author: By ZIEGEL, J.

text:
    TITINGTON, An Incompetent, Guardianship, In re.
    Probate Court, Montgomery County.
    No. 141275.
    Decided November 1, 1958.

      James H. McGee, Dayton, for applicant-ward.
    Baver & Doan, Miamisburg, for guardian.
    (ZIEGEL, J., of Preble County, sitting by assignment in Montgomery County.)
   OPINION

By ZIEGEL, J.

Pending before the Court is an application to set aside a guardianship. The prayer of the application is that the Court declare all action taken by the guardian null and void, and that the Court strike and expunge from the files all proceedings relating to the appointment of a guardian. At the outset it must be pointed out that such an application, if valid at all, must be based upon common law, as distinguished from statutory, principles. The appointment of a guardian and the administration of the guardianship, including a procedure for terminating that guardianship are provided for in Chapter 2111 R. C. Specifically, §2111.47 R. C., sets forth the standard method for terminating a guardianship of an incompetent person. In a habeas corpus proceedings, the Supreme Court has held that this method of terminating is exclusive. See In re Clendenning, 145 Oh St 82 at 89; 30 O. O. 301 at 304; 60 N. E. (2d) 276.

From the various papers on file in this cause it appears that on January 10, 1958, Robert B. Brumbaugh filed an application for the appointment of himself or some suitable person as guardian for Henry Titington, whom he alleges to be incompetent by reason of mental disability. Hearing was set for January 17, 1958, and notice was duly issued for the alleged incompetent and according to the return indorsed on the back of the notice was personally served upon the prospective ward the same day, January 10, 1958. On January 17, 1958, an entry was made on the journal of the Court to the effect that Henry Titington was incompetent by reason of mental disability and was incapable of taking care of and/or preserving his property, and that a guardian should be appointed for him. Letters of Guardianship were accordingly issued to Mr. Brumbaugh.

At the hearing on the application in question, Titington denied ever receiving any notice of the hearing on the application to appoint a guardian for him. The deputy sheriff who served the notice and an attendant at the County Home where Titington was residing at the time, however, both testified as to the proper service of the notice in question. This Court, therefore, finds as a matter of fact that the prospective ward actually did receive proper notice of the hearing. The law cannot take into consideration the fact that he may not have understood its significance.

Applicant also contends that his prayer should be granted for the reason that his next of kin were not notified. The only next of kin, however, about which Titington could advise the Court then lived and now live outside Montgomery County. Sec. 2111.04 R. C., requires notice only upon “the next of kin of such person for whom appointment is sought known to reside in the county in which application is made.” Next of kin residing outside of Montgomery County are therefore not entitled to notice.

The evidence revealed that the guardian, Robert B. Brumbaugh, is an attorney at law practicing in the City of Dayton, Montgomery County, Ohio. Upon receiving a telephone call from the Superintendent of the Montgomery County Home to the effect that she believed that Mr. Titington should have a guardian, and being requested by said superintendent to take appropriate steps, Mr. Brumbaugh filed an application for the appointment of himself or s'ome suitable person as guardian. He did not personally know and had never seen his prospective ward. Applicant therefore contends that the allegations of mental incapacity in this application constitute a fraud upon the Court.

In its first sentence, §2111.02 R. C., provides that “When found necessary, the probate court on its own motion or on application by any interested party shall appoint a guardian * * Was Mr. Brumbaugh an “interested party”? This Court believes he was, and so holds. Mr. Brumbaugh did not proceed on his own initiative. While he did not personally see or even know his prospective ward, he was advised on sufficiently good authority that Mr. Titington was mentally incapacitated to justify his filing an application for a guardian. The very liberal language used in §2111.02 R. C., i. e. “on its own motion or an application by any interested party,” indicated to this Court that the general assembly did not intend that other provisions of law such as §§2309.46 (25) and 2309.53 R. C., pertaining to situations where an attorney at law may verify a pleading should apply here. Mr. Brumbaugh was not verifying the application for the appointment of a guardian as an attorney, but rather as an “interested person,” who was submitting a situation to the probate court for its finding.

Thus, it appears from the record that the jurisdiction of the Court to hear the application was complete. A proper application for the appointment of a guardian had been filed and notice had been given in due time to the only person entitled by law to notice. There is no question raised as to whether the prospective ward was a resident of the county in which the application was filed. Applicant’s other allegations and arguments attack the decision of the Court finding a guardian to be necessary, contending that there was no hearing and that the ward is not now nor has ever been one of the persons designated in §2111.02 R. C., for whom a guardian may legally be appointed.

The question that presents itself is whether those findings can be reviewed in this proceedings. It is well settled that an order appointing a guardian, made by a probate court, in the exercise of jurisdiction, can not be collaterally impeached. Where the record shows nothing to the contrary, it will be conclusively presumed, in all collateral proceedings, that such order was made upon full proof of all the facts necessary to authorize it. Shroyer v. Richmond, 16 Oh St 455; Heckman v. Adams, 50 Oh St 305; In re Clendenning, 145 Oh St 82, 30 O. O. 301, 60 N. E. (2d) 276; In re Gerstenek, 139 N. E. (2d) 64; 26 O. Jur. 2d 414, par. 60. Is the application in question to have the Court strike and expunge from the files all proceedings relating to the appointment of a guardian for Mr. Titington a direct or collateral attack?

A direct attack upon a judgment has been defined to be one by which the judgment is directly assailed in some mode authorized by law while a collateral attack is defined as an attempt to defeat the operation of a judgment in a proceeding where some new right derived from or through the judgment is involved, or in some incidental proceeding not provided by law for the express purpose of attacking it. 32 O. Jur. 2d 382, par. 710, and cases cited thereunder. The general rule that a collateral attack may not be made upon a judgment rendered by a court of competent jurisdiction is applicable to attacks by parties to the action in which the judgment is rendered. 32 O. Jur. 2d 376, Par. 704.

The statute provides two methods for directly attacking the order of appointment of a guardian. The first is by appeal to a higher court from the order of the Probate Court as provided in §2101.42 R. C. The second direct method of attack is set forth in §2111.47 R. C. Any other kind of an attack upon the validity of a guardianship may be regarded as collateral and as such can not succeed. See 26 O. Jur. 2d 415, par. 61.

Sec. 2111.47 R. C., provides that upon the satisfactory proof that the necessity for the guardianship no longer exists or that the letters of appointment were improperly issued, the Probate Court shall order the guardianship * * * terminated. Every allegation which applicant sets forth in his application herein to strike and expunge from the files can properly be considered on a motion to terminate the guardianship brought under §2111.47 R. C., on the grounds that the letters of appointment were improperly issued. The Supreme Court has stated that this section provides the exclusive and adequate method whereby a guardianship may be terminated and control of a ward’s property restored. In re Clendenning, supra.

The application under consideration here will be denied. An entry to that effect may be prepared by counsel for the guardian with costs to the applicant.


source: Caselaw Access Project

author: By BRYANT, PJ.

license: Public Domain

text:
    STATE, ex rel. SADLER, Relator, v. BALDWIN-LIMA-HAMILTON CORPORATION and THE INDUSTRIAL COMMISSION OF OHIO, Respondents.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6214.
    Decided December 1, 1959.
    Rice, Rice & Rice, Hamilton, for relator.
    Mark McElroy, Atty. Geni., William G. Carpenter, Mary Spivey Durham, Asst. Attys. Geni., Columbus, for respondents.
   OPINION

By BRYANT, PJ.

Lucinda Sadler, relator herein, has filed an original action in mandamus in this court. The respondents in this proceeding are the Baldwin-Lima-Hamilton Corporation, herein called “Baldwin” and the Industrial Commission of Ohio. Mrs. Sadler alleges that she is the widow of Dale Sadler, that he died of an occupational disease arising by virtue of his employment which the commission wrongly determined was silicosis. She alleges that for eleven years prior to his death, her husband was employed as a moulder by Baldwin, a self-insurer under the Workmen’s Compensation Law.

The petition sets forth two causes of action, alleges in detail the circumstances allegedly resulting in his death, sets forth the steps taken by the decedent and the claimant to establish their respective claims before the commission, alleges the denial thereof by the commission with a specification of the allegedly erroneous steps taken and decisions made by the commission and the allegation that relator lacks any other legal remedy and that the commission has been guilty of a gross abuse of discretion. The petition concludes with a prayer for a writ of mandamus to compel the commission to award compensation to relator for the death of her husband from an occupational disease and for an order directing Baldwin to pay such compensation and for other relief.

Relator has made written application to this court for an order directing the commission to bring into this court for review on mandamus the entire files of the decedent and the relator with respect to claims filed with the commission. In a memorandum in support of this application, counsel for relator says that relator is indigent, that the files are voluminous, that the cost of making copies of needed documents will be prohibitive, that the original papers are needed to determine the issues in this case and that the interest of justice will be served by granting the application. Relator has filed proof of service of the application and supporting memorandum upon counsel for both respondents. Under the rules of the courts of appeals (Rule III, Paragraph 1), the respondents had ten days in which to file answering briefs. This they have not done although two and one-half months have elapsed from which we can only conclude that the application is unopposed. The application appears to be reasonable and therefore will be sustained and an order may be drawn in the form prayed for in the application.

On behalf of the commission, a motion for stay of proceedings and brief in support have been filed and Baldwin has filed a similar motion but without brief. Both motions are directed to the second cause of action in the petition. They do not indicate either the purpose or the length of the stay which is sought. They make no mention of the first cause of action in the petition.

