author: By SKEEL, J.

text:
    ROBBINS et, Plaintiff-Appellees, v. JONES et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21654.
    Decided December 5, 1949.
    A. W. Lowenthal, Cleveland, for plaintiff-appellees.
    Martin <& Martin, Cleveland, for defendants-appellants.
   OPINION

By SKEEL, J.

This appeal comes to this court on questions of law from a default judgment entered for the plaintiffs in the Municipal Court of Cleveland. The plaintiff filed his petition in which he asked, in his first cause of action, for the recovery of real property as described therein.

The second cause of action alleged that the parties, on the 10th day of February, 1948, entered into a land contract whereby the defendants purchased the property described in the first cause of action under said contract for $9,500.00, fifteen hundred dollars being paid plaintiffs upon the execution of the contract and the defendants agreeing to pay $100.00 per month thereafter until the balance due the plaintiffs was reduced to $6,300.00, at which time a warranty deed would be delivered upon the defendants securing such balance by mortgage as the first and best lien on said property.

The plaintiff further alleges that the defendants paid a total of $1,656.00 and no more and at the time of bringing this action were in default for five monthly payments and that the balance due as of December 15, 1948 was $7,844.09 with interest at 6% from that date. The plaintiffs then allege that defendants having refused and failed to meet the terms of the contract they, the plaintiffs, declared the land contract forfeited. The contract provided in part:

“In case default shall be made by the Party of the Second Part, in any of the conditions above stipulated to be performed py them, it shall and will be lawful for the Party of the First Part, if they so elect, to treat this contract as thenceforth void, and to re-enter upon said premises at anytime after such default without serving on the Party of the Second Part, or any person holding under them, a notice to quit said land; and in this contract shall be so treated as thenceforth void, the Party of the Second Part, or those claiming under them, shall thenceforth be deemed a mere tenant at will under said Party of the First Part, and be liable to be proceeded against without notice to quit, under the provisions of the law regulating proceedings in cases of forcible detainer; and the Party of the First Part, in such case, shall be at liberty to sell the land and premises to any person whatsoever, without being liable in law or in equity to the Party of the Second Part or any person claiming under them for any damages in consequence of such sale or to return any payments made on account of or under this contract, and the payments that shall have been made may be retained by the Party of the First Part as stipulated damages for the non-performance of this contract on the part of the Party of the Second Part.”

The plaintiffs then pray that the land contract be found to be forfeited and for cancellation thereof and that the plaintiffs may retain the sums paid by the defendants and that the defendants be enjoined and restrained from preventing plaintiffs from taking possession of the premises and that they may have judgment for costs.

The plaintiffs filed said petition May 27, 1949. Whereupon the court issued a summons returnable May 31, 1949 as provided by the rules of said court and the summons was left at the defendants’ place of residence on May 28, 1949.

On the back of the summons directly under the caption of the case appears the following:

“Summons in action for recovery of real property and cancellation of land contract and equitable relief.”

The body of the summons provided as follows:

“THE STATE OF OHIO) To The Bailiff
County of Cuyahoga) ss of
City of Cleveland) Municipal Court of Cleveland:
You are commanded to notify Luther Jones and Mary E. Jones, 1942 East 59th Street, that they have been sued by Joseph Robbins, Abe Robbins, Inc., in the Municipal Court of Cleveland and that unless they appear in Court Room No. 10 of said Court (No. 301 City Hall) on the 6 day of June, A. D., 1949, at 9 o’clock A. M. to answer unto the plaintiff in an action for RECOVERY OF POSSESSION of the following described premises to-wit: Situated in the City of Cleveland, County of Cuyahoga and State of Ohio and known as 1942 East 59th Street the petition of the said plaintiff against them filed in the Clerk’s office of said Court will be taken as true and judgment rendered accordingly.
The Bailiff will make due return of this summons on the 31 day of May A. D. 1949.
WITNESS, William J. Reichle, Clerk of said Court and the seal thereof at the City of Cleveland this 27 day of May A. D. 1949
William J. Reichle, Clerk
By J. Mirsky, Deputy Clerk.”

The defendants did not appear in court room 10 of the Municipal Court of Cleveland at 9 o’clock A. M. on June 6, which was five days after the return day. Thereupon the court made the following entry on said June 6, 1949:

“Case called, plaintiff in court, defendant not, trial had, the court finds that the plaintiff has a legal estate in and is entitled to the immedate possession of the property described in the petition, judgment for same and for costs of this proceeding is hereby rendered against defendant. Judgment on second cause of action O. S. J.”

On June 16, a journal entry was entered upon the journal of said court approved by the trial judge, which journal entry declared a cancellation of the land contract, the right of the plaintiff to retain the sum paid, to-wit, $1,665.00, but no judgment was entered therefor either as damages or otherwise, the journal entry providing that the plaintiffs were entitled to retain said funds and should not be liable to the defendants therefor. The journal entry further provided that the defendants should quit claim any interest they may have by reason of said contract to the plaintiffs within ten days and upon failure so to do, the decree should operate as sucn conveyance. The defendants were further ordered to deliver possession and title to the plaintiffs and were enjoined from setting up any claim to the property or any part thereof adverse to the plaintiffs.

The defendants’ assignment of errors are as follows:

1. That the court erred in failing to have the demanded premises appraised and the first cause of action removed to the court of common pleas of Cuyahoga County for further proceedings and for trial;

2. That the court erred in rendering judgment on the second cause of action on the 6 day after the return day for summons.

The first assignment of error is based upon §1579-16 and 1579-17 GC. The first of these sections provide that when-fc the appraised value of property sought to be recovered in any action in the municipal court of Cleveland exceeds $2,500.00, the court shall certify the case to the common pleas court. The second section provides how and by whom such property shall be appraised.

An examination of the record does not disclose that there was an appraisal of the property. The appraised value not being a matter disclosed by the record of the case, we are unable to determine whether or not the foregoing sections are applicable and for that reason the first assignment of error is overruled.

The second assignment of error requires an examination into §1579-6 GC, paragraphs 3 and 10, and rules 2, 11 and 13 of the Municipal Court of Cleveland.

Sec. 1579-6 GC provides in part:

“The Municipal Court shall have original civil jurisdiction within the limits of the City of Cleveland in the following cases * *
“3. In all actions on contracts, express or implied in law or in fact, when the amount claimed by the plaintiff does not exceed five thousand dollars, and in such actions judgment may be rendered for over five thousand dollars when the excess over five thousand dollars shall consist of interest or damages or costs accrued after the commencement of the action. When a cause arising out of contract is pending in the municipal court and the ends of justice demand that an account be taken or that the contract or contracts, be reformed or cancelled, the municipal court shall have jurisdiction to decree such accounting, reformation or cancellation.
* * ⅜
10. In all actions for the recovery of real property situated within the city of Cleveland to the same extent as courts of common pleas may now or hereafter be given jurisdiction.”

The rules which are here under consideration provide as follows:

Rule 2: “All civil actions in this court are hereby divided into the following classes:
First-class cases—
(1) All actions for the recovery of money only, whether in contract or tort, wherein the amount sought to be recovered exceeds one hundred dollars ($100.00) exclusive of interest and costs.
(2) All actions and proceedings equitable in their nature, including:
(a) The marshaling of liens;
(b) Creditors bills and aid of execution proceedings in all cases except upon judgments rendered in the Conciliation Branch of the court;
(cl Foreclosure of chattel mortgages or other liens upon personal property;
(d) Actions and proceedings for the sale of real property to enforce a judgment of the municipal court, or a lien for material and labor, or a lien of a mortgage on real property situated within the limits of the city of Cleveland;
(e) Interpleaders;
(f) Other actions and proceedings not expressly classified as first or second class cases;
Second-class cases:—
(1) All actions for the recovery of money only, whether in contract or tort, wherein the amount sought to be recovered does not exceed one hundred ($100.00) dollars exclusive of interest and costs.
(2) All actions and proceedings for the recovery of personal property, together with damages for the wrongful detention thereof;
(3) Actions for the recovery of real property, together with damages and forcible entry and detainer;
The classifications of a ease shall not change in any of its stages except as above provided with reference to creditors’ bills and aid of execution proceedings.”
Rule 11: “The return of the summons by the bailiff, or sheriff, must be made at the time named in the writ, which must be two (2) days from the date of said writ, except in actions for the recovery of personal property, and as otherwise provided in Paragraph 5 of Rule 8:
In all cases in which an answer is required, the rule day within which the answer, motion or demurrer must be filed shall be the fourteenth (14th) day after the return day of the summons, except as hereinafter provided.
In all cases in which answers are not required, the rule day for the defendant to appear shall be the fifth day after the return date of summons at nine o’clock A. M. Cleveland official time, excepting in replevin cases in which the appearance day shall be the seventh day after the date of summons. Rule 13 in part provides that * * * the defendant on or before the rule day may file an answer and cross-petition or set oft as the case may be, setting forth his defense provided, however, that in all cases for an amount not exceeding $100.00, exclusive of interest and costs and all actions for the recovery of real or personal property and actions for forcible entry and detainer or detention alone of real property, the defendant shall not be required to file as answer unless he seeks permanent relief and provided further that on motion of the plaintiff and for good cause shown, the court may require the defendant to file an answer in any action * *

From the foregoing statutes and rules and the allegations and relief prayed for, it is clear that the plaintiffs’ first cause of action, if it stood alone, would be a second class case upon which, if the defendants did not appear, a default judgment could be taken five days after the return day, no answer being required. The second cause of action under the rule is a first class case, requiring an answer and the rule day is the 14th day after the return day.

