author: By NICOLA, J:

text:
    GARBO, Plaintiff, v. WALKER, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 661071.
    Decided June 25, 1955.
   OPINION

By NICOLA, J:

In the instant case the defendant filed a demurrer to plaintiff’s petition on the ground that said petition did not state facts sufficient to constitute a cause of action. Said demurrer was overruled by this court. Thereafter the plaintiff filed an amended petition to which the defendant also demurred. We are now called upon to review our former decision in the light of the amendment and of the briefs filed by counsel for both parties.

The negligence charged against the defendant is that “she was careless and negligent in parking her automobile at a place which she knew to be highly congested and very densely populated and leaving the same with the ignition key in the ignition lock in violation of a city ordinance when she knew or in the exercise of ordinary care should have known that some person or persons could reasonably be expected to wrongfully take possession of said automobile and in their haste to escape with said automobile, such person or persons could reasonably be expected to cause injury to other users of the highway.”

What are the facts, therefore, in the amended petition upon which this charge is based and which the demurrer challenges as being insufficient to constitute a cause of action?

The defendant alleges that Woodland Avenue and East 33rd Street are duly dedicated public highways in the City of Cleveland; that the former runs in a general easterly and westerly direction and the latter in a northerly and southerly direction; that the neighborhood in the vicinity of the intersection of said streets is and is well known to be highly congested and very densely populated; that on or about the second day of August, 1953, the defendant was operating her husband’s automobile and carelessly and negligently parked the same in a place she knew to be highly congested and densely populated and left the keys thereof in the ignition. That some person wrongfully took possession of defendant’s automobile and said person or persons unknown, in their haste to escape in defendant’s automobile, operated the same in a southerly direction on East 33rd Street on to Woodland Avenue crossing into the lane of traffic designated for the use for eastbound traffic on Woodland Avenue, thereupon colliding with the automobile in which plaintiff was riding and which was being operated in an easterly direction in said east bound traffic lane. This caused plaintiff to be thrown about in the interior of said automobile which injured her person.

It is further set forth in the petition that there was in full force and effect the following ordinance of the City of Cleveland:

“Ordinance No. 1203-A-46 a. n. a. 9.0936 certified ordinances of the City of Cleveland.

“ ‘No person shall park a motor vehicle upon any street or highway in the City of Cleveland unless he shall first lock the ignition, remove the key therefrom and take such key with him. Any person violating the provisions of this section shall upon conviction thereof be subject to the penalties provided in Section 9.3701 (b) but such violation shall be subject, however, to the waiver provided in Section 9.3704.’”

The amended petition then sets out in extenso the injuries which the plaintiff sustained.

In support of her demurrer, the defendant argues that leaving the keys in the ignition by her was not negligence per se and if the Court finds to the contrary, then said negligence was not the proximate cause of the collision. She maintains that the negligent driving of the automobile by the “borrower” thereof was the intervening cause and therefore the proximate cause of said accident for which she is not responsible.

The plaintiff maintains that the violation of the above ordinance, specific in its command, is negligence per se; that in the instant case under the circumstances and conditions alleged, the question of whether such negligence on the part of the defendant, is a proximate cause of the accident, is for the jury to decide under proper instructions of the Court, since reasonable minds could very well differ as to whether the defendant might ;or should, have foreseen the consequences that followed her negligent parking with the keys in the ignition.

Unquestionably the thief or “borrower” of the car was negligent in its operation and that his negligence was a proximate cause of said accident.

Our inquiry then is to determine whether the defendant was negligent, and then, whether said negligence was also a proximate cause of said accident.

The defendant in approaching the subject adverts to the fact that our Ohio Supreme Court has held that an automobile is not a dangerous instrument like a gun or a saber. This is of no consequence in the case at bar for the charge first made is the negligent parking of said automobile. However, an automobile in the hands of an incompetent or negligent person may be more dangerous than either a saber or a gun. An automobile negligently operated may kill or wound by wholesale if run into a crowd, while a gun or saber negligently used can kill or wound only one. The public press last week carried the result occurring on a French race track wherein a negligently operated racing car was run into the spectators killing seventy and injuring many others. The automobile is becoming more and more a danger to the public because of the increase in the traffic upon the highways and the greater motive power, and its greatly increased speed.

Our inquiry leads first to the decisions of the Federal Courts, next, to the decisions of sister states and lastly to the decisions of our Ohio Courts.

(1) In Ross v. Hartman, 139 Fed. 2nd 14, the facts are identical with the facts in the instant case. The Court’s decision concurred in by all the judges reasoned that if the defendant in creating the hazard which the ordinance was intended to avoid, brings about the harm which the ordinance was intended to prevent, it is a legal cause of the harm. Leaving a car with keys in it “creates much more risk that meddling by children, thieves or others will result in injuries to the public. The ordinance is intended to prevent such consequences. In such circumstances the fact that a third person does act improperly is not an intelligible reason for excusing the defendant.”

It concludes “since it (the ordinance) is a safety measure, its violation is negligence'. This negligence created the hazard and thereby brought about the harm which the ordinance was intended to prevent. It was therefore a legal or ‘proximate’ cause of the harm.”

In Schaff v. Claxton, 144 Fed. 2nd, 532, it was held by the same court that a case should be submitted to the jury as to whether the defendant’s driver was negligent and that his negligence was a proximate cause of an accident which happened when defendant’s driver left his truck with the keys in it, in the parking lot of the restaurant to Which he was delivering goods, and the employees of the restaurant drove off with the truck and injured the plaintiff. The parking place was not a public parking place.

(2) The better reasoning of state courts is found in Ney v. Yellow Cab Co., 348 Ill. App. 161. A taxi driver left his automobile in the street with the keys in the ignition and the motor running. It was stolen by a person who operated the cab negligently and injured the plaintiff. The Court ruled that

“Syl. 3—

“For an action or omission to constitute the proximate cause of an injury, the injury must be the natural and probable result of the negligent act or omission and be of such a character as an ordinarily prudent person ought to have foreseen as likely to occur as a result of the negligence, although it is not essential that the person charged with negligence should have foreseen the precise injury which resulted from his act; and while an intervening and efficient cause is a new and independent force which breaks the causal connection between the original wrong and the injury and itself becomes the direct and immediate cause of the injury, the intervention of independent concurrent or intervening forces will not break the causal connection if the intervention of such forces was itself probable or foreseeable.”

“Syl. 6—

“Where a defendant’s taxicab was left standing on a street' unattended while the motor was running and a thief stole the taxicab and while in flight ran into plaintiff’s vehicle, causing property damage, the question whether the defendant was negligent and whether the plaintiff’s injury was the proximate cause of such negligence are questions of fact for a jury to decide.”

The defendant in her brief quotes at length from Cockrell v. Sullivan, 344 Ill. App. 620 wherein the court refused to follow the decision in Ostergard v. Frisch, 333 Ill. App. 350, which decision was in favor of liability on the part of the injured party against the owner of the automobile. The defendant apparently was not advised that in the Ney Case, supra, decided by the highest Court of Illinois, approved the rule laid down in the Ostergard case and decided against the rule of the Cockrell case upon which the defendant relied. Both the appellate cases above set forth are discussed in the Ney case decided in 1954.

In Richard v. Stanley 271 Pac. 2nd 23 (California), we find the facts to be the same as in the instant case except that the ordinance provided for the removal of keys from unattended non-commercial vehicles and authorizing police officers to take keys left in cars and turn them into the nearest police station. But the ordinance also provided that it “should not be admissible as evidence in any civil actions.” For this reason the Court held the ordinance had no bearing in a civil suit and could not be offered in evidence. A majority of the court found it would not be proper to submit the case to the jury on the matter of proximate cause. A minority ' (3) dissented. The majority of the court stated that had not this ordinance provided that it “should not be admissible as evidence” they would have decided against non-suiting of the plaintiff. On page 25, the court says:

“Given a statute prohibiting the leaving of the key in an unattended vehicle on the public street, it could reasonably be contended that the legislature had established a duty on the part of the motorist to protect persons on the streets from any damages caused by thieves driving stolen automobiles.”

The Court cites with approval Ostergard v. Frisch; and Róss v. Hartman, Supra (the Ney case had not yet been decided).

The rule in Massachusetts is contrary to the plaintiff’s contention— contrary to the Federal decisions and to the decisions of the Supreme Courts of Illinois and California. Both the Federal decisions and the State Courts above quoted submit to the jury whether the negligence of the motorist was a proximate cause of the accident with the instruction that the jury should find that said negligence could have been reasonably anticipated by said motorist or reasonably foreseeable by him.

We have no case in Ohio exactly on the point but the rule of reasonable foreseeability has been applied in principle in cases quite similar to the one at bar.

We must keep in mind that it was long ago held in Ohio that the violation of a Municipal Ordinance passed in the proper exercise of the police power in the interest of public safety and not in conflict with general laws, is negligence per se. Schell v. Dubois, 94 Oh St 93.

Thus, where one delivering coal backed his truck across the sidewalk, and same extended into street blocking pedestrian traffic on sidewalk and a child was compelled to go out into the street to get around the truck and was there struck by an automobile, question of proximate cause was for the jury.

Denison C. & S. Co. v. Bartelheim, 122 Oh St 374.