The motions are upon the ground that there is pending in the common pleas court of Butler County, Ohio, a proceeding in which the parties are the same as in the case now before this court and the cause of action in the lower court is identical with the second cause of action in the case now before us. We have compared the petition and the amended petition in the lower court case with the second cause of action in the petition in the case now before us. We cannot agree that they are identical or even substantially identical. It perhaps would be more accurate to say that in some particulars they cover the same territory in vastly different terminology.

While this has been under consideration, relator has filed a certified copy of a journal entry of the lower court fully and finally dismissing the entire action without prejudice, so that there appears today to be no question that the ground for the motions does not exist. Even if this were not so, we should be compelled to find (a) that there was a lack of similarity; (b) that the pendency of another like action between the same parties must be raised by demurrer and not by motion (see §2309.65 R. C., defining motion, §2309.08 R. C., which in paragraph (d) makes pendency of a like action grounds for special demurrer, and 37 O. Jur. (2d), 672, Motions and Orders, wherein the limited function of motions with respect to attacks on pleadings is pointed out), and (c) that the affidavit of counsel in the case is not the equivalent of the certificate of the clerk of courts when attached to unsigned court papers. For the reasons above set forth, the motions to stay proceedings must be overruled.

There remain two demurrers to the petition, one filed by the commission and the other filed by Baldwin. They are substantially identical, each containing the same two grounds and, in addition, a brief in support has been filed by the commission, one in opposition by counsel for the relator and none by Baldwin.

The first ground for the demurrer is that the relator has been guilty of laches. We feel that this term is one which refers primarily to a defense in equitable proceedings and it must be kept in mind that the action now before us is purely legal action. Nevertheless, petitions for writs of mandamus are addressed to the sound discretion of the court and will be denied where there has been acquiescence or where there has been unreasonable or inexcusable delay on the part of the relator not contributed to by the respondent, particularly when such delay due to changed or altered circumstances, has worked to prejudice the position or defense of the respondent.

What are the facts here? Has the relator been guilty of unreasonable delay or what might be termed legal laches? It is claimed by Mrs. Sadler that from July 14, 1941, continuously for nearly eleven years, Dale Sadler worked for Baldwin, that he became ill and on June 2, 1951, his physician gave a diagnosis of silicosis which was reported by Baldwin and on June 4, 1951, two' days later, Baldwin fired Dale Sadler. Thereafter, probably on July 9, 1951, Dale Sadler filed a claim for compensation, which was referred to the Silicosis Board, which on February 2, 1952, found that Dale Sadler was in the early stages of silicosis, was not totally disabled and recommended a change of occupation. Relator claims that pursuant thereto, Dale Sadler on April 20, 1952, resumed work for Baldwin at an outside job which he held for several months, when he quit because unable to work. He died on December 15, 1952.

On February 27, 1953, Mrs. Sadler filed her claim with the commission and on August 5, 1953, the commission denied the claim of Mrs. Sadler on the grounds that the death of her husband was due to causes other than silicosis and on July 15, 1954, Mrs. Sadler alleges she filed a motion asking the commission to pay to her amounts which would have been due and payable to her husband. On October 13, 1954, this motion was overruled by the commission.

On September 13, 1954, the commission illegally, according to relator, referred the matter a second time to the Silicosis Board. Dale Sadler had been dead about twenty months, yet the board reversed itself and held that Dale Sadler did not have silicosis and that its earlier order of February 2, 1952, was a mistake.

On November 8, 1954, an action was brought in the common pleas court of Butler County by Mrs. Sadler, the apparent theory of her counsel being that as Butler county was the official residence of Baldwin and Baldwin was a self-insurer and if an award were made, would be under obligation to make the payments, that the action in mandamus was properly filed in Butler County and hence the commission could be joined as a defendant.

On November 12, 1954, the commission denied a petition for rehearing previously filed by Mrs. Sadler. On the 22nd and 26th of November, 1954, respectively, motions to quash the service of summons in the Butler County case were filed by the commission and by Baldwin. On November 26, 1954, Mrs. Sadler filed an amended petition in the lower court including all that was alleged in the original petition and adding allegations as to the action taken by the commission on November 12, 1954, above described. On December 2, 1954, Baldwin filed a motion to quash the service of summons upon the amended petition.

So far as we can tell, none of the three motions to quash was ever passed on and of course, as we have indicated, the entire lower court proceeding recently has been dismissed without prejudice.

The sole ground for all of the motions to quash was that Mrs. Sadler should have brought her action in the courts of Franklin County, Ohio. Nothing was said anywhere concerning the merits of her case. No one has come forward with any explanation as to why the petition and the entire cause of action lay dormant and inactive for nearly five years.

Certainly the commission cannot claim surprise or that it is prejudiced. From the very day relator filed her claim as widow and later her mandamus action in the lower court, the commission was aware of her claim. The commission also was aware from and after July 9, 1951, that Dale Sadler claimed to have an occupational disease of some sort.

We have neither the rules of the lower court nor a transcript officially certified as to just what went on, if anything, in the lower court case.

The motions to quash, which lay undecided for so many years, were filed by both respondents and they must under all of the circumstances here accept some of the responsibility for the delay which followed. What relator has done, in one sense at least, in abandoning the lower court case and filing this action in Franklin County, is to follow the express demand of both respondents in their briefs in support of their motions to quash.

We conclude therefore that the special demurrer upon the grounds of laches is not well taken and must be overruled. It will be noted that the demurrers and both branches of each of them are directed to the first cause of action in relator’s petition in this court. We therefore overruled the first branch of each demurrer for the reasons above set forth.

The second ground in each of the two demurrers is that the first cause of action in the petition now before the court fails to allege facts which state a cause of action in mandamus.

The specific ground for the second branch of the demurrer is that the petition alleges a general term, “an occupational disease,” whereas, according to counsel for the commission, relator should have alleged a specific occupational disease by name. We note that the portion of the statute quoted by counsel for the commission uses the language “all other occupational diseases.”

We conclude therefore that the second branches of the two demurrers are not well taken and must be overruled.

DUFFY, J, concurs.

MILLER, J, not participating.


author: By DUFFY, J. By BRYANT, PJ.

text:
    SCHAFFER, Plaintiff-Appellant, v. BOARD OF TRUSTEES OF THE FRANKLIN COUNTY VETERANS MEMORIAL, JAMES McHUGH CONSTRUCTION COMPANY, and S. G. LOEWENDICK, d. b. a. S. G. LOEWENDICK & SONS, Defendants-Appellees.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5961.
    Decided November 3, 1959.
    Schwenker, Teaford, Brothers & Solsberry, Charles V. Schwenker, of Counsel, Columbus, Earl Allison, Pros! Atty., George Ruble, Jr., Asst. Pros. Atty., Columbus, for plaintiff-appellant.
    Sebastian, Fais & Durst, Arthur M. Sebastian, of Counsel, Columbus, for defendant-appellee Board of Trustees.
    Vorys, Sater, Seymour & Pease,- James O. Seymour, of Counsel, Columbus, for defendant-appellee James McHugh Construction Company.
    John P. Moloney (since deceased), Columbus, for defendant-appellee, S. G. Loewendick & Sons.
    (SKEEL, J, of the Eighth District, sitting by designation in the Tenth District.)
   OPINION

By DUFFY, J.

In the Common Pleas Court of Franklin County, plaintiff filed a petition alleging that she was a tenant of an apartment on property owned by the defendant Board of Trustees of the Franklin County Veterans Memorial who were charged with the duties of the construction and operation of a new Veterans Memorial Building, pursuant to the provisions of Chapter 345 R. C.; that she received injuries on May 29, 1955, when one of the steps on the stairway leading to the apartment gave way. She further alleged that she triped and grabbed for the handrail on her right side; that, as she grasped it, it, too, gave way; and that she fell down the steps onto some brick, stone, lumber, and other building material piled around the stairs by the other defendants, who had contracted for the wrecking and removal of buildings located on the land owned by the Veterans Memorial. As a result of her fall, she was injured; and she alleged that at the time, the premises were under the joint control of the defendant Board of Trustees of the War Veterans Memorial and the members and officers thereof, the defendant James McHugh Construction Company, and defendant S. G. Loewendick, d. b. a. S. G. Loewendick & Sons. There was a further allegation that the defendants failed to maintain the handrail in a safe condition as required by §4107.14 R, C., and as required by the Code of the City of Columbus, Ohio.

When the case came on for trial, the defendants made motions for judgment on the pleadings, which motions were sustained on behalf of all the defendants. The basis for sustaining the motion as to the Board of Trustees of the Franklin County Veterans Memorial was that there could be no liability on the part of the county or its agent in the absence of some statute imposing such liability. As to the other defendants, the defect which caused the plaintiff’s injury was not alleged to have been caused by any action of those defendants.

The plaintiff has appealed from the judgment entered for the defendants after the sustaining of the motions and asserts three assignments of error which are similar, namely, that the court erred in sustaining the motion for judgment on the pleadings as to the three respective defendants.

The first assignment of error involves an agency of the county and raises the question as to whether a county in Ohio can ever be held liable for its negligence in the absence of statutory authority. The argument for the immunity of the county is based upon the proposition that the county, being a subdivision of the state concerned solely with governmental matters, shares the state’s sovereign immunity. See Commissioners of Hamilton County v. Mighels, 7 Oh St 110, which was decided by the Supreme Court of Ohio in 1857 and which overruled a previous case (Commissioners of Brown County v. Butt, 2 Ohio 349) (1826), which had imposed liability upon the county.

