author: Per CURIAM.

text:
    BUCHANAN et, Appellants, v. WILSON, Appellee.
    United States Court of Appeals.
    No. 13379.
    Decided April 21, 1958.
    Myron S. Rudd, Cincinnati, for appellants.
    C. Robert Beirne, Cincinnati, Don Anderson, Jellico, Tenn., for appellee.
    Before MCALLISTER and MILLER, Circuit Judges, and CECIL, District Judge.
   OPINION

Per CURIAM.

Appellants had a claim for damages against appellee arising out of an automobile accident at Jellico, Tennessee. Appellee, a garage owner, arranged to repair appellants’ automobile and since appellants were residents of Cincinnati, Ohio, he agreed to bring the repaired automobile to Cincinnati during the week following the accident. Appellants consulted their attorney about suing appellee, and it was agreed that an effort would be made to serve him with summons when he brought the car to Cincinnati. A petition was accordingly filed against appellee, and arrangements made with a deputy sheriff whereby he would be available on telephone call to serve summons on appellee. When appellee arrived in Cincinnati he called one of the appellants, Mrs. Buchanan, by telephone, and told her that the car was available for delivery. Mrs. Buchanan replied by asking him to bring the car to their home; and appellee decided to do so the next day. When he delivered the car at appellants’ home, Mr. Buchanan asked him to wait while he tried the car out. Appellee accordingly waited about half an hour while Mr. Buchanan was driving the ear about. In the meantime, appellants had called their attorney and the deputy sheriff, who arrived in a short time, and the deputy sheriff thereupon served the summons upon appellee.

Appellee came into the State of Ohio, voluntarily with appellants’ automobile, with the intention of delivering it to appellants in the downtown area of Cincinnati, and not with any intention of making delivery at appellants’ home or waiting while it was tried out by Mr. Buchanan. The sole reason why appellee drove the ear to the appellants’ home was because of the request of Mrs. Buchanan. The purpose in having the appellee come to appellants’ home was to make him available for service of summons there; and the request to the appellee to wait at appellants’ premises while Mr. Buchanan drove the car around to try it out, was to induce appellee to remain at their home so that he could be served with summons there.

The District Court, on the foregoing stipulated facts, granted appellee’s motion to quash the service of summons and to set aside and vacate the summons and return, on the ground of abuse of process; and, upon the election of appellants not to have appellee served by alias summons, the Court entered an order dismissing appellants’ petition.

Appellee, a non-resident, was not induced by artifice to come within the jurisdiction of the court; but having come within the jurisdiction he was induced by artifice, and for the sole purpose of subjecting him to service of summons, to come to a certain place within the jurisdiction, and was there induced, by artifice to remain until a deputy sheriff could arrive and make service of summons upon him. It is here not a question whether the service made under such circumstances amounts to the acquisition of jurisdiction over the appellee; it is rather a question whether the court will enforce its jurisdiction, obtained by the abuse of its own process.

We concur in the view of the District Court that the service of summons made upon appellee under the foregoing circumstances constituted an abuse of process. The judgment of the District Court is accordingly affirmed.


source: Caselaw Access Project

author: By YOUNGER, J.

license: Public Domain

text:
    SCHOTT d. b. a. DUKE’S RESTAURANT, Appellant-Appellee, v. BOARD OF LIQUOR CONTROL, Appellees-Appellants.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5888.
    Decided December 15, 1958.
    J. Eugene Roberts, Charles T. Kaps, for Eleanor Schott, appellee.
    William Saxbe, John W. Leibold, for Board of Liquor Control and Department of Liquor Control, appellant.
    (GRIFFITH, PJ, of the Seventh District, YOUNGER and GUERNSEY, JJ, of the Third District, sitting by designation in the Tenth District.)
   OPINION

By YOUNGER, J.

This is an appeal from the Court of Common Pleas of Franklin County, which reversed the finding and order of the appellants and ordered the issuance of D-l and D-2 permits to the appellee.