The record discloses that the body of the summons made no reference to the plaintiffs’ second cause of action so it must be assumed that it was intended that the rule with regard to call day for both causes of action was controlled by the first cause of action. This must be so because judgment by default was entered on both causes of action on the fifth day after the return day.

There can only be one rule day in a single case. Where a petition is filed containing two causes of action one of which, because of the subject matter presented, comes under the designation of a second class case and the other for like reason is designated as a first class case, the rule day applicable to first class cases must be applied to both causes of action. The court is therefore without power to enter a default judgment against the defendant on either or both causes of action until the 14th day after the return day which is the rule day provided for first class cases. The entering of a default judgment on both causes of action on the 5th day after the return day, which is the rule day for second class cases, constituted prejudicial error.

The judgment is therefore, for that reason, reversed and cause remanded for further proceedings according to law. Exc. Order see journal.

McNAMEE, J, HURD, J, concur.


source: Caselaw Access Project

author: By MILLER, PJ.

license: Public Domain

text:
    SINGER, Plaintiff-Appellee, v. BRINKS, INC., etc., et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4253.
    Decided October 5, 1949.
    Hamilton & Kramer, Columbus, for plaintiff-appellee.
    Clifford L. Rose, Edward F. Lynch, Columbus, for defendants-appellants.
   OPINION

By MILLER, PJ.

This is an action for damages arising out of a collision between two automobiles. A jury trial was had, the verdict being for the plaintiff. The first four assignments of error are based upon the proposition that the court failed to apply §6307-37 GC to the facts presented. If we were to give the testimony its most favorable interpretation in behalf of the defendant it would show that the plaintiff was driving in a southeastwardly direction on Northwest Boulevard, approaching the intersection of West Third Avenue; that the defendant was approaching the intersection from the plaintiff’s left, driving westerly on West Third Avenue; that when the plaintiff was approximately ten feet from the intersection he brought his car to a stop looking to his right and into a tailor shop on the corner. He then proceeded and when he arrived at the intersection he again stopped, looked for oncoming traffic, then started up again. When he had proceeded not to exceed ten feet he saw the defendant approaching from his left at a high speed. Realizing the immediate danger he stopped his car and soon thereafter he was struck by the defendant’s truck. The driver of the truck was called for cross-examination by the plaintiff. He testified that when he first saw the plaintiff’s car it had come to a stop at the intersection while his truck was 50 feet away. Appellant is contending that the plaintiff was negligent in that he violated §6307-37 GC, which provides:

“(a) No person shall start a vehicle, street car or trackless trolley which is stopped, standing, or parked unless and until such movement can be made with reasonable safety”;

and that therefore his motions for an instructed verdict should have been sustained. We are in accord with the court’s rulings on these motions. We do not think the facts in this case bring it within the terms of §6307-37 GC. The evidence clearly shows that the plaintiff approached the intersection cautiously which fact should not cause him to lose the right of way. Were the fact that he stopped ten feet from the intersection to be held against him, while another could approach lawfully at the maximum speed, a most unusual situation would be found to exist. The words of Judge Matthias in the case of Pitt v. Nichols, 138 Oh St at page 563, seem quite appropriate:

“It would be a queer doctrine to assert and apply that the exercise of caution is negligence. It cannot be held that a motorist, by slowing down before entering an intersection, thereby waives the right of way conferred by statute and justifies the driver on the left to proceed at a high rate of speed across the intersection.”

It is also urged that even though the plaintiff was on the right, he is not entitled to the benefits of the right of way statute (§6307-40 GC) because the plaintiff did not proceed "‘uninterruptedly” in accordance with §6307-3 GC, which defines right of way as:

“The right of a vehicle, street car, trackless trolley or pedestrian to proceed uninterruptedly in a lawful manner in the direction in which it or he is moving in preference to another vehicle, street car, trackless trolley or pedestrian approaching from a different direction into its or his path.”

The appellant’s interpretation of this statute is that one who interrupts his own forward movement by stopping, removes himself from the benefits of the statute. We do not agree with this construction. We think it means that the person on the right has the right to proceed continuously and without interference. The case of Gratziano v. Grady, 83 Oh Ap 265, decided by this court, is cited, which is not on all fours with the case at bar, for there the driver of the vehicle on the right was engaged in making a left turn at a dead end intersection. He was not therefore moving in the same direction in which he had been proceeding, which removed him from the benefits of the statute.

Another error assigned is that on the voir dire examination one of the jurors failed to disclose that a member of her family had been in an automobile accident. As the bill of exceptions does not contain the interrogation of the jurors this cannot be the basis of an error assignment. We think that the evidence supports the verdict and that the same is not excessive.

Finding no prejudicial error in the record, the judgment is ordered affirmed.

HORNBECK and WISEMAN, JJ, concur.


author: By PHILLIPS, PJ.

text:
    WOLFE, Plaintiff-Appellee, v. WOLFE, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3257.
    Decided April 8, 1949.
    Leo Waldman, Youngstown, for plaintiff-appellee.
    William E. Lewis, Youngstown, for defendant-appellant.
   OPINION

By PHILLIPS, PJ.

Defendant appeals to us on questions of law from a judgment rendered by the judge of the court of common pleas, division of domestic relations, of Mahoning County, in favor of plaintiff in her action filed therein against defendant for divorce and alimony.

Though duly served with summons and a certified copy of plaintiff’s petition and notice of the time and place of trial of plaintiff’s action, defendant filed no answer therein because “I thought my wife would change her mind and she would not go through with it”, and failed to appear in person or to be represented by counsel to defend such action tried on August 11, 1948, in his absence.

The trial judge granted plaintiff a divorce from defendant on the grounds of extreme cruelty and:—

“* * ⅜ ordered that the defendant pay to plaintiff at the office of the Youngstown Humane Society, as and for alimony, the amount of Sixty ($60.00) Dollars per month, payable in semi-monthly installments of Thirty ($30.00) Dollars each, on the 1st day and 15th day of each month, commencing August 15th, 1948, and to continue until further order of the court.
“* * * ordered that the defendant be and he hereby is barred of all right, title, interest and dower in and to any real estate owned by the plaintiff.
“⅝ * * ordered that all of the household goods, furniture .and other personal property in the home located at 519 Clearmount Drive, Youngstown, Ohio, be and the same hereby is hereby awarded to and given to plaintiff and the defendant is barred of any interest therein.
“* * * ordered that defendant pay to plaintiff, to apply on her expenses for attorney fees in this cause, the sum of Two Hundred ($200.00) Dollars; and that defendant pay the court costs in this cause.”

Defendant contended by assignments of error that “the trial court committed a prejudicial abuse of discretion in proceeding to hear said divorce case without the presence of the defendant, Daniel Wolfe, in person or by iegal counsel”; that “after being informed by the trial court the day before the trial that he should secure legal counsel, the defendant, Daniel Wolfe, should have been given a reasonable time in which to retain a lawyer to represent his interests”; that “the defendant, Daniel Wolfe, was deprived of his day in court and his constitutional and statutory rights were violated when the court proceeded to deprive him of all right, title and interest in and to said real estate”; and that “the trial court committed error prejudicial to the rights of the -defendant, Daniel Wolfe, when it refused to grant the defendant, Daniel Wolfe, a new trial in the furtherance of justice”.

On “hearing on motion for a new trial” defendant testified “about a month before the hearing” the trial judge told him he had a right to “and should hire a lawyer”, whose advice and suggestion he did not heed;, that he talked with the trial judge on August 10, 1948, the day before trial, at which time he was under the influence of intoxicating liquor,, and “the judge told me or advised me to go and get an attorney and I misunderstood him, or something must have happened, because I went and got an attorney, and, as I understood, that he was going to postpone the case, see,, until I got an attorney”.

The bill of exceptions discloses that the trial judge dictated into the record “the record may show that this man came in to see me the day before the trial and that I instructed him, at that time, that he should go get himself counsel, and that I gave him no suggestion that the case would be continued at all. I gave him no suggestion as to that”.

Without reciting it further, in our opinion there was sufficient evidence submitted to the trial judge of defendant’s drunkenness and his general cruel conduct toward plaintiff warranting him granting plaintiff a divorce from defendant, on the ground of extreme cruelty.

We are bound by the record made in the trial court submitted to us by defendant in his appeal from the judgment entered against him by the judge of that court, and on hearing of his “motion for a new trial”, which record discloses that on the 11th day of August, 1948, defendant, and he so testified on hearing on motion for a new trial, owned no “personal property, money in bank, no property then of any kind”, and that the record title to the real estate “awarded to” plaintiff, the value of which is undisclosed but upon which the record shows a mortgage of $2,000.00, was in plaintiff’s name.

There is no evidence submitted to us as to defendant’s age (but he volunteered upon hearing of his appeal that he was 53 years old), state of health, earning capacity, nor ability to work nor earn money in the future, upon which we can base any judgment as to whether the judgment of the trial judge is or is not sustained by sufficient evidence-on the question of alimony. Accordingly we must assume the-trial judge reached a correct conclusion with respect to this-assigned ground of error.

With the record in the state indicated by what we have-said in the factual statement of this opinion we cannot reach the conclusion at which counsel for defendant asks us to. arrive that the trial judge “abused his discretion in proceeding to hear and determine said cause and to award this plaintiff alimony from the real and personal property of this-defendant, without said defendant having an opportunity to-submit his evidence in defense”, nor deprived defendant of his “constitutional right of his day in court”; nor erroneously passed upon the property rights between this plaintiff and this defendant without giving said defendant an opportunity to present any evidence on his behalf”, as the evidence clearly indicates defendant had no property of his own, and while he testified he helped pay for the real estate, title to which resided in plaintiff, yet title was in her name, disposition of which in our opinion could have been made upon the evidence submitted as well in the absence as in the presence of defendant.