The Court charged the jury (p. 378) that the verdict should be for the defendant unless the jury found that the defendant was negligent and that its negligence “was the proximate result of the natural and probable consequence of the negligence alleged against the defendant” company; “that is such consequence as under the surrounding circumstances as disclosed by all of the evidence in this case might or should have been foreseen or anticipated by the defendant The Denison C. & S. Co. as likely to follow the alleged negligence.”

At first blush, it may be said that a child was involved and a different rule applies. It seems to us that the rule as to the duty of the truck owner is always the same but the defense of contributory negligence of the plaintiff is different as applied to acts of minors of tender years.

In Mudrich v. The Standard Oil Company, 153 Oh St 31, the defendant company’s driver in filling gas tanks at one of its stations, spilled some gasoline on the ground leaving two small puddles thereof. Several hours later two boys came to the gas station as they were want to do and one of them lit a match and threw it into the gasoline. Of course, it flared up and the other boy in trying to put out the fire jumped in it and was seriously injured. Demurrers were overruled as well as motions at the close of plaintiff’s evidence and at the conclusion of all the evidence. The jury returned a verdict for the plaintiff. Our Supreme Court stated—

“It is a matter of common knowledge that matches, the lighting of fires, and fire itself, are almost irresistible to young children and we cannot say as a matter of law that it cannot reasonably be foreseen that if gasoline is carelessly left in pools on premises where children congregate and play, these pools will be set afire and in attempting to extinguish the fire the child or children will be burned. Whether such consequences were reasonably foreseeable presented a question upon which reasonable minds might differ, and, therefore, under proper instructions as to the proximate cause, which were given in the instant case by the trial court, the question of foreseeability was one for the jury.”

The latest decision that involves the same question that is now before us is that of Tanzi v. Railroad Company, 155 Oh St 149. The pertinent facts disclose that about 1:30 A. M. the plaintiff, Sara Tanzi, while standing on a sidewalk at a bus stop located on the east side of West 130th Street in Cleveland, about 35 to 50 feet south of the crossing of four railroad tracks of the defendant Company was seriously injured when struck by an automobile driven north by the defendant Jerman, who swerved to his right off of the street to avoid a collision with a slow moving freight train of the railroad which was crossing or about to cross in front of his automobile. The railroad maintained two watchmen at this crossing throughout the day and night — there being no flasher system or gates at said crossing. The plaintiff Tanzi instituted her action against both the railroad and Jerman. The defendant Jerman did not see any signal given or hear any whistle or bell. He had driven within fifty and not more than one hundred feet from the tracks before he knew a train was coming. The Court charged the jury that there was no question that Jerman’s negligence was a proximate cause of the accident but the jury returned a verdict against the Railroad Company for $67,500 and returned a verdict in favor of Jerman as against the plaintiff. The Court set it aside because the negligence of Jerman being a proximate cause of the accident, the verdict clearly indicated on its face that it was not a verdict of reasonable minds. In discussing the proximate cause of the accident the Court said, “We believe that it is not unreasonable to permit a jury to determine that the railroad should have anticipated negligence such as Jerman’s, the immediate effect of the railroad’s negligence thereon and the immediate consequences to this .plaintiff of their combination. It is common knowledge that, notwithstanding all the precautions which may be taken by a railroad to prevent grade crossing accidents, a substantial number of motorists continue to be negligent in approaching railroad grade crossings and then to take emergency action to avoid the consequences of their negligence. Furthermore, it is common knowledge that individuals, such as plaintiff will be waiting at a bus stop such as the one in the instant case and apt to be immediately injured at least when it is dark by the emergency actions so taken. On this problem our conclusion is that if the jury found those facts which we have indicated that the jury could have found then, there was a jury question as to whether the railroad’s negligence was a proximate cause of plaintiff’s injury.”

Syllabus No. 5 reads as follows:

“Where a railroad customarily provides a watchman to warn of all approaching trains at a crossing and the driver of an automobile approaching the crossing at night reasonably relies on the watchman so warning, and where such watchman fails to warn such driver that a train is about to occupy that crossing and such failure to warn induces •such driver, even though such driver is negligent in so doing, to approach the crossing at a speed substantially greater than he would have used if a warning had been given, a jury may reasonably find that such failure of the watchman to' warn is a proximate contributing cause of injuries to a party standing at a bus stop on the sidewalk near that crossing and injured when such driver suddenly turns his automobile onto the sidewalk in an emergency effort to avoid colliding with such train.”

The Court cites with approval the case of Mudrich v. Standard Oil Company, 153 Oh St 31 supra.

We must conclude that the doctrine of reasonable anticipation or foreseeability of the consequences of one’s negligent acts is clearly a part of the negligence law of Ohio. But is it applicable in the instant case?

We can not be unmindful that we live in an age of change. Atomic power, television, jet propulsion, electronics and many other advancements and discoveries were unheard of in the early days of some of us, except as then imagined by writers like Jules Verne. The automobile was invented in this century. The Supreme Court of Illinois put the problem facing us in the following language:

“* * * The increase in population and number of motor vehicles owned and operated in this country in the past few years is well known. The increase of casualties from traffic accidents is a matter of common knowledge and concern. The incidence of automobile thefts and damages and injuries resulting from such larcenous escapades has accordingly increased. Juvenile delinquency has reached proportions alarming to everyone. * * * Comparative regard and disregard for the rights and property of others have not been unaffected. Automobiles, once considered a luxury, are now considered by many to be a necessity. The man who once walked a mile now drives a block. The speed and power of automobiles have increased to the extent that safety experts are now showing keen awareness of their potentials even in the hands of rightful owners and careful operators. Incidents of serious havoc caused by runaway thieves or irresponsible juveniles in stolen or ‘borrowed’ motor vehicles frequently shock the readers of the daily press.”

In addition to the foregoing, one may recall to mind what is common knowledge that in this country 100,000 cars were stolen by juveniles in 1953 with the resulting damages to the owners of $150,000,000.

This gives us the picture in a measure as to what is happening in our land. This picture is accentuated in the instant case when we consider that the defendant parked her car on a street in a densely populated and congested area with which she was familiar and that said car was driven over such streets by the person who stole it.

We. are therefore constrained to the conclusion that the question of whether the defendant in leaving the key in the ignition of her car could reasonably anticipate or foresee that it might be stolen and negligently used by another to proximately cause damage to plaintiff, was one for the jury. So concluding, the Court must overrule defendant’s demurrer in this case.

Similar pleadings have been filed in Cases Nos. 661,072, 661,073 and 661,074 by the other passengers of the car in which plaintiff was riding involve the same questions. This decision therefore will apply to each of said cases.

Demurrers overruled.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    ELLER, Plaintiff-Appellee, v. TURVENE et, Defendants-Appellants.
    Ohio Appeals, Second District, Darke County.
    No. 726.
    Decided March 31, 1955.

      Pickrel, Schaeffer & Ebeling, Dayton, by William H. Selva, of Counsel, Spidel, Staley & Hole, Greenville, by Wilbur D. Spidel, of Counsel, for plaintiff-appellee.
    Hon. Mason Douglass, Charles A. Funkhouser, Dayton, Hon. Jesse K. Brumbaugh, Greenville, for defendants-appellants.
   OPINION

By THE COURT:

This is an appeal on questions of law from a judgment in favor of plaintiff against both defendants for $8500 entered on the verdict of a jury.

The action was for damages for overt fraud by misrepresentations of fact inducing a contract for and exchange of real properties of plaintiff and defendant, Turvene, with a further cash consideration paid by plaintiff to said defendant.

Eight errors are assigned. The first is directed to the admission of evidence offered by the plaintiff; the second is the refusal to admit evidence proffered by the defendants; the third, fourth, fifth and sixth are directed to the action of the trial judge in refusing to direct a verdict in favor of each of the defendants at the end of plaintiff’s case in chief, and at the end of the whole case. The seventh is that the court erred in refusing to give special charges which defendants requested. Eighth, in giving certain special charges requested by plaintiff. The tenth, the court erred in the general charge to the jury. The eleventh, newly-discoverd evidence, and the ninth, that the verdict is against the manifest weight of the evidence and is not sustained by the evidence.

We hold that the first and second assignments are not well made. They require no further comment.

As supporting the third, fourth, fifth and sixth assignments, appellants urge that the representations upon which the charge of fraud was predicated were of law only and, therefore, could not afford support for the verdict and judgment.

The case of Gleason v. Bell, 91 Oh St 268, so parallels the facts here upon which plaintiff relies as to constitute authority that the representations, if made, were of fact.

Without discussing the several cases cited by appellants, it may be said that clear distinction can be made between the representations therein held to be mere matters of opinion, or of law, and the misrepresentations here relied upon by plaintiff. The jury could well have found that the status in law of the real property involved under the zoning ordinance of the City of Dayton was so well established that the representations relied upon were of fact.

With the foregoing observations, we hold against the assignments of error numbered three, four, five and six.

The seventh assignment is directed to the refusal of the trial judge to give certain special charges requested by defendants.

Defendants requested the giving of eleven special charges, seven of which were granted. Charge No. 5, which was refused, reads:

“The Court charges the jury that this is an action in deceit in which the plaintiff alleges willful, intentional, actual fraud. Fraud is never presumed. It must be proved by the evidence, and the jury is not permitted to speculate or conjecture as to whether fraud was committed by the defendants: unless fraud is proved by the weight of the evidence, the jury must return a verdict for the defendants.”