The evidence shows that the appellee, for some eighteen years prior to August 22, 1956, the date on which appellee filed her application for said'permits, had been employed by one Luigi Scarsella, who was the owner and operator of the business at 624 Wilson Avenue, Youngstown, Ohio, known as “Duke’s Bar,” and for which business he was the holder of D-l and D-2 permits. On both of said applications for permits, in answer to Question No. 12, which asked: “What are the names and addresses of all persons having a direct or indirect interest in said business or premises?,” the appellee answered as follows:

“Luigi Scarsella and Mary. Grace Scarsella, 1728 Gladstone, Youngstown, Ohio, in the premises, and Eleanor Schott, 624% Wilson Avenue, Youngstown, Ohio, in the business.”

The Department of Liquor Control rejected appellee’s application for a permit for three reasons:'

1. Applicant was not the owner and operator of a restaurant at the time of application.

2. Luigi Scarsella would have an interest in the business and was carrying on the business without a proper permit.

3. Luigi Scarsella was not a proper person to hold a permit.

We have no difficulty in disposing of reasons two and three. Apparently the Board ignored the sworn testimony entirely and substituted therefor an assumption of its own, not only not supported by a word of testimony, but completely refuted by the evidence and exhibits. In addition to the sworn testimony, the licenses, including a restaurant license, soft drink license, music device license, and a vendor’s license, all issued by the proper authorities, disclosed that Eleanor Schott is the sole owner. In addition, all utilities are in the name of Eleanor Schott, and receipts are in evidence showing that she made deposits to secure the payment of gas, electric, and telephone bills. Also in evidence is a properly executed bill of sale for a consideration of eight hundred dollars ($800.00), for the goods and chattels used in said business, and a properly executed lease for a period of one year at an annual rental of six hundred dollars ($600.00).

It is the contention of the appellants that because the applicant was not the owner or operator of a restaurant at the time she filed her application for the D-l and D-2 permits, that said applicant made false and material answers in her application, and that because thereof, appellants were acting within proper authority in rejecting the application.

A proper solution of the question here presented depends upon the construction of §§4303.13 and 4303.14 R. C., which, so far as we are concerned here, provide that permits D-l and D-2 may be issued to the owner or operator of a hotel or restaurant licensed pursuant to §3731.01 R. C.

It is to be here noted that these sections do not read, “Permits D-l and D-2 may be applied for only by the owner or operator of a hotel or restaurant licensed pursuant to §3731.01 R. C.” Sec. 4303.26 R. C., reads:

“Applications for regular permits authorized by §§4303.02 to 4303.23 inclusive, R. C., may be filed with the Department of Liquor Control.”

In State, ex rel. Mandalla v. Bryant, 156 Oh St 396, the Supreme Court construed this section, in its former form but with practically identical wording, and said, “that section gives to the relators, without qualification, the right to file with the Liquor Department, applications for permits, regardless of the qualifications of the applicants, the number of issued and outstanding permits, or the maximum number authorized to be issued.”

It is, therefore, quite plain that so far as these statutes are concerned, practically anyone can file an application for a permit, but that permits may only be issued to the owner or operator of a restaurant.

A closer examination of the evidence submitted before the Board shows that for about eighteen years previous to the date of the applications herein, the applicant had been employed by Scarsella and had been attempting to purchase the business for seven or eight years, and that during said period, Scarsella had had his permits suspended on several occasions for violations, and that although the applications for the permits were made on August 22, 1956, the bill of sale to the applicant was not executed until May 3, 1957, and the lease was executed May 6, 1957. The applicant’s city licenses for restaurant, soft drink, music device, and vendor’s license, were issued May 6th, 1957.

Regulation Twelve of the Board of Liquor Control provides:

“No Class C or D permit, except on a renewal, shall be issued by the Department until a complete examination, including inspection of the premises, has been conducted under the direction of the permit division .... and the Department finds that the respective applicants and the proposed locations meet all óf the requirements imposed by law and regulations.”