The Mighels case dealt with an injury to a witness who was required by a writ of subpoena to appear and testify at the court house, where she slipped and fell into an unguarded opening, causing her injuries. The court held that the county was not liable in its quasi-corporate capacity, either by statute or by common law, to an action for damages for injuries resulting to a private party by the negligence of the Board of County Commissioners in the discharge of their official functions. Since that time, this case has been cited as authority relieving counties of any responsibility for acts of negligence of their agents unless liability was imposed by statute. See the discussion in 14 O. Jur. (2d), 385; the discussion of Local Government, Tort Liability, 9 Ohio State Law Journal, 377; Ebert v. Commissioners of Pickaway County, 75 Oh St 474; Commissioners of Franklin County v. Darst, 96 Oh St 163; and Weiher v. Phillips, 103 Oh St 249.

The appellant in this case seeks to apply to the county the same rule of law that governs liability of municipal corporations, namely, that the city is not liable for negligence in the performance or nonperformance of its governmental functions but is liable for negligence in a proprietary undertaking of the municipal government. See City of Wooster v. Arbenz, 116 Oh St 281; 156 N. E. 210.

The petition of the plaintiff alleges that she was a tenant. The length of plaintiff’s tenancy was not a question in the trial court and is not a question for this court in determining the liability of a county for injuries resulting from alleged negligence on the part of the county officials in maintaining the premises occupied by the tenant.

In his brief, counsel for the Board of Trustees presents the problem:

“The appellant’s whole argument is based upon the contention that the defendant Board of Trustees was exercising a proprietary function and that therefore the liability should be imposed upon these Trustees, who are an arm of the County, on the same basis that municipalities are held liable in tort for claims arising out of the exercise of proprietary functions. Whether or not The Board of Trustees of the Franklin County Memorial has exercised proprietary functions in any sense of that term is open to serious question. Nevertheless, it is the position of the Appellees that it makes no difference whether the function being exercised by the Board of Trustees was governmental or proprietary. In either event, they are immune from suit in tort in the absence of express statutory provisions.”

None of the Ohio cases cited by the appellant or the appellee deals directly with a business function being performed by a county. It is interesting to note that most of the cases speak of nonliability for the county commissioners in the discharge of their “official functions” or “where the duty is imposed by law.”

The decisions cited also carry the argument that it was established as the common law of the state that the county commissioners were not liable in their quasi-corporate capacity, that the law cannot be changed except by legislation, and that statutes in derogation of the common law

should not be extended beyond the plain meaning of their terms. Commissioners of Hamilton County v. Mighels, 7 Oh St 110; Commissioners of Morgan County v. The Marietta Transfer & Storage Co., 75 Oh St 244; Ebert v. Commissioners of Pickaway County, 75 Oh St 474; Commissioners of Franklin County v. Darst, 96 Oh St 163, and Weiher v. Phillips, 103 Oh St 249. See also Tinsley v. Cincinnati et al, 78 Abs 419.

In 1857 Judge Brinkerhoff, in his opinion in the case of Commissioners of Hamilton County v. Mighels, supra, page 124, closed with the following comments concerning the overruling of the case of Commissioners of Brown County v. Butt:

“* * * we do so with extreme reluctance, and with all respect for the judgment and veneration for the memory of the judges who decided it; but, with our convictions, we could not do otherwise, and in overruling it, we are satisfied we are contributing to place the law of Ohio upon a footing of sound principle, as well as in harmony with that of other states, whose jurisprudence, like out own, rests on the basis of the common law.”

In Broughton v. City of Cleveland, 167 Oh St 29, at page 30, Judge Zimmerman made the following statement concerning the liability of a municipality:

“The generally recognized rule that a municipality is not liable for torts committed by its employees in the exercise of a function of the municipality which is governmental in character has been subject to sharp criticism. It is argued that such rule having its origin in the ancient and obsolete maxim that ‘the king can do no wrong’ has no place in this modern day with its enlightened sociological concepts and governmental changes, and that the rule of nonliability is unfair and unjust in that the burden of damages resulting from the tortious or wrongful acts of the government should be removed from the person who sustains them and cast upon the whole community comprising the government, which could bear the loss with little hardship or inconvenience, and ought to do so. It must be conceded that this approach is not without logic and force.”

Is there any good reason today why we would distinguish between the responsibilities of the counties and the municipalities for the acts of the persons exercising the powers conferred upon them by law? Should it be the law that if the city is operating a parking lot for paying customers, the City can be liable in tort, but that if the county is operating a similar parking lot the county cannot be held liable? See Cutnaw v. City of Columbus, 107 Oh Ap 413, 157 N. E. (2d), 373; see also opinion reported 77 Abs 596, 152 N. E. (2d), 27. Should there be one rule concerning liability for the city which operates an airport, garage, convention hall, or other business enterprise and a different rule for the county which operates similar enterprises, possibly in direct competition with the municipal operations as well as with private business concerns engaged in the same activities?

As was stated previously, we do not believe that the Supreme Court of Ohio has had before it the problem of the liability of counties while engaging in functions which are definitely nongovernmental and which are predominantly engaged in by individuals or business concerns. Nowhere in the pleadings or the briefs is the right of the defendants to rent this property questioned, but it cannot be denied that it is not a usual governmental function to rent property to individuals. Neither can it be denied that the county received benefits from the renting of the property.

The county is seeking to avoid the responsibilities that the average landlord would face and is attempting to avoid its responsibilities to the tenants, by asking the court to invoke the rule giving the county absolute immunity from liability. The question should be decided so that counties will know whether proper expenditures are being made. See Jerauld County v. Saint Paul-Mercury Indemnity Co., 71 N. W. (2d), 571.

In two patent infringement cases decided in the Federal District Courts of Ohio, the courts decided that the case of Commissioners of Hamilton County v. Mighels, supra, did not apply and that the benefits secured could not be retained and enjoyed where they were obtained by a wrongful act because to allow it would violate the plainest dictates of justice and common honesty. See Mey v. Commissioners of Logan County, 30 F., 250; and Painter v. Napoleon Township, 156 F., 209, and 190 F., 637. In the Logan County case at page 259, the court recognizes a distinction between the liability of a county for the negligence of its officers causing mere injury to another, without advantage to itself, and the 'wrongful acts which would result in benefits to the county as well as damage and loss to the injured party.

In 14 O. Jur. (2d), 386 and 387, it is stated:

“This distinction between governmental and proprietary functions is also recognized in Ohio in regard to the tort liability of municipal corporations. However, the law in Ohio on this phase of the tort liability of counties would appear to be unsettled because of the dearth of case law on the subject. In one decision, the rule that counties enjoy no immunity from liability for their torts while engaged in a proprietary function was given apparent approval.”

The case referred to was that of Besser v. Board of Commissioners of Muskingum County, 58 Oh Ap 499, 16 N. E. (2d), 947; but that case dealt with the erection of a county jail and workhouse which was declared to be a governmental function.

In American Law Reports, Ohio has been classified with those jurisdictions which recognize the rule that counties are liable for tort liability when performing private or proprietary functions. See 64 A. L. R. 1545; 101 A. L. R., 1156; and 16 A. L. R. (2d), 1079. However, it is apparent in reading these reports that no cases in Ohio have been cited in which the county has been held liable while engaging in a proprietary function, and it would seem that the statement made by the editors in 14 O. Jur. (2d), as to the “dearth of cases” is the more correct one.

There can be many other reasons why the county is not liable for the injuries received by the plaintiff in this case, but common justice dictates that the usual rules respecting landlords and tenants should be applied in a situation such as this. If the county receives the benefits of the landlord, it must also assume the obligations which the law imposes upon those engaged in that form of business activity.

We, therefore, believe that the motion for judgment on the pleadings should have been overruled as to the Board of Trustees and that the cause should as to them have proceeded to trial.

As to the other two-named defendants, the judgment should be affirmed as the allegations of joint control is insufficient to show where any action on their part was a contributing cause to the alleged injuries.

SKEEL, J, concurs.

BRYANT, PJ, dissents.

DISSENTING OPINION

By BRYANT, PJ.

While I concur with the decision of the majority of the court in affirming the judgment of the court below dismissing the James McHugh Construction Company and S. G. Loewendick, d. b. a. S. G. Loewendick & Sons, I must respectfully dissent from their decision holding the Board of Trustees of the Franklin County Veterans Memorial subject to liability. It seems to me that no useful purpose is served by a comparison of the liabilities of municipalities and counties. The rule of the general nonliability of counties except in cases where there is express statutory authority imposing liability, is well stated in 14 O. Jur. (2d), 381, Counties, §233, which reads in part as follows:

“In seeking to ascertain the liability of a county, whether in tort or contract, it must be remembered that counties are but political divisions of the state, organized as a part of the machinery of the government for the performance of functions of a public nature, and that, as such, they partake of the state’s immunity from liability. The state is not liable except by its own consent, and so the county is exempt from liability unless the state has consented.” (Emphasis added.)

What is quoted above is substantially the same as that found in 14 American Jurisprudence, 213, Counties, §46. See also 20 Corpus Juris Secundum, 1067, Counties, §215, which provides in part as follows:

“Except in a few jurisdictions, it is the general rule that counties are not subject to liability for torts, in the absence of statutory or constitutional provisions which either expressly or by implication impose such liability on them. More strictly, a county is not liable, in the absence of statutory or constitutional provision, for its failure to perform a duty, or for its negligent performance of a duty, when exercising governmental functions and acting as an agency of the state, even when the duty is imposed by statute; and there is no distinction in the application of this rule between the neglect to perform an act which ought to have been performed, and the performance of the duty in a negligent manner.”

