author: By McNAMEE, J:

text:
    FAWICK AIRFLEX COMPANY INC., Plaintiff-Appellee, v. UNITED ELECTRICAL RADIO AND MACHINE WORKERS OF AMERICA LOCAL 735 C. I. O. et al, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21466.
    Decided January 3, 1950.

      Marshman, Hollington & Steadman, Cleveland, for plaintiff-appellee.
    Davis, Davis & Handelman, Cleveland, for defendants-appellants.
   OPINION

By McNAMEE, J:

This is an appeal from the judgment of the Court of Common Pleas finding the eighteen appellants herein guilty of contempt of court. A brief resume of the events preceding the trial is as follows:

About March 7, 1949, a work stoppage occurred at the Fawick Company which was immediately followed by mass picketing by members of the United Electrical Radio & Machine Workers of America Union. Thereafter, on March 11, 1949, after a full hearing at which the trial court determined it had jurisdiction to hear and determine the issues, the Court of Common Pleas issued an interlocutory decree of injunction by the terms of which the defendants therein named and the officers and members of the United Electrical Radio and Machine Workers of America, Local 735, C. I. O. were enjoined from mass picketing the plant or premises of The Fawick Company; from picketing said plant and premises otherwise than peaceably and by not more than two pickets at three designated places; from threatening and intimidating the officers and non-striking employees of the company or commiting acts calculated to prevent their free access to and egress from said plant.

On March 24, 1949, The Fawick Company filed a motion to show cause alleging that twenty persons therein designated as defendants had violated the order of the court in the respects charged. Copies of the motion were served upon all designated defendants, except Kres and Schuster, prior to March 25, 1949. Investigation of the charges against Kres and Schuster were deferred until service of the motion to show cause was had upon them. The trial against all other eighteen defendants began on March 25, 1949 and lasted four days. All of the appellants were present throughout the proceedings; all of them were represented by counsel; all except two testified in refutation or explanation of evidence offered in support of the charges against them. Full opportunity was afforded defendants for cross-examination of adverse witnesses and to summon witnesses in their behalf. After hearing evidence and arguments from both sides, the trial court adjudged each of the defendants to be guilty of violating the terms of the court’s decree of March 11, 1949 and pursuant to §12143 GC imposed a sentence of ten days imprisonment in jail and a $500.00 fine against each of the defendants. However, conditioned upon their future good behavior, the trial court suspended all or part of the fine as to ten of the appellants.

Although there are multiple charges in the motion to show cause and evidence was offered as against some of the defendants on more than one of the charges, each defendant was convicted of but one charge of contempt.

The record is replete with evidence of mass picketing, threats, and violence. It discloses that on the morning of March 23, 1949, a large group of persons, including the appellants, gathered at the Clinton Avenue entrance of the Fawick Company plant, blocked the passage of automobiles carrying non-striking workers and some of the appellants herein hurled stones and other missiles, damaging automobiles and menacing the personal safety of occupants thereof and others in the immediate vicinity. These incidents of mass picketing and violence were repeated on the morning of March 24, 1949 at the same entrance to the Fawick Company and at a time when non-striking workers were attempting to enter the plant.

There is affirmative evidence produced by Fawick that all of the appellants, excepting York and Gentille, were present and participated in the mass picketing on March 23 or March 24, 1949 and that most of them, with the two exceptions noted, were present and participated on both occasions. There is evidence in the form of admissions-by York and Gentille that they too were present on at least one of the foregoing occasions.

In addition, the evidence discloses various threats and acts of intimidation of individual employees of the company including the stench bombing of the property of one of them.

Only three of defendants’ ten assignments of error merit discussion. They are:

1. That the contempt proceedings upon which defendants’ convictions are based violates the due process clause of the State and Federal Constitutions;

2. That the proceedings of the common pleas court were irregular and unauthorized by law;

3. That the judgment of the common pleas court is not sustained by sufficient evidence and is contrary to law;

These assignments of error will be considered in the above order.

The claim that the proceedings offended against the requirements of due process, rests upon the propositions (a) that defendants were denied an opportunity to present a full defense to the charges; (b) that the motion to show cause did not fairly apprise the defendants of the nature of the charges against them.

In support of the first of these claims, it is contended that the trial court erred in refusing to permit defendants to offer evidence or to submit argument attacking the trial court’s jurisdiction to issue the injunction. However, the record merely discloses that the sole challenge to the trial court’s jurisdiction was by defendants’ motion to quash the proceedings.

The action of the trial court in overruling this motion is not assigned as error. No evidence was offered or argument made in the trial court that the Court of Common Pleas was without jurisdiction to grant the injunction.

It is claimed that the trial court’s refusal to permit defendants to submit evidence bearing upon the alleged invalidity of the injunction was erroneous. This claim is without merit. It is no defense to a proceeding in contempt based upon a violation of an order of the court to assert the invalidity of the order on other jurisdictional grounds. Iron Molders Union of North America v. Greenwald, 4 N. P. (N. S.) 161, affirmed by the Supreme Court, 77 Oh St 618.

In U. S. v. United Mine Worers, 330 U. S. 258, the Supreme Court of the United States cited with approval its own declaration in Howat v. Kansas, 258 U. S. 181, 189, 190, as follows:

“An injunction duly issuing out of a court of general jurisdiction with equity powers upon pleadings properly invoking its action and served upon persons made parties therein and within the jurisdiction, must be obeyed by them, however erroneous the action of the court may be, even if the error be in the assumption of the validity of a seeming but void law going to the merits of the case. It is for the court of first instance to determine the question of the validity of the law and until its decision is reversed for error by orderly review, either by itself or by a higher court, its orders based on its decisions are to be respected and disobedience of them is contempt of its lawful authority, to be punished.”

The foregoing pronouncements of the Supreme Court are applicable and decisive here.

Defendants assert that inasmuch as the law of this state does not permit an appeal from a temporary injunction “they had a right to challenge the original injunction and its validity as a basis for their defense.” This argument assumes the right of appeal to be an essential constituent of due process of law. The Supreme Court of the United States held to the contrary, in McKane v. Durston, 153 U. S. 684-687 declaring that:

“A review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law and is not now a necessary element of due process of law. It is wholly within the discretion of the state to allow or not to allow such a review. A citation of authorities upon the point is unnecessary.”

See also: Lott v. Pitman, 243 U. S. 588; Standard Oil Co. v. Missouri, 224 U. S. 270; Reetz v. Michigan, 188 U. S. 505; Iron Merchants’ Stock & Grain Co., 223 U. S. 639.

But defendants insist that to the extent the proceedings involved aspects of civil contempt they had a right to challenge the validity of the original injunction. In support of this argument they rely upon the following dictum of the Supreme Court of the United States in U. S. v. United Mine Workers, supra:—

“The right to remedial relief falls with an injunction whieh events prove was erroneously issued.”

It is unnecessary to elaborate the distinction between civil and criminal contempt to demonstrate that the proceedings here under review were punitive and quasi criminal in character. As stated in Gompers v. Bucks Stone & Range Co. 221 U. S. 418-448:

“The classification then depends upon the question as to whether the punishment is punitive in vindication of the court’s authority or whether it is remedial by way of a coercive imprisonment or a compensatory fine payable to the complainant.”

Clearly the sentences in this case are not remedial but were imposed solely in vindication of the court’s authority. Such relief as may have been afforded plaintiff thereby was incidental to the dominant objective of vindicating the authority and dignity of the Common Pleas Court. The claim of defendants that they were denied the opportunity to present a full defense to the charges is without support in fact or law.

A determination of the question whether appellants were fairly apprised of the charges against them involves a consideration of the terms of the motion to show cause, defendants’ motion for a bill of particulars, and an examination of the proceedings in the trial court. There is and can be no valid claim that any of the charges are deficient in particularity of statement describing the acts alleged to be in violation of the court’s order. The time and place of their occurrence and the nature of the acts complained of, are specified with a degree of definiteness and clarity sufficient to satisfy the most exacting standards of certainty. The sole attack upon the motion to show cause is the challenge directed against the alleged want of averments informing each defendant of the specific charges against him. Upon a consideration of the entire record as it affects the substantial rights of each defendant, it appears that appellants’ claim in this regard is without substance.

At the commencement of the proceedings appellants moved that the trial court require plaintiff to furnish a bill of particulars. Sec. 13437-6 GC, which provides for a bill of particulars, as supplementary to an indictment in a criminal case, has no application to written charges in contempt filed pursuant to §12138 GC. However, it would have been appropriate for the trial court to have considered defendants’ request for a bill of particulars as a motion to make the written charges definite and certain and as thus considered to have granted the motion. But an examination of the proceedings discloses that the trial court’s refusal to grant the motion was not prejudicial to the rights of any of the appellants.

In the caption of the motion to show cause these eighteen appellants and Kres and Schuster are designated as “defendants.” The allegations in the opening paragraph of the motion refer to the injunction and summarize its terms. The second paragraph of the motion contains the general charge which reads:

“Plaintiff states that defendants have not obeyed the above order of this court, but to the contrary have violated said order in the following particulars.”