The court gave Special Charge No. 3 upon the request of the defendants:

“The court charges the jury that the defendants have no burden of disproving fraud. The burden rests throughout the case upon the plaintiff to prove intentional, willful fraud, by substantial evidence to the extent that her evidence preponderate over the evidence of the defendant. By preponderance of the evidence the court means the weight of the evidence; the evidence in support of the allegations must outweigh the evidence against the allegations.”

Charge No. 3 in subject matter and content sufficiently presents the principle of law enunciated in Charge No. 5 as to make unnecessary that it also be given.

Charge No. 6:

“The court charges the jury that if the evidence establishes that the plaintiff cannot operate apartments in the property acquired by her at 1055 Harvard Boulevard, that 'fact in itself does not permit the jury to award her a verdict against the defendant, Younce, or the defendant, Turvene, or both.”

As an abstract proposition, the charge is sound, but the plaintiff made no contention and the court did not charge that it alone was controlling of a verdict for or against the defendants. There was no issue between the parties to which the law of the charge had application.

Charge No. 8:

“The essence of fraudulent transactions is bad faith. The law presumes, however, that all men are fair and honest; that their dealings are in good faith, and without any intention to cheat .or defraud. When a transaction, called in question, is susceptible of two constructions, one that is fair and honest, and one that is dishonest, the law is, that the fair and honest construction must prevail; and the transaction in question, that is the transaction in this suit, must be, as a matter of law, presumed to have been without fraud.”

Appellants in their brief assert that this “entire charge is taken from Weygandt’s Charges, page 191, Charge 656, which in turn took the charge from 27 O S.” The citation to 27 Oh St 571 is Landis v. Kelly et. The charge is not taken in toto from Weygandt’s Special Charges, although it is substantially the same. The subject matter of the instruction as a whole is not found in Landis v. Kelly et, nor does the language found there purport to state that it is a charge that was given in the case or that should have been given. It was the observation of the judge who wrote the opinion and it sets forth, in part, the principle embodied in Special Charge No. 8. Up to the sentence ending with the word “prevail,” the instruction is correct and could safely have been given.

However, the language “that is the transaction in this suit, must be as a matter of law, presumed to have been with out fraud,” is susceptible of misinterpretation by the jury. It is not predicated upon the necessary premise that the transaction in the instant cause be found to be susceptible of two constructions, one of which is that it is fair and honest. That was essential to the application of the principle of law expounded in the charge.

Charge No. 13 reads:

“The court charges the jury that the plaintiff had a right to rely upon her own real estate broker to afford her such information regarding the property considered by her for purchase as his duty as a realtor required. If he had information, or if the same was within his reach, relative to the utility of the said property under the zoning ordinance, it is the same as if the plaintiff possessed it, and if the failure of Ed‘ Montgomery, real estate broker, acting as agent for the plaintiff, to exercise such care as a reasonably prudent realtor is required to exercise in behalf of his client, caused the damages to the plaintiff, then his failure, as defined, cannot be charged to the defendant, Younce, or the defendant, Turvene.”

The court gave defendants’ special instruction No. 10, page 638; this charge as given more properly stated the applicable law. The charge refused enjoined upon Montgomery as a real estate broker the exercise of such care as “A reasonably prudent realtor is required to exercise in behalf of his client.” The charge does not define what care would normally be enjoined upon a realtor in the interest of his client, nor was there any requirement that the extent of the authority of the broker to act for and on behalf of the plaintiff be proven in the transaction sued upon.

The eighth assignment is directed to the action of the Court in giving certain special charges before argument as requested by plaintiff.

Special Charge No. 1:

“The court instructs you as a matter of law that it has been stipulated that 1055 West Harvard Boulevard is and was at all times material in this case located in the residence A Zoning district of the City of Dayton, Montgomery County, Ohio, and said property so located is not permitted'to be used for multiple family purposes.”

No prejudicial error could have resulted by directing the attention of the jury to a statement of facts to which all parties had agreed.

For the first time, in the reply brief, objection is made to Special Charges' Nos. 2 and 5.

Special Charge No. 2 is as follows:

“The court instructs you as a matter of law if you find from the evidence in this case that the defendant, Chester Turvene, or the defendant, Coulus W. Younce, either jointly or separately, made representations of fact to the plaintiff purchaser which were material to the transaction, that such representations as made were false and that the parties making such representations had knowledge of their falsity and intended to mislead plaintiff purchaser, and that plaintiff purchaser relied upon such false representations and that said plaintiff had a right to rely upon same and was damaged thereby, then your verdict must be in favor of the plaintiff against the party or parties making such representations so relied upon.”

It is urged there is no proof to support joint representations made by defendants. Technically, this is true. We cannot say that the language employed, although not exact, tended to mislead the jury. If the statements were made by both defendants, although at different times and places, they could be considered as joint statements inasmuch as there was no variation as to time and place where representations were made, or as to the identity of the defendant who made them. Especially is this true if conspiracy was established.

. Special Charge No. 5:

“Members of the jury: I charge you that regardless of what you may find was the duty of Ed Montgomery, his failure to exercise his duty would in no way relieve the defendants, Chester Turvene or Coulus W. Younce, from liability to plaintiff for any fraud or false representations which they or either of them may have made to the plaintiff in connection with the property known as 1055 West Harvard Boulevard (upon which plaintiff relied and which induced her in the purchase of said property).”

It is urged that this charge permitted the jury to conclude that even if Montgomery had deliberately misrepresented the facts to Mrs. Eller, or himself induced her to sign the contract, the jury might notwithstanding find against the defendants. This conclusion is not warranted because as a part of the charge was included the necessary finding that the plaintiff relied upon and was induced to purchase the property by the false representations by either or both of the defendants. The objection to the language, “and which induced her in the purchase of said property” is not of sufficient force to justify a reversal inasmuch as other charges and the general charge were more specific as to the necessity of proof respecting reliance of the plaintiff upon the misrepresentations of defendants.

The tenth assignment of error is directed to the general charge of the court. The first proposition is that the court left to the jury the determination whether the statements of Younce were statements of fact or law, and that such determination should have been made by the court. As we have before indicated, the mis-statements upon which plaintiff relied could properly have been held to be statements of fact. If there was an issue as to the character of the statements it was properly submitted to the jury. Shawnee Commercial and Savings Bank v. Miller, 1 O. C. C. N. S. 569; Colt v. Wasson, 15 Oh Ap 484.

The general charge respecting the effect of the written contract as to the rights of the parties upon the form of action on trial was sound. The action was for fraud in inducing the consummation of the contract. We could do no better than to quote the text from 17 O. Jur., Par. 16, page 33:

“The genius of the law opposes itself to all fraud, and the most solemn judicial proceedings, when tinctured with it, are vitiated. Fraud taints every transaction into which it enters, and vitiates contracts which but for it would not have been entered into. There is no exception to this rule.”

It is further urged that the court failed to define conspiracy. The court did not define conspiracy, but what was said to the jury respecting proof to constitute conspiracy was correct. Counsel for appellants offered no suggestion to the court that a further or more complete charge should be given. In this situation the error, if such, was of omission and not commission. State v. Tudor, 154 Oh St 249. However, there is another- reason why the charge as given was not prejudicial in that the court gave defendants’ Special Instruction No. 1, in which defendants’ concept of conspiracy was set forth.

The assignment as to newly-discovered evidence is brought on to the record by two affidavits which, if true, affect only the credibility of plaintiff’s testimony.

The trial judge did not abuse his discretion in refusing to grant a new trial upon these affidavits. Bridge v. State, 20 O. C. C. (N. S.) 232, 4 O. Jur. (2d), 479.

The assignment is also subject to the technical objection that the affidavits upon which the motion is based are not carried into the bill of exceptions. Coldren v. May, 72 Oh Ap 484.

The ninth assignment is that the verdict is against the manifest weight of the evidence, and not supported by the evidence.

Upon the testimony of the plaintiff and her witnesses there was sufficient proof of each and every essential element of the fraud pleaded. The jury had full right to evaluate this testimony.

No error assigned is established. The judgment will be affirmed.

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


text:
    STATE, In Re CROW, Relator, v. DULL et, Judges of Common Pleas Courts of Mercer, Fayette and Clinton Counties, Respondents.
    Ohio Appeals, Second District, Champaign County.
    No. 137.
    Decided May 13, 1955.
    Reed M. Winegardner, Washington C. H., J. Harvey Crow, Brecksville, for relator.
    D. H. Jackman, London, Richard P. Faulkner, Edwin L. English and Russell B. Holding, Urbana, for respondents.
   OPINION

By THE COURT:

Submitted on a general demurrer of respondents to relator’s petition. Relator prays for a Writ of Prohibition against the respondent judges sitting by assignment of the Chief Justice of the Supreme Court of Ohio, in Champaign County. The petition recites chronologically steps which have been taken in a disbarment proceeding pending and on trial before the respondents in Champaign County, Ohio. It is not necessary to recite many of the averments of the petition. It is sufficient to say that the material parts thereof charge that service of notice of the proceeding against relator was issued from Champaign County to Cuyahoga County, his residence, where service was made upon relator; that no personal service was made upon him in Champaign County. That the court, as constituted, does not have jurisdiction of the proceedings in the Court of Common Pleas, Champaign County, Ohio.

It further appears that relator prior to going to trial on the charge against him, filed a motion with the members of the Court challenging the jurisdiction of the court of the person of relator which motion was overruled.

Many other averments are found in the petition but they relate to orders of the court by which it is asserted relator was denied his rights as a party to the disbarment proceedings.