Of course, the rule is otherwise when suit is authorized by statute, but as I see it, such is not the case here.

For the reasons above set forth the judgment of the court below should be affirmed in its entirety.


author: Per CURIAM.

text:
    BANCROFT, Estate of, In re.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6082.
    Decided October 6, 1959.
    Robert Dow Hamilton, Columbus, for himself.
    Bruno E. Voltolini, Columbus, for administrator.
    L. D. Agler, Columbus, for certain heirs.
    (McLAUGHLIN, J, of the Fifth District, sitting by designation in the Tenth District.)
   OPINION

Per CURIAM.

The Probate Judge, upon application, awarded Robert Dow Hamilton an attorney’s fee of Two Thousand Dollars, covering regular and special services performed in the administration of an estate.

The Probate Court, upon its own motion, set aside and vacated its first order, stating that the Court had not been in possession of all the facts at the time the fee had been awarded.

No appeal was taken from the entry setting aside the entry awarding the fee. The Probate Court set a date for another hearing for the determination of Mr. Hamilton’s fee and, upon consideration of the evidence adduced at that hearing, Mr. Hamilton was awarded a fee of Four Hundred Fifty Dollars. No appeal was taken from that reduced award; however, Mr. Hamilton did file a motion for a rehearing which motion was denied and, from that denial, Mr. Hamilton has appealed.

Clearly, the only question before this Court is the denial of Mr. Hamilton’s motion for rehearing. The order denying the motion for rehearing would be appealable only if there were an abuse of discretion. There was nothing filed with the application for rehearing which indicated any further facts or law which were not originally considered by the Probate Court, which should have been considered by that Court.

We, therefore, are of the opinion that the Probate Court did not abuse its discretion in denying this rehearing to Mr. Hamilton.

The judgment of the Probate Court is affirmed and this appeal is dismissed.

BRYANT, PJ, DUFFY and McLAUGHLIN, JJ, concur.


author: By MITCHELL, J.

text:
    CROWN PIPE & FOUNDRY, INC., Plaintiff, v. DAVIS, Treasurer of Jackson County, Ohio et, Defendants.
    Common Pleas Court, Jackson County.
    No. 16318.
    Decided January 23, 1960.
    David G. Howell, for plaintiff.
    Roy J. Gilliland, County Pros., for defendants.
   OPINION

By MITCHELL, J.

This cause came on to be heard upon the petition of the plaintiff, Crown Pipe & Foundry, Inc., the answer and cross-petition of the defendants, the Recorder, the Auditor and the Treasurer of Jackson County, Ohio, and lastly the answer by the plaintiff to the cross-petition of the defendants. The parties hereto have agreed and have submitted the case for decision upon an agreed statement of facts which are filed herein.

The petition in this cause states in essence that beginning in 1932 through 1958 the records of the Treasurer a,nd Auditor of Jackson County, Ohio, showed delinquent and unpaid personal property taxes in the name of the plaintiff company or one Dwight Jones or both and that said tax assessments for such periods were unlawful because of the failure of the County Auditor to follow the procedure as set forth in §5719.04 R. C., which is the same section as former §5694 GC. The petition prays that the purported tax liens created by these assessments be declared null and void and cancelled as of record.

To this petition the defendants filed an answer and a cross-petition in which they admitted the existence of the unpaid taxes, admitted the existence of the lien and further admitted that the procedure set forth in §5719.04 R. C., had not been followed. The defendants then alleged in their cross-petition that the tax duplicates of this County show that from the years 1932 through 1946, and from 1953 through 1958, there are unpaid personal property taxes charged against the plaintiff which are due and unpaid and in the total amount of $21,489.81. The cross-petition further requests judgment against the plaintiff in this amount.

The plaintiff answered this cross-petition by denying that the tax duplicates had been legally prepared according to law and further denying that he owed the sum of $21,489.81 in personal property taxes.

Of course, the basic issue before the Court is whether or not the Crown Pipe & Foundry, Inc., owes any personal property taxes and, if so, how much. The facts submitted by agreement show that the Crown Pipe & Foundry Co., as a corporation, was instituted in 1905 and went into receivership in 1926 and the receivership was administered by the Common Pleas Court of Jackson County, Ohio. In April 1940, this Court ordered the Treasurer of this County to set up any unpaid personal property taxes against the company so that the receivership could be terminated. No claim was submitted by the Treasurer and the Court held in its final order that any such prior taxes were to be invalid and the Treasurer was enjoined from attempting to collect the same. That order of the Common Pleas Court is binding upon the County of Jackson and no taxes against this company can be collected prior to 1940 for the above reason. In 1940 one Dwight Jones obtained control of the company. Apparently from 1940 to 1949 the tax duplicates show some personal property taxes unpaid and some paid. It is significant to note, however, that on November 30th, 1949, Dwight Jones filed with the Secretary of State a certificate of dissolution showing the dissolution of the company. As part of those dissolution proceedings a certificate was signed and filed by the Auditor of Jackson County, Ohio, and the Treasurer of Jackson County, Ohio, which in substance reads as follows: “. . . . we do hereby certify that all personal property taxes due and owing from the Crown Pipe & Foundry Co., Inc. are paid in full to date.”. It would seem, therefore, that either this certificate or the duplicates of this County are incorrect as they pertain to taxes on or before 1949. The question is, can the County, subsequent to this certificate of the Treasurer and Auditor, assert its alleged tax lien for years prior to 1949 or is it estopped from setting up such a claim. There is no question but that the doctrine of estoppel does not extend to County officials with the same force and effect as it does to individuals. This is because the powers of Counties and their officials arise completely by statute. Agents and officials of the State and of Counties have no apparent authority and, therefore, the doctrine of estoppel as it applies to them is limited to those matters in which the officials have been expressly authorized to act.

In this case, however, the Auditor and Treasurer were those officials who were expressly authorized to keep and maintain the records of real and personal property taxes and to know who had paid and who had not paid their taxes. Who else would or could possibly know whether a personal property tax had been paid but these two officials, therefore, individual taxpayers do rely and have the right to rely upon the records and certificates to show these amounts correctly and it would not be proper for the County, many years later and in this case after the company had changed hands, to claim that its own certificate was incorrect.

Up to this point it has been unnecessary to discuss the effect of ■ §5719 et seq, R. C., because for the reasons given above, this County cannot go back of the year 1949 to collect any unpaid personal property taxes from this company.

It is noted from the pleadings and the agreed statement of facts that no claim is made by the County for the years" 1950, 1951 and 1952. It also appears that from the year 1953 through 1959 personal property tax returns were filed every year by the Crown Pipe & Foundry, Inc. The agreed facts also show that in 1958 and 1959 the personal property taxes were paid. Therefore, the remaining years in issue in this case are the years 1953 through 1957, a period of five (5) years. From the agreed statement of-facts it would appear that under normal circumstances the company would have paid upon the filing of these returns the total sum of $10,852.57 in personal property taxes during this period of time. There is no satisfactory explanation as to why the taxes were not paid except we may surmise that the company was in financial difficulty as it ceased its active operation in 1956. The company is now planning to reopen its operation, to borrow capital and is faced with the alleged personal property tax lien. The company claims that it should not have to pay these taxes because the County did not follow the procedure set forth in §5719.04 R. C. i. e.:

No. 1 — Maintain the proper and necessary tax duplicates

No. 2 — Did not advertise the delinquent list yearly as required by the statute

No. 3 — Did not create a cumulative delinquent list and deliver one annually to the Treasurer and the Recorder.

The plaintiff maintains that,- therefore, no valid lien was created and that it should not have to pay the taxes for the years in question. The position of the County as set forth in its cross-petition is that even assuming the invalidity of the tax lien can be established, the plaintiff still owes personal property taxes which should be paid. There are numerous sections of the Revised Code that deal with the taxation of personal property. Chapter 5711 R. C., is entitled “Listing Personal Property” and §§.01 through .21 list the requirements of setting forth the property in the returns and who is required to make a return. There is no question but what the plaintiff corporation falls into the category of those corporations who must file a return between the 15th of February, and the 31st day of March each year. All personal property including intangible property must be listed. The Crown Pipe & Foundry, Inc. recognized this obligation because it did file the necessary returns for the years in question. It merely failed to pay the amounts listed on the returns. There is no claim in this case that the amounts listed in the returns were incorrect or that there was any additional assessment made that was incorrect. At the time of the filing of these returns no objection was made to the assessment of the tax or the manner in which the duplicates were kept.

The next question that arises is how does the failure to pay the tax affect the County’s right to collect these delinquent amounts. Chapter 5719 et seq, R. C., is entitled “Collection of Taxes.” Sec. .04 provides in part that the County Auditor each year after the October settlement shall prepare duplicates of unpaid current and delinquent personal property taxes; shall cause the same to be published twice within a sixty (60) day period; also the Auditor must deliver by December 1st to the County Recorder the other duplicate of delinquent personal property taxes and the same shall constitute, after such publication and delivery, notice of a lien on the lands and tenements of the taxpayer. Sec. .06 requires the Auditor and Treasurer’s tax lists to be kept cumulative so that the total delinquent and current tax may be shown on the latest duplicate.