It is apparent we conclude that the judgment of the trial court is not contrary to law.

The judgment of the court of common pleas is affirmed.

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


author: By HORNBECK, J:

text:
    GRISE et, Plaintiffs-Appellees, v. WARRICK et, Defendants-Appellants.
    Ohio Appeals, Second District, Darke County.
    No. 673.
    Decided November 30, 1949.

      Wilbur D. Spidel, Richard E. Hole, Greenville, Webb R. Clark, Dayton, for plaintiifs-appellees.
    T. A. Billingsley, Greenville, J. Myers, Dayton, for defendants-appellants.
   OPINION

By HORNBECK, J:

At the outset we find a motion of the appellees to dismiss the appeal because it is not perfected within the time provided by §12223-7 GC.

The appeal questions the right and authority of the Common Pleas Court to charge expenses or allow attorneys’ fees in the partition proceeding which eventually was dismissed by the plaintiffs. The basis of the motion is that the notice of appeal was not filed within the time prescribed by statute because not filed within twenty days after the judgment entry, although, concededly, it was filed within twenty days after the overruling of the motion for new trial. The claim of the mover is that a motion for new trial was not appropriate because there was nothing considered by the court in that part of the judgment to which the appeal is directed which required reconsideration of any factual development. Supporting this position, counsel cite State ex rel Longman v. Welsh, 132 Oh St 244, wherein the court held that the motion for new trial did not extend the time in which the appeal could properly be noted for the reason that under the provision of the Code as it then existed the motion was not “duly filed”. In the cited case the judgment had been entered after a general demurrer to the petition had been sustained. Manifestly, there was no issue of fact involved in the action of the court which was challenged because upon demurrer all facts well pleaded were admitted to be true. Likewise appellant’s brief directs attention to State ex rel Johnson v. Wallace, 70 Oh Ap 329. In this case, as stated in the first syllabus, the judgment was entered on the pleadings and no mention of any other predicate or finding is made. Obviously, the court must have concluded as a basis for its action that there was no issue of fact on any controlling issue of law.

In Cullen v. Schmit, et al., 137 Oh St 479, the judgment sought to be reviewed was upon a directed verdict of the jury on behalf of the defendants at the conclusion of the trial. The court held that the purpose of filing the motion for new trial, as claimed, was to secure a re-examination of the issues of fact presented by the pleadings and held that the motion was duly filed and that the time within which the notice of appeal should be filed began upon the date of the entry overruling the motion.

In the light of these decisions we examine the judgment entry under consideration here. If the contention of the appellants is sustained to the effect that the court was without any authority whatever to allow expenses or award attorneys’ fees in the receivership, unless appellant is estopped to assert such claim, then it is patent that no issue of fact would be involved. On the other hand, the court in determining that expenses should be allowed and attorneys’ fees awarded must of necessity have considered not only the legal right to allow such claims but also the nature, extent and value of the expenses and services under consideration and also the effect of the attitude of appellant toward the allowances which are questioned. There were issues of fact which were of necessity brought into consideration upon the motion for new trial, which was general in its form.

It will be observed that we have discussed the question raised by the motion upon the hypothesis that the present statute §12223-7 GC requires the same construction as the former section of the same number and that a motion for new trial to be the basis for a notice of appeal must be duly filed. We do so only for the purposes of discussing the motion upon the theory of .the appellees and are not holding that the present section demands such construction because there is nothing whatever said in the new section of the code respecting the necessity that a motion for new trial be “duly filed”. The language of the section is, after fixing the time within which the appeal shall be perfected,

“(1) In appeals to the * ⅝ * Courts of Appeals * * *, within (20) days.
Provided, that, when a motion for new trial is filed by either party within ten days after journal entry of a final order, judgment or decree has been approved by the court in writing and filed with the clerk for journalization, then the time of perfecting the appeal shall not begin to run until the entry of the order overruling or sustaining the motion for new trial.”

The motion to dismiss the appeal will be overruled.

We then consider the appeal on questions of law on its merits. Appellant cites four errors,

(1) That the partition case in which this appeal is noted was brought without any authority at law or of legal right.

(2) That the partition suit was brought before the motion for new trial was disposed of in the will contest case, involving the will of John W. Spidel, deceased, contrary to §10509-22 GC.

(3) There being no basis to maintain the partition suit there was no authority to charge the expenses connected therewith against the defendants who are entitled to all the income from the real estate under the will of John W. Spidel, deceased.

(4) That inasmuch as the partition case was voluntarily dismissed by the plaintiffs succeeding the action of the Court of Appeals of this District in reversing the judgment of the Trial Court setting aside the will of John W. Spidel, deceased, the court erred in charging the fees of the attorneys for the receiver against the income of said real estate belonging to John W. Spidel, deceased.

Prior to the institution of the partition suit, an action contesting the will of John W. Spidel, deceased, had been successfully maintained in the Common Pleas Court. Succeeding the filing of the partition suit the Court of Appeals of this District reversed the judgment, setting aside the will and remanded the cause for new trial. (See Spidel v. Warrick, 50 Abs 413.) Thereafter, on November 10, 1948, the will contest proceedings were dismissed as was the partition suit but prior to this dismissal the trial judge had appointed a receiver, named counsel to represent him and allowed payment of expenses out of the receivership, including fees for the attorneys for the receiver in the amount of $3,400.00. These payments were made from money in the hands of the receiver which it is claimed represented rents and profits of the realty of the estate of decedent.

In our judgment the first and second assignments of error, if they be conceded to be sound propositions of law, do not require a reversal of the order appealed from because counsel for appellant approved entries, finding that it was proper and necessary to appoint a receiver and specifically directing the executor of the estate of decedent to collect rents and unpaid money due for the sale of crops until the receiver is appointed and qualified; reciting that by an agreement of all the parties and for good cause shown, it is ordered that Emery Brandt be, and hereby is, appointed receiver of all real estate described in the petition; ordering and naming Hugh A. Staley and Jerome H. Goubeaux, attorneys, to represent the receiver “and for the services to be rendered by said attorneys they shall be paid such amount as the court finds to be reasonable”; approving the bond of the receiver and directing that he enter upon his duties; and finally, ordering payment to counsel for the receiver in the sum of $400.00 to be applied on the total amount eventually due them. In view of the approval of the subject matter of the aforesaid entries by counsel for appellant, he is estopped to urge either that the expenses, the services of the receiver which are not now questioned, or the legal services of counsel for the receiver should be paid out of the estate of decedent.

There, then, is left the question only whether or not the court abused its discretion in holding that it was equitable and fair that the expenses and fees of counsel be paid out of the money in the hands of the receiver which represented rents and profits of the real estate.

Unfortunately for the narrow claim of the appellant we do not have any bill of exceptions nor do we even have a copy of the will of John W. Spidel, deceased, and we are therefore without information from which we could make determination that the court acted inequitably or unfairly to the appellant in requiring the payment of expenses and counsel fees from the funds in the hands of the receiver. The presumption of validity and regularity which attends the order of the trial court is sufficient to support it against the claim of the appellant upon the record as it comes to our attention.

The judgment will be affirmed.

MILLER, PJ, and WISEMAN, J, concur.


text:
    HOLPP, Plaintiff-Appellant, v. LITMAN, Defendant-Appellee.
    Ohio Appeals, Seventh District, Monroe County.
    No. 325.
    Decided May 18, 1949.
    Forrest D. Pfalzgraf, W. E. Moore, Jr., Woodsfield, for plaintiff-appellant.
    Charles W. Lynch, Woodsfield, for defendant-apipellee.
   OPINION

By PHILLIPS, PJ.

The parties will be referred to in this appeal as they stood in the court of common pleas.

Defendant, a married man, was arrested upon a state warrant issued by a Justice of the Peace in and for Center Township, Monroe County, Ohio, upon an affidavit sworn to by plaintiff, an unmarried woman aged 19 years, a resident of Monroe County, Ohio, and subsequently tried and found not guilty by a jury in the court of common pleas thereof, “as charged in the complaint” of being the father of her child, with which she was pregnant at the time she filed such complaint, and which was born to her subsequent thereto.

Plaintiff appealed from the judgment of the court of common pleas on questions of law and fact. The appeal was not properly filed as such, and it appearing that a bill of exceptions was duly and properly filed in the court of common pleas the words “and fact” were stricken from defendant’s notice of appeal sua sponte, and the appeal was argued, submitted and will be retained, considered and determined as one on questions of law only.

In her motion for new trial filed in the court of common pleas plaintiff contended, and as far as we can determine from the brief and argument filed by her counsel in this court contends here, that the trial judge permitted “the defendant to introduce evidence for impeachment purposes, and over the objection of the plaintiff, without first laying a proper foundation for said impeaching testimony”; to “introduce evidence for impeachment purposes, and over the objection of the plaintiff, on a collateral, nonmaterial and irrelevant matter”; and claims “irregularities in the proceedings of the court by which the plaintiff was prevented from having a fair trial in the following particulars, to-wit; that the defendant, and over the objection of the plaintiff, was permitted by the court to introduce evidence that the prosecutrix had intercourse with another person approximately a year before the time of conception”; and “failure of the court to properly charge the jury as to the law applicable in the case and proceedings and to which exceptions were taken by plaintiff”; and “several errors of law occurring at the tria'l and to which exceptions were taken by the plaintiff at the time”; and for “other errors manifest from the face of the record”; and contends “that the verdict of the jury is contrary to the weight of the evidence”, and is “contrary to law”.

The evidence properly admitted in plaintiff’s case in the court of common pleas painted a picture of her life, lived on not too high a level with her father, mother and two brothers, with one of which brothers, who was two years her junior, she slept regularly in a large room, occupied jointly and regularly by other members of her family, until shortly before she charged defendant with having intercourse with her on June 30th and July 2nd, 1947.