Relator also alleges that he “has no adequate remedy at law whereby he may contest the jurisdiction of the Court of Common Pleas in said case if said relator is forced to trial prior to an appeal of said order.”

Although relator has filed no brief in this Court on the demurrer, we learn from the petition and the motion to dismiss filed with respondents that the principle contention supporting his right to the Writ prayed for is that the disbarment proceeding is a civil action, the venue of which is Cuyahoga County, his residence, and that the notice served upon him there, does not subject him to the jurisdiction of respondent - Court. He relies, no doubt, upon:

Sec. 2307.39 R. C.: — “All actions other than those mentioned in §§2307.32 to 2307.38 R. C., inclusive, must be brought in the county in which the defendant resides or may be summoned, except actions against an executor, administrator, guardian, or trustee, which may be brought in the county wherein he was appointed or resides in which cases summons may issue to any county.”

Both parties cite the opinion in the case of In re Disbarment of Lieberman, 163 Oh St 35, in which Judge Bell said, carried in the first syllabus:

“A proceeding to suspend or remove an attorney-at-law from office is strictly statutory and constitutes an action at law only, and the only appeal provided in such proceeding is one on questions of law.”

Obviously, this pronouncement was made as it related to the limitation on the Court of Appeals in reviewing testimony in an appeal on questions of law as distinguished from its broader power in a de novo appeal, on questions of law and fact. We doubt if the Lieberman decision is determinative of the question as to jurisdiction raised by the relator in his motion and in this action. We express no opinion as to the merits of the claim of relator respecting the jurisdiction of respondents to hear and determine the disbarment proceedings for the reasons hereafter stated.

In cases treating of the Writ of Prohibition and when it is properly allowed two factors are generally considered. One, the jurisdiction of the court to hear and decide the cause which determination the relator seeks to prevent. Two, has relator another adequate remedy at law. Determination of the second factor is controlling of the ruling of this court on the demurrer because the Court of Common Pleas, unlike certain courts, is a court of general jurisdiction with the authority to determine the extent of that jurisdiction.

In State ex v. Savord, 143 Oh St 453, Judge Zimmerman says:

“Under the provisions of §1707 GC (now §4705.02 R. C.), express jurisdiction is conferred on the Court of Common Pleas to suspend or remove an attorney-at-law from office, or to take other disciplinary measures of less severity, for specified causes.”

“This Court is committed to the proposition that the extraordinary Writ of Prohibition is a high prerogative Writ and is to be used only when there is no regular, ordinary and adequate remedy. It may not be invoked if the remedy of appeal is available. Silliman v. Court of Common Pleas of Williams County, 128 Oh St 338; State ex rel Ellis v. McCabe et, Judges, 138 Oh St 417.”

“Equally well established is the principle that in a situation where general jurisdiction of the subject matter of an action has been conferred upon the Court of Common Pleas by statute, a Writ of Prohibition will not issue denying the Court the right to determine its own jurisdiction. State ex Cleveland Telephone Co. v. Court of Common Pleas of Cuyahoga County, 98 Oh St 164.”

Other cases of like import are State ex Nolan v. Clendening et, 93 Oh St 264; State ex Garrison v. Brough et, 94 Oh St 115; State ex Carmody et, v. Justice, Judge et, 114 Oh St 94; State ex Greenstein v. Clifford et, Judges, 146 Oh St 78; State ex Miller v. Court of Common Pleas of Lake County et, 151 Oh St 397 and in the Probate Court as to Probate and Testamentary matters, State ex Barbee, Executor, v. Allen, Probate Judge et, 96 Oh St 10.

Two recent decisions of our Supreme Court are in point upon the decisive question here, viz: The adequacy of the remedy of appeal, if relator is eventually required to adopt that procedure to test the correctness of the order of the court in overruling his motion to dismiss the proceedings in disbarment. We refer to State ex Rhodes, Auditor, et, v. Solether, Judge, 162 Oh St 559 and State ex City of Cleveland v. Parma Municipal Court et (2 cases) 163 Oh St 231. The first syllabus of the former case is:

“The function of the extraordinary remedy of prohibition is to prevent inferior courts and tribunals from upsurping jurisdiction beyond that with which they are vested by law, and a Writ of Prohibition will be ordered only if there is no adequate remedy in the ordinary course of the law and will not be awarded as a substitute for an appeal.”

Second Syllabus:

“A defendant in an action who at the first opportunity appears only for the purpose of objecting to the jurisdiction of the court either as to subject matter or person, is not, upon the overruling of such objection, bound to rely solely upon his exception thereto but may make a ful} defense in the action without waiving his objection as to jurisdiction, either in the trial court, the Court of Appeals, or the Supreme Court.”

In this case it was the contention of relator that the- Court sought to be prohibited from proceeding had improperly overruled a motion of relator to quash service of summons on it. In neither of the former cases did the Supreme Court consider whether the trial courts were correct in determining that they had jurisdiction. In the Parma Municipal Court cases, the court said at page 231:

“The City of Cleveland may by appeal in the actions for damages question the exercise of jurisdiction by the Parma Municipal Court, and there is no showing that the City of Cleveland will be irreparably harmed by waiting to pursue such remedy.”

The relator in his petition in the instant action avers only that he has no adequate remedy at law. Inadequacy of his remedy by appeal, if required, does not appear nor is it inferable from any of the ultimate facts pleaded.

Relator has requested this court to call in another court to hear this demurrer probably because one member of the court, at least, had indicated a purpose to step aside. But the .question now presented is one of law only requiring no consideration of evidence, and no member of thé court is disqualified to hear and determine it. Then, too, it would be difficult upon the short notice to secure the services of another court to hear -and decide this case promptly as is required because the possibility of relator maintaining his right to prohibition will abate if, and when, judgment is pronounced by the court in the proceedings to disbar him.

The demurrer to the petition will be sustained.

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


text:
    STATE, ex GRAEF, JR., Relator, v. BOARD OF ELECTIONS, MONTGOMERY COUNTY, etc., Respondents.
    Ohio Appeals, Second District, Montgomery County.
    No. 2342.
    Decided May 6, 1955.
    Edgar J. Graef, Jr., Dayton, for relator.
    Mathias H. Heck, Prosecuting Attorney, John P. McHugh, Asst. Pros. Attorney, Dayton, for respondents.
   OPINION

By THE COURT:

This is an original action in mandamus in which relator seeks a writ against the Board of Elections of Montgomery County, Ohio, requiring the Board to order an election on relator’s petition for detachment, to obtain the opinion of the electors residing within a portion of the Village of Kettering comprising not less than 1500 acres of land, upon the question of the detachment of said territory from said village and the erection of such detached area as a new township.

The matter is presented to this Court on • a general demurrer to the petition. The petition alleges that the Board of Elections determined that the petition for detachment met all the various requirements of the statute, but that the Board declined to order an election on the petition in view of the decision of the Supreme Court of Ohio, on April 27, 1955, in the suit brought by Kettering Village against the Secretary of State to declare Kettering a city. The case referred to is State ex Brubaker v. Brown, Secretary of State, 163 Oh St 241.

Upon the filing of a petition for detachment with the Board of Elections, the Board is required to determine whether the petition conforms to the statute. Sec. 709.39 R. C. This section provides that “If it does conform, the board shall order an election, as prayed for in the petition.” In the instant case the board having found that the petition conformed to all statutory requirements, it was required to order an election. In view of the finding, the board had no further discretion to exercise. The duty of the board to order an election was mandatory.

While the board considered itself morally bound by the Supreme Court ruling in the case of State ex rel. Brubaker v. Brown, supra, it was not legally bound, as no order conforming to the court’s opinion has been journalized. Moreover, §703.96 R. C., in part provides that “Thirty days after the issuance of such proclamation each municipal corporation shall be a city or village as the case may be.” The secretary of state has not issued such proclamation, and is not likely so to do, until ordered to do so by the court in a final order journalized in the case now pending in the Supreme Court. Until this is accomplished, Kettering has the status of a village. The allegations in the petition are sufficient to constitute a good cause of action.

Demurrer overruled.

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


author: By CROSSLAND, J:

text:
    CLAGETT, Plaintiff, v. DAVIS, Defendant.
    Common Pleas Court, Muskingum County.
    No. 37403.
    Decided December 23, 1953.
    Zinn & Tate, Zanesville, Dorfmeier & Dorfmeier, Dayton, for plaintiff.
    Power, Griffith & Jones, Columbus, T. M. Potter, New Lexington. Meyer, Johnson & Kincaid, Zanesville,, for defendant.
   OPINION

By CROSSLAND, J:

In reviewing the pleadings, evidence and briefs, and the report of the Special Master Commissioner, the Court first acknowledges and commends the exceedingly able contributions made to the record on the part of all concerned, concerning not only an intricate but a novel question in Ohio.

Without pretending to acquire all the close hand familiarity with the very considerable detail of facts adduced, partly of impressions gained and credibility ascribed in connection with witness examinations— some in person and much that was highly technical in deposition — the Court will relate its own underlying approach to the chief issue involved.

Throughout, the Court’s own view of the legal question of possible fiduciary responsibility has been to maintain an open mind and to be receptive of all pertinent evidence that might lead to a possible determination in the light of whatever rule of law should seem equitable and just under all the facts and circumstances, rather than to assume and accept as the basis for determination factually any preconceived rule that might obtain elsewhere.