Admittedly, in this case, the County Auditor has failed to comply with the requirements of publication in §.04 and the requirements of the preparation and delivery of the duplicates to the County Recorder. Also, no cumulative duplicates have been kept. What is the effect of this failure to comply with §§.04 and .06 upon the lien which is set forth in §.01. There are very few reported cases on the precise issue. In this Appellate District there have been two unreported Common Pleas Court decisions. Case No. 30988, entitled Marcus Reitz, Executor of the Estate of Simon Reitz v. H. H. Hopkins, Treasurer of Lawrence County, Ohio, was decided by Judge Collier. There is no reported opinion in the case but the Journal Entry of the Court recites in part: “. . . . The court further finds upon the evidence that H. H. Hopkins as Treasurer of Lawrence County cannot collect the assessment against said estate .... for the reason that the delinquent personal and classified property tax list was not published in a newspaper as required by §5694 GC.”. In the case of State, ex rel. James Applegate and Louella Applegate v. Ray A. Vastine, Case No. 45039, in the Common Pleas Court of Scioto County, the Court in its Journal Entry found that the duplicate list of delinquent personal property taxes had been filed with the Recorder but had not been published as required by law. That Court held that the purported personal property tax lien could not therefore operate as a valid lien upon the real estate of the decedent and thus obtain a priority of payment over other liens from the proceeds of sale of real estate of the decedent.

In the case of Klein v. Clark, 59 O. O. 286, Judge Barhart of Lawrence County also held that publication of the delinquent list was necessary in order to constitute a valid lien ... in that case upon the proceeds of a sale of- real estate by a receiver. Some of the language of the Court in that case is significant, however.

“. . . . It might be well to dispose of certain so-called liens which are in the opinion of the Court not liens at all and thereby eliminate said claims from this estate, realizing of course that they will still be entitled to share as general creditors.”

“There is no dispute about the amount due, but in my opinion, there is serious doubt as to whether these personal property taxes constitute a lien on these premises”

“This ease must be distinguished from the cases where the County Treasurer has undertaken to foreclose on property for the non-payment of personal property taxes, the Courts having held in those cases that publication of the list is not mandatory since the defendant received a summons as provided by law and therefore has notice of the pendency of the suit.”

In the opinion of this Court there is no doubt but what the lien is invalid if not properly perfected.

Proper notice to the taxpayer by publication and the delivery of the duplicates to the County Treasurer and County Recorder and the maintenance of a cumulative delinquent duplicates list are all essential ingredients of the perfection of this lien. These acts not being properly performed in this case, the purported lien of personal property taxes is hereby declared to be null and void according to the prayer of the petition.

The remaining and more difficult issue in the case is presented by the cross-petition of the defendants praying for judgment against the plaintiff for delinquent personal property taxes due to the County. In other words what becomes of the basic obligation of the debt owed to the County by the filing of a tax return which shows tax to be due, but which is unpaid not only for the current year, but for five (5) years prior, i. e., 1953 through 1957. Does, as the plaintiff claims, the invalidity of the lien make it impossible by civil suit or, in this case by cross-petition, to collect the debt?

It appears that the maintenance of records of the collection of personal property taxes has been a problem for County Auditors for several years. The nature and extent of the requirements of §5694 GC, now §5719.04 et seq, R. C., have not been carried out in many counties. In fact the Court is informed that the State Auditor’s office does not even have cumulative duplicate forms as mentioned in the statute and the Blank Book Companies do not print the same. Be that as it may, however, the statute does set forth certain requirements for County officials to follow. However the Court feels that the failure of the County Auditor or other officials to comply with the statute would not estop the State from collecting an otherwise valid obligation. The discharging of the lien and the discharging of the obligation are two separate and distinct matters. What would prevent the Couny Auditor from bringing his delinquent tax list to date, publishing it, and then filing a civil suit to collect the tax due. In fact in the Scioto County case of Applegate v. Vastine, supra, the Court in its entry ordered that very procedure to be followed. Also, Judge Earhart in the case of Klein v. Clark indicated that in his opinion the County would still be entitled to participate in the receiver’s assets as a general creditor. Therefore, in his opinion the obligation was not discharged. In that case, as in this ease, there was no dispute as to the amount due nor is there any claim here that the assessment is in the wrong amount or on the wrong property. The plaintiff prepared and filed his own returns for the years in question and his own figures were accepted by the County as the amount due. The defect of lack of notice by publication would not be available in a civil suit to foreclose property since the defendant would receive notice in the form of service of summons. In this case the taxpayer originated the suit to invalidate the lien and, therefore, cannot complain of a lack of notice when the defendants filed their cross-petition setting up the debt.

The only Supreme Court case close to being in point is The Aetna Company v. Ginder, 114 Oh St 52. That case was an action by the Treasurer of Franklin County to collect delinquent taxes from the defendant company for past years. The Treasurer tried to introduce duplicates of past years into evidence and the Court held that these books were not properly prepared and were not competent evidence. There was considerable question in that case of the times and method of making the entries in the duplicates in question. The ruling in the case was specifically directed to the admissibility of the duplicates as evidence, the validity of the tax itself was not in issue. In fact the Court stated in the last paragraph of the case: “We are not intending to hold that these taxes may not now be collected.”. There is no similar problem of evidence in this case. This case is submitted upon an agreed statement of facts. The Treasurer and Auditor and Recorder are all parties to the action. The validity of the returns is not in question. The case of Hull v. Alexander, 69 Oh St 75, which was one of the earliest Supreme Court decisions involving the statute in question, holds that a Treasurer cannot maintain an original action on past duplicates not in his possession and upon which settlement has been made between him and the Auditor. The Treasurer is only required to collect taxes on the duplicates in his hands for collection. However, in that case the Court specifically refrained from ruling whether or not the delinquency could then be placed on the duplicates, advertised and collected. That case can be distinguished from the case at bar on its facts. The sole issue which this Court must decide is whether or not the failure to comply with the requirements of §5719.04 R. C., would, in itself, prevent a judgment upon an otherwise admittedly valid obligation. I think not. The precedent of allowing a taxpayer upon the set of facts in this case to escape his obligation to support the community by the payment of his taxes upon the grounds alleged is obvious. If technical mistakes of County officials would estop the County and State Governments from collecting valid tax obligations and invalidate the basic obligation to pay taxes, then County Governments would be flooded with claims.

In summary, the Court holds that the tax lien for the years 1932 through 1957 is invalid but that the taxpayer in this case owes delinquent personal property taxes for the years of 1953 through 1957 in the amount of $10,852.57 for which judgment is hereby rendered upon the cross-petition.


author: By HUNSICKER, J.

text:
    PERRY, Admx., Appellant, v. EAST OHIO GAS CO. et, Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24920.
    Decided February 24, 1960.

      Chester K. Gillespie, Sindell, Sindell, Bourne & Disbro, for appellant.
    Jones, Day, Cockley & Reavis, for appellee, The' East Ohio Gas Co.
    D. R. Henderson, Jr., for appellee, Orlando Wise.
    (DOYLE, PJ, HTJNSICKER, J, of the Ninth District, GRIFFITH, J, of the Seventh District, sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, J.

This is an appeal on questions of law from a judgment entered in this case in the Common Peas Court of Cuyahoga County. The judgment concerned two defendants, who are the appellees here.

One of the appellees, The East Ohio Gas Co., was dismissed from the case at the conclusion of all of the evidence, after a motion for that purpose was presented to the trial court.

The other defendant in the trial court, Orlando Wise (an apartment house owner), was awarded a verdict by a jury, and the judgment was entered on that verdict for Mr. Wise.

In the early morning of October 1, 1956, a fire broke out in a three-family home occupied by Mrs. Lois A. Perry and her two children. Mrs. Perry and her children occupied the third-floor apartment of the frame building which was owned by Mr. Wise. A child of Mrs. Perry, a boy about four years of age, met his death by carbon monoxide asphyxiation as a result of the fire, and Mrs. Perry then brought an action against these defendants, alleging that the child died as a result of the negligent conduct of the appellees herein.

Mrs. Perry and her children moved into this home a few days before the death of her child. At that time the hot water heater for her apartment was not turned on; Mr. Wise was in the process of installing a hot water tank for the third-floor apartment;,

After Mr. Wise installed the hot water heater for the third-floor apartment Mrs. Perry asked The East Ohio Gas Co. to inspect the appliance and turn on the gas. Inspection of this appliance showed that it was proper, except for the flue which carried off the fumes following combustion of the gas. This flue was connected to another flue, which flue was then connected to the chimney. This type of installation is satisfactory if the connection so made is five inches or more in diameter; otherwise the flue must be connected direct with the chimney. The flue from the Perry hot water heater was only three inches in diameter, and the connection into the other flue was the same diameter. Notice was given of the improper installation to Mrs. Perry by the customer service man of The East Ohio Gas Co., who turned the gas off, and placed, at the appliance valve, a red tag. This red tag stated that the apliance was not to be used before consulting a plumbing or heating contractor. Mr. Wise was then notified by Mrs. Perry of the improper flue installation.

Mr. Wise, with a helper, then made a flue connection direct into the brick chimney, and called Mt. Pleasant Heating Company, of Cleveland, Ohio, to check and light this hot water heater. This work was done by such company, and the hot water heater was lit. Mrs. Perry stated that Mr. Wise lit such heater, and Mr. Wise said the service man from the Mt. Pleasant Heating Company lit this water heater.