The inspection provided for by this regulation was made of the applicant and the premises the last part of May, 1957, and the Department’s rejection order was dated June 28, 1957. '

It is, therefore, established beyond doubt that at the time of the rejection order on June 28, 1957, and on August 13, 1957, when the Board of Liquor Control heard the appeal from the order of the Director of the Department, that the applicant, together with her husband who furnished some of the money, were the only persons directly or indirectly involved in the ownership of the business, and that the applicant was the owner and operator of a restaurant. However, it is admitted by the applicant that on the date of the filling of her application, Scarsella owned and operated the business, and she was working for him pending the working out of the details involved in transferring the business, and the necessary inspection by the Department of Liquor Control. It is not necessary for our purposes here to decide when, between the meeting of the minds on the purchase and sale of a business and the ultimate execution of the bill of sale and lease, a person becomes legally and technically an “owner or operator.” That could depend upon a variety of facts and circumstances, and would depend considerably upon what the whole agreement was at the time the parties agreed to buy and sell, and when they agreed as between themselves the buyer was to become the owner of the business.

The appellants rely heavily upon the case of Mocilnikar v. Board of Liquor Control, 84 Oh Ap 266, in which this Court held, in a case involving an application for a D-5 permit, “that it is the intent and purpose of the law that a night club be regularly and habitually in operation at the time a D-5 permit is applied for and issued. The record in that case shows that the appellant therein was not the owner or the operator of a night club, either when the application was made or when the license was issued.”

It is the claim of the appellee that this holding is dictum and not applicable to the case at bar, where the evidence is conclusive that the applicant was the actual owner and operator of the restaurant at the time of the inspection provided for by Regulation Twelve, and when the matter was heard by the Department of Liquor Control, and the application rejected.

We hold that there is no statutory requirement that the applicant for a D-l or D-2 permit be the owner and operator of a restaurant at the time of filing the application for said permits, and that a proper construction of the statutes here under consideration shows that it was not the legislative intent to limit the right to file applications for D-l and D-2 permits only to the actual owners or operators of restaurants at the time of filing the application.

We, therefore, hold that the action of the Department of Liquor Control and the Board of Liquor Control, in rejecting the applications for the permits for the reason that the applicant was not an owner or operator of a restaurant at the time the applications were filed, has no statutory basis; is contrary to law; and is unreasonable.

The judgment of the Common Pleas Court is, therefore, affirmed.

GUERNSEY, J, GRIFFITH, PJ, concur.


author: By HORNBECK, J.

text:
    HENRY’S CAFE, INC., d. b. a. HENRY’S CAFE, Appellant-Appellee, v. BOARD OF LIQUOR CONTROL et, Appellees-Appellants.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5970.
    Decided January 6, 1959.
    Gregory C. Karas, Dayton, Charles T. Kaps, Columbus, for appellantappellee.
    William Saxbe, Atty. Geni., Chester Hummell,, Asst. Atty. Geni., Columbus, for appellees-appellants.
    (HORNBECK, J, of the Second District, sitting by designation in the Tenth District.)
   OPINION

By HORNBECK, J.

This is an appeal from a judgment of the Common Pleas Court modifying an order of the Board of Liquor Control revoking the permit of Henry’s Cafe, Inc.

The permit holder was charged with two violations of the Liquor Control Act and regulations of the Board of Liquor Control:

1. Allowing and conducting in and upon the permit premises, gaming or wagering on a game of skill or chance.

2. Knowingly or willfully allowing in and upon the permit premises, improper conduct, to wit, fights, brawls and disorderly conduct.

On the appeal to the Common Pleas Court, the trial judge found “that there was gambling and disorderly conduct on the permit premises.” That is to say, the evidence supported the finding of the Board of Liquor Control that there was gambling and disorderly conduct on the premises. The court further found that “the incidents which formed the basis for the two charges in this matter were the products of a scheme initiated by a third party who entered the premises and invited Henry Zochowski President of the appellant company, to engage in gambling with him for the purpose of winning money from said Henry Zochowski.”