To state the Court’s approach another way — in the absence of an already settled and followed rule of law in Ohio, the Court’s view was that in the interest of justice the factual situation might impel it to reach out and seek to encompass the transaction within the purview of possible authority to afford relief and in such event the Court would then seriously consider an appropriate rule for doing so. Or, in other words, until the Court knew all the facts and circumstances in the instant case it was not prepared to assert its view of what it might consider the rule ought to be, although, at the same time, also appreciating the layman’s point of view that citizens should be able reasonably to find existing legal guide posts whenever possible. It is rather strange, considering population and business, that Ohio apparently has no reported precedent directly and fully in point.

For more than twenty years plaintiff and defendant were two of six original owners of fifty shares each of an Ohio corporation, which in turn owned 90% of an Oklahoma corporation, which in turn owned principally oil royalties in a certain Texas tract of 691 acres. In addition, the Ohio corporation owned certain Ohio and Michigan oil property interests of no significant controversy herein. In essence, plaintiff’s sole complaint is that defendant failed to inform him fully concerning the Texas property of the Oklahoma corporation, although the fact of the Oklahoma corporation was fully known to the plaintiff for the more than twenty years of its existence, from the inception of the entire enterprise.

There is no claim or suggestion that defendant was unable to obtain whatever information about any property of either corporation he might have desired, had he so desired, or that any such information was unavailable or unobtainable, but only that defendant failed to state affirmatively in his correspondence with plaintiff matters ascertained by plaintiff some months after defendant acquired plaintiff’s said stock. The same records, examined and testified about by plaintiff’s witnesses, presumably were always open to examination and inquiry by plaintiff or his representative before he elected to sell his said stock to defendant.

Most of the voluminous testimony revolves about the question of December 1, 1948, valuation of the Texas royalties of the Oklahoma corporation, in terms of dollar amount and exclusion thereof from the Ohio corporation share value computation. Whatever defendant may have thought or believed in August or November, 1948, concerning dollar value, as compared or contrasted with what he said in either of two letters, it was essentially a question of dollars in plaintiff’s consideration of defendant’s proposal to buy and not of underlying assets. Nothing was said or asked regarding specific property or properties. Since defendant was offering to buy and plaintiff considering selling at $150 a share was defendant rightfully bound to suggest, if he then believed that the fifty shares were worth more than $150 a share, the precise value per share which he then believed it to be worth? One thing defendant appeared to make quite clear was that he was interested for himself in plaintiff’s stock to the extent only of a willingness on his part to pay therefor $150 per share and no more.

The record discloses no inquiry or any apparent interest on plaintiff’s part to seek to ascertain what value, if any, in excess of $150 a share plaintiff’s stock might have had. Moreover, the situation then prevailing between plaintiff and defendant was not one purely of money value per share in the abstract. As a minority stockholder at that time plaintiff could well have considered that proportionate to the whole three hundred shares outstanding his own continued ownership of fifty shares held less value to him than the same shares would be to defendant, even if he had been fully informed concerning the underlying assets. Is it contended that defendant could acquire plaintiff’s fifty shares only by paying to plaintiff no less than their controverted full value to defendant, or, if less than that, then how little or how much less?

It is readily conceivable that if a Court were to undertake to adopt a strict fiduciary accountability by a director or officer purchaser of minority stock to one of two or three remaining original stockholders serious obstacles would be interposed either to mutually satisfactory continued stockholding relationship or the final assurance of stock sale and transference. In a small company of relatively small holdings, where individuality is the essence of origin of the enterprise, stockholders are accustomed to dealing with each other personally and informally, as otherwise they would not have associated themselves together in the first place, even though ordinarily one or two are generally known in the very beginning to be considerably more conversant with the nature and subject matter of the venture than are the others.

At what point and for what legal cause should a Court step in between two mature men'of intelligence and undertake to put aside their own voluntary dollar consummation in a transaction concerning an original equal corporate share interest of over twenty years standing?

While the foregoing considerations do not excuse unconscionable conduct nor warrant an invitation to fraud, they do place considerable dependence upon an individual stockholder’s own separate inclination and determination to seek to ascertain to his own independent satisfaction just how and to what extent he desires to proceed with reference to his share of the business, to which he himself is already considered to be much more closely related than he is to his stock certificate. If he wants to rely upon another stockholder with whom he has chosen to associate himself from the beginning, why should such other stockholder be liable therefor, in the absence of actual fraud or other personal dishonesty?

If the Court were constrained to enteretain relief on a question of differences of opinion as to value or even a conceded difference of value, in case of small companies of few stockholders, to what extent would close corporations retain value of longer desirability to those who thus engage themselves and their capital, together in order to initiate and operate small corporate businesses in the interest of themselves and those whom they serve?

Granting that if plaintiff’s stock was actually worth $500 a share, for example, on December 1,1948, and that if plaintiff then so knew he would likely not have sold it for $150 a share, if he then preferred to keep it at that price, it is obviously now not sufficient that he regrets that he then sold it rather than retained it. It is not sufficient that he offer to return to the stock purchaser the payment of the purchase price merely because he later regretted the sale. The defendant and not the plaintiff must have been at fault legally for the fact that the plaintiff willingly and voluntarily sold his shares to the defendant. Such an actual or potential liability therefor on defendant’s part seems to this Court to be greatly outweighed by the clear implication of the greatly increased hazard that would attend personal participation in the creation of small corporations and their economic function in capitalistic enterprise, at least in the case of original incorporators of equal share participation.

For the foregoing reasons and without disagreeing with the findings of the Special Master Commissioner as to failure of proof of injury in his evaluation of the evidence and credibility of witnesses, the Court sustains the conclusion of dismissal of plaintiff’s claim and grants judgment for the defendant at plaintiff’s costs, including allowance of fee of $850.00 to said Commissioner; with exceptions to plaintiff.

Journal entry may be prepared by defendant counsel embodying the foregoing conclusions of law of the Court and findings of fact of the Special Master Commissioner consistent therewith, submitted to plaintiff counsel for consideration of approval and then submitted to the Court for its approval for filing.


author: By THE COURT.

text:
    STATE, In re PYLES, Relator, v. INDUSTRIAL COMMISSION, Defendant.
    Ohio Appeals, Second District, Franklin County.
    No. 4989.
    Decided November 2, 1953.
    A. Millard Armstrong, Columbus, for relator.
    Hon. C. William O’Neill, Attorney General, Chalmers P. Wylie, Assistant Attorney General, Columbus, for defendant.
   OPINION

By THE COURT.

This is an original action in mandamus wherein the relator is seeking an order requiring the respondent to grant a rehearing on the application for an allowance for funeral expenses or for an order requiring the respondent to pay the same. The petition alleges the death of L. Binkley Pyles from injuries arising out of and in the course of his employment, the employer being a subscriber to the State Insurance Fund; that the relator is the son and only survivor of the decedent but is not a dependent; that the funeral director filed an application with the respondent for the statutory allowance for funeral expenses. This application was disalloweed for the alleged reason that the death was not due to any injury sustained in the course of the decedent’s employment or arising out of the same. Thereupon this relator filed an application for a rehearing which was denied, the reason assigned being that he was not a person entitled to file an application for rehearing. The relator attempts to qualify as a proper party to bring the action by stating in the petition,

“Relator says that if the defendant does not pay the funeral directors the statutory allowance on the decedent’s funeral expenses that the relator is obligated to pay said expenses and for this reason, that relator is a proper and interested party to the proceedings before the defendant, and that he was entitled to file said applications. Relator further says that the order of August 8th, 1952, was a denial of death benefits within the meaning of §1465-90 GC.”

Respondent now demurs to the petition upon the following grounds:

1. Relator has not stated a cause of action; and

2. The Court has no jurisdiction.

The question therefore presented is whether or not the relator is an interested person entitled to make such an application to the Commission under §1465-89 GC. This very question seems to have been passed upon by our Supreme Court in the case of Industrial Commission v. Puttman, 126 Oh St 8, the syllabus of which provides:

“Under the workmen’s compensation law and rule adopted by the commission pursuant thereto, where one who is not a dependent pays the funeral expenses of a deceased workman, such person is a mere volunteer and is not entitled to make application to the commission for the amount so expended.”

A further reason for denying the relator the relief sought is that the petition reveals that the funeral director filed the application for the funeral expenses and not this relator. He- was therefore not a party to the hearing before the Commission and is not a proper person to prosecute an appeal from its order.

The demurrer will be sustained.

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


author: By WARREN, J.

text:
    LOGAN, Estate of, In re.
    Probate Court, Putnam County.
    Decided June 28, 1955.
   OPINION

By WARREN, J.

This matter came on to be heard on the “Application” of Cozy M. Logan, the widow and surviving spouse of Lloyd Logan, deceased. Briefly, the application alleges that applicant and decedent resided on and rented a certain 80 acre farm for the past thirty-four years, paying cash rent; that the farm was rented from Frank Logan, who died September 27, 1929; that said Lloyd Logan, deceased, and Cozy Logan, his wife, made lasting and permanent improvements on the farm; that in 1953 decedent sowed fifteen acres of wheat and sublet twenty acres of grass to neighbors for the purpose of clipping it in 1953 and making hay in 1954; and applicant prays that she be decreed possession of the premises under the alleged cash rental lease for the farm year 1954 and for the entire lifetime of the life-tenant, Margaret E. Logan. No further pleadings' were filed. On hearing, counsel appeared on behalf of all interested parties.