In the early morning of October 1, 1956, some days after the gas to the hot water heater was turned on, some of the persons living in the apartment, including Mrs. Perry, stated they heard one or more explosions; and then some of those living on the first and second floors noticed smoke coming from the hot air heat registers, and they said they heard a crackling sound. One of the witnesses said she smelled gas and went to her kitchen to see if the pilot light on the kitchen stove was burning. She saw that it was still burning, and then she went toward the thermostat, but, hearing what seemed to be noises of small explosions, left the house.

The fireman arrived about 4:15 in the morning, only a few minutes after the notice was given to them. They brought the four-year-old boy of Mrs. Perry from the third floor to the ground level and took him to the hospital, where he was pronounced dead on arrival there. This child had gone with his mother to the front door of the house, but suddenly broke from her grasp and returned to his bed, as she, with a smaller child in her arms, tried to open the front door.

There was some conflict in the evidence as to whether there was a second means of escape from this third-floor apartment, as is required by the city ordinances. This third-floor apartment was heated by means of a gas stove, in violation of a city ordinance. The building was also constructed without fire stops, contrary to the ordinance of the city.

An officer of the fire department, a member of their fire prevention bureau, stated that upon investigation he found “no reason or no source of ignition in the basement for that fire.” This officer gave it as his opinion that the fire was started by a careless cigarette smoker. He also stated that be saw no evidence of an explosion when he examined the premises after the fire. He also stated that in his opinion “there was no gas explosion.”

A trial of the issues resulted in a verdict and judgment for Orlando Wise, and a judgment of dismissal of the cause of action against The East Ohio Gas Co., at the conclusion of all the evidence. It is from these judgments that an appeal is lodged in this court by Mrs. Perry, who says:

“1. The trial court improperly rendered a directed verdict in favor of the East Ohio Gas Company by ruling, as a matter of law, that the Gas Company was not negligent and that it had fulfilled its duty to the plaintiff.

“2. The trial court erred in its general charge to the jury.”

Before proceeding to a discussion of assignments of error, we are constrained to say something with reference to the trial attorneys and the conduct of the trial judge. We say this because, although it was not assigned as error, counsel for the appellant spent a large portion of the time allotted to oral argument in complaining of the conduct of trial counsel and the trial judge, saying that by reason of this conduct he was denied a fair trial. All of the judges of this court were, before becoming judges of the Court of Appeals of Ohio, trial judges, and in the course of that experience we presided at the trials of many cases. From that experience, we unanimously say no criticism can rightly or justly be directed at either the counsel for appellees or the trial judge. From the record, Judge Nicola, the trial judge herein, was patient, kind and considerate, traits of character which the judges of this court know him to possess in his daily life. There is no merit whatsoever to these complaints made orally by counsel for the appellant.

Although the principal complaint in this appeal is directed against the appellee The East Ohio Gas Company, we believe that the first discussion of our problem should relate to the judgment in favor of Orlando Wise. Mrs. Perry insists that the trial judge, in his general charge, placed upon her a greater burden of proof than she was required to establish.

Mrs. Perry charged that Orlando Wise was negligent, in that he operated a faulty appliance despite the presence of a warning tag placed on the appliance, which tag indicated that proper repairs should be made before such appliance (a hot water heater) could be used; and that Orlando Wise was negligent in operating the apartment in violation of various ordinances of the city of Cleveland, which ordinances related to the type of construction of apartment dwellings, as well as the proper installation of hot water heaters.

The trial judge gave a written instruction before argument, requested by counsel for Mrs. Perry, which instruction covered the subject of the city ordinances as they related to this ease; and in the general instruction the trial judge again called attention to the claim that the city ordinance had been violated. The trial judge then read the ordinances a second time.

We think the trial judge properly placed upon the appellant, Mrs. Perry, the burden of establishing the negligence of appellee Wise when the judge said: “* * * the plaintiff must prove at the outset, by a preponderance of the evidence, that natural gas and combustible fumes escaped from said water heating unit, ignited and exploded in the basement of the house owned by Wise. If the plaintiff fails to prove such an explosion by a preponderance of the evidence, * * * your verdict must be for the defendant.”

The entire claim of Mrs. Perry was based upon an explosion as a result of gas or fumes escaping from the hot water heater, which gas or fumes then ignited, causing the burning of the apartment. The trial judge did use the word “explosion” much more frequently than the words “ignite” or “fire,” but a full reading of the charge leaves no doubt that the issues were placed before the jury.

“3. To establish ‘actionable negligence’ three essential elements must be shown, namely, a duty or obligation on the part of the person charged with such negligence to protect another from injury, a failure to discharge that duty, and an injury to such other proximately resulting from that failure.” Wellman v. East Ohio Gas Co., 160 Oh St 103,

The violation by a landlord of a duty established by ordinance will not impose upon him a liability for damages, unless that violation is the proximate cause of the harm that ensues. Morton v. Stack, a Minor, 122 Oh St 115.

The instructions in the instant case, when taken and read as a whole, were not prejudicial to the substantial rights of th'e appellant. Counsel for appellant did not request additional instructions, but on the contrary indicated that he was satisfied with the instructions given. The judgment as to Orlando Wise must be affirmed.

The claims against The East Ohio Gas Company, although related to the acts of Mr. Wise, nevertheless present a different legal problem, and we now turn to a discussion of the first assignment of error.

Mrs. Perry can only recover against The East Ohio Gas Co. if she can establish “actionable negligence,” as that phrase is defined in the case of Wellman v. East Ohio Gas Co., supra.

The evidence in this case establishes that the gas appliance, the hot water heater, was, so far as the automatic controls and gas connections were concerned, proper and efficient. The only complaint made, and the reason for placing a red warning tag at the gas valve of this heater, was that the flue connection did not meet the standard established for such connections.

Mrs. Perry says that the gas company then had the duty to shut off the gas at the curb and to return to the premises when notified of repairs, and then inspect the flue connection before turning on the gas. This claim then raises the question as to the duty of the gas company to reinspect an appliance after notice to the owner of a defective flue connection.

If the evidence establishes that the gas company has discharged all of its duties herein, then the judgment must be affirmed. If the evidence fails to show that there is any dereliction of duty on the part of the gas company, then the judgment must be affirmed.

“1. One who seeks relief by judicial process must present proof of the basic facts essential to establish his right to such relief, or fail in his action.

“2. Where on the trial of an action to a jury, no evidence is produced substantiating the material allegations of the petition, it becomes the duty of the court, on motion of the defendant, to direct a verdict in his favor and enter judgment thereon.” Zafires v. Peters et al, 160 Oh St 267.

A gas company is not liable as an insurer for damages as a result of an explosion of gas. Its liability for damages by reason of injury or death, as the result of an explosion of gas, or a fire caused by the ignition of the escaping gas or fumes caused by the Improper combustion of such gas, arises only from the proof of negligence of a gas company in the handling and delivery of its product, which negligence proximately caused the injuries.

“It is plain that the gas company was not an insurer against any and all damages which might result to a customer from the use of gas on the customer’s premises. The bare fact of explosion and resulting Are would not suffice to establish a dereliction of duty on the part of the gas company. Facts and circumstances must be shown which indicate a want of ordinary care on the part of the gas company, proximately causing the injury, or evidence of facts from which such want of due care might be inferred.” Northwestern Ohio Natural Gas Co. v. First Congregational Church, 126 Oh St 140, at p. 153.

In the instant case, the gas company, upon finding that the flue connection was improper, shut off the gas valve, put a red warning tag thereon, and notified Mrs. Perry personally of the need for a proper flue connection before she or the landlord should turn on the gas. The gas company did not shut off the gas at the curb, for to have done so would have deprived Mrs. Perry of cooking and heating facilities. To shut off the gas at the curb would also have deprived two other families of gas service.

We note further that the gas pipes to the hot water heater involved herein were not in any way connected into the other gas appliances in the apartment building, and the appliance itself, including the gas leading to it, as well as the automatic control, was in proper and effcient working order.

A gas company, in case of a leak in a service line, is only held responsible after notice of the defect and the opportunity with reasonable promptness to shut off the gas or remedy the defect. Portsmouth Gas Co. v. Maddox, 44 Oh Ap 288; Donoughe v. East Ohio Gas Co. et al, 89 Oh Ap 411.

We have found no case in Ohio, and none has been cited to us, where the duty to turn off gas at the curb, when an appliance in a multifamily apartment has been found to need repair, has been discussed; however, cases bearing on that subject from other jurisdictions have been brought to our attention.

In Nephew v. Consumers Power Co., 283 Michigan 12, 276 N. W. 881, a case of death by asphyxiation as a result of gas escaping from a valve which had been shut off for a period of nearly two years, and a charge that the gas company should have cut service off at the curb, rather than at the service valve, the court said:

“The failure of the gas company to shut the gas off at the street is not negligence in and of itself; but the authorities, generally, hold such failure may be considered by the jury as bearing upon the exercise of due care by the gas company. Chisholm v. Atlanta Gas-Light Co., 57 Ga. 28; Canfield v. West Virginia Central Gas Co., 80 W. Va. 731, 93 S. E. 815, LRA 1918A, 808. If the death of plaintiff’s decedent had been caused solely by the negligence of defendant in failing to shut the gas off at the street valve, it would be liable. Lanigan v. New York Gaslight Co., 71 N. Y. 29. But the testimony indicates, if defendant is liable, it is not because of its negligent failure to close the valve at the street, but because of the negligent failure of its employee to properly close and seal the shut-off valve under the house.”