It will be observed that all “defendants” are charged with violating the order of the court as fully and completely as though all of them were specifically named therein. Following the above quoted general charge are eight separate paragraphs describing the particular violations complained of. These will be referred to as Charges 1 to 8 inclusive.

Charges one and two begin as follows:— .

“Defendants or their agents.” Treating the words “or their agents” as surplusage, these two charges accuse each and all of the defendants of the violations therein set forth.

Charge No. 2 which contains the principal allegations against the defendants reads:

“Defendants or their agents on March 23, 1949 and on March 24,1949, massed and congregated in the Clinton Road entrance to plaintiff’s plant in numbers greatly exceeding the number of pickets permitted by this court’s order, and by violence, fighting and the hurling of stones, threatened, intimidated and injured plaintiff’s employees as they entered plaintiff’s plant and premises, in violation of paragraphs three, four, six, seven, eight and ten of this court’s order.”

Charge No. 3 refers only to defendant, Stamm.

Charges 4, 5, 7 and 8 commence with the words “Certain, of the defendants.”

Charge No. 6 reads as follows:

“A number of defendant’s agents visited the home of John Bacisin, one of plaintiff’s employees, on the evening of March 22, 1949, and by threats of personal violence and intimidation, tried to prevent said Bacisin from going to work at plaintiff’s plant, in violation of paragraph six of said order.”

There can be no doubt that all defendants are accused of the acts described in Charges 1 and 2 and that only defendant Stamm is charged in No. 3. As to all other charges, except charge No. 6, the accusation is modified to include “certain defendants” and charge No. 6, in terms, is limited to “a number of defendant’s agents.”

By the express terms of charge No. 2, each of the designated defendants was put squarely upon notice that he, together with all other defendants, was charged with the violations therein described. Plaintiff offered evidence in chief in support of Charge No. 2 against all appellants, except Stamm, who is the only defendant accused in Charge No. 3 and Gentille and York. Plaintiff also offered evidence tending to establish violations of Charges 4, 5, 6, 7 and 8 by several of the fifteen appellants who are included in the plaintiff’s proof on Charge No. 2. These fifteen appellants were found guilty of but one charge of contempt and if their separate convictions are sustained adequately by evidence relating to Charge No. 2, there is no basis for complaint that they were not fairly apprised of the charges against them.

It is conceded that appellant Stamm was fairly informed of the charge against him by the terms of charge No. 3.

Gentille and York are in a different position. In common with all of the other appellants, they were included amongst those accused of the violations described in Charge No. 2. However, no proof was offered by plaintiff that either of these defendants committed any of the violations therein set forth. Both Gentille and York testified in opposition to plaintiff’s evidence against them on Charge No. 6 and upon cross-examination, but over objection, each of them admitted being present among the massed pickets at the times and places referred to in charge No. 2.

In view of the punitive nature of the proceedings and in the absence of affirmative proof by plaintiff, we are of the opinion that these admissions on cross-examination are not sufficient to establish the guilt of either Gentille or York on charge No. 2.

Plaintiff offered evidence tending to show that Gentille and York were guilty of the violations specified in Charge No. 6 and it becomes material to ascertain whether they were prejudiced by reason of the alleged insufficiency of that charge.

In determining this question, effect must be given to the fact that both Gentille and York were afforded ample opportunity to prepare and defend against such charge. Plaintiff’s evidence of violations on charge No. 6 was offered Friday March 25, 1949 and it was not until the following Monday, March 28, that these two defendants offered evidence in opposition thereto. All doubt as to the identity of those included within the accusatory language of charge No. 6 was removed by the testimony of plaintiff’s witnesses which was concluded on March 25, 1949. There is no claim of surprise or that the time intervening between March 25 and March 28, 1949 was insufficient to enable both of these appellants adequately to prepare and present their defenses to the charge.

An evaluation of the evidence relating to charge No. 6 requires the reversal of the judgment of conviction against York, there being insufficient evidence to sustain the trial court’s finding against him. The case against Gentille is different. Not only is this defendant’s guilt on charge No. 6 convincingly demonstrated by plaintiff’s evidence, but Gentille’s equivocal statements on cross-examination verify and confirm his culpability. It does not appear that the result in his case would have been different if charge No. 6 had been amended at the outset of the trial, so as to include a specific designation of the defendants sought to be charged thereby.

The failure of the trial court to require such an amendment resulted in no prejudice to Gentille.

In Cooke v. U. S., 267, U. S. 517 at page 537, the court said:

“Due process of law, therefore, in the prosecution of contempt, except of that committed in open court, requires that the accused should be advised of the charges, and have a reasonable opportunity to meet 'them by way of defense or explanation.”

We are of the opinion that the foregoing requirements of due process were met in the proceedings here under review.

The assignment of error that the proceedings of the trial, court were irregular and unauthorized by law, finds no support in the record or in applicable principles of law. It is claimed that proceedings in contempt for the violation of an injunction are governed exclusively by §11868 GC, which provides for a fine only in the event of conviction. The complete answer to this contention is found in Sawbrook Steel Castings Co v. United Steel Workers, 148 Oh St 73, wherein the court said:

“Syllabus 2: Secs. 11887 and 11888 GC providing for the punishment of contempt arising out of the violation of injunctions or restraining orders of the court issued upon affidavit, do not preclude the application of the provisions of §12137 GC, in cases where written charges are filed and a hearing had as provided in §§12138 and 12141 GC.”

It is asserted also that only five of the eighteen appellants were parties to the injunction suit and that the record fails to disclose that the other thirteen appellants had notice of the terms of the court’s order. It is fundamental that strangers to a suit for injunction who have neither actual or constructive notice of the terms of the decree, cannot be held in contempt for a violation thereof. But the evidence discloses beyond doubt that in addition to the five appellants who were named in the petition for injunction, ten other appellants had actual notice of its terms. As to the remaining three appellants the inescapable inference is that they too were familiar with the terms of the court’s decree. All eighteen appellants were members of the Union and as such were parties to the injunction suit by virtual representation. The proscriptive terms of the decree extended to all members of the Union. The events occurring between March 11, when the decree was issued and March 24, 1949, when the motion to show cause was filed in the contempt proceedings, admit of no other conclusion than that the appellants who were members of the Union and formerly employed by the Fawick Company had notice of the court’s order. This claim of lack of knowledge of the terms of the court’s order was not made in the common pleas court and it cannot be asserted for the first time on this appeal.

“The forum of a reviewing court is not a place where for the first time a point which has not been deemed of essence at the trial and which has not been seriously pressed to the attention of the court is to be brought to the front for the mere technical purpose of securing a reversal of a judgment which the court finds otherwise correct.” 2 O. Jur. Sec. 150, pages 298-299.

To maintain their contention that the findings of the Court of Common Pleas are not sustained by sufficient evidence and are contrary to law, appellants argue that the convictions for contempt are not supported by clear and convincing evidence. While there is a division of opinion in other jurisdictions in respect of the measure of proof necessary to support a conviction for contempt of court, the better regarded authorities in this State hold that proceedings in contempt are quasi criminal and to warrant a finding of guilty in such cases the evidence must be clear, positive and convincing. Loney v. Hall, 8 Oh Ap 154; West v. Selbey, 77 Oh Ap 333.

We have reviewed the voluminous record of the proceedings in the Common Pleas Court and with the single exception of the conviction of appellant, York, are of the opinion that the trial court’s findings are in accordance with law and supported by the requisite degree of proof. The record discloses that the appellants and others banded together for the purpose of preventing non-striking workers and members of another Union from entering plaintiff’s plant for the purpose of working therein. Several of the appellants were seen to throw stones and other missiles on one or more occasions; some of them acted as “look-outs” to warn of the approach of workers to the plant; one was observed placing stones and similar objects in á “pile;” there were instances of threats made to employees of plaintiff; property was damaged and the personal safety of employees and others endangered. Notwithstanding the presence of police and deputy sheriffs, mass picketing with its menacing implications of threats and violence was indulged in. These things were done in disobedience of a decree of the Common Pleas Court and except as to appellant, York, we cannot say that the trial court’s findings that appellants were guilty of violating the court’s order were not sustained by sufficient evidence.

There is a conflict in the testimony relating to the case against several of the appellants but a reviewing court cannot substitute its judgment for' the determination of a trial court on the weight of the evidence and the credibility of the witnesses.

The complaint that the sentences imposed were severe, harsh and excessive must be rejected. All the sentences imposed were within the limitations prescribed by statute. Consequently this court may not inquiry whether punishment was apportioned equitably amongst the various defendants. The trial court committed no abuse of discretion in this regard.

Careful consideration has been given to all other assignments of error which we find to be without'merit.

Finding no error prejudicial to any of the appellants, except the appellant, York, the judgment of the Common Pleas Court is reversed as to him and appellant York is discharged. The judgment of the Common Pleas Court is affirmed in all other respects. Exceptions noted. Order see journal.