The estate of Lloyd Logan is being administered in this court. The question to be determined is what rights, if any, the administratrix of the Lloyd Logan estate has in the purported oral lease of the 80 acres occupied by Lloyd Logan at the time of his death. The Probate Court has jurisdiction of this matter.

Sec. 2101.24 GC provides:

“Except as otherwise provided by law, the Probate Court has jurisdiction.” * * *

“(C) To direct and control the conduct and settle the accounts of executors and administrators and order the distribution of estates.”

“(M) To direct and control the conduct of fiduciaries and settle their accounts.

“Such jurisdiction shall be exclusive in the probate court unless otherwise provided by law.

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

What the pleader calls the pleading is not decisive. (See Speidel v. Schaller, Ohio, 55 NE 2, 346.)

Sec. 2721.05 E. C. provides:

“Any person interested as or through an executor, administrator trustee, guardian, or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, or of the estate of a decedent, an infant, lunatic, or insolvent, may have a declaration of rights or legal relations in respect thereto in any of the following cases:

“(A) To ascertain any class of creditors, devisees, legatees, heirs, next of kin, or others;

“(B) To direct the executors, administrators, trustees, or other fiduciaries to do or abstain from doing any particular act in their fiduciary capacity;

“(C) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.”

The -undisputed evidence discloses that about the time of his marriage in 1919 Lloyd Logan rented the eighty acre farm in Union Township, Putnam County, Ohio, from his father, Frank Logan, for cash rent of $480.00 per year; that Lloyd Logan and Cozy Logan lived continuously on the farm from 1919 until February 2, 1954, at which time Cozy Logan moved out of the house at the request of Joseph Logan, attorney-in-fact for Margaret Logan, the life-tenant of the premises. From time to time the cash rental was increased by mutual agreement of the parties; that cash rental on the basis of $1,000.00 per year was paid for said premises for 1953.

Frank Logan died testate on September 22, 1929, devising the eighty acre premises to his son, Lloyd Logan, subject to the life use of said premises by Margaret Logan.-

Lloyd Logan died Dec. 6, 1953. Before his death, Lloyd Logan in the summer of 1953, sublet to two neighbors twenty-one acres of grass which was clipped by them in 1953 preparatory to making' hay in 1954. In the Fall of 1953, Lloyd Logan sowed fifteen acres of wheat on the premises. During his tenancy on the farm, Lloyd Logan among other improvements added a new room to the dining room and kitchen, built a 1000 bu. bin, resided the granary, and rebuilt and reroofed the hen-house.

Mrs. Cozy Logan on cross-examination testified that about three years before he died, when the Lloyd Logans intended to move off the farm, Frank Logan stated if they would stay they could have the farm for $480.00 cash rent per year for as long as Margaret Logan would live.

At the request of Joseph Logan, Cozy Logan had a sale and vacated the house on February 3, 1954. Joseph Logan rented the house in February, 1954, for $20.00 per month thereafter.

For the year 1953 Cozy Logan settled with Joseph Logan, attorney-in-fact for Margaret Logan, the life-tenant, on a cash rent basis of $1,000.00.

There is no evidence of any objections on the part of Margaret Logan at the time that the twenty-one acres was clipped in the Summer of 1953 for hay in 1954, nor when Lloyd Logan put the wheat out in the Fall of 1953 before his death. The oral lease for cash rent and holding over from year to year was an indivisible contract for the entire eighty acres. The tenant, Lloyd Logan, was not renting fields, he was renting the entire farm for cash by the year. Whether a contract is entire or divisible depends generally upon the intentions of the parties, and this must be ascertained by the ordinary rules of construction considering not only the language of the contract, but, also, in cases of uncertainty, the subject matter, the situation of the parties and circumstances surrounding the transaction, and the construction placed upon the contract by the parties themselves.

See 9 O. Jur. pp 471, 472.

A contract for cash rent on farm land is an indivisible contract.

See 86 S W (2) 808.

The vacation of the house did not work a forfeiture of the lease and a resulting loss of the crops.

Forfeiture of lessee’s interest in lease of farm upon which crops are growing is not favored. See Warren v. Driscoll, 242 NW 346 (Minn) cited in 51 C. J. S. page 677, footnote 64.

Vacating the house did not constitute an abandonment of the premises. The wheat Crop had been sown at the time of the death of Lloyd Logan.

“A mere removal of the tenants’ residence from the land has been held not to constitute an abandonment of the crop.” 51 C. J. S. 349 p. 1040.

By moving out of the house the tenant did not surrender up the premises to the landlord for she still retained the tenant’s interest in the farm land. Lloyd Logan had put out fifteen acres of wheat and had rented twenty-one acres for hay. The oral contract is not divisible, and the estate of Lloyd Logan is entitled to the landlord’s share1 of the crop for 1954 and is liable for the rent for 1954.

“In order to constitute an abandonment or surrender of the premises, which on acceptance by the landlord will constitute a surrender of the lease by operation of law, there must be such a relinquishment by the tenant, as will justify an immediate resumption of possession by the landlord, and, where there is such a relinquishment, there is a sufficient abandonment or surrender. Although it has been said that the lessee of a1 term may abandon the lease by words or equivalent acts, a surrender cannot be implied by operation of law when the tenant retains possession, as tenant, of the leased premises, or any material portion of them.

“In order to constitute an abandonment or surrender of the leased premises,1 there must be a real or symbolical delivery of the possession of the entire property. Delivery of possession as security for delinquent rent is not of itself sufficient to constitute an abandonment. Likewise, there is no surrender by the lessee where he keeps the key and leaves a portion of his goods on the premises; where he merely surrenders the key to the lessor for a temporary purpose; where he surrenders the key on demand of a sheriff attaching his personal property; where he retains the key for several days after the expiration of the term, and after refusal of the landlord to accept it, for the purpose of removing trade fixtures; where the lessee is forcibly ousted through an improper resort to the courts; where, after removal by warrant, he is prevented by the lessor from reentering the leased premises; where he merely fails to make any answer to an offer by the landlord to cancel the lease; where he moves from the premises and back within a few days without notice to the landlord; where there is a mere temporary absence of two months but no default in payment of rent; where he fails to commence using the premises for the purposes for which they were leased for an indefinite time, there being no showing that the delay is inequitable; or where he fails to build a logging road or railroad under a lease of premises ‘for a logging road or railroad to be thereafter constructed.’

“An assignment of a lease or a subletting of the premises is not an abandonment of the lease, but an assertion of right to the lease, and a surrender will not be implied on proof that the lessees had dissolved partnership, and that an unauthorized person had tendered the lessor the key, and nothing more.” (51 C. J. S. 125 p. 718)

Lloyd Logan’s estate is the hold-over tenant in 1954 and as such, not having made a new agreement for rent, is liable to pay the same rent as for the previous year.

“A tenant who holds over and retains possession of the demised premises after the expiration of a term, without having made any new or different agreement as to rent, subjects himself to a renewal or continuance of the liability to pay rent as fixed by the terms and conditions of the prior lease. The liability for rent may exist for a period equivalent to that of the original term, for a year, a term of less than a year, a month, during the period that the premises are retained by the tenant, or during the continuation of the tenancy, and until its termination. A statute requiring a landlord to give his tenant notice in order to enforce an automatic renewal clause in the lease does not change the tenant’s liability for rent as a holdover. However, a statute providing that a notice of termination of a farm tenancy must fix a date specified in such statute has been held to control the period for which a farm tenant is liable for rent as a holdover.”

(See 52 C. J. S. 471 p. 210.)

24 O. Jur. 327 p. 1075. “Where a tenant holds over without agreement, and the landlord elects to hold him for another term, the tenant is liable for rent during another term and the amount will ordinarily be the same as that payable during the term prior”

The cash rental paid each year was for the calendar year. There is no evidence that the premises were rented on other than a calendar year.

LÍoyd Logan, had he lived, would have been the holdover tenant for 1954 as he had put out part of the crops and the cash rental contract was not divisible. The fact that he died in December 1953 does not alter the leasehold relationship as the death of either lessor or lessee does not, of itself, terminate a lease.

"In the absence of a vocenant otherwise providing, as a general rule a lease is not terminable by the death of the lessor or the lessee.” (See 51 C. J. S. 92 p. 659)

The Court finds that Lloyd Logan’s estate was holdover tenant for 1954 and as such owes Margaret Logan, the life-tenant, the sum of $1000.00 cash rent. However, Joseph Logan, attorney-in-fact, for Margaret Logan is holding, pending this proceedings, the following sums which belong to the estate of Lloyd Logan, for crops sold and other receipts from the farm in 1954; $116.60, hail insurance less premium, $1,482.96, corn and beans, $308.74, oats, $220.00 house rent.

Cozy Logan, as administratrix, is entitled to all the landlord’s share of the crops of said farm in 1954.

There is evidence that an oral contract between Frank Logan and Lloyd Logan sometime prior to 1929, was intended as a continuous contract of lease during the entire lifetime of Margaret Logan who still survives. Such a lease is unenforceable as being within the Statute of Frauds. The holdover lease terminated at the end of 1954.

Sec. 1335-04 GC provides:

“No lease, estate or interest, either of freehold or term of years, or any uncertain interest of, in, or out of lands, tenements, or hereditaments, shall be assigned or granted except by deed, or note in writing, signed by the party assigning or granting it, or his agent thereunto lawfully authorized, by writing, or by act and operation of law.”