The general rule seems to be that it is the obligation of the customer to have his own pipes, connections and appliances properly repaired after notice of defects given by the gas company. Jelf v. Cottonwood Falls Gas Co., 162 Kan. 713, 178 P. 2d 992; Bellefuil, Admrx., etc., v. Willmar Gas Co., Inc. (Minn.), 66 N. W. 2d 779.

The cases of Stephany et ux., v. Equitable Gas Co. et al, 347 Pa. 110, 31 A. 2d 523, and Lewis v. Vermont Gas Corporation (Vermont), 151 A. 2d 297, say that, if a gas company knows the consumer’s lines and equipment are unsafe, it is the duty of the gas company to require the lines to be repaired or else shut off the gas at the curb. However, in a case similar to the instant action— Holsclaw’s Admr. v. Louisville Gas & Electric Co. et al, 267 Ky. 56, 100 S. W. 2d 805 — where a service connection to a second-floor apartment was defective, the court said nothing about the necessity of shutting off the gas at the curb, but did speak of the necessity of shutting off the gas at the service connection supplying gas to the leaking pipes. See also: 38 C. J. S., Gas, Sec. 42 d, and authorities there cited.

A collation of authorities on the subject “Liability of gas company for injury or damage due to defects in service lines on consumer’s premises” may be found in 26 A. L. R. 2d 136, et seq.

A gas company, in the absence of contract, is not required to enter upon the lands of a customer and make repairs to the gas appliances in use thereon, but its obligation, after notice that such appliance is improperly installed, is to shut off the gas that services such appliance and notify the customer to secure the proper repairs therefor.

When a gas company, at the request of a customer, inspects a customer’s appliance, and upon inspection finds that such appliance is not properly connected to the flue which is to carry off the fumes caused by combustion of the gas, it is the duty of the gas company to call the dangerous condition of the appliance to the attention of the customer, advise him of the needed repairs, and then shut off the gas to such appliance, and notify the customer that he should not turn on the gas until he makes the proper flue connection. The responsibility of the gas company, in the absence of contract, does not extend to the making of the repairs to the appliance, or to light the gas so it may be used after the needed repairs have been made.

We therefore determine in this case that the trial judge did not commit prejudicial error in his instructions to the jury, and he did not commit prejudicial error when he withdrew the cause from the jury and entered judgment as a matter of law for the appellee The East Ohio Gas Co.

We have examined all of the claims of error, and find none prejudicial to the substantial rights of the appellants.

The judgments entered herein must be affirmed.

Judgments affirmed.

DOYLE, PJ, GRIFFITH, J, concur.


author: By DUFFY, J.

text:
    WYATT, Appellant, v. STATE CIVIL SERVICE COMMISSION, Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6235.
    Decided December 1, 1959.
    Nelson Lancione, Columbus, for appellant.
    Mark McElroy, Atty. Geni., Michael Kouskouris, Asst. Atty. Geni., Columbus, for appellee.
   OPINION

By DUFFY, J.

John C. Wyatt was removed from his job as subdivision manager of the Belmont County subdivision office of the division of aid for the aged by the chief of the division and with the approval of the director of the department of public welfare on June 11, 1958, after having served as subdivision manager of the Belmont County office from September 1, 1949. His position and status was protected by the so-called civil service laws and the reasons for the discharge were given in the Order of Removal, as follows:

“The reason for this discharge is that you have been guilty of insubordination, inefficiency, incompetency, neglect of duty, misfeasance, malfeasance and non-feasance in office in the following particulars, to-wit:

“You were insubordinate in that you refused to accept an assignment to temporarily act as Subdivision Manager in Erie County.

“You were incompetent and inefficient in that in the exercise of your supervisory duties you were arbitrary and dictatorial in dealing with your associates and therefore were unable to secure their cooperation.

“You were inefficient and guilty of neglect of your duties in that you delayed unreasonably the completion of cases.

“You were guilty of neglect of your duties in that you were absent from your office without explanation.

“You failed to obey orders of the Field Representative. You failed to hold regularly scheduled conferences with your staff although you were instructed on many occasions to hold such conferences.

“You were inefficient in that you failed and neglected to properly discharge the duties of your position in handling the work required of your position promptly and properly. Further, you showed a spirit of independence in attitude toward administrative superiors and Division policies. (You required more supervision than other Subdivision Managers.)

“Further, you have not demonstrated the proper aptitude for the work of this position; you do not possess the requisite executive ability to properly direct subordinate personnel; you have dishonestly and corruptly falsified payroll and work reports to show you were on duty on days and at times when you were not in the office and falsely and fraudulently certified telephone bills and work reports to be true.

“Complaints have been verified by the personnel of the office of the abusive language you have used. Your language was not only abusive but crude and could be heard from out side of your immediate office. You have failed to assist the workers in organizing, constructive, progressive staff development; you fail to maintain office decorum, spirit of cooperation and friendliness in office; you are not respected by subordinates. You have been discourteous to the public and to the employees in the office.”

An appeal was taken by John C. Wyatt to the civil service commission and after a hearing before the commission the following is the general entry of The State Civil Service Commission, dated September 2, 1958:

“After careful consideration of the evidence adduced at the hearing of the appeal of John C. Wyatt from the order of the Chief of the Division of Aid for the Aged, Department of Public Welfare, removing him from the position of 5018 Subdivision Manager III, Belmont County Office, the State Civil Service Commission affirmed the order of removal filed against him.”

An appeal was then taken to the Court of Common Pleas, Franklin County, which court affirmed the decision of the civil service commission.

The charges against John C. Wyatt are nowhere found in the record or the transcript of testimony taken before the civil service commission of Ohio. The certification of records from the civil service commission to the Court of Common Pleas did contain a copy of the order of removal; and the transcript of testimony before the commission shows that the state abandoned the charges found in the sixth and seventh paragraphs of the Order of Removal that “You required more supervision than other Sub-division Managers,” and “you have dishonestly and corruptly falsified payroll and work reports to show you were on duty on days and at times when you were not in the office and falsely and fraudulently certified telephone bills and work reports to be true.”

The assignments of error listed by the appellant for consideration of this court are as follows:

1. The order appealed from must be set aside for failure to recite any findings upon which it is based or to support its conclusion.

2. There are no proper charges in the record to support appellant’s dismissal from his job in the classified civil service of Ohio.

3. Appellee committed reversible error in the admission of evidence.

4. The order of appellee is not in accordance with law and is not supported by reliable, probative, and substantial evidence, and the Common Pleas Court erred in finding to the contrary.

It is probably true that the proceedings before the civil service commission do not contain a copy of the charges placed against John C. Wyatt, but all procedural steps necessary to vest jurisdiction in the state civil service commission had been taken and while it is proper, customary and advisable to read those charges into the record, it is not fatal to the hearing to neglect to do so since both the employee and the civil service commission had by law been appraised of the charges against the employee. Since there was a deletion of the most serious charges against the employee, and since the charges were numerous, the better procedure for the civil service commission to have followed would have been to recite the findings upon which it based its support of the affirmance of the order of removal made by the division of aid for the aged.

Having reviewed the transcript of the proceedings before the civil service commission and the exhibits presented, we feel that there is a great deal of evidence that the removal was politically inspired.

Appellant’s exhibit “I” shows that he was asked to take a 90 day temporary assignment as Subdivision Manager of the office in the distant county of Erie, and a refusal to authorize living expenses at the new headquarters during the temporary duty. Appellant’s exhibit “M” shows an attempt to transfer John C. Wyatt to Seneca County as the subdivision manager, and stated as the reason for the transfer — “we are unable to locate a satisfactory subdivision Manager in Seneca County and since we do have available a qualified and experienced applicant to take over the Subdivision Manager position in Belmont County.” These are indications that John C. Wyatt was qualified as a subdivision manager and lend further support to the argument that the attempted transfers were politically inspired.

Taking the recprd as a whole, we do not feel that the evidence presented, along with the failure of the state to present any evidence on the more serious charges of the division as to the appellant having “dishonestly and corruptly falsified payroll and work reports * * * and falsely and fraudulently certified telephone bills and work reports * * presented grounds for an affirmance of the order of removal by the civil service commission; and we do not feel that the record shows that reliable, probative and substantial evidence was presented to support the order of removal. The order of affirmance by the civil service commission will be reversed and the case remanded for further proceeding in accordance with law.

BRYANT, PJ, concurs.

MILLER, J, not participating.


author: By WATTERS, J.:

text:
    SOURS et, Plaintiffs, v. STATE, DIRECTOR OF HIGHWAYS, Defendant.
    Common Pleas Court, Summit County.
    No. 219009.
    Decided December 22, 1959.
    Roy E. Browne, Akron, for plaintiffs.
    Thos. J. Lowery, W. B. Furnier, Paul Kostyshak, Ravenna, for defendant.
   OPINION

By WATTERS, J.:

FINDING OF FACTS

On January 27, 1959, the State of Ohio, thru and by the Director of Highways, filed Case No. 215,987 in this court against the Sours, Plaintiffs here, for the appropriation of an easement for highway purposes of certain property of the Sours on Manchester Road, Summit County, Ohio.

In its said petition the State set forth the value of the land taken as $3660, and damage to the residue at $2700 or a total of $6360 which amount the petition recited had been paid into court, deposited with the Clerk.

The return of the sheriff on January 28, 1959, in substance showed residence service on the defendants Ralph W. Sours and Rose C. Sours by leaving for each of them at their usual place of residence a true certified copy of the resolution and finding..

