to the petition that plaintiff is entitled to recover but nominal damages which we hereby fix in the sum of one ($1.00) dollar, and also its costs herein expended. Judgment will accordingly therefore be awarded plaintiff and against the defendant.

An entry may be prepared in accordance with this opinion.


author: By WEBER, J.

text:
    MURRAY, Plaintiff, v. TRUSTEES OF THE LANE SEMINARY, Defendants.
    Common Pleas Court, Hamilton County.
    No. A145932.
   OPINION

By WEBER, J.

This cause came on to be upon the pleadings, the evidence and the argument and briefs of counsel.

Upon consideration thereof the court makes the following:

Findings of Fact

1. The lease here in question from .The Trustees of The Lane Seminary to J. B. Thomas recorded in Lease Book 4, page 577 Hamilton County, Ohio records contained amongst others, the following provisions:

“And further that the said demised premises or any part thereof or any building thereon shall not at any time hereafter be used or occupied for manufacturing, keeping or vending ardent spirits or for keeping a tavern or public house or for a blacksmith shop, or for a manufactory of soap or candles or a livery stable, or for slaughtering animals, or a butcher’s shop or stall, or a tin shop. And further that the said premises shall not be occupied for any other purpose than private dwelling houses without the assent of the said Trustees of Lane Seminary. And this lease, however, is made on the condition that if any other covenant herein contained on the part of said leasee, his heirs, executors, administrators or assigns shall be violated and not faithfully kept, then and in either case this lease and the term hereby created shall cease and determine, and be utterly void. And the said Trustees of Lane Seminary, their successors and assigns, may thereupon forthwith re-enter upon the said demised premises and hold the same as though this lease had never been executed free and discharged from the same.”

2. These provisions were included by reference in the quit claim deed from The Trustees of The Lane Seminary to Marie Cunningham recorded in Deed Book 458, page 478, Hamilton County, Ohio records.

3. Similar provisions contained in practically all leases granted by The Trustees of The Lane Seminary for property in the Lane Seminary Subdivision.

4. The plat of The Lane Seminary Subdivision, recorded in Deed Book 101, page 142, Hamilton County, Ohio Records does not contain or refer to such provisions.

5. The right to give permission for other than residential use and the right of re-entry as to the property here in question was retained solely by The Trustees of The Lane Seminary and was not granted, alienated or released nor attempted to be granted, alienated or released to the lessee or grantee of any lease or deed from The Trustees of The Lane Seminary.

6. The provisions were not for the purpose of preserving the neighborhood as a residential area.

7. The Trustees of The Lane Seminary has in many instances exercised its right to assent to right the use for other than residence purposes as to other lots in the neighborhood which actions on its part have facilitated a change in the character of the neighborhood. Such use consists of filling stations, garages, stores, apartments, hotels and businesses of many kinds.

8. In some instances a use other than for residence purposes is being made of parcels without the written assent of The Trustees of The Lane Seminary.

9. It has not become impossible to use the land for residential purposes even though it is no longer desirable for such use and has become adopted to a more valuable use through change of conditions in the character of the neighborhood.

and, further reaches the following:

Conclusions of Law

1. The lease did not grant a right to total use but only a right to residential use and any use other than residential created in The Trustees of The Lane Seminary a right to terminate the lease and re-enter the premises.

2. These provisions in the lease are not restrictions upon use to be affected by the change of neighborhood and are not enforceable by other lot holders but have the legal effect of leaving in The Trustees of The Lane Seminary a valuable property interest in the premises.

3. There is no obligation upon the plaintiff to enforce the conditions of the lease and others cannot enforce them as the rights are personal to the grantor, The Trustees of The Lane Seminary.

4. By the terms of the quit claim deed recorded in Deed Book 458, Page 478, of the Hamilton County, Ohio Deed Records, the conditions of the lease were incorporated therein so that although a fee simple title passed conditions subsequent were created, which conditions are enforceable by The Trustees of The Lane Seminary.