24 O. Jur. 54 p. 789 provides:

“Although an agreement purporting to be a lease, because of some defect therein, does not create a legal estate or term of the duration designated in the agreement, it is well settled that from entry under such an agreement, or at least from entry and payment of rent, a tenancy at law may be implied. This rule is said to apply to a lease ‘void for any cause’. This rule seems to apply to leases for more than three years which are not in writing as required by the Statutes, although in most cases involving leases for a shorter term it has not been recognized.” * * * “The duration of the tenancy which is implied depends, at least ordinarily, upon the terms as to the payment of rent. Thus where possession is taken, or where possession is taken and rents are paid, there is created a tenancy from year to year, or month to month, depending upon the terms as to payment of rentals. An entry under a lease for a term of years at an annual rent, void for any cause, and payment of rent under it, have been said to create a tenancy for a year, or from year to year, even though the annual rent is payable quarterly, or monthly, or at shorter periods.”

The estate of Lloyd Logan cannot recover for the permanent improvements made on the buildings as there is no evidence of a contract by the landlord to pay for the same, nor of a request of the landlord to make the improvements.

24 O. Jur. 188 p. 921.

“In the absence of any agreement between the parties, there is no obligation on the part of the lessor to pay lessee for improvements erected by the latter upon the demised premises even though the improvements are such that by reason of their annexation to the freehold they become a part of the realty, and cannot be removed by lessee.”

An entry may be drawn accordingly allowing exceptions to each party herein. _


author: PER CURIAM:

text:
    WALKOVIC et, Appellees, v. ABOOD, Appellant.
    Ohio Appeals, Ninth District, Summit County.
    No. 4105.
    Decided June 28, 1950.
    Knowlton & Wilson, Akron, and R. Bruce Sanderson, Akron, for appellees.
    E. F. Trunko, Akron, for appellant.
   OPINION

PER CURIAM:

The appellant herein (defendant below) filed his notice of appeal to this court in the instant case on questions of law and fact. An examination of the pleadings discloses that the action in the trial court was not a chancery case but was one in which a money judgment only was sought. The appellees herein (plaintiffs below), Walkovic, et al., have not sought, by motion, to dismiss such appeal .and retain the case as an appeal on questions of law only.

Notwithstanding the failure of appellees to object to the appeal on questions of law and fact, this court, sua sponte, may, in its discretion, determine the appealability of a judgment on questions of law and fact, and may dismiss such appeal and retain the case on questions of law only.

See Hudson v. Hoster et, 37 Abs 240.

We therefore dismiss the appeal on questions of law and fact and retain the instant appeal on questions of law.- ,

We have carefully considered the pleadings, bill of exceptions and briefs filed herein, and find no error prejudicial to the rights of the appellant.

Judgment affirmed.

STEVENS, PJ, HUNSICKER, J, and DOYLE, J, concur.


author: By McNAMEE, DISTRICT JUDGE.

text:
    BERKWITZ, Plaintiff, v. HUMPHREY et, Defendants.
    United States District Court, N. D. Ohio, E. D.
    No. 27386.
    Decided January 14, 1955.
    Harrison, Spangenburg & Hull, Cleveland, for plaintiff.
    Earl F. Reed, of Thorpe, Reed & Armstrong, Pittsburgh, Pa., Maurice F. Hanning, of McAfee, Grossman, Taplin, Newcomer & Hazlett, Cleveland, Squire, Sanders & Dempsey, Cleveland, Jones, Day, Cockley & Reavis, Cleveland, for defendants.
   OPINION

By McNAMEE, DISTRICT JUDGE.

This is a derivative action by plaintiff, a resident of Massachusetts, against the Pittsburgh Consolidation Coal Company, a Pennsylvania corporation, two of its directors, and the Hanna Coal Company. Plaintiff is the owner of 200 of the two million shares of the Common Stock of Pittsburgh, which is less than fifteen one-thousandths of one per cent of the corporation’s outstanding shares. The action was filed in 1950 and has reached the stage where defendants’ motion for summary judgment has been overruled.

Shortly after the overruling of the motion for summary judgment plaintiff filed a similar action against other directors and the corporation in the Federal District Court for the Western District of Pennsylvania. In the Pennsylvania case the corporation .filed a motion to require plaintiff to post a bond to secure its expenses incurred in the defense of the action or, in the alternative, to join as plaintiffs shareholders whose holdings, together with those of plaintiff, would equal five per cent or more of the corporation’s outstanding shares. The motion was based upon Public Law 253 of the laws of the Commonwealth of Pennsylvania, particularly Section 2 thereof. In its pertinent part Public Law 253 provides:

Section 1.

“In any suit brought to enforce a secondary right on the part of one or more shareholders against any officer, or director, or former officer or director of a corporation, domestic or foreign, because such corporation refuses to enforce rights which may properly be asserted by it, the plaintiff or plaintiffs must aver and it must be made to appear, that the plaintiff or each plaintiff was a stockholder at the time of the transaction of which he complains, or that his stock devolved upon him by operation of law from a person who was a stockholder at such time.” 12 Purdon’s Statutes, §1321. (Emphasis supplied.)

Section 2.

“In any such suit instituted or maintained by the holder or holders of less than five per centum of the outstanding shares of any class of such corporation’s stock or voting trust certificates, the corporation in whose right such action is brought shall be entitled, at any stage of the proceedings, to require the plaintiff or plaintiffs to give security for the reasonable expenses, including attorneys’ fees, which may be incurred by it in connection with such suit, and by the other parties defendant in connection therewith, for which it may become liable pursuant to section three of this act, to which security the corporation shall have recourse in such amount as the court having jurisdiction shall determine upon the termination of such action. The amount of such security may, from time to time, be increased in the discretion of the court having jurisdiction of such action upon showing that the security provided has or may become inadequate.” 12 Purdon’s Statutes, §1322. (Emphasis supplied.)

The District Court in Pennsylvania granted defendant’s motion, and upon failure of the plaintiff to comply with the terms of the court’s order that action was dismissed. Following the dismissal of the suit in Pennsylvania, defendant filed a motion in this court to require plaintiff to post a bond to secure defendant’s expenses, including attorney’s fees, which have been and may be incurred in the defense of this litigation. This motion also is based upon Section 2 of the statute quoted above.

Statutory provisions similar to Section 2 are in effect in several of the states; but no such provision is contained in the Federal statutes, the Federal Rules of Civil Procedure, or in the statutes of Ohio.

However, it is urged by defendant that the provisions of the Pennsylvania statute requiring plaintiff to post a bond to secure defendant’s expenses in litigation created a substantive right in defendant which, under the doctrine of Erie R. Co. v. Tompkins, 304 U. S., 64, 58 S. Ct., 817, 11 O.O. 246, 82 L. Ed., 1188, and the full faith and credit clause of the United States Constitution, must be recognized and given effect by this court.

The statute imposes the same conditions upon shareholders of foreign as well as domestic corporations who institute derivative actions in Pennsylvania, and it confers upon both foreign and domestic corporations as defendants in a derivative action in that state the identical right to demand security for defendant’s expenses of litigation.

Defendant concedes that as to foreign corporations and their shareholders the statute has no extraterritorial effect; but attempts to construe it as having such effect when applied to domestic corporations of Pennsylvania and their shareholders. This attempt fails. It rests upon the premise that the right of a Pennsylvania corporation to' demand security in a derivative action by shareholders owning less than five per cent of the stock is a substantive right. This is an imprecise and incorrect designation of the right granted by the statute. But regardless of its classification, the right conferred upon domestic corporations is the same right that is conferred upon foreign corporations as parties defendant in derivative actions in the courts of Pennsylvania, and it must be given the same limited territorial effect.

The case of Cohen v. Beneficial Indus-Loan Corp., 337 U. S., 541, 69 S. Ct., 1221, 1230, 93 L. Ed., 1528, does not require a different construction. In Cohen the corporation was organized under the laws of Delaware. That state imposed no condition requiring a shareholder in a derivative action to post a bond securing the corporation’s expenses. The action was brought in New Jersey, which, at the commencement of the action, had no such statutory requirement. However, during the pendency of the action the Legislature of New Jersey enacted a statute providing that in a derivative action brought by shareholders whose interest is less than five per cent of the value of all outstanding shares and has a market value of less than $50,000, the plaintiffs may be required to give security for the corporation’s expenses of such litigation. It was held in Cohen that a statute of the state of the forum which conditions a shareholder’s right to maintain a derivative action in that state upon the furnishing of security for the corporation’s expenses in litigation was something more than a mere “regulation of procedure.” While in its reference to the new liability created by the New Jersey statute the court described it as “substantive”, it is clear that the term was not used in its traditional sense as affecting the merits of the action. In deciding that the order of the district judge denying a motion to require security was appealable, the Supreme Court was careful to note that the decision from which the appeal was taken, determined a claim of right “separable from, and collateral to, rights asserted in the action,” and held that the order from which appeal was taken was a final disposition of a claimed right “which is not an ingredient of the cause of action and does not require consideration with it.” Thus the court held that the New Jersey statute created a right which was collateral to and distinguishable from substantive rights which govern and control a decision in a trial on the merits.