SKEEL, PJ, HURD, J, concur.


source: Caselaw Access Project

author: By THE COURT.

license: Public Domain

text:
    NOTHACKER, In re Reduction in Rank. WERNER, In re Reduction in Rank. SIDELL, In re Reduction in Rank. HARTUNG, In re Reduction of Rank.
    Ohio Appeals, Second District, Franklin County.
    Nos. 4269, 4270, 4271 and 4272.
    Decided October 19, 1949.
    Roscoe R. Walcutt, Alfred J. Henney, Columbus, for appellants.
    Richard W. Gordon, City Attorney, Hugh K. Martin, Senior Asst. City Atty., Robert E. Leach, Asst. City Atty., Columbus, for C. C. Cole, Director of Public Safety, appellee.
    See, also, 51 Abs 105.
   OPINION

By THE COURT.

These four appeals are on questions of law from the judgments of the Common Pleas Court sustaining the orders of the Civil Service Commission of Columbus, Ohio, approving the orders of Charles C. Cole, Director of Public Safety, reducing these appellants in rank as members of the Columbus Fire Department.

We have cárefully examined the records in these cases and briefs of counsel and have come to the same conclusion as Judge Randall, who, in a well-considered opinion, discusses all of the issues presented. A further discussion by us would serve no useful purpose. We find no error in the records and the judgments are ordered affirmed.

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


author: By GUERNSEY, PJ.

text:
    HAFFNER, Plaintiff-Appellee, v. SCHMEIDL, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21530.
    Decided December 19, 1949.
    McKeehan, Merrick, Arter & Stewart, George Wm. Cottrell,, Cleveland, for plaintiff-appellee.
    Julius A. Negin, for defendant-appellant.
    (GUERNSEY, PJ, MIDDLETON, J, of 3rd district: DOYLE, J, of 9th district sitting by designation in 8th district.)
   OPINION

By GUERNSEY, PJ.

This is an appeal upon questions of law, from an order of the Municipal Court of Cleveland, Ohio, granting a new trial and vacating and setting aside a judgment in 'a case pending therein, wherein John N. Haffner, the appellee, was plaintiff, and James A. Sehmiedl, the appelllant was defendant.

The action was one for damages to an automobile, alleged. to have been sustained by the plaintiff through a collision between an automobile owned by him and driven by one Lois N. Lykens and an automobile driven by the defendant and alleged to have been caused by the negligence of the defendant.

Upon the trial of the case in the Municipal Court of Cleveland the jury returned a verdict in favor of the defendant and judgment was thereafter duly entered upon the verdict.

The plaintiff then duly filed1 a motion for new trial of the cause, said motion, omitting caption and signature of counsel, being in the words and figures following, to-wit:

“Now comes the plaintiff and by his attorney moves the court for an order granting a new trial in the within cause for the reason that the judgment of the jury is not sustained by sufficient evidence or is contrary to law.”

The court,' following the filing of said motion, granted the same by an order reading as follows:

“Plaintiff’s motion for a new trial is hereby granted and the judgment heretofore rendered in favor of defendant against plaintiff is vacated and set aside and this cause is assigned ifor retrial.”

This is the order from which this appeal is taken.

The defendant appellant assigns error by the court in making this order.

Under the Constitution and the statutes of the State ol Ohio as they existed prior to September 30, 1947, an appeal could not be taken from the granting of a motion for new trial unless the court in granting the same, abused its discretion.

On January 1, 1945, Article IV, Section 6 of the Constitution was amended in part to read:

“The courts of appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and pro-cedendo and such jurisdiction as may be provided by law to review, affirm, modify, set aside or reverse judgments or final orders of boards, commissions, officers or tribunals and of courts of record, inferior to the court of appeals within the. district * ⅜

Thereafter, on September 30, 1947, §12223-2 GC, was amended to read, in part:

“What is a final order: — Grounds for new trial shall be stated, when * * ⅜ an order vacating or setting aside a judgment and ordering a new trial, is a final order which may be reviewed, affirmed, modified or reversed with or without retrial * ⅜

By virtue of this constitutional amendment, and the amendment of §12233-2 GC, an appeal may now be taken from an order in the instant case, vacating or setting aside a judgment and ordering a new trial, irrespective of whether the court abused its discretion in the making of such an order.

Upon such an appeal the function of the reviewing court is to determine whether the trial court erred in the making of such order, and if it erred, to reverse such order; and if the trial court did not err, to affirm the order.

While a trial court may sua sponte set aside a judgment and grant a new trial upon a proper ground, it did not do so in the instant case as the record shows that the order so operating is predicated solely upon plaintiff’s motion for a new trial for which two grounds for the granting of a new trial are specified, to-wit: (1) that the verdict of the jury is not sustained by sufficient evidence; (2) that it is contrary to law.

Consequently, it can not be presumed or assumed that the new trial was granted on any ground other than those specified in the motion.

While the defendant, under the provisions of §12223-2 GC, had the right to request the court to state in its order the. grounds upon which the new trial was granted and the judgment vacated or set aside, he did not avail himself of this right.

As the trial court predicated its order solely upon the motion and in it did not specify upon which ground of the motion the new trial was granted, it must affirmatively appear from the record, to warrant the reversal of the order, that the court erred in granting new trial upon either of the grounds specified in the motion.

The bill of exceptions discloses that there was competent, substantial, and apparently credible evidence to sustain the verdict of the jury and the judgment rendered thereon, andi that neither the verdict nor judgment is against the manifest, weight of the evidence or contrary to law.

This being the case, the trial court erred in granting the-motion for new trial and vacating and setting aside the judgment and for this error the order appealed from is reversed,. which has the effect of reinstating the judgment of the trial court.

The plaintiff appellee is ordered to pay the costs of this appeal and execution is awarded therefor, and the cause is remanded to the Municipal Court of Cleveland for execution of the judgment.

MIDDLETON, J, DOYLE, J, concur.


author: By WATTERS, J.

text:
    GREENVALE HOMES CORPORATION v. MARTING et al.
    Common Pleas Court, Summit County.
    No. 171014.
    Decided October 26, 1949.
    M. S. Hewgly, Cleveland, for plaintiff.
    Wm. H. Whilton, Akron, for defendants.
   OPINION

By WATTERS, J.

This is an action filed April 28, 1949, for a declaratory judgment by Greenvale Homes Corporation, a corporation, which purchased the land in question from one Robert B. Romweber, who purchased the property at auction sale of forfeited lands on June 23, 1947, and acquired title thereto by deed from C. L. Bower, County Auditor of Summit County, Ohio, dated July 24, 1947. This deed was filed for record in Summit County Recorder’s office on August 8, 1947, at 9:05 o’clock A. M., and is recorded in Volume of Deeds 2392, at page 349.

The defendant, E. L. Marting, trustee, was the owner of the land in question at the time of forfeiture, and the defendant, John R. Carhuff, is the owner and holder of a mortgage covering said premises.

The case was submitted to the Court upon the following stipulation as to the facts:

“It is hereby stipulated and agreed between the parties hereto, that E. L. Marting, Trustee, was the owner of the premises described in petition at the time of the commencement of the forfeiture proceedings, and continuously thereafter and up to the time that said property was forfeited to the State of Ohio.
“The parties hereto further agreed that Robert B. Rom-weber did acquire land described in petition at the forfeited land sale on the date set forth in the petition, that the filing date and the recorded Volume and page of said Auditors Deed are correct as stated in the petition.
“It is further agreed between the parties hereto that the Greenvale Homes Corporation did acquire by purchase the land described in the petition from Robert B. Romweber on the date set forth therein.
“It is further stipulated and agreed between the parties hereto that the Defendant John R. Carkhuff is the holder of the mortgage set forth in the petition, which mortgage remains uncancelled as of record.
“Further the parties hereto stipulate that the dates set forth in petition as regards the publication of the display notice and delinquent tax notice in the Akron Beacon Journal and the Summit County Democrat are correctly given. Further the parties hereto agree that the display notice and delinquent tax notice published in the Akron Beacon Journal April 17, 1944, was regular in all respects except that it did not contain the following words at the end thereof, ‘and notice is hereby given that the whole of such several lots, tracts, or parts of lots will be certified for foreclosure by the County Auditor pursuant to law or forfeited to the state, unless taxes, assessments, penalties and interest are paid.’ Further the parties agree that the second of such notices published in A. B. J. (Akron Beacon Journal) on May 1, 1944, was complete in that the said notice did include that portion of the form of notice which was omitted in the original or first installment viz.: ‘and notice is hereby given that the whole of such several lots, tracts, or parts of lots will be certified for foreclosure by the County Auditor pursuant to law or forfeited to the State unless taxes, assessments, penalties and interest are paid.’
“Further the parties agree that the display notice and the delinquent tax notice was published in the Summit County Democrat in three consecutive installments; that the first two installments in said Summit County Democrat omitted the same words at the end thereof, as were omitted in the first publication in the Akron Beacon Journal of April 17, 1944, hereinabove set forth.
“And that final or third such installments of said notices in the Summit County Democrat was complete in that the said notice did include that portion of the form of notice which appeared in the Akron Beacon Journal of May 1, 1944, as heretofore set forth.
“It is further agreed by the parties hereto that the clerk’s publication of notice of the time and place for hearing of objections pertaining to the lands to be forfeited to the State of Ohio was published once a week for two consecutive weeks in the Akron Beacon Journal and also in the Akron Legal News, which newspapers it is agreed herein are both independent as regards to Politics.
“It is further agreed by the parties hereto that E. L. Marting, Trustee, the former owner, upon such notice of the time and place of hearing did not present to the court any written objection and did not present any oral objection at such hearing.
“It is further agreed by the Parties hereto that the Green-vale Homes Corporation and its predecessor in title, Robert B. Romweber, have been in possession of said premises continuously since the filing of the Auditors Deed with the Summit County Recorder on August 8, 1947, until the date of filing the Plaintiff’s petition herein, which comprises more than one year since the filing of said Auditor’s Deed.”