The deputy sheriff testified that on said date, January 28, 1959, he put a rubber band around the summons and papers and attached same on the outside door knob of the house, either on the side of the house or on the front door, he was not sure. He said he thought there was a storm door, which he opened before placing the papers on the door knob of the inner door.

The facts further show that Mr. and Mrs. Ralph Sours who reside at 2448 Manchester Road, had temporarily gone to Bristolville, Ohio, in November of 1958, and that they remained away from their home and residence from November 1958 to April 1959, except for one visit back home on December 24, 1958.

Mr. Sours at the time of the hearing was seriously ill at his home and unable to appear in court at the time of this hearing, and has been so for some time past. Mrs. Rose C. Sours, the wife, testified that neither she nor her husband ever received or saw said summons or papers, and that the first time they knew anything about said suit etc. was a few days before August 5, 1959, when they employed Roy E. Browne as counsel to check the records etc., after the Cline-Buckeye Drain Service Company, who came out to do some work concerning the septic tank etc., informed them that the State, as they understood, claimed the property or part thereof had been appropriated by the State.

The default judgment by the State, see Journal Entry in Case No. 215,987, was taken on March 13, 1959, and signed and entered by this court.

The Sours then on August 12, 1959, filed their petition after term to vacate said default judgment, which is this action (Case No. 219,009) on the grounds of no jurisdiction due to failure to properly serve the Sours therein, and failure to receive any notice of said suit, and that they had no opportunity to perfect their appeal, etc.

The State, after filing a motion to dismiss said petition to vacate, which this court overruled, filed its answer in substance a general denial.

There is no evidence before the court that the State Highway Department, under the former regime (Gov. O’Neil) or under the present regime (Gov. DiSalle) had any negotiations with the owners, before the case was commenced January 27, 1959, by the present department, shortly after it took over.

There is no evidence that the case was advertised in the Legal News for default judgment, prior thereto, in accordance with our rule of court.

The court finds the defendants, the Sours, never received said summons etc. and had no knowledge of said lawsuits and have thus been deprived of their day in court.

The Law of the Case and Conclusion

The only pertinent case in Ohio which is almost exactly in point is the case of Kletchko v. Shupp, 15 N. P. (N. S.) 332, where the deputy “pinned a copy of the summons on the back door of the residence, using two pins in so doing.”

The syllabus of this case reads as follows:

“Service of summons to be in conformity with the Ohio statute must be made under such circumstances and be of such a character that it may fairly be presumed the defendant received it. This requires, where the service is not personal, that a copy of the summons with all of the endorsements thereon be either pushed under the front door of the defendant’s residence, or dropped into an aperture in the front door for the reception of mail, so that it may be said the summons was left within the dwelling; or if it be delivered to some member of the defendant’s family, the one receiving it must be of such age and discretion and must bear such relation to the defendant that it may fairly be presumed he received it, and delivery so made to a member of the family must be at a door of the defendant’s residence “or on a porch thereof.”

The Court found in this case that pinning the summons on the back door was not good residence service.

The Court stated in the opinion its reasons as follows:

“Hence, it must be held that pinning a summons on a back or rear door of a residence does not constitute service upon the owner of the residence, within the meaning of the statute. To hold otherwise would lead to abuse, injustice and injury, if not actual fraud. The ease with which the papers could be removed by an interested party, the curiosity of the ubiquitous and mischievous small boy. or even of the delivery man, the liability of winds and storms to detach and blow it away destroys the legal presumption that the defendant received it.”

Further the Court said in the opinion at page 335:

“We are of the opinion that under the Ohio Statute the service must be made under such circumstances and be of such a character that it may be fairly presumed the defendant received it; and any service that does not meet this requirement will be, and ought to be, held void and insufficient.” (Emphasis by this Court.)

In view of the facts as found by the court and the law, the Court finds that said attempted service on the Sours is void and insufficient, and that said defendants never received said papers and that said default judgment should be and is vacated, set aside and held for naught and said defendants thru counsel in order to expedite the matter should enter appearance, if desired, perfect their appeal according to law and by posting a $100 bond as is customary and the matter assigned for trial.

However, in the meantime counsel should endeavor to negotiate a settlement if possible between the parties.

This of course is a suggestion of the court and should not be a part of the journal entry.

A journal entry will be prepared by counsel with exceptions to the State.

'Costs of this proceeding shall be taxed as part of the appropriation.

If appeal is desired counsel should contact Miss Diane Fasig, the court reporter, in re transcript.


text:
    JONES, Plaintiff-Relator, v. SATER et, Defendants-Respondents.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6343.
    Decided January 4, 1960.
    Milton L. Farber, Columbus, for plaintiff-relator.
    Earl W. Allison, Pros. Atty., Columbus, for defendants-Respondents.
    Russell Leach, City Atty., Alba L. Whiteside, Asst. City Atty., Columbus, Special Counsel to Prosecuting Attorney.
   OPINION

By BRYANT, PJ.

This is an original action in prohibition filed today in this court and the question for almost immediate determination is whether or not a temporary injunction shall be issued.

Plaintiff in his petition alleges that he is a duly appointed and qualified councilman of the City of Columbus, by appointment on December 30, 1959, by the then Mayor M. E. Sensenbrenner. The defendants are the several judges of the Common Pleas Court of Franklin County, Ohio.

Plaintiff says that Russell Leach, as the City Attorney of the City of Columbus filed a suit in the said common pleas court, No. 206,831, Russell Leach, City Attorney v. Russell M. Jones, in which he asked for a temporary and a permanent injunction against Jones, restraining Jones from sitting or acting or performing any of the duties of a councilman of said City of Columbus.

It was brought out that the common pleas court without notice to Jones or opportunity to be heard allowed the temporary restraining order and that this order will continue in effect until January 8, 1960, or such other date as the court below may fix, the latter date being the time of hearing on the issuance of a temporary injunction in place of a temporary restraining order.

The principal contention of the plaintiff is that the action in the common pleas court amounts to a trial of his right to hold the office, that such trial of title can not take place in an action for an injunction, but that instead it is a legal action which must be brought in the form known as a quo warranto proceeding, It is further plaintiff’s contention that the common pleas court does not have and never has had jurisdiction to entertain actions in quo warranto but that only the courts of appeal or the supreme court have such jurisdiction in quo warranto.

With the petition was filed a motion asking this court to issue a temporary injunction restraining the judges of the common pleas court from exercising any jurisdiction or authority in that injunction action. This has since been broadened to include in the order the setting aside of the lower court’s restraining order.

On the motion of the court, notice of the hearing on the question of allowing the temporary order was given by telephone to the Hon. Robert M. Draper, Presiding Judge of the Common Pleas Court, to City Attorney Leach and to County Prosecuting Attorney Earl M. Allison, after which conferences, the matter was set down for oral argument before Duffy, J., and the writer. City Attorney Leach was designated as special assistant prosecuting attorney for the purpose of the hearing which proceeded with appearances entered on behalf of the several defendants.

On behalf of the defendants and in support of the authority of the common pleas court, City Attorney Leach contended that Mayor Sensenbrenner lacked the authority to make this appointment, that as a result of the decision in the case of State, ex rel. Devine, v. Hoermele, 168 Oh St 461, involving a similar question, the appointment of Jones was neither de jure nor de facto, but that Jones had not even color of office and was a mere intruder For this reason, it was urged that the suit in the court below was not a trial of title but was merely excluding an intruder from office and hence the court of common pleas court had authority to entertain the injunction suit.

It is conceded by all parties that if the action in the court below is in fact a trial of the title to the office and if in fact Jones holds either as a de jure or a de facto office, the lower court lacks jurisdiction to entertain the action and that only an action in quo warranto is appropriate. All parties agree that all of the questions involved may be thoroughly and fully litigated in an action in quo warranto. In fact no legal explanation has been offered for the use of the injunctive form of action, except that it was permitted under the circumstances.

We feel that the basic question in the suit in the common pleas court is the right of Jones to hold the office to which he was appointed and to say that it is not a trial of his right to hold that office is not supported by the facts or the allegations of the petition, which at page two says “the defendant threatens to usurp and unlawfully hold” the office of councilman and again on the same page that Jones “has no color of title or right” as such councilman.

In the case of State, ex rel. Maxwell v. Schneider, 103 Oh St 492, it was held that quo warranto and not injunction is the proper action for testing the question of title to an office. In the case of Stiess v. State, 103 Oh St 33, it was held that the authority of a police justice can not be questioned except in an action in quo warranto.

In State, ex rel. Hogan, 84 Oh St 143, it was held that the only authority for proceeding against a person who usurps or unlawfully holds public office is by an action in quo warranto.

In Harding v. Eichinger, 57 Oh St 371, it was held, as disclosed in the syllabus as follows:

“Injunction will not lie at the suit of a claimant to a public office who is out of possession against an adverse claimant who is in possession.”

Cited in support thereof was the case of Reemelin v. Mosby, 47 Oh St 570.

In the case of State, ex rel. Garrison, v. Brough, 94 Oh St 115, the third branch of the syllabus reads in part as follows:

“The remedy by injunction can not be employed to try the title to a public office but it may be resorted to by one in possession of a public office, under color of title to protect his possession.”

Other cases could be cited and this opinion could be extended. In the short time permitted, the court has examined as many authorities as time would permit. Being of the opinion that the question before the court below related to the right or title to office of Jones, we are also of the opinion that quo warranto not only was the appropriate but the only permissible course of action. It is not disputed that the lower court was completely without jurisdiction in quo warranto. Hence the motion prayed for must be allowed and the restraining order dissolved.

DUFFY, J, concurs.