Further recognition of the remedial nature of the fight granted by the New Jersey statute is to be found in that portion of the Cohen opinion dealing with the issue of constitutionality. On page 552 of 337 U. S., on page 1228 of 69 S. Ct. of the opinion, the court declared that “a state may set terms on which it will permit litigations in its courts.” The court also observed that the federal Constitution does not require a state “to place its litigating and adjudicating processes at the disposal” of a minority shareholder “without imposing standards of responsibility, liability and accountability which it considers will protect the interests he elects himself to represent.” And finally it was said that “A plaintiff cannot avail himself of the New Jersey forum and at the same time escape the terms on which it is made available * * These and other expressions of the court, as well as the general tenor of the opinion, reveal that the New Jersey statute although considered as having a “substantive aspect” was regarded by the Supreme Court as a remedial measure. Under the holding in Cohen the Pennsylvania statute would be applicable in a derivative action brought in that state. But the Cohen case is not authority for the proposition that a remedial statute of a foreign state must be given extraterritorial effect in the state of the forum. That question was not raised or decided in the cited case. The fact that Pennsylvania is the state of incorporation of the defendant does not enlarge or extend the right granted by the statute. The statute deals with derivative actions in the courts of Pennsylvania involving both foreign and domestic corporations and their shareholders and has no application beyond the borders of that state. The doctrine of Erie R. Co. v. Tompkins is of no aid to the defendant. Under the Erie rule it is immaterial whether a state statute requiring a bond for costs be characterized as substantive or remedial. The policy of Erie R. Co. v. Tompkins is stated in Guaranty Trust Co. v. York, 326 U. S., 99, 65 S. Ct., 1464, 1470, 89 L. Ed., 2079, as follows:

“In essence, the intent of that decision was to insure that, in all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a state court. The nub of the policy that underlies Erie R. Co. v. Tompkins is that for the same transaction the accident of a suit by a non-resident litigant in a federal court instead of in a state court a block away, should not lead to a substantially different result.”

It seems beyond dispute that in a shareholder’s derivative action on behalf of a Pennsylvania corporation instituted in Ohio a state court would not apply the Pennsylvania statute requiring security for the corporation’s expenses in litigation. In the interests of that uniformity of result that the Erie rule is designed to secure, this court must also refuse to apply it. It is clearly settled that in matters of remedial rights every case is governed by the law of the place where the remedy is sought. The one exception recognized by the authorities is' where the foreign remedy is inseparable from the cause of action. 11 Am. Jur., Conflicts of Laws, Sec. 186, pp. 498-499.

As has been shown, the Pennsylvania statute cannot be construed as granting a right which is an essential ingredient of the cause of action. It confers a separable and collateral right affecting the remedy and prescribes the terms upon which Pennsylvania will permit this class of litigation to be prosecuted in its courts. It is the policy of Ohio law to permit such' suits to be maintained by a non-resident plaintiff upon a deposit of cash or the furnishing of security for the ordinary costs of litigation. Sec. 2323.31 R. C. The Federal Rules of Civil Procedure, 28 U.S.C.A., are not in conflict. •

The motion is overruled.


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    KOVELL, A MINOR, etc., Plaintiff, v. PENNSYLVANIA RAILROAD COMPANY, Defendant.
    United States District Court, N. D. Ohio, E. D.
    No. 31172.
    Decided October 12, 1954.
    Paul B. Moritz, Niles, for plaintiff.
    Jay C. Brownlee, G, Kenneth Clark, of Harrington, Auxley & Smith, Youngstown, for defendant.
   OPINION

By McNAMEE, DISTRICT JUDGE.

Plaintiff’s motion to dismiss defendant’s petition for removal, which will be treated as a motion to remand, asserts the claim that defendant failed to give written notice to plaintiff of the filing of petition for removal, promptly after said petition was filed, as required by Section 1446 (e), Title 28, U.S.C.A. The papers in the case, including the affidavits of counsel for plaintiff and defendant, disclose these facts;

The original petition alleging a claim for damages arising from defendant’s negligence, was filed in the Common Pleas Court of Trumbull County, Ohio. The correct address of plaintiff’s attorney, which is “Prosecutor’s Office, Court House, Warren, Ohio,” appeared on the original petition filed in the Common Pleas Court but was omitted from the copy of the petition that was served on defendant. On June 29, 1954 defendant filed in this court a petition for removal, together with the requisite bond and mailed a copy of the petition to the Clerk of the Common Pleas Court of Trumbull County, Ohio. Concurrently therewith defendant’s counsel placed a.notice of removal, together with a letter, in an envelope addressed to plaintiff’s counsel — “Niles Bank Building, Niles, Ohio,” this being the address of plaintiff’s counsel as listed in the telephone directory for “Niles and Vicinity.” The envelope containing the letter and notice has not been returned to the sender. In his affidavit plaintiff’s counsel swears that he did not receive any written notice from the defendant of the filing of the petition for removal. He says that upon examination of the files in the Common Pleas Court to ascertain whether an answer had been filed he discovered a copy of the petition for removal that had been mailed to the clerk of that court. Thereafter plaintiff filed this motion. On August 3, 1954, after this motion had been filed, defendant’s counsel addressed a letter to counsel for plaintiff at the Prosecutor’s Office, Warren, Ohio, reciting the steps taken by defendant’s counsel on or about June 29 to ascertain plaintiff’s counsel’s address and to notify him of the filing of the petition for removal. At this time defendant’s counsel also forwarded to plaintiff’s counsel a copy of the notice of removal of June 28, 1954.

There can be no doubt that counsel for defendant diligently and in good faith attempted to give prompt notice to plaintiff of the filing of the petition for removal. It was reasonable to assume that the address of plaintiff’s counsel was listed correctly in the telephone book; and when the notice was not returned there was a substantial basis for the assumption that plaintiff’s counsel had received it. However, the notice was sent to an incorrect address, and there is nothing to suggest that plaintiff’s counsel’s statement that he did not receive the notice is untrue. The burden is upon defendant to establish that the notice was given and, under the facts as shown above, I am unable to find that this burden has been sustained.

The governing statute provides:

“(e) Promptly after the filing of such petition and bond the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the petition with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.” Section 1446(e), Title 28-, U.S.C.A.

The first provision for notice was contained in the 1911 revision of the statute, which provided that notice shall be given prior to the filing of the petition, etc. The 1948 revision provided that notice was to be given “Upon the filing of such petition and bond * * etc. And, as shown above, in 1949 the statute was again amended to provide for the giving of notice “Promptly after the filing of such petition,” etc.

The courts have not been in agreement whether the giving of notice is essential to vest jurisdiction in the federal court, but they have held uniformly that failure to comply with this requirement of the statute is ground for remand of the case upon a motion timely made. Partridge v. Bond, D. C., 17 F. Supp., 257, 258; Kelly’s Adm’r v. Abram, D. C., 20 F. Supp., 229; Flowers v. Aetna Casualty & Surety Co., 6 Cir., 163 F. 2d, 411. Cf. Pyatt v. Prudential Ins. Co., D. C., 38 F. Supp., 527.

While the above-cited cases construed the earlier form of the statute, which provided for notice prior to the filing of the petition, they are significant as indicating that in the absence of a waiver or a showing of impossibility of performance, strict compliance with the express provisions of the statute is required. In Babbitt v. Clark, 103 U. S., 606, 26 L. Ed., 507, the Supreme Court said:

“The right to remove a suit from a State court to the (Circuit) Court of the United States is statutory, and to effect a transfer of jurisdiction all the requirements of the statute must be followed. If this is done, the controversy is brought properly within the jurisdiction of the Circuit Court, and may be lawfully disposed of there; but if not, the rightful jurisdiction continues in the State Court.”

The Sixth Circuit Court of Appeals expressed a similar view in Flowers v. Aetna Casualty & Surety Co., supra, [163 F. 2d, 417] saying:

“Since the giving of prior notice is mandatory under the statute, and it was neither given by the appellees nor waived by the appellant in this case, the action was not properly removed from the Tennessee Court to the U. S. District Court, and' appellant’s motion to remand should be sustained.”

There would seem to be little doubt that the requirement of giving notice means that actual notice must be given to the adverse party. An attempt to give notice which is not rendered ineffective by action of the adverse party is not sufficient. Defendant’s counsel adopted the normal and usually successful means of ascertaining the correct address of plaintiff’s counsel; but it is not shown that plaintiff’s counsel received the notice, nor does it appear that the address of plaintiff was not correctly shown on the copy of the petition filed in the Common Pleas Court, or that notice could not have been given directly to the plaintiff. The importance of actual notice to the adverse party is apparent from an examination of Rule 81(c) of the Rules of Civil Procedure, 28 U.S.C.A. It is there provided: “These rules apply to civil actions removed to the United States district courts from the state courts and govern procedure after removal.” This rule further provides:

“If at the time of removal all necessary pleadings have been served, a party entitled to trial by jury under Rule 38 shall be accorded it, if his demand therefor is served within 10 days after the petition for removal is filed if he is the petitioner, or if he is not the petitioner within 10 days after service on him of the notice of filing the petition.” (Emphasis supplied.)

Defendant argues that the second notice of removal mailed to plaintiff’s attorney on August 3 is a sufficient compliance with the statute and relies upon Jones v. Elliot, D. C., 94 F. Supp., 567, 568, in support of this position. The Elliot case is inapposite. There two defendants were sued. One of the defendants filed a petition for removal and served notice upon the plaintiff but failed to notify his co-defendant. In holding that a delayed notice to the co-defendant was not fatal, the court observed that the statute provided for notice to “all adverse parties” and suggested that “whether the co-defendant [was] an adverse party may be debatable.”

Plaintiff’s motion is granted and the case is ordered remanded to the Common Pleas Court of Trumbull County.