In'addition to the stipulation, the court heard oral testimony from which the court determines that the Akron Legal News is a publication in the County of Summit and City of Akron, independent in politics, and that the Summit County Democrat is a publication in the County oí Summit, Democratic in politics, and each was such at the times in question.

With the consent of the parties and the court “the Akron Beacon Journal” was allowed to inform the court by letter what candidates it supported for the election of November, 1944, and to declare its political policy. The court has received such letter through its counsel, C. Blake McDowell, Jr„ which exhibit the court has marked for convenience as Court’s Exhibit No. 1, and quoting from the last paragraph thereof we find: “The Akron Beacon Journal, a newspaper of general circulation in the City of Akron, County of Summit and State of Ohio, is now and was in 1944 a newspaper independent in politics, and has had a general circulation in the City of Akron, County of Summit and State of Ohio for approximately the past 100 years.”

Accordingly this court finds said paper to be independent in politics.

All the questions before the court in the instant case, with one exception, were before this same court and decided in case Number 163,479, in this court, entitled Sweet v. Courtney et al., decided March 9, 1948. This case was published in 1948, 78 N. E. 2d page 83.

The exception noted above is as follows: No question was raised in the Sweet case as to the publication under §5718-lb GC, not having been published in two newspapers of opposite political faith.

The Sweet case grew out of the same forfeited land procedure and forfeited land suit in this court as are involved in the instant lawsuit, the actual case in this court for forfeiture being cause No. 159,430.

Coming now to the matter of the publication of notice of the hearing in Common Pleas Court on the case, to-wit No. 159,430, said hearing and notice being provided for in §§5718-lb and 5704 GC. The notice was'published on two consecutive weeks in the “Akron Legal News” and in the “Akron Beacon Journal” both newspapers of independent political faith, as found hereinbefore.

Sec. 5718-lb GC providing for the notice of hearing refers back to §5704 GC as to the method of publication.

It is doubtful, in my opinion, construing both of said statutes, whether it is mandatory that said notices of hearing be published in newspapers of opposite political faith.

Even if the correct view is that it is mandatory to publish said notices in newspapers of opposite political faith, it is the opinion of this court that that objection should have been raised at the time of said hearing in court.

Attention is also called to §5762-1 GC which bars any action or defense after the lapse of one year after the filing of the auditor’s deed for record in the recorder’s office, which date in this instant ease was August 8, 1947. I hold that that section creates a complete bar.

From the foregoing counsel will prepare a proper decree quieting title in the plaintiff to said premises, and barring any further right of the defendants to question plaintiff’s title because of. any claimed defects growing out of said forfeited land procedure, or otherwise.

Exceptions to defendants.


author: By THE COURT:

text:
    ROLLMAN & SON’S CO., Appellee, v. HUGUELY, Appellant.
    Ohio Appeals, First District, Hamilton County.
    No. 6673.
    Decided June 24, 1946.
    Cedric Vogel, Cincinnati, for appellee.
    Harry Falk, Cincinnati, for appellant.
   OPINION

By THE COURT:

The Municipal Court of Cincinnati rendered judgment for the plaintiff for $30.00 upon an account. The Common Pleas Court affirmed the judgment and the case is now in this Court on appeal on questions of law.

It is claimed that there is no substantial evidence of the account. However, two exhibits were introduced in evidence without objection — one showing application for a charge account and the other a ledger account. It may be that the bill of exceptions does not show all the preliminary proof necessary to make an account competent, but, if so, objection should have been made at the time, so that the plaintiff would have had the opportunity to supply the omission, if it was in its power to do so.

There is evidence that this charge account was established by and with the approval of the defendant, and that he ratified it.

For these reasons, the judgment is affirmed.

HILDEBRANT, PJ, MATTHEWS & ROSS, JJ, concur in opinion & judgment.


author: By MILLER, PJ.: By THE COURT:

text:
    SPENCER, Plaintiff-Appellee, v. SPENCER, Defendant-Appellant.
    Ohio Appeals, Second District, Greene County.
    No. 512.
    Decided November 4, 1949.

      Miller & Finney, Xenia, for plaintiff-appellee.
    R. Stanley Lucas, Springfield, Eldon L. Hayes, Wilmington, for defendant-appellant.
   OPINION

By MILLER, PJ.:

This is a law appeal from a judgment granting a divorce to the plaintiff-appellee, Harold F. Spencer, Sr., on the grounds of extreme cruelty and adultery, and declaring certain real estate held in the wife’s name to be held in trust for the plaintiff-appellee to the extent of $8000.00. The appeal is noted as one on law and fact but since the prime relief sought is a divorce the nature of the appeal governing divorce proceedings will control. The paramount relief sought shall govern the type of appeal. Brundridge v. Goodlove, 30 Oh St 374; Fisher v. Bower, 79 Oh St 248; Wall v. Federation Co. 121 Oh St 334.

The record discloses that on August 30, 1946, the appellant, Josie E. Spencer, filed her petition for divorce; that to this petition an answer and cross-petition was filed December 26, 1946; that proper service was had upon the parties and that the same came on for hearing on March 28, 1947; that on April 17, 1947, the decision of the court was filed, the same not being journalized until May 5, 1948. Neither party was granted a divorce and the status of the real estate was not determined. Sometime after the decision of the court was rendered, but before the filing of the judgment entry, the appellee filed a supplement to the answer and cross-petition, and on January 27, 1948, an amended answer and cross-petition was filed and service was had upon the appellant. On April 14, 1948, a motion was filed to the amended answer and cross-petition seeking a dismissal because of a misjoinder of causes of action. This motion was treated as a demurrer, which was sustained, the journal entry providing,

“This matter coming on now to be heard upon the amended, answer and cross petition and the motion of the plaintiff to strike the same from the files, the court finds that the said amended answer and cross-petition sets forth as to the amended cross-petition a cause of action which is improperly joined with the original petition and the original answer and cross-petition heretofore filed herein by the respective parties; it is therefore ordered that the defendant, Harold F. Spencer, separately file the amended cross-petition in a separate action, separately docketed and separately numbered, and the Clerk of this Court is directed to refile said amended cross-petition in a separate action as of the original date the same was filed, and that said amended cross-petition shall proceed in the name of Harold F. Spencer as plaintiff against Josie E. Spencer as defendant to final determination without further service of summons on the said Josie E. Spencer, and the said Josie E. Spencer is herein granted thirty (30) days within which to plead to said amended cross-petition, which for the purposes of the separate action shall be designated as an original petition and proceedings shall follow thereon as provided by law.”

The foregoing order with reference to redocketing of the case was made by virtue of §11312 GC, which provides:

“Procedure When Causes are Misjoined. When a demurrer is sustained on the ground of misjoinder of several causes of action, on motion of the plaintiff the Court may allow him, with or without cost, to file several petitions, each including such of the causes of action as might have been joined; and an action shall be docketed for each of the petitions and be proceeded in without further service.”

The record discloses that on May 5, 1948, the amended answer and cross-petition was filed as ordered, a new case number was given and the case was styled as Harold F. Spencer, Sr., Plaintiff, v. Josie E. Spencer, Defendant. The amended answer and cross-petition was treated as a petition to which an answer was filed on May 18, 1948. The cause came on for hearing on October 25, 1948 and it was agreed that the record of the hearing on March 28, 1947 be admitted in evidence only for the purpose of establishing the property rights. Trial was had on the question of divorce and some additional evidence was offered with respect to the property rights. The court found the defendant guilty of adultery and extreme cruelty as alleged in the petition.

The first assignment of error is that the court erred in granting a divorce to the appellee, Harold F. Spencer. The appellant is contending that the order of the court as entered on May 5, 1948, was a full and complete adjudication of all matters in issue between the parties to this action and constitutes res adjudicata and that the court was without jurisdiction to hear and determine the case upon the amended answer and cross-petition of the said Harold F. Spencer, Appellee. The appellant is correct in her assertion that a judgment is not rendered until the entry is filed and that a judgment of dismissal is a bar to future proceedings in a new action in any court as to all grounds for divorce alleged in the petition so dismissed or that were known to the plaintiff to exist at the time of the filing of the petition. But this is not our case. The cross-petition alleges that the act of cruelty complained of was committed on May 8, 1947, which was after the first trial which was held on March 28, 1947, and therefore could not have been in issue at that time. The journal entry of May 5, 1948, is clear upon this point, reciting that the judgment is based upon evidence submitted on March 28, 1947. The same situation is found to exist with regard to the charge of adultery, the cross-petition alleging that the acts were committed after May 8, 1947. The trial court expressly stated, in overruling the motion for new trial, “The divorce was granted upon grounds which occurred after the former hearing and solely upon those grounds.”