Plaintiff’s mother testified that defendant slept with plaintiff on that night of June 30, 1947, in a bed “right along side” the bed in which she slept, to which she did not object, but could not testify to whether they had intercourse.

Defendant’s father attended a serenade on the night of June 30, 1947. In response to the question “did you go to bed that night” responded “that’s a question I ain’t going to answer you at all for I lay down wherever I have a place to lay down, or where I fall down.” When asked “where did you get up the next morning” responded “hard to tell”; and accordingly could not testify as to whether defendant had intercourse with plaintiff.

Plaintiff testified that she was nineteen years of age at the time she became pregnant; and was in the third grade when she left school at the age of sixteen years; and described the sexual acts with which she charged defendant in a rather vulgar manner.

The defendant, a young married man in his late twenties, to whose wife a son was born on June 30, 1947, introduced evidence of where he was during that entire night, as well as on the night of July 2nd following. His testimony and that of his witnesses discloses that a proper foundation for the introduction of such testimony was laid.

As charged by counsel for plaintiff, for the purpose of impeachment the trial judge permitted defendant to introduce testimony that plaintiff had had intercourse with others than defendant, including her father and brother, whom she claimed forced her to indulge in such acts with them, and to which plaintiff objected and excepted; and which she claims constituted prejudicial and reversible error, with which contention we can not concur as we believe as the result of careful consideration of the bill of exceptions submitted to us it was impossible for him to have slept with plaintiff on either of those nights.

In a word, the evidence simply presented a question for the determination of the jury, which chose to believe the defendant and his witnesses; and whose verdict we cannot conclude was against the manifest weight of the evidence.

While urged as a ground of error that the trial judge erred to plaintiff’s prejudice in his general charge to the jury counsel has failed to argue that assigned ground of error. Accordingly we will not pass upon it.

Appellant’s counsel has failed to call our attention to “several other errors manifest from the face of the record”, as alleged as a ground of error, nor to comply in respect thereto with the provisions of Rule VII of this court that his briefs “shall contain a statement of the questions presented and a succinct statement of so much of the cause, referring to the pages of the record, as is necessary to show how the questions arose, together with a statement of the authorities relied upon.” Accordingly we will not pass upon this assigned ground of error.

We find no error prejudicial to plaintiff in any of the respects charged by her. Accordingly the judgment of the court of common pleas is affirmed.

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


author: By MILLER, PJ.:

text:
    IMMEL, Admr., Plaintiff-Appellee, v. RICHARDS, Defendant-Appellant.
    Ohio Appeals, Second District, Shelby County.
    No. 151.
    Decided November 12, 1949.
    H. K. Forsythe, Sidney, for plaintiff-appellee.
    Taylor Cummins, R. E. Boiler, Sidney, for defendant-appellant.
   OPINION

By MILLER, PJ.:

This is a law appeal from a judgment for $5,000.00 for the wrongful death of the plaintiff’s decedent, Thomas Eugene Immel, a child nine months of age.

The first five errors assigned are directed to the amount of the verdict, alleging that it was excessive and given under the influence of passion and prejudice. There is no evidence in the record which gives support to any of these charges. The appellant admits that the court properly charged the jury on the subject of damages by giving the special instructions requested by the appellant, but is contending that the verdict was so excessive that passion and prejudice of the jury may be presumed.

The law seems to be well established that substantial damages may be recovered by the parents of a minor child, or others who may have a right to bring an action to recover damages for his wrongful death, notwithstanding the fact that such child had never been gainfully employed, such damages to be measured by the experience and judgment of the jury enlightened by a knowledge of the age, sex, and physical and mental characteristics of the child, submitted, when available, with evidence as to the position in life and earning capacity of the parents, as well as evidence as to the rendition, if any, of house hold services by the minor. 149 A. L. R. 235.

In the case of Ochsner, Admr., v. The Cincinnati Traction Company, 107 Oh St 33, in considering the elements upon which the jury may base the estimate of the money value of a five and a half year old child to its parents, the court quoted with approval from 17 Corpus Juris, at page 42:

“The mental, moral, and physical characteristics of the child must be considered, as well as his expectation of life, in determining the extent of the pecuniary aid which he would probably give to his parents, and the jury are authorized to take into consideration the probable future increase of earning capacity of the child.”

In the case of Estridge v. Cincinnati Street Railway Co., 76 Oh Ap 220, it was held that a verdict of $6,000.00 was not excessive for the wrongful death of a male child eighteen months old.

The Court of Appeals for Cuyahoga County upheld a verdict for $5,000.00 for the death of a child approximately five years of age in the case of Gottsman, Admr., v. City of Cleveland, 46 Abs 474. In commenting upon the amount of damages, at page 480, the court says:

“It does not appear what other evidence could have been introduced. A picture of the lad is included in the exhibits. In the absence of interrogatories, it does not appear what amount the jury allowed for loss to the child’s parents under a ‘presumption of pecuniary injury’ and what amount, if any, was allocated as pecuniary loss to the brother and sister. In the absence of some means of identifying an improper allocation of damages and a request for a more ample charge the amount of the verdict may not be disturbed as being excessive or against the weight of the. evidence.”

We recognize that in many of the earlier cases the awards under similar circumstances were in lesser amounts, but it is urged by the appellee that the economic conditions have changed, which fact may be considered by the jury. Citing 13 O. Jur. 305. We are in accord with this legal principle and believe that the jury would have been justified in giving consideration to the present economic conditions. Even if we should be of the opinion that a lesser amount would have been proper, nevertheless the court can not substitute its judgment for that of the jury. 30 O. Jur., p. 124. Before the court can find the damages awarded to be excessive it must appear that the award is so excessive as to manifestly show the jury was actuated by passion, partiality, prejudice or corruption. The damage must be flagrantly outrageous and extravagant, otherwise the court may not disturb the verdict. 30 O. Jur. 79, p. 122.

The sixth assignment of error alleges that there was misconduct on the part of the jury. The record discloses that the jury after deliberating for some time returned to the court room and through its bailiff propounded to the court two written questions:

“Question 1.' Did this man carry any insurance?
(a) What kind?
(b) How much?”
“Question 2. What portion of this accident and funeral expense did he pay?
(a) Or offer to pay?”

The court treated these inquiries as requests for further instructions and replied to them as follows:

“The court wishes to instruct you that if any of you have any idea that the defendant did or did not have any insurance, you should disregard such idea concerning insurance as that has no bearing on this case whatsoever — you are not concerned whatsoever with that — it should have no bearing on your verdict in this case. You can’t consider that. It should be disregarded from your minds, so forget about the insurance question. Do not base any verdict on anything about insurance in this case. Is that clear to the jury?
To which question of the court, the jurors nodded in the affirmative.”

And we quote further as to Question 2:

“The court instructs you that for the jury to consider funeral and medical expenses, it was upon the plaintiff to prove by a preponderance of the evidence that one of the beneficiaries herein either paid, or was obligated to pay, the funeral expenses and the medical expenses in this case. No evidence was offered so, therefore, the court instructs you that since no evidence has been offered, you should disregard those items in arriving at your verdict. Is that clear?
To which question of the court, the jurors nodded in the affirmative.”

It is not suggested that the answers to the questions were incorrect but that when the subject of insurance arose the court on its own motion should have declared a mistrial and discharged the jury. The record discloses that all of counsel were present in the court room when the questions were propounded. The appellant raised no objection at the time and by his silence is presumed to have consented to the procedure adopted by the court. It is a well established general rule, subject to certain exceptions, that a reviewing court in appeals on questions of law will only consider such errors in the lower court as were preserved by objection, ruling, or otherwise in that court. The law imposes upon every litigant the duty of vigilance in the trial of a case and where the trial court commits an error to his prejudice he is required then and there to challenge the attention of'the court to that error. A just regard to the fair administration of justice requires that an opportunity should be given the court to avoid the commission of error upon trial, and that when an error is supposed to have been committed there should be an opportunity to correct it at once before it has had any consequences. 2 O. Jur. Par. 150, Part 1., p 296.

We therefore hold that the appellant, having made no objection at the time the questions were propounded, cannot at this late hour complain of the procedure adopted.

We find that the court did not err in refusing to give the defendant’s special charge No. 6 before argument. This charge was based upon special damages which were not in issue and it was therefore properly refused.

We find no error in the record and the judgment is affirmed.

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


author: By DOYLE, J.

text:
    STATE, Appellee, v. WEIL et, Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21501.
    Decided January 1950.

      Frank T. Cullitan, Pros. Atty., Gertrude M. Bauer, Asst. Pros. Atty., Cleveland, for appellee.
    A. L. Kearns, A. L. Adelstein, Cleveland, for appellant, Theodore E. Weil.
    M. A. Picciano, Cleveland, for appellant Thomas L. Murray.
    (GUERNSEY, PJ, and MIDDLETON, J, of the Third District, and DOYLE, J, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By DOYLE, J.

Theodore E. Weil, Thomas L. Murray and Forrest Gale Johnson were named in an indictment charging them with kidnapping and raping Rosaleen O’Donnell, a twenty-four-year-old Cleveland woman. Pursuant to a joint trial by jury, Weil and Murray were found guilty on the count of rape, and Johnson was found to be not guilty. All were acquitted on the count of kidnapping.

Weil and Murray are now before this court on appeal on questions of law from the judgment of conviction of rape entered upon the verdict of the jury in the Court of Common Pleas of Cuyahoga County.

There are six assignments of error urged as grounds for reversal of the judgment. They are in brief:

1. The overruling of motions for separate trials.

2. The refusal of the trial court to allow in evidence the original affidavit filed in the Justice of the Peace Court upon which was based the commitment of the accused to the grand jury.