Continuing, the entry in the Common Pleas Court “finds that the Board abused its discretion and that the order of the Board of Liquor Control should be, and the same is, hereby modified from a complete revocation of appellee’s permit as described above to a suspension of the same for forty-five (45) days.” The judgment of the Common Pleas Court was entered in conformity to its findings.

One error is assigned:

1. The Common Pleas Court erred in modifying the penalty imposed by the Board of Liquor Control upon finding that the charges upon which the hearing was had before the Board of Liquor Control were proven.

It is and must be conceded that the permittee was guilty of both violations with which it was charged.

The evidence in one view, the most favorable to permittee, is that one Hancock, with whom the President of the permittee company engaged in gambling and afterwards fought, was adept at the game of pool upon which they engaged, and that, in probability, Hancock inveigled the President into playing the game and gambling on its results. It is doubtful, indeed, if upon any view of the evidence, it may be said that Hancock was the aggressor in the fight which followed the gambling.

The sole question is, did the Common Pleas Court on the appeal from the Board of Liquor Control have the right to modify the order of the Board revoking permittee’s license after it had expressly found that the order of the Board as to the’ two charges alleged was supported by reliable, probative, and substantial evidence. The type of procedure and the authority of the Common Pleas Court on the appeal under consideration is conceded by the parties to be defined in the case of Andrews v. Board of Liquor Control, 164 Oh St 275, decided November 23, 1955, which case held contrary to Farrand v. State Medical Board, 151 Oh St 222, 85 N. E. (2d) 113, which opinion had been followed by this court for six years. The Andrews case was decided upon the premise that there had been substantial change in the statute which controlled the opinion in the Farrand case. We had taken the position in the Farrand case that the appeal to the Common Pleas Court, especially where new testimony was admitted in that court, took on the characteristics of an appeal on questions of law and fact. We were reversed in the Supreme Court, which held that it was an appeal on questions of law only. We discuss at considerable length the impact of the Andrews decision in the case of Burger, etc., appellant, v. Board of Liquor Control, et al., appellees, No. 5295, Franklin County, January 3, 1956, unreported. Although the Andrews case designates the appeal from the Board to the Common Pleas Court as a hybrid, the procedure, as it defines it, and the scope of the appeal is that which is now followed in an appeal on questions of law and fact.

It is interesting to note that effective October 4, 1955, almost two years after the decision in the Andrews case, the Legislature enacted §250Í.02 R. C., which specifically defines what cases are appealable on questions of law and fact. Ten such cases are set out, but no one of them includes the type of appeal here under consideration. This statute relates to appeals from courts of record inferior to the Court of Appeals. However, the record upon which the appeal on law and fact is submitted is almost identical with the procedure set out in §119.12 R. C. It is also interesting to note that the judgment which the Common Pleas Court was authorized to pronounce under the statute, as effective when the Farrand case was decided and when the Andrews case was decided, is that which is associated only with judgments on appeals on questions of law. Sec. 119.12 R. C.

The review in these cases is not strictly a de novo hearing, as pointed out by Judge Stewart in the opinion in the Andrews case, but it is the type of hearing provided on appeals on law and fact. Sec. 2505.21 R. C.

Inasmuch as the appeal of the agency relates to the construction of a statute, it could also assign as error an abuse of discretion by the Common Pleas Court in determining that the order of the Board of Liquor Control was not in accordance with law. Katz et al, d. b. a. Century Grill, v. Department of Liquor Control of Ohio, 166 Oh St 229. The appellant, here, elects to rely solely on the claim that the Common Pleas Court did not have the authority to modify the order of the Board of Liquor Control, having first found that the order was supported by reliable, probative, and substantial evidence.

There are two statutes involved; §§4301.25 and 119.12 R. C. Sec. 4301.25 R. C., provides:

“The board of liquor control may suspend or revoke