We have examined the entire record and find that there is sufficient evidence to support the judgment. It is the sole province of the trial court to pass upon the credibility of the witnesses and the weight to be given to their testimony. We cannot disturb the finding of the trial court on this question.

The next error assigned is that the court erred in the finding that the real estate in question was held by Josie E. Spencer in trust for the benefit of Harold F. Spencer, Appellee, and fixing his interest in the sum of $8000.00. The law seems to be well established that there is a presumption of gift when property is turned over to a wife by her husband; that the burden of proving a resultant and constructive trust is upon the one claiming such trust and he must establish it by clear and convincing evidence. Creed v. Lancaster Bank, 1 Oh St p. 1; Cosgrave v. Pendleton, 24 Abs 417. But the trial court found that the presumption of a gift had been overcome. The journal entry recites:

“Coming now to the question of property rights between the parties, the court finds from the evidence adduced that her actions immediately prior to and at the time of the transaction in which the farm was purchased was extremely deceitful and that her efforts were calculated to obtain title to the premises in her own name, then break off her relations with the defendant, plaintiff herein Harold F. Spencer, Sr. The court further finds that her course of conduct following the transaction corroborates the foregoing finding.

Decided December 16, 1949.

The court further finds that from the evidence that any presumption of a gift from the husband to the wife was overcome by the evidence of coercion and deceit on the part of the wife in obtaining the property.”

We think that the record supports the conclusions of the trial court on this subject.

Finding no error in the record the judgment will be affirmed.

HORNBECK and WISEMAN, JJ, concur.

ON APPLICATION FOR REHEARING

No. 512.

By THE COURT:

We have an application for rehearing, which upon a technical interpretation of our rules would not be considered, because at present we have no provision for the reconsideration of an opinion on an application for rehearing. Nickerson v. Nickerson, 85 Oh Ap 372.

We accept the explanation for the delay made by one of counsel for defendant and recognize it as valid.

We are not irrevocably committed to the dismissal of all applications for rehearing and if it clearly appears that we have overlooked something suggested on the original hearing, or have clearly made an improper decision, we will entertain the application.

It is urged on the application that the trial court exceeded its jurisdiction in granting relief to the plaintiff-appellee in that it invoked equity powers. This jurisdictional question was not urged in the former assignment of errors and, therefore, was not properly before us for determination. However, we observe that this cause did not go to trial on the divorce and alimony aspects alone but upon a second cause of action which was equitable in its nature. The trial court being a court of general jurisdiction had power to consider and act upon the equitable cause of action.

We find no sufficient support for the ground assigned in the application for rehearing to require that it be granted. It will, therefore, be denied.

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


text:
    PRENCSIL, Plaintiff-Appellant, v. GOLASKA et al, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21521.
    Decided December 5, 1949.
    Lody Huml, Cleveland, for plaintiff-appellant.
    Cull & Cull, Cleveland, for defendants-appellees.
    (GUERNSEY, PJ, MIDDLETON, J, of 3rd District: DOYLE, J, of the 9th District sitting by designation in 8th District.)
   OPINION

By GUERNSEY, PJ.

This is an appeal upon questions of law from a judgment of the common pleas court of Cuyahoga County in an action pending therein wherein the appellant, James Prencsil was plaintiff and the appellees, James Golaska and others were defendants.

The action is one instituted by the plaintiff 'to recover a commission under a written contract entered into between the said James Prencsil and the defendant, James P. Golaska, whereby the said James P. Golaska employed the plaintiff as a real estate broker for a stipulated commission to procure a purchaser for and sell certain real estate owned by him, upon the terms set forth in said contract. The sale of the said real estate was not effected and the claim for commission is based on the alleged refusal of the said Golaska to sell said real estate upon the terms prescribed in said contract to a purchaser procured by the plaintiff.

On the trial of this cause in the common pleas court the cburt granted defendant’s motion to arrest the taking of testimony and to enter judgment in favor of the defendants which was done. This is the judgment from which this appeal was taken.

In order that a real estate broker may recover a commission from his principal for the sale of real estate, where the sale is not consummated, it is necessary that he should not only procure a purchaser able, ready and willing to complete the purchase but also procure the execution by the proposed purchaser of an enforcible contract for the purchase thereof; or that he bring the vendor and proposed purchaser together so that the vendor may procure such a contract.

Patton v. Alessi, et al, 42 Oh Ap 91; Hrovat v. Krall, 28 Oh Ap 46; Harris v. Manhattan Real Estate Co., 1 Abs 616; Mattingly v. Pennie, 105 Cal. 514.

To be enforcible, such a contract is required by the statute of frauds to be in writing.

In the instant case, it conclusively appears that the plaintiff did not procure the execution of an enforcible contract on the part of the proposed purchaser, the agreement of the purchaser not being in writing; and the plaintiff did not bring the vendor and the proposed purchaser together so that the vendor might have procured such a contract. Consequently the plaintiff is not entitled to recover any commission under the contract entered into between him and the defendant Golaska.

The judgment of the common pleas court is therefore affirmed. Exceptions noted.

MIDDLETON, J, DOYLE, J, concur.


author: By MILLER, PJ.:

text:
    SNYDER, Extrx., Plaintiff-Appellee, v. SNYDER, Defendant-Appellee, and MILLIKIN, Defendant-Appellant.
    Ohio Appeals, Second District, Darke County.
    No. 674.
    Decided November 12, 1949.
    Martin D. Pluess, Greenville, for plaintiff-appellee and for defendant-appellee.
    Wilbur D. Spidel, Hugh A. Staley, Greenville, for defendant-appellant.
   OPINION

By MILLER, PJ.:

This is a law appeal from a judgment of the Court of Common Pleas of Darke County, Ohio. The action was one for the construction and interpretation of the will of William O. Millikin. The controversy arises over certain language used in Item III of the will which provides:

“By reason of my physical infirmity and at my request my daughter, Ermal M. Snyder, and her family gave up their home in the City of Dayton and moved into my home with their household goods on or about August 24, 1943 in order that my said daughter could more fully provide for me the care which I need by reason of my infirmity and by reason thereof and in appreciation thereof, I give, devise and bequeath to my said daughter, Ermal M. Snyder, my farm consisting of ninety-five acres more or less and located in Section 14, Township 8 North, Range 3 East, Twin Township, Darke County, Ohio, to be hers absolutely and forever, subject however to the following charge which she shall pay to my grandson Raymond L. Millikin, that is to say: It is my direction and will that at my decease said farm shall be appraised by the appraisers named by the Court to appraise my estate and the charge to be held against said farm so bequeathed to my daughter and to be paid by her shall be the one-half of said appraised value, but reduced and diminished by five per cent of the full appraised value of said farm for each year during which my daughter and her' family provide the care for me as above set forth * * *”

The question raised by, the appellant is whether the testator meant that the charge is to be diminished by five per cent of the appraised value of the farm or was the value of the farm to be diminished by five per cent before the charge was to be determined.

The record discloses that at the time of the making of this will and continuously thereafter until his death the testator was by reason of physical infirmity unable to care for himself; that his daughter, Ermal M. Snyder, in order to care, for her father, gave up her home in the City of Dayton, Ohio, and moved her family into her father’s home; that the defendant-appellant Raymond L. Millikin is the grandson of the testator and the only other heir. If there is no ambiguity in the said Item III it will not be necessary for us to examine the remainder of the will in order to ascertain the intent of the testator, nothing being in conflict with Item III. The trial court found that said Item III was not ambiguous and that the true meaning as gleaned from the entire will is that the plaintiff Ermal M. Snyder be paid for providing for the care of testator by paying to the defendant Raymond L. Millikin one-half of the appraised value of the real estate described in Item III, said payment to be diminished by five per cent of the full appraised value of said real estate, during each year she provided for him.

Counsel for the appellant urges that by such a construction the will does not make him equal with Ermal M. Snyder in the value of the farm. We agree with counsel on this proposition but that must have been the intention of the testator. The principle, “Equality is equity” has no application in the construction of wills where a contrary intent on the part of the testator is clearly manifested. The effect of the construction cannot be considered when the intention is clearly expressed. Counsel for the appellant urges that Ermal M. Snyder as executrix, filed certain schedules in the Probate Court which show that she construed the will in accordance with appellant’s claim made in this action. This the appellee denies, but even if it were true, it could not change the intent of the testator as expressed in the will. Rules of construction are for the purpose of determining testator’s intention, and if that intention is clear and manifest it must control, regardless of all rules of construction. It is not the purpose of construction to substitute the will of another for the will of the testator nor to make a new will for him but to ascertain his intention. Thompson on Wills, 3d Edition, Sec. 210, page 321.

The record discloses that the farm was appraised at $27,500.00 and five per cent of this amount would be $1,375.00 which the appellee would receive for each year for her services. This amount seems quite moderate and had an allowance of ten per cent been made it certainly would not have been excessive. Therefore the testator may have had in mind that by the terms of the will she was only receiving óne-half the value of her services and the other half being charged against appellant. We are therefore of the opinion that the trial court properly interpreted the will and the judgment is affirmed.