3. The introduction into the evidence of hospital records “containing the statements made by the prosecuting witness, in the absence of the appellants, not part of the res gestae, as to the cause of her alleged injuries.”

4. The court’s charge to the jury that the “statements or confessions of one codefendant (Johnson) could be used, against the others in the event they found there was a conspiracy.”

5. Misconduct of the bailiff of the court in communicating with the jury during its deliberations.

6. The refusal of the court, upon request of the jury, to read to it certain testimony given during the trial.

As we examine the record before us, we find that the circumstances which were established by evidence-entirety competent, were so conclusive of the guilt of the appellants that no honest jury could have refused to convict them of the crime of rape.

However, finding as we do that no reasonable person could come to any other conclusion than that the appellants are-guilty of rape, we are called upon to examine various errors, which occurred during the trial, and to determine whether a new trial must be granted because of them. (The appellants make no complaint as to the weight of the evidence.)

We first start with the principles that these defendants, are entitled to a fair trial before a jury; that they shall not be deprived of life, liberty or property without due process of law, nor denied the equal protection of the laws. The observance of these rights are ends in themselves, not merely means to an end, because they are guaranteed by the constitution and by a common sense of justice inherent in our American way of life.

It is quite another thing, however, to think of rules of evidence, rules for the conduct of trials in a court of justice, and .rules of strict trial procedure, as ends in and of themselves, for these rules are but the instruments employed for an investigation of the true facts, and for the orderly and fair presentation of the evidence to a disciplined jury, to the end •that it may without improper influence arrive at the ultimate facts.

Throüghout the years, students of jurisprudence in this .country and abroad have argued whether the strict rules of evidence and trial procedure, or conduct of the jury or conduct of the attaches of a court, must be considered as ■ ends in and of themselves, so independent of justice and so .superior to truth, that such ends must be attained even at the cost of truth and justice, or whether they may be con- , sidered the means to an end — the end being a just determination of a particular controversy before a court of justice.

In respect to the admission or nonadmission of evidence, Professor Wigmore, in brief, observes that, under the old ■Orthodox English rule, an erroneous admission or rejection . of a piece of evidence was not a sufficient ground for setting aside a verdict and ordering a new trial, unless, upon all the evidence, it appeared to the judges that the truth had thereby not been reached. Such was the rule in the King’s Bench in -criminal cases. This lasted to the decade of 1830.

There then came into being a rule which in spirit and in later interpretation signified that an error of ruling created per se for the defeated party a right to a new trial. This is ■ commonly known as the “Exchequer rule.” It found recognition in the United States, in its most extreme form, in a vast .•number of decisions. There were, however, some courts in this country which refused to adopt the change. They rule that, although the reception of illegal evidence, or the refusal to admit proper evidence, is presumptively injurious to the .accused, when that presumption is repelled, and it clearly ■ appears from the whole record, beyond the possibility of rational doubt, that the result would have been the same, if the objectionable evidence had been rejected, or the compe'tent evidence admitted, the error of its admission or refusal furnishes no ground for reversal.

In recent years, through the influence of a disgusted public, ■which had seen time and time again the scales of justice heavily weighted in the interest of the criminal and untold numbers of guilty persons set free through technicalities ■.and rigid procedure, the American Bar Association and the legislatures of various states have undertaken the problem of doing away with the pernicious rule of the Exchequer, as well as other rules of strict procedure and conduct, to the end that matters of pure procedure or the admission or nonadmission of evidence should not be given the sanctity of an absolute right precedent to conviction, and should not usurp the administration of justice as if their observance were the ends to be attained.

In line with this thought, the legislature of Ohio has enacted the following statute (§13449-5 GC):

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

This statute pronounces the law of Ohio, and it now becomes the duty of this court to determine its applicability to the facts before us.

1. It is asserted that the court erred in overruling motions for separate trials.

The claim was made, before trial, that one of the defendants, Johnson, had made a written confession in the absence of the others, which implicated them in the charged crime.

Under §13442-11 GC, we encounter the following rule of procedure:

“When two or more persons are jointly indicted for a felony, except a capital offense, they shall be tried jointly unless the court for good cause shown on application therefor by the prosecuting attorney or one or more of said defendants, order that one or more of said defendants be tried separately.”' (Emphasis ours.)

The Supreme Court of this state, in applying the statute to the factual situation existing in the case of State v. Rosen, et al., 151 Oh St 339, ruled:

“Where it is disclosed, preceding the trial of codefendants jointly charged with the commission of a felony, that a signed confession by one of the defendants, made in the absence of his codefendants, will be put in evidence, which confession contains statements showing the guilt of a codefendant, and based thereon an application for separate trial is duly made by that codefendant, it is the duty of the trial court either to grant the application or to order the prejudicial matter withheld or deleted before admitting the confession in evidence.” (Emphasis ours.)

This ruling was not intended to change the statute requiring joint trials in all cases except those in which for good cause separate trials should be allowed. It is authority for the proposition that, under certain circumstances, a trial court may be guilty of an abuse of discretion prejudicial to the rights of a defendant, if separate trials are not permitted upon application, when it is made known to the court that the prosecution intends to put into evidence a signed confession, made by one, which contains statements showing the guilt of a codefendant. The case does not take from the trial court the right to exercise judicial discretion in determining what is “good cause.” It undertakes only to say that, under the circumstances therein shown to exist, the failure to find “good cause” and to grant the request for separate trials, constituted an abuse of discretion and was prejudicially erroneous.

The record of events as testified to by the appellants herein (each testified in his own behalf), shows that the prosecuting witness and the three defendants, after a drive over various streets of the city of Cleveland, in an automobile owned and operated by defendant Weil, arrived in the vicinity of the prosecuting witness’ home (probably shortly after 4 a. m.); that the driver proceeded on without stopping, and, when they came to an area of scant population, the girl screamed, opened the door of the car and tried to get out. The car was then-stopped, she alighted and ran to the rear of the car, from which point she yelled, according to her own testimony: “I have the license number of your car. You’ll never get away with what you’re trying to do.” Weil testified that she screamed: “I’ve got your license number, you’re going to-get in trouble.” She then commenced to run down the road, screaming continuously, whereupon the defendants Weil and Murray (each well-built, athletic men over six feet tall), jumped from the car and pursued her on foot. Weil caught and slapped her. She then lunged at him, and Murray, who was following Weil, attempted to get between them for the purpose of separating them. In the ensuing struggle between the girl and the two defendants, they all fell and rolled into a steep-sided ravine about 15 feet deep at the side of the highway. At this time, the other defendant, Johnson, drove the car away.

Up to this point, the testimony of the defendants and the prosecuting witness is substantially the same, except that she testified that she was thrown into the ravine by the three defendants. From here, the testimony diverges. The appellants, Weil and Murray, state that after falling into the ravine, they saw no more of the girl, and they saw no more of each other, reached the highway by separate routes, and left the scene of their experience. The girl testified to a cruel and vicious assault and rape upon her by each of the two appellants; that she was struck by them many times, her clothes were torn from her body, and several different acts of rape were completed by each of them upon her. They then left her lying in the ravine. After somewhat recovering her strength and composure, she climbed the bank of the gully, and was shortly thereafter helped by the driver of a U. S. Mail truck to reach the nearest telephone to notify the police.

The testimony of this federal employee and many others who saw her, showed her to be severely injuried and in great shock. Much of her clothing had been stripped from her body, which was covered in places with blood and wounds. After a short delay in her home (where she was immediately taken), she was taken to Mt. Sinai Hospital, and there examined and treated. Attending doctors testified, and the hospital chart shows, that upon arrival, she suffered from a com-minuted fracture of the right clavicle, and multiple hemorrhages, bruises and contusions over her body; her vagina had been stretched and torn, leaving an open wound at the “junction of the skin and the lining” thereof; she suffered from a bite on her right breast; and spermatozoa “were found in large numbers” in the region between the uterus and the external orifice of the genital canal.

An examination of the so-called “confession” of the co-defendant, Johnson, shows it to vary only in inconsequential detail from the testimony of the appellants themselves. His written and signed statement in none of its aspects accuses the appellants of rape. It only attempts to recite the movement and conduct of the three defendants up to the struggle on the highway, and then to describe, at a later time, his own search for his companions. In this recitation, he tells of finally meeting Murray, and their subsequent arrest by the police. The latter, in most part, is corroborated by the appellant Murray himself.

We do not find an abuse of discretion by the trial court in his refusal to permit separate trials. There are no statements in the so-called “confession” “showing the guilt of a codefend-ant,” and we are entirely satisfied from the record that the jury thoroughly understood from the court’s instruction that, whatever Johnson did say, either written or oral, could be used only against him as a defendant, and not against the others.

2. It is claimed by the appellants that the trial court erred to their prejudice in not permitting the introduction in evidence of the affidavit upon which they were bound over to the grand jury, signed by a police officer and filed in the Justice of the Peace Court about noon on the day of the claimed rape.

It appears that the affidavit charges the offense of assault with intent to rape. The appellants argue that “as the statements set forth in that affidavit are materially different from the testimony of the prosecuting witness at the trial of this case, we believe that the trial court should have permitted its introduction to impeach or support the credibility of the prosecuting witness, and the court’s ruling in this respect constitutes prejudicial error.”

In consideration of this claimed error, the members of this court are of the opinion that a discussion of the rules of evidence pertinent thereto would be a work of supererogation. Under no theory of law was such affidavit competent in the light of the record before us.

3. The third assignment of error is that certain “hospital records containing statements made by the prosecuting witness in the absence of the appellants, not part of the res gestae, as to the cause of her alleged injuries,” were erroneously admitted in evidence and were prejudicial to the rights of the appellants.