5. Plaintiff is subject to the contractual limitations, of which he had notice on the record, and under which he holds his right in the premises.

6. The Trustees of The Lane Seminary as the holder of the right to permit other than residential use and the right of re-entry holds a valuable property interest in the premises.

7. The Court has no power- or right to take away the defendant’s property interest in the premises and the defendant has the same right as any other owner to sell or not to sell his property interest.

. 8. A purchaser desiring the property for other than residence use must deal with two sellers — the owner of-the residential rights and the owner of the remaining rights.

WHEREFORE, the Court holds tha,t the allegations of the petition of the plaintiff are not well taken and finds for the defendant at the plaintiff’s costs.


text:
    STATE, ex rel. DI CARLO, Relator-Appellee, v. GALLO, Respondent-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24232.
    Decided November 21, 1957.
    M. H. Wolf, Marzel R. Levan, for relator.
    Clifford H. Bernard, for respondent.
   OPINION

Per CURIAM:

This action in mandamus, originating in the Common Pleas Court of Cuyahoga County, is here appealed on questions of law from a judgment allowing a writ to issue requiring the respondent to grant a building permit for the erection of a building on the subject property strictly in accordance with the terms of the application made by the relator.

The subject property fronts approximately 200 feet on the south side of Mayfield Road at its intersection with Maywood Road at a point about 300 to 500 feet from the easterly limits of the Ciy of Euclid. May-field Road is State Route No. 322 and a heavily traveled highway with six lanes of traffic. Within the block in which relator’s land is situated, there is a gasoline station at the corner of Dean Road and immediately adjoining it to the east, a Howard Johnson Restaurant. Immediately adjoining the Howard Johnson Restaurant is an Illuminating Company distributing station with high tension wires. The land upon which relator proposes to build immediately adjoins the Illuminating Company’s installation. Immediately across the street, on the north side of the road opposite the premises in question, is a gasoline station and other buildings used for commercial purposes. To the west of the premises on both sides of the road, there are a number oij commercial buildings, including a shopping center located within 50 feet of the street line on the north side of Mayfield Road.

The building permit sought is for the erection of a one-story medical center building with arrangements for parking immediately behind it which is to be screened with tall trees to the south, leaving space in the rear of said premises fronting upon Rushton Road for the erection of single family dwellings. The land fronting upon Rushton Road is restricted by the Zoning Code to the erection of single dwelling houses, and the judgment of the court does not in any manner change such zoning restrictions.

The trial judge, in allowing the writ of mandamus to issue in respect to the Mayfield Road frontage, rendered an opinion describing the property in question as well as the surrounding property. The substance of his conclusion, as shown by the opinion rendered, is that Mayfield Road, being a heavily traveled thoroughfare, is not only suitable for business but that the part of the ordinance which restricts the use of the subject premises to a single residence bears no substantial relation to the public health, safety, morals or general welfare of the community, and that as it relates to this land, the zoning ordinance restricting the Mayfield frontage to a single residence use is unreasonable and confiscatory. The court distinguished the case of The Cleveland Trust Company v. Village of Brooklyn, 92 Oh Ap 351, 110 N. E. 2d 440, and relied upon the cases of The State, ex rel. Euverard v. Miller, 98 Oh Ap 283, 129 N. E. 2d 209, and Henle v. City of Euclid, 97 Oh Ap 258, 118 N. E. 2d 682.

Upon review of all of the evidence, in view of the physical facts which cannot be disputed, we cannot say that the judgment of the Common Pleas Court is manifestly against the weight of the evidence or that it is contrary to law or constitutes an abuse of judicial discretion.

We conclude, therefore, that the judgment of the Common Pleas Court should be affirmed for the reasons generally set forth in the opinion rendered by Lybarger, J.s at the conclusion of the trial. The writ, as allowed by the Common Pleas Court, applies to the application as made for a one-story medical center building and is confined exclusively to the frontage on Mayfield Road.

Exceptions noted.

SKEEL, PJ, HURD and KOVACHY, JJ, concur.