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


author: By JONES, J.

text:
    DeMOISE, d. b. a. WATERLOO SUPER MARKET, Bankruptcy, In re.
    United States District Court of the Northern District of Ohio Eastern Division.
    No. 65418.
    Decided January 18, 1949.
   OPINION

By JONES, J.

This proceeding is on review of an order of the referee holding that the Metropolitan Finance Company has a good and valid first lien against the fund, now in the trustee’s custody, realized from the sale of assets purportedly covered by Metropolitan’s mortgage.

On March 18, 1948, the National Business Investment Company had DeMoise (bankrupt) execute a negotiable promissory note, payable to the order of National, in the sum of $5220.00. A chattel mortgage for $5220.00 on certain store fixtures was also executed by DeMoise with National as mortgagee. On the same date, Metropolitan transmitted its check for $4500 to National, together with a letter of instructions by Metropolitan stating that National was to act as escrow agent in the transaction and was to use the $4500.00 after the mortgage had been recorded as a first lien on the fixtures. National immediately endorsed and assigned the note and mortgage to Metropolitan. The $4500.00 was used to pay certain debts of DeMoise and an escrow fee of $50.00. DeMoise received about $500.00 in cash.

Among other things, the referee found “that the contract was in excess of the legal rates of interest and therefore usurious; that Metropolitan was not a holder in due course for value since it had full knowledge of all of the facts including knowledge that National was requiring and taking a note from bankrupt for $5220.00 for a loan of $4500.00.”

The trustee has taken exception to other findings of the referee that the affidavit of Edward Hakal upon the mortgage as agent of National is sufficient in law and that Hakal can hardly be said to have failed to act in good faith in making the affidavit.

The referee’s findings and conclusions generally would seem to be supported by the facts and the law except as to the items of good faith in the execution of the affidavit and the validity of the chattel mortgage. A review of the facts and circumstances surrounding the transaction out of which this controversy grew, narrows the ultimate issue to a consideration of the equitable as well as the legal consequences of the acts of the parties primarily concerned in sustaining the referee’s order. The note for $5220.00, given to the National Business Investment Company, and endorsed by it to Metropolitan Finance Company carried with it usurious interest on the loan of $4500.00 arranged by National and made by Metropolitan. The chattel mortgage to secure the note also was taken by National as mortgagee and assigned to Metropolitan.

National claimed that it acted only as solicitor or agent, for Metropolitan in arranging for the loan. If this be so,, then the affidavit was false and the entire transaction by which the loan carrying usurious interest was carried out,, definitely may be characterized as bad faith and fraud to-which certainly both Metropolitan and National were parties.

The bankrupt mortgagor testified that he did not know Metropolitan as lender until he received a paper showing disbursement of the $4500.00 or the Metropolitan’s book calling-for payment of $217.00 per month. He received his check for- the balance after disbursement from National as its-office. Metropolitan was licensed under the Small Loans. Act and made no direct loans of more than $1000.00 according to the testimony of Quigley, its office manager, although it. purchased or discounted paper for larger sums, as in the present case.

These highly illuminating circumstances give much fight-to the method used to get more than the traffic lawfully should: bear.

The amount nominated in the affidavit by National as the-claim due it as mortgagee was neither just nor valid, and this-National and Metropolitan knew. In such circumstances the-equity powers of the bankruptcy court may be brought into-play to prevent what, save'of appealing equitable circumstances, otherwise might be found to have no insurmountable legal obstacles. Under the evidence as revealed by the transcript,. National did not make the loan; was not the real mortgagee; and had no valid claim for any sum against the mortgagor (bankrupt). The affidavit was untrue and must have been executed,in bad faith and as part of a scheme to conceal or escape the consequences of usury. It seems clear that the affidavit was executed by Hakal as agent for National; and while it may be true that if other circumstances truthfully were reflected therein no finding of deception would be warranted, yet reviewing the record one cannot escape the conclusion that a mortgage so supported cannot be sustained upon clear legal grounds, and certainly not where compelling equitable considerations are invoked for the protection and benefit of creditors.

Accordingly, the petition for review will be sustained and in the respects complained of the order of the referee will be reversed.


text:
    GREISSING, Plaintiff, v. RENKERT et, Defendants.
    Common Pleas Court, Summit County.
    No. 167701.
    Decided August 23, 1949.
    Roy E. Browne, Law Director, Nathan Koplin, Asst. Law Director, Akron, for plaintiff and the Civil Service Commission.
    C. G. Roetzel and John Ulman, Akron, for defendant clerk Mr. Butler.
   OPINION

By WATTERS, J.

In this action, President of the Council of the City of Akron filed his petition against the members of the Civil Service Commission of the City of Akron praying for a declaratory judgment determining whether or not the position of the Clerk of the Council of the City of Akron is in the classified or unclassified Civil Service of the City of Akron. The original plaintiff and defendants were represented by the Law Director and Assistant Law Director of the City of Akron. After the commencement of the action, Claude M. Butler, Clerk of Council, upon his own motion, was made a party defendant and filed his answer herein. The case was heard upon the pleadings, stipulations, both written and oral, entered into at the trial, and supplemental stipulation filed thereafter.

The facts are covered by the stipulation and supplemental stipulation of facts, which are as follows:

STIPULATION.
“It is stipulated by all the parties to this action as follows:
1. The City of Akron is a municipal corporation existing under the constitution and general laws of the State of Ohio, and pursuant to said constitution the electors of said city adopted a home rule charter which is now in full force and effect.
2. Plaintiff, Francis J. Greissing, is the duly elected, qualified, and acting President of the Council of the City of Akron, and brings this action on behalf of himself and all of the other members of the Akron City Council.
3. Defendants, Fred E. Renkert, Harlan A. Schwab and Fleet W. Perrine, are the duly appointed, qualified and acting Civil Service Commissioners of the City of Akron, Ohio.
4. Defendant, Claude M. Butler, took the Civil Service examination for the position of Clerk of Council of the City of Akron prior to the 8th day of November, 1938, said examination having been formulated and conducted under the rules and regulations and under the control and supervision of the Civil Service Commission of the City of Akron. Defendant, Claude M. Butler, satisfactorily passed said examination and at the request of the Council of the City of Akron the said Civil Service Commission certified to said council on November 8th an eligible list of three (31 persons for said position, the name of defendant, Claude M. Butler, being included in and leading said list. From said certified list defendant, Claude M. Butler, was declared and appointed by the said Council to be the Clerk of Council of the City of Akron, Ohio. Said Claude M. Butler took the oath of said office and assumed the duties of same on or about the 15th day of November, 1938, and has held the position of Clerk of the Council of the City of Akron and served as said Clerk at all times since.
5. On or about the 14th day of August, 1924, a charter was approved by the voters of the City of Akron, which charter, as it then became effective, contained the following provision under the chapter entitled “The Council”:
“Section 32. ELECTION BY COUNCIL — RULES, QUORUM.
A majority of all the members of the council shall constitute a quorum to do business, but a less number may adjourn from time to time, and compel the attendance of absent members in such a manner and under such penalties as may be prescribed by ordinance. The council shall elect one of its members as president, a clerk and such other officers and employees of its own body as may be deemed necessary. The Clerk shall keep the records of the Council and perform such other duties as are required of him by this charter, and as may be required by ordinance or resolution. All officers and employees chosen by the council shall serve during its pleasure. (V 26 p 33; Approved by voters Aug. 14. 1924.)”

Said charter also contained the following provisions under the chapter entitled “Civil Service”:

“Section 105. CLASSIFICATION. The Civil Service of City is hereby divided into the unclassified and classified service.
(1) The unclassified service shall include:
(a) All officers elected by the people.
(b) The Chief Administrator.
(c) All directors of departments, including the Commissioner of Public Utilities.
(d) The members of all appointed boards or commissions, and advisory boards.
(e) The secretary of the Chief Administrator and of the Mayor, and one secretary and one assistant or clerk for each director of a department and for each board or commission except the civil service commission, whose employees shall be in the classified service.
(f) The clerk of council.
(g) Such heads of divisions, except fire and police, as the civil service commission shall from time to time by rule determine.
(h) All unskilled laborers.
(i) The assistants to the Director of Law.
(j) The staff of the Municipal University.
(2) The classified service shall comprise all positions not specifically included by this charter in the unclassified service. There shall be in the classified service two classes, to be known as the competitive class and the non competitive class.
(a) The competitive class shall include all positions and employments for which it is practicable to determine the merit and fitness by competitive examinations.
(b) The non-competitive class shall consist of all positions requiring peculiar and exceptional qualifications of a scientific, managerial, professional or educational character, as may be determined by the rules of the Commission.”
6. On or about August 31, 1937, Council of the City of Akron duly enacted Ordinance No. 272-1937 authorizing the submission to the electors of said City of proposed amendments to said charter relating to the Civil Service provisions thereof and including the amendment to said Section 105. The fourth section of said Ordinance No. 272-1937 was as follows:
“Section 4. Any provisions of these amendments, if the same shall be adopted by the electors, which shall be found inconsistent with or in conflict with any provision of the present charter shall be held to prevail insofar as inconsistency or conflict exists.”
A complete copy of said ordinance was mailed to all registered electors of said City, as shown by the list provided by the Board of Elections, and said electors, by election on November 2, 1937, approved said amendments as submitted to them by said ordinance and thereby said amendments became a part of the charter of the City of Akron.
7. The charter of the City of Akron, as so amended and now in effect, is set forth and attached to the petition herein, and Section 105 thereof is as follows:
“Section 105. CLASSIFICATION. The civil service of the City is hereby divided into the unclassified and the classified service.
(1) The unclassified service shall include:
(a) All officers elected by the people.
(b) The directors of the departments of public service, finance and law.
(c) The members of all appointed boards or commissions, and advisory boards.
(d)The secretary to the Mayor.
(2) The classified service shall comprise all positions not specifically included by this charter in the unclassified service.
8. Defendants, Fred E. Renkert, Harlan A. Schwab and Fleet W. Perrine, as the Civil Service Commissioners of the City of Akron, have refused to classify and certify that the position of the Clerk of the Council of the City of Akron is in the classified service thereof. As a result thereof from and after the 8th day of November, 1938, defendant, Claude M. Butler, as Clerk of the Council of the City of Akron, has been deprived of all the rights, benefits and privileges arising out of and incident to said position of Clerk being certified and included within the classified service of the City of Akron.
The foregoing stipulation of facts is signed and submitted by all of the parties subject to the right of any party to make objection at the trial to said stipulation or any part thereof upon the ground of incompetency, immateriality and irrelevancy and each party reserves the right to introduce further evidence.”

SUPPLEMENTAL STIPULATION

It is further stipulated by the parties to this action as follows:

1. On or about June 1, 1948, the Director of Law of the City of Akron rendered an opinion that the position of the Clerk of Council of the City of Akron was not included in the classified service of the Civil Service of the City of Akron. Immediately after said opinion, the Civil Service Commission caused the position of said Clerk of Council to be physically stricken from the list of classified services of said Civil Service of the City of Akron.

2. On or about July 27, 1948, Council of the City of Akron, by Ordinance No. 418-1948, provided an annual salary for the Clerk of Council of $4200.00 per year. Prior to the opinion of the Director of Law, mentioned in Supplemental Stipulation No. 1, the rules and regulations of the Civil Service Commission of the City of Akron provided an annual salary of $3600.00 for the position of the Clerk of Council for the grade according to which the position of Clerk of Council was listed by said Civil Service Commission prior to said opinion.

3. Since the enactment of said Ordinance No. 418-1948, defendant, Claude M. Butler, has been receiving a salary at the rate of $4200.00 per year.

4. At the time of the enactment of Ordinance No. 418-1948, Council of the City of Akron also passed a resolution directing the Director of Law of the City of Akron to commence this action to determine whether the position of the Clerk of the City of Akron was properly listed in the classified or unclassified service.

5. From approximately November 15, 1938, until approximately June 1, 1948, the position of the Clerk of Council of the City of Akron was included in the list of the classified Civil Service and defendant, Claude M. Butler, as such Clerk, was paid a salary established and determined in accordance with and by the rules and regulations of the Civil Service Commission of the City of Akron.

Defendant, Claude M. Butler, objects to the introduction of supplemental stipulations 1 to 3 inclusive on the ground that they are incompetent, irrelevant and immaterial. Plaintiff and defendants, except Claude M. Butler, object to the introduction of supplemental stipulations 4 and 5 upon the ground that they are incompetent, irrelevant and immaterial.”

* * * *

Counsel for plaintiff object to the competency, relevancy and materiality of original stipulation No. 4 on the theory that if the Council Clerk is not under Civil Service, it makes no difference whether he took an examination and was certified, if the Civil Service Commission lacked authority to give an examination in the first instance.

The Court will admit this evidence with exceptions to plaintiff, for whatever bearing it has, but the Court states that its final decision herein would have been the same were this evidence excluded.

In addition to the two stipulations Mr. Koplin, of counsel for the plaintiff, at the time of trial stated in substance, and Mr. Roetzel, counsel for defendant, Mr. Butler, agreed, that the records would show the following:

That the official records of the Akron City Council will show that subsequent to Claude M. Butler’s appointment as clerk, in the years 1940, 1942, 1944, 1946 and 1948, at the first meeting held by said Council on the first Monday of January following their election, the members proceeded to organize, and proceeded to elect and did elect a Council Clerk, and assistant Council Clerk, the former each time being the defendant, Claude M. Butler.

However the defendant Butler, through his counsel, Mr. Roetzel, objected to such tendered offer of said admitted facts, and the admissibility thereof, on the ground that said facts are immaterial, irrelevant and incompetent.

The Court will admit this evidence with exceptions to the defendants.

It is all admissible as part of the history and background of the case.

THE QUESTION PRESENTED.

IS THE POSITION OP CLERK OP THE COUNCIL OP THE CITY OP AKRON WITHIN THE CLASSIFIED SERVICE OP THE CIVIL SERVICE OP THE CITY OP AKRON, AND DEFENDANT, CLAUDE M. BUTLER, AS SAID CLERK OP COUNCIL, ENTITLED TO THE BENEFITS OP THE CIVIL SERVICE PROVISIONS OF THE CHARTER OF THE CITY OP AKRON AND ORDINANCES AND RULES AND REGULATIONS ADOPTED PURSUANT THERETO?

THE LAW.

Without rewriting stipulation (5) of the original stipulation at this point, it will be noted that the original Charter of the City of Akron was amended and approved by the voters, August 14th, 1924, and contained Section 32, entitled “Election by Couneil-Rules-Quorum.”

In part it provides “The Council shall elect one of its members as president, a clerk * * *.” The Clerk’s duties are defined, and then follows; “All officers and employees chosen by the Council shall serve during its pleasure.”

Without doubt under said section and without reference to civil service provisions of the Charter before the amendment of Section 105, Council could hire and fire the clerk of the council at will. This was doubly true at the time of the adoption of the original Charter, as Section 105, entitled “Civil Service-Classification” specifically placed the Clerk of Council under the “unclassified service,” as set forth under 1 (f) of said Section 105, which was in effect as part of the original Charter.

Thereafter on or about August 31, 1937, the Council duly enacted ordinance No. 272-1937, which authorized the submission to the electors of the City of Akron, of proposed amendments to the Civil Service provisions thereof, including the amendment of former Section 105.

The amendment was approved by the electors at the election on November 2, 1937. The electors as a part of the amendment adopted and approved Section (4) of the Ordinance 272-1937, which was in substance as follows: (See Stipulation 6)

“That any amendment, if adopted by the electors, which shall be found inconsistent with or in conflict with any provision of the charter being amended, shall be held to prevail insofar as inconsistency or conflict exists.” (Emphasis by this court.)

Then as a part of the amendment the electors approved Section 105 as it now is, as follows:

“Section 105. Classification, The civil service of the City is hereby divided into the unclassified and classified service.
(1) The unclassified service shall include:
(a) All officers elected by the people.
(b) The directors of the departments of public service, finance and law.
(c) The members of all appointed boards or commissions and advisory boards.
(d) The secretary to the mayor.
(2) The classified service shall comprise all positions not specifically included by this charter in the unclassified service.”

The only places in the charter where any attempt at classification under the civil service is made, are under Sections 105 and 106 respectively. This is apparent by reading the whole charter, and by reference to the index of the charter itself.

Therefore reference to “this charter” under Section 105 part (2) refers only to those sections.

It is not readily believable that the framers of the amendment to original Section 105, which amendment obviously had for its purpose the adding of many more employees to the classified service list, for the sake of brevity would leave out section (f) which put the clerk under unclassified service, if they intended such position to remain under the unclassified service.

Any layman, which most voters are, would naturally assume that those not specifically mentioned under the unclassified list in amended 105 would be under classified service.

Surely they would not have section 32 in mind at all.

A voter would vote on amendment 105 with the words therein in mind, and would conclude that it meant what it said with no sleepers therein. He or she would assume the full classification under civil service was covered in Section 105 as amended.

I would interpret 105 as it now is, to put all on classified service who are not mentioned specifically in that section as being in unclassified service and • not covered specifically in Section 106, except where the qualifications of certain applicants could not practically be determined by examination by the Civil Service Commission.

The matter was doubtless so determined at the time by the then Civil Service Commission. Otherwise why would the Commission give and Butler take the examination under the supervision of that body?

And why shouldn’t a clerk of council and his assistants be under civil service? And why couldn’t such employees’ qualifications for such position be practically determined by competitive examinations by the Civil Service Commission?

The same cannot be said concerning such positions as assistant law director, the Akron University staff, and the like. The Civil Service Commission could not submit a practical competitive examination to test the qualification of a duly licensed lawyer or a professor duly trained in his work and authorized by a teacher’s certificate to practice his profession.

In the agreed supplemental stipulation, from approximately November 15, 1938, until June 1, 1948, the position of Clerk of Council was placed and considered by the Commission to be under the classified service. This shows how that body and the Municipal government considered and interpreted Section 105 as amended.