The exhibit under attack consists of eleven pages of photostatic copy of the records of Mt. Sinai Hospital. It records the observable facts and events incident to the treatment of the patient and was without doubt helpful to an understanding of the medical and surgical aspects of the hospitalization of the patient. Such records are admissible with certain qualifications, in criminal as well as in civil litigation.

Sec. 12102-23 GC.

The facts relating to the prosecuting witness’ physical condition, as heretofore stated, are shown in the records. In addition thereto, under headings of “history” and “present illness,” there appeared at two different places a notation that she had been criminally assaulted.

The record shows that all of counsel for the defense' objected to the admission in evidence of the record for the reason that “there are * * * statements and conclusions made by the person making the record — a conclusion draw/n by the lady making the statement herself.” Counsel then proceeded to tell the court that “they have no objection to-the introduction of the statement relating to the lady’s condition and the treatment accorded her.”

The court properly sustained the objections, and, in compliance with the ruling, the challenged language appearing in the first part of the record was covered with scotch tape and deleted. It so happened, however, that the same conclusion appeared on one of the subsequent pages and was apparently inadvertently overlooked by counsel and the court. The exhibit went to the jury without its obliteration.

In consideration of this claim of error, we must and do conclude that all objectional material should have been expunged. However, there is some duty resting on a defendant and his counsel. He cannot in every case sit by and permit objectionable material to be given to a jury by inadvertence after a court has ruled in his favor, and then, after losing his case, complain for the first time of error in its reception.

If, however, because of this error, the members of this court were of the opinion that the defendants were denied a fair trial and were prejudiced thereby, a new triai would be granted. But, after a minute examination of all of the evidence, both circumstantial and direct, we have no lingering sense of uncertainty that the evidence was prejudicial, or that without it the jury would have reached a different conclusion. If the members of the jury saw and considered the challenged words, certainly they, as normal persons, understood them to be but the words of some person in the hospital who made up the record, and were not the words of a witness to the alleged offense.

4. Complaint is made that the- trial court erred in instructing the jury that if they found a conspiracy to exist, the statements or confession of one defendant could be used against the other.

The trial court charged the jury as follows:

“Various statements have been permitted in evidence, made by one defendant, which included more than himself. These statements were permitted as against themselves, but in the event you find beyond a reasonable doubt that the defendants conspired together, as I have previously charged you, then the evidence may be received, their confessions or whatever they may have said, their own statements, may be re-cived not only against themselves, but against the others. If you do not find that a conspiracy existed between them, then their admissions or statements or confessions can only be used, and must be limited, as against the one that made the statement or confession.”

This charge of the court was error. Even if the court was justified in finding from the evidence and the reasonable inferences to be drawn therefrom that there was presented a disputed question of fact of the existence of a conspiracy to kidnap (there is no evidence to show a conspiracy to rape, and only a bare suspicion of a conspiracy to kidnap), the charge was wrong.

It has long been the rule in this state as well as elsewhere that:

“The acts and declarations of a conspirator may, after sufficient proof of conspiracy, be given in evidence to charge his fellow-conspirator, but subject always to the limitation that the acts and declarations admitted be those only which were made and done during the pendency of the criminal enterprise, and in furtherance of the common object.
“Where the declarations are merely a narrative of a past occurrence,' they can not be received as evidence of such occurrence. They must be concomitant with the principal act, and connected with it, so as to constitute a part of the res gestae.” Patton v. State, 6 Oh St 468.

And see: 8 O. Jur., Conspiracy, Sec. 19, p 61.

Finding error as we do in the respect claimed, the question arises, Is it of a prejudicial character in view of the record?

None of the statements or declarations of the defendants were confessions of. guilt in any sense of the word, for a confession, in the ordinary sense of the word, is an acknowledgment in words by an accused person of the truth of the guilty fact charged or of some essential part of it. At no time did any defendant admit the crime of rape or kidnapping, or accuse any of the codefendants with any criminal conduct within the scope of the indictment. And, as heretofore stated, the testimony given and statements made by all of the defendants varied, only in inconsequential detail.

We do not believe that the jury was misled by this charge, nor do we believe that the appellants were prejudiced thereby. We are of the opinion that this error falls strictly within the language of §13449-5 GC, supra. To hold that this jury was influenced by this charge to render a verdict not warranted by the overwhelming evidence of actual rape, would be an unjust imputation on the whole jury system.

5. The fifth assignment of error charges “Misconduct of the trial court’s bailiff in communicating with the jury during, its deliberations,” thereby depriving the appellants of a “fair and impartial trial as guaranteed them under the constitution.”

The sordid detailed account of the prosecuting witness, in which she related the conduct of the appellants while alternately raping her, is in the record. At one point in her testimony there appears the following:

“He (Weil) was on top of me ⅞ * *. He was bitting me on my right breast, right here (indicating). It felt as if he had a piece of my flesh in his mouth. Murray said ‘let’s get out.’ Weil says ‘I’ll be with you in a minute. This kid is practically out.’ ”

The testimony of the doctors who saw her subsequently on the same day, indicated teeth marks on her right breast, and the hospital records so show.

It appears that, during the course of the jury’s deliberation, the bailiff of the court was summoned by the jury. ■ Upon his response to the summons, he was asked which of the appellants had bitten the prosecuting witness. He said that he would find out. He then proceeded to the trial judge, and, without telling him the reason for the question, asked him the same question that the jury had asked of him. The trial judge told the bailiff that the testimony indicated Murray. The bailiff then, without the knowledge of the judge, or any of counsel, returned to the jury room and told them that it was Murray.

As the bailiff was returning from the jury room, the lawyer for Murray asked him “what had happened.” The bailiff told him. The lawyer then informed the bailiff that the information given was contrary to the evidence because the girl had testified it was Weil. The bailiff then went into the chambers of the trial judge and said, “it is the jury that wants to know; they are discussing this matter and want to know who it was, Murray or Weil, that bit the girl.” The court then said: “No communications may be made with the jury, no communications whatsoever.”

The court bailiff then left and the judge called the lawyers for the defendants into conference. In the meantime, however, the court bailiff, unbeknown to the court or counsel, again went to the jury room and said to the foreman “to disregard what * * * (he) had told him, it was not Murray who had bit the plaintiff, that they would be summoned before the court * * *.” The bailiff then left.

Later, when all counsel for the State and the defendants arrived at the court room, the jury was called to the court room, and the record speaks as follows:

“The Court: Ladies and gentlemen of the jury, I have been told you have a question you wish to present to the Court; is that correct?
“The Foreman: Yes, sir.
“The Court: Will the foreman present the question? * * *
“The Foreman: Will you have the stenographer read the girl’s testimony?
“The Court: The girl’s testimony as to what?
“The Foreman: At the point where they fell into the gully.”

At this point, counsel for Weil and Johnson stated that they had no objection. The court then called all of counsel into his chambers and there a discussion took place, in which counsel for the defendant Murray objected to the reading of the testimony of the girl “on the ground that it would be overemphasizing a portion of the testimony.” All then proceeded to the court room, and the record shows the following in the presence of the jury:

“The Court: I find that while there is no objection on the part of any of the defendants, nor on the part of the State, we cannot, in a criminal case, have the testimony re-read, as that might emphasize one phase of the case.”

(Although there seems to be an inconsistency between this statement by the Court and the previous recitation of the happening in the chambers of the Court, apparently the Judge attempted to save counsel for Murray from any possible prejudice or embarrassment by reason of his objection to the reading of any of the testimony.)

“The Foreman: That won’t be necessary. The thing is now, on behalf of Johnson, we have another question to ask. I don’t know how to ask it.
“The Court: As to Johnson?
“The Foreman: Yes, as to Johnson.
“The Court: State your question, and if I can be of any assistance under the law * * *.
“The Foreman (after consulting with some of the jurors): We will go back to the room, and come down very shortly.
“The Court: Give the matter full and fair consideration, and return with your verdict into this court. Do not be in haste, but do it as expeditiously as possible.”

During all of this time, the court was apparently unaware of the communication of the bailiff with the foreman of the jury. Counsel for Murray, however, knew of it but made no disclosure of the fact to the Court until he later moved for a new trial, subsequent to the verdict of the jury. In fact, this counsel said to the bailiff, after he was told of the incident: “John, I think the guardian angel must be hovering over my client. I have grounds for a new trial.” It appears also that one of the counsel for Weil was in direct association with the bailiff as well as with the counsel for Murray during this time. It does not directly appear, however, that he knew of the bailiff’s conduct. What the actual fact is, the record does not show.

At any rate, no one asked the Court for a mistrial because of it, nor was this misconduct urged as a ground for a new trial on behalf of Weil, although, certainly, after the jury’s verdict, the misconduct was known to counsel for Weil as well as to counsel for Murray.

The behavior of the bailiff was reprehensible, and no excuse can be given for such a stupid act.

The failure of counsel for the defendant Murray to tell the court immediately of the bailiff’s action was a gross violation of his duty as an officer of the court before which he was then practicing. The fact remains that he did not ask for a mistrial because of the misconduct, and was content to waive it at least temporarily.

It is, indeed, the law of 'this state that the legal rights of every individual must be recognized and protected. Among these rights is the inherent privilege of one accused of the commission of a felony to be present in person at every stage of his actual trial. Sec. 10, Article I, of the Ohio Constitution, as well as §13442-10 GC, makes such provision.

State v. Grisafulli, 135 Oh St 87.

It is likewise the law that “The violation by a court officer in charge of a jury of §13448-1 GC, to the effect that he shall not communicate with a jury in his charge or custody except to inquire whether it has reached a verdict, will be presumed to be prejudicial to a defendant against whom, after such communication, a verdict is returned by such jury.”

State v. Adams, 141 Oh St 423, syllabus 3.

In State v. Adams, supra, it appears that the bailliff, when advised by the jury that they were unable to reach a decision, replied “you can’t do that. You must reach a decision if you have to stay here for three months.” One of the jurors later testified that she changed her vote to “guilty,” “which she would not have done except that she understood the jury must reach a decision.” It also appears that factually it was a close case. It had been tried once before and the jury had disagreed and was then discharged. There seems to be no question but that the bailiff’s act was highly prejudicial, and, because of it a verdict was returned which otherwise would probably not have been rendered.

In the light of this decision (so strongly relied upon by the appellants), how stands the case now under consideration? First, we must determine and do say that the conduct of the bailiff was ’presumptively prejudicial to the rights of the appellants. Must we stop here of may we, as judges (as contrasted to umpires), deal with this concept as a provisional hypothesis, to be reformulated and restrained, if it, when developed with a disregard of consequences, would bring into being an injustice? Must we say that a violation of the statute by a bailiff is per se prejudicial error? Or is it better wisdom in the administration of justice to look to the record and determine whether the presumption of prejudice has been overcome, and, if so, treat it as harmless error?

It is our thought that the just rule should be that even though a violation of the statute creates a presumption of prejudice, such presumption may be overcome by the evidence and the attendant facts and circumstances. If it is overcome, then a new trial is not required on that ground; if it is not, a new trial is, of course, mandatory.

“It is a peculiar virtue of our system of law that the process of inclusion and exclusion, so often employed in developing a rule, is not allowed to end with its enunciation and that an expression in an opinion yields later to the impact of facts unforeseen.” Brandeis, J., in Jaybird Mining Co. v. Weir, etc., 271 U. S. 609, at p. 619, 70 L. Ed. 1112, 1117.
“There is nothing new in this notion of the subordination of legal concepts to expediency and justice, though as with many an old truth there is need to restate it now and again.”

Cardozo, The Paradoxes of Legal Science, p. 64.

Now, what are the facts before us which we must appraise in view of the presumed prejudice?

First, the bailiff told the jury that the testimony showed that Murray bit the girl, when, in fact, the finger had been pointed at Weil. This did not prejudice Weil.

Second, the bailiff later told the jury that it was not Murray who bit the girl, and that they should disregard what he had told them before. This certainly did not injure Murray. In fact, it left the jury just where they had been before the bailiff’s transgressions.

But, over and beyond this, the facts which no reasonable mind could fail to find, are that the girl, in physical vigor and well and neatly dressed, rode our in the night with the three defendants; that, after a struggle with the two appellants, Weil and Murray, on the public highway, they all were precipitated into a ravine by the road; that, after falling into the ravine, the girl’s clothing was stripped from her body, her face and trunk revealed marks of a beating, her breast was bitten, and her private parts were torn, stretched and lacerated, and saturated with animal sperm. All of these facts were established by unimpeachable evidence from persons who told of their actual observations. This evidence alone establishes, beyond peradventure, a rape upon her by some one.

This evidence, the testimony of the injured girl, and the overwhelming force of the rational inferences of impious irreverence of the appellants for the sanctity of an oath and the truth, coupled with the retraction by the bailiff of his statement to the jury, overcame, in the opinion of the members of this court, the presumption of prejudice which attached when the statute was violated. The rule of prejudice must be tested by a sensible appraisal of the totality of facts in a given case.

The claim is further made that the appellants were deprived of their constitutional rights.

In this connection, it may be said succintly that facts and circumstances which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of a denial of constitutional guarantees. It is not the province of courts to formulate constitutional guarantees into a set of hard and fast rules, ignoring entirely all qualifying factors. Mere irregularities or informalities which would subject jurors or court officers-to censure, do not in all instances indicate a violation of constitutional guarantees and a denial of a defendant’s right to be present at all of the stages of his trial. The facts here before us indeed indicate irregularities. The misconduct occurred in the presence of the jury. But, certainly, such misconduct was not a part of the “trial.” The word “trial” as-used in the constitution, has an entirely different connotation.

6. The last assignment of error refers to the refusal of the court to read to the jury certain testimony requested by them during their deliberations.

Sec. 11420-6 GC, provides:

“After the jurors retire to deliberate, if they disagree as to-the testimony, or desire to be further informed on the law of the case, they may request the officer in charge to conduct them to the court, which shall give them the information sought upon matters of law, and also, in the presence of or after notice to the parties or their counsel, may state its recollection of the testimony upon a disputed point.”

This statute permits a court to “state its recollection of the testimony upon a disputed point” if requested by the jury. The jury requested that the record be read. There is no statutory requirement that testimony be read to a jury. Nor is it a mandatory requirement that the trial judge state his recollection of the testimony.

In the light of the record before us, we do not find, by the court’s refusal to read a part of the testimony, an abuse of discretion.

For the reasons stated, the judgment will be affirmed.

Judgment affirmed.

GUERNSEY, PJ, and MIDDLETON, J, concur.


author: By THE COURT:

text:
    MARTIN, Plaintiff-Appellant, v. COFFMAN, d b a JIM’S MOTOR SALES, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2067.
    Decided October 17, 1949.
    A. W. Schulman, Dayton, for plaintiff-appellant.
    Jacobson & Durst, Dayton, for defendant-appellee.
   OPINION

By THE COURT:

Submitted on motion by defendant-appellee to dismiss the appeal on the ground that the appellant has not given a valid notice of appeal.

This is an appeal from the Municipal Court of Dayton, Ohio. On May 9th the judgment entry was filed dismissing the plaintiff’s cause. A motion for new trial was filed, which was overruled on June 9th. On June 13th the notice of intention to appeal was filed. It is apparent that the notice of appeal was filed within time as provided by §12223-7 GC.

The notice of appeal is as follows: “Now comes the appellant and hereby gives notice of his intention to appeal the decision in this case to the Court of Appeals of Montgomery County, Ohio, on question of law.” It is contended by the appellee that the notice of appeal is not from the judgment rendered on May 9, 1949. The notice of appeal is defective in that it does not state that the appeal is from the judgment; neither does it designate the date of the order from which the appeal is taken. However, it has been held that where there is only one judgment from which an appeal can be taken the failure to designate the judgment by date is not fatal. The notice of appeal may be amended by stating the date of the judgment from which the appeal has been taken. Mosey v. Hiestand, 138 Oh St 249, 34 N. E. (2d) 210; Fifty West Broad, Inc., v. Poulson, 41 Abs 212, 57 N. E. (2d) 687; Manhattan Terrazzo Brass Strip Co., Inc., v. Benzing & Sons, 35 Abs 492, 72 Oh Ap 197, 41 N. E. (2d) 736; Kline v. Green, 25 Abs 240; In re Dickinson, 43 N. E. (2d) 294.

The motion to dismiss will be overruled. The appellant is granted leave to amend the notice of appeal at bar.

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


author: By HAM, J.

text:
    GORSUCH, Exr., v. CULBERTSON et al.
    Common Pleas Court, Fulton County.
    No. 12817.
    Decided November 15, 1949.
    Pugh & Barber, Wauseon, for the executor.
    Charles M. Ham, Wauseon, for Harley W. Loveland.
    Lester Hallett, Wauseon, for the minor defendants.
   OPINION

By HAM, J.

This is an action to construe the will of Adrain R. Loveland, ■deceased, who died January 27, 1949, leaving Mina Loveland his widow (who elected to take under the law), Glen J. and Harley W. Loveland, sons, and Beulah M. Aldrich his daughter, his sole and only heirs at law. He left an estate in real estate ■of the approximate value of $25,000, and in personal property ■of the approximate value of $10,000 (net for distribution). The will was dated December 8,1947, codicil (changing the appointment of an executor) of date November 30, 1948. At the ■date of the will he was 80 years of age, his wife 70 years of age.

The first item of the will directs the payment of debts and ■funeral expenses.

The second gives his wife, Mina, the life use of all his property, real and personal

“including any property which I may have to dispose of by will and if she shall predecease me, I give, devise, and bequeath all my property in the following proportions, to my .son Glen J. Loveland one third (1/3); to my daughter Beulah M. Aldrich one third (1/3); to the wife and children of Harley W. Loveland, Gladys Loveland one twelfth (1/12); Robert Loveland, one twelfth; Joseph Loveland one twelfth and James Loveland one twelfth, and in the event of the death of any ■of such heirs then such share shall be divided among his or her heirs; I have made no division to Harley W. Loveland, my ■son as he is unable to take care of his own property or family.”

There are two questions which, when solved, ipso facto ■dispose of all other questions:

First: Did any property or interest therein pass by the clause in the second item devising the remainder?

Second: What, if any effect, has the so called disinheriting provision in that clause of the will?

Returning to the first question: It could be that the testator, whose wife was many years his junior, had in mind that •she presumably would long survive him, enjoying the life use of the real estate, and that its condition, value, etc., would probably be so uncertain at her death, that he would let the provisions of the law direct its distribution. But that his knowledge of his affairs, value of his estate was then so certain,, if the wife should first pass away, he was prepared to direct the distribution of his estate. He, therefore, wrote into his, will, in its second item, those words — that condition — “andi if she should predecease me” etc.

Be that as it may, surmise as we may; when surmises and possibilities are ended, we find ourselves in the misty,, uncertain realm of mere conjecture, and return to meet language which is plain and unambiguous, not to accept which, would simply be arbitrarily acting as a court scrivener of a new will for the testator.

The law presumes that the testator intended not to die' intestate as to any of his property.