From the three on the eligible list prepared and certified by the Commission, after the examination given by it, Mr. Butler, the high ranking applicant, was appointed by Council about November 15, 1938, and has been reappointed every two years since by the Council. There is nothing inconsistent about that. Such a situation does not put Mr. Butler on the unclassified list, in my opinion.

The evidence shows that he has received and accepted Forty-Two Hundred Dollars yearly salary fixed by Council for the position in July, 1948, from said time to date, whereas under the Civil Service Commission the salary was fixed at Thirty-Six Hundred Dollars per year. Surely in these times of increased cost of living he could hardly be blamed for this, especially where a doubt had arisen as to just what his status was under the charter as it now stands.

All agree that this is a question of local concern for a solution of which we must look to the charter, and not to the state law, as to Civil Service questions locally.

In the court’s opinion Section 32 of the charter in so far as it is inconsistent with amended Section 105, is of no force and effect. Said Section 32, where inconsistent, is expressly repealed by Section 105 by virtue of Section (4) of the Ordinance 272-1937. (See supra and Stipulation 6)

This opinion being directly opposed to that of the Law Director of Akron rendered June l, 1948, will and should be carried to the higher courts for final determination.

A journal entry will be prepared accordingly with exceptions.


text:
    ROGERS, Plaintiff-Appellee, v. ROGERS, Defendant-Appellant.
    Ohio Appeals, Second District, Fayette County.
    No. 263.
    Decided June 10, 1949.
    Irving Carl Delscamp, Dayton, for defendant-appellant, and for the Application for Rehearing on Motion.
    Clark Wickensimer, Washington C. H., for plaintiff-appellee, and contra the Application for Rehearing on Motion.
   OPINION

By THE COURT:

We are in receipt of a letter from counsel for appellant in which, because of the facts developed therein, we are requested to waive the enforcement of Rule VII.

This rule is intended to be effective in all situations unless good cause be shown for not enforcing it.

If for the purposes of the application we accord to the affidavit of the appellant full faith and the most favorable inferences from the record, it would establish that at the time when appellant’s brief was due in this court he had an attorney representing him who failed to carry out his professional obligation. As a matter of fact, it is not unusual to find that failure to file briefs by parties is caused by the oversight of counsel under engagement of a party to represent him on the appeal. We do not relax the rule when this situation develops, because the attorney is authorized to act for his client and his failure to observe his obligation must be charged to his client.

If we relax the rule to permit filing of briefs out of rule in every instance where counsel for a party neglects to file briefs, it would be of little effect.

Under all the circumstances we do not believe that good cause has been shown to avoid the obligation of Rule VII.

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


author: By PHILLIPS, PJ.

text:
    BRYANT, Plaintiff-Appellee, v. BRYANT, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3270.
    Decided July 1, 1949
    Panyerose Gancfried, Youngstown, for plaintiff-appellee.
    W. M. Howard, Youngstown, for defendant-appellant.
   OPINION

By PHILLIPS, PJ.

The trial judge granted plaintiff-appellee (called plaintiff in this opinion) a divorce from defendant-appellant (designated as defendant herein) on the grounds of gross neglect of duty and extreme cruelty; gave her “all of the household goods and effects that belong to the parties”, $150.00 attorney’s fees, and allowed her as and for alimony $60.00 a month, but made no order for lump sum alimony.

Defendant appealed to this court from the judgment of the court of common pleas on questions of law and fact. Plaintiff’s motion to dismiss the appeal as filed was sustained, and the words “and fact” were ordered stricken from the notice of appeal; and it appearing that a bill of exceptions was duly filed the appeal was retained, argued, submitted and will be determined as one on questions of law.

Plaintiff filed a motion in this court to order the “following language stricken from the order to give appeal bond, which was entered by Hon. Harold B. Doyle, Judge of the Court of Common Pleas of Mahoning County, on the 22nd day of December 1948”: — “It is ordered that execution of final judgment in this cause be stayed until determination of this case by the court of appeals * * *. And upon the posting said appellee is hereby enjoined from enforcing said judgment or attempting to enforce the same until the matter is determined in the court of appeals.” (sic). That motion is overruled.

That portion of plaintiff’s motion seeking alimony pendente lite is overruled for the reason that the order of the court of common pleas granting permanent alimony is'retroactive to the date of allowance; and is sustained as to that portion seeking allowance to plaintiff for expenses of attorney fees for the prosecution of this appeal, and the amount thereof is fixed at $100.00, for which amount judgment is rendered. See Calhoun v. Calhoun, 29 Abs 670.

Defendant did not file an answer nor other pleading to plaintiff’s petition, nor appear to contest defendant’s action for divorce and alimony, for the reason, alleged by brief, that plaintiff advised him that she desired a divorce only, the household furniture purchased during the existence of the marriage relationship, “the temporary alimony in arrears, court costs and attorney fees”, evidence of which is not before us, and which therefore we cannot consider.

By assignments of error defendant contends that “the judgment of the court is contrary to the manifest weight of the evidence as to permanent alimony”; that “the trial court erred in overruling the motion for a new trial on questions of alimony only; in overruling the motion of the plaintiff to modify the alimony order”; and that the judgment of the court is “contrary to law as to permanent alimony”.

The evidence discloses that when plaintiff married defendant in 1934 she had two children by a previous marriage, each under the age of ten years, who lived with the parties and were supported by defendant until they married and left his home; that at the time of marriage plaintiff owned some household furniture and defendant owned no property of any kind, and that the only property of any nature accumulated during the existence of the marriage relationship was some household furniture; and that between the years 1942 and 1948 defendant earned an average annual salary of $2449.75.

As this court said in the case of Rovder, Plaintiff-Appellee, v. Rovder, Defendant-Appellant, 50 Abs. 171, 78 N. E. (2nd) 422, we say in this case:—

“We are of opinion that no useful purpose would be served by further reference to, or discussion of, the evidence disclosed by the meager bill of exceptions submitted to us for review.
“Considering the amount of the estates of the respective parties when they were married and now, * * * respective abilities to work and earn money in the future, * * * and defendant’s responsibility by reason thereof to support nobody but himself, and his past earnings, as in reviewing this case we, like the trial judge in hearing it, have a right to do; and mindful of the broad discretionary power to fix' the amount of alimony allowable to plaintiff which resides in the trial judge, who had the advantage of seeing the witnesses upon the stand and hearing them testify, and who, in our opinion, did not abuse his discretion in this case either in granting plaintiff a divorce or in the amount of alimony allowed to her, we conclude we cannot disturb the factual findings of the trial judge.”

While not assigned as a ground of error, nor argued by brief, yet by oral argument counsel for defendant contended that the words “by decreeing to her such sum of money”, found in §11991 GC, must be construed as imposing the duty upon the trial judge, if he granted plaintiff alimony, to allow her a fixed sum which he could order “payable either in gross or in installments, as the court deems equitable” (quoted from §11991 GC); and that failing to name such sum rendered the order of the trial judge void and constituted prejudicial and reversible error.

In the case of Conway v. Conway, 288 Pacific 566, upon which counsel for defendant rely heavily to secure a reversal of the judgment of the trial court, and in which it is claimed a statute similar to §11991 GC, was involved, “in an action for divorce and for alimony, the court made an allowance to plaintiff for herself of $200.00 per month, payable monthly until her death or remarriage.” In that case the supreme court of Kansas “held the allowance was void, and the court was authorized to strike it from the judgment on motion of defendant made after time for appeal had expired.”

In that case the parties agreed in writing, which agreement was carried into the judgment,' that “the defendant shall pay into the office of the clerk of the district court the sum of $200 per month on or before the 10th day of each month, as alimony to and for the plaintiff, and not as support money for the children of the plaintiff. In event either of the death or remarriage of the plaintiff, any and all payments commencing with the date of said occurrence shall thereupon cease and terminate.”

The statute of the state of Kansas (Rev. Stat. 60-1510) involved in the case of Conway v. Conway, supra, as applicable with reference to alimony reads: “or by decreeing to her such sum of money, payable either in gross or in installments as the court may deem just and equitable”, which is identical with the applicable portion of §11991 GC.

The interpretation by the supreme court of Kansas of this language of one of its own statutes is interesting and enlightening, but not binding upon us.

Further the case we review and that of Conway v. Conway, supra, are distinguishable upon their facts, sufficient of which facts in both such cases are quoted supra to indicate such distinction.

We do not interpret such language in §11991 GC, as the supreme court of Kansas interpreted such language in Section 60-1511, Revised Statutes, 1923, of Kansas. See Lape v. Lape, 99 Oh St 143, where it is said:—

“Where a decree for divorce is granted to a wife on account of the aggression of her husband, an allowance of alimony may be based on future personal earnings on wages of the husband. In such a case the court is not necessarily limited to a consideration of property in possession of the husband at time of decree.
“Such decree for alimony may provide that it be made m weekly payments of specified sums.”

We find no error as claimed by defendant in his assigned grounds of error or arguments stated supra.

The judgment of the court of common pleas is affirmed.

NICHOLS, J, BUCKLEY, J, concur in judgment.