Gillen v. Kimbel, 34 Oh St, 353, 57 Am. Jur. (Wills) Sec. 1158 Thompson Const. of Wills,.Sec. 221.

But that rule does not aid us in determining what disposition, if any, he intended to make of his property, if he predeceased his wife. No inference or hint of that is within, the four corners of the will.

For, “intention of the testator controls; it cannot be determined only from words used in the will when given their plain, and ordinary meaning.” Foye v. Foye, 35 Oh Ap 283.

“And when no ambiguity exists, the mere fact that we cannot conjecture why the testator wrote as he did, does not justify the court in putting a strained construction on the-plain language used.” Robbins v. Smith, 5 C. C. (N. S.) 545; (aff’d by S. C.); Sommers v. Doersam, 115 Oh St, 139; McCulloch v. Yost, 47 Abs 599; Craft v. Shroyer, 81 Oh Ap 353, 37 O. O. 77; Kilgore v. Hee, 10 N. P. (N. S.) 81; Richardson v. Cincinnati Union Stock Yards, 8 N. P. 213; Thompson Const. of Wills, Sec. 325; see especially, p. 150 of Sommers v. Doersam, 115 supra.

“Since a testator may prefer in certain contingencies to-die wholly or partially intestate, the presumption against intestacy will not prevail where the language of the will,, fairly construed, discloses a contrary intention or is insufficient to carry the whole estate.” 57 Am. Jur., page 756, sec. 1159.

“Rules and canons of testamentary construction are to be-employed only where doubt exists, where the language used does not clearly and definitely express or convey the testator’s intent or where the intention is obscure because of the use of inconsistent words or clauses. Rules of construction are not to be applied where the purpose and intention is positive and unmistakable, even though expressed badly and by words and phrases improperly used or arranged. When a testator employs language that is clear, definite, and incapable of any other meaning than that which is conveyed by the words used, there is no reason for resorting to rules of construction.” 57 Am. Jur., page 756, sec. 1124.

Not only germane but most pertinent to the instant discussion is the fact that the scrivener of this will was an attorney of experience who specialized in probate practice.

Upon no reasonable hypothesis, therefore, can we conclude that this particular item was not intended to mean exactly what its plain, ordinary, unambiguous language imports. Walter v. Pugh, 30 O. O. 561; N. Y. Life Ins. v. Hoyt, 161 N. Y. 1, 55 N. E. 299-301; Wells v. Pape, 63 Oh Ap 432.

In conclusion as to the first question: It follows that save for the appointment of an executor the will is simply so much paper wasted. Nothing having been disposed of by the will, the law of descent and distribution must control, without of course the so called “disinheritance clause” calls for a different distribution.

That brings us to the Second Question.

There is a rule which apparently is universally recognized: “The broad proposition that mere words of exclusion or disinheritance in a will, however clear and explicit, will not serve to prevent those whom the testator sought to disinherit from sharing in any property undisposed of by the will, in the absence of an affirmative gift of such property to others, is recognized in many cases. As has been said, no matter how strong the intention of the testator may be to disinherit an heir, the intention cannot be given any effect as to intestate property, and the only method of disinheriting such heir is to give the property to someone else.” 57 Am. Jur. 765-6. See also Thompson Construction Wills, Sec. 562. Mathews v. Krisher, 59 Oh St., 562: We quote the syllabus of the last case.

“The statute of descents operates upon all intestate property, and the course which it indicates can be changed only by a testementary disposition.”

And from the opinion, page 574,

“The comprehensive language in which the statute is made applicable to all cases of intestacy compels the acceptance of the rule, generally recognized, that the heir at law can be disinherited only by a devise of the property to another. Denn ex dem. v. Gaskin, 2 Cowper, 329; Crane et al. v. Doty, et al., 1 Oh St, 279.”

So then, we must conclude, that all the decedent’s property, real and personal passed to his heirs at law under the Statutes of descent and distribution, the widow, having elected to take her legal share rather than under the will, that which is admittedly hers must be aparted to her.


author: By THE COURT.

text:
    SHAFFER et, Plaintiffs-Appellants, v. LIGGETT et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4259.
    Decided October 21, 1949.
    Hugh Huntington, A. Glenn McClelland, C. M. Addison, Columbus, for plaintiffs-appellants.
    Harrison W. Smith, Willis H. Liggett, Columbus, for defendants-appellees.
   OPINION

By THE COURT.

The appeal is on questions of law from a judgment entered on a directed verdict at the conclusion of plaintiff’s case. The action was to contest a will of Ella M. Turner, deceased, in which the defendants were named as executors. Both of them had qualified at the time of the trial of this cause. Plaintiffs were not named as beneficiaries in- the probated will of decedent. It was their claim, sought to be developed by the testimony, that they had been named beneficiaries in a prior will of decedent, and it became incumbent upon them not only to show this fact but also to prove that such a will was in existence.

Plaintiffs, to develop the theory of their cause, called Mr. Willis H. Liggett, defendant and co-executor, as a witness on cross-examination. Upon the evidence admitted on the rulings of the trial judge the plaintiffs produced no evidence tending to establish existence of a prior will, in which they had been named as beneficiaries. The trial judge took some testimony tending to show the mental impairment of the decedent at the time of the execution of the probated will, but the court insisted that unless and until the plaintiffs showed their right to maintain the action as parties it would be useless to take further evidence upon the issue of the capacity of the testatrix to execute the probated will. Thereupon the court directed a verdict sustaining the will and judgment was entered on the verdict and motion for new trial was overruled.

Seven errors are assigned, all but one of which may be referred to the action of the trial judge in refusing to require the defendant-executor, Willis H. Liggett, to answer a certain question propounded to him on cross-examination. The only assignment which is not so covered is No. 2 to the effect that the court erred in refusing to compel the executor to obey the order of a subpoena duces tecum, “all prior wills, copies of wills, or parts of wills executed by Ella W. Turner prior to July 22, 1946”. Because of the state of the record this error is not exemplified for the reason that it does not appear that the defendant-executor, as an individual or as executor, had a will of decedent in his possession.

The other errors assigned are directed to the ruling of the trial judge upon the evidence as developed in the bill of exceptions, which arose in this manner:

Mr. Liggett, as executor, having taken the stand on cross-examination, answered questions showing his appointment and status as executor of decedent, whereupon his counsel asked the privilege of interrogation and developed the fact that at the time of the death of Mrs. Turner and for ten to fifteen years continuously prior thereto Mr. Liggett had been her attorney. It was developed on examination that the witness had gone to the Columbus Savings Bank and was there present when a lock box belonging to the decedent was opened, and he was permitted to answer the question, “Did you or did you not find a will in either of those lock boxes?” to which the witness replied in the negative. Thereafter a number of questions were propounded, to practically all of which objections were sustained, and finally this question was asked, “You said you did not find any will in either one of the lock boxes, did you find one any place else?” On objection, the witness was not permitted to answer the question, and exception was noted to the ruling of the court. The testimony was denied upon the authority of §11494 GC, that the evidence sought was a privileged communication between the decedent and her attorney in that relation.

It will be noted that the error assigned here comes within a very narrow compass. The witness was called as the executor. The inquiry was directed specifically to any will, other than the probated will, that the witness had found after the death of Mrs. Turner. At the time that the objection was sustained it had not appeared that any prior will was in existence. Therefore., it does not appear that such a will, if in existence, was prepared by the witness; that he was consulted as attorney concerning its preparation or that, if found, it was in the possession or under the control of the witness during the lifetime of the testatrix, or that he may not have held it as custodian only.

In this situation we do not believe that there was sufficient showing to support the ruling of the trial judge that an answer to the question here under consideration would have invaded the privilege accorded to the witness because of the attorney-client relationship between them.

We are cited to several cases by counsel for the parties, no one of which in our judgment is in conflict with our holding upon the immediate question here under consideration.

In Swetland v. Miles, 101 Oh St 501, the court held that the testimony of the attorney-witness was privileged. It appeared that the witness had been consulted as attorney in reference to the will under consideration, and, page 503,

“It is admitted on both sides that the testimony directly involved the communication, and it is admitted further that the communication was in the relation of attorney and client; so that the testimony involved comes squarely within the * ⅜ * statute.”

The difference in factual development in the cited case and the instant case is manifest.

In re Hurin, 59 Oh Ap 82, goes further in extending the privilege between attorney and client than any case to which we have been cited or of which we have knowledge. It was there held that in an action to contest a will an attorney who had prepared two wills, one of which had been probated, could not be required to produce the former will, because a privileged communication, at the instance of the contestants. The attorney had prepared the will. He was not the executor of the testatrix. The court proceeded upon the assumption that the subject matter of the will sought to be produced was the result of communications from the testatrix to her attorney in that relation.

In Haley v. Dempsey, Exr., 14 Oh Ap 326, the testimony sought to be offered and refused related to communications made by the testatrix to her attorney, the witness, and the advice which he gave her.

To the question propounded here there could be but two answers. If in the negative, then the question of privilege is immaterial. If in the affirmative, then such an answer standing alone would not, in our judgment, establish the privilege. There must be some factual development from which, in the light of the statute and the adjudications, the court would be required to conclude that the evidence if produced would constitute a privileged communication. No case cited will permit of the conclusion that an answer to the question here under consideration would, in itself, constitute a privileged communication of the client to her attorney. The subsequent answers of the witness on the subject matter sought to be developed may take such ramifications that to further discuss their admissibility would be indulging in pure conjecture. Suffice to say that the evidence should be received until such a time as it reasonably appears that to permit further answers to be made would clearly invade the field of the privilege accorded to the witness.

We hold that the errors assigned which relate to the refusal of the trial judge to permit the question under consideration to be answered are established. The judgment will be reversed and cause remanded for new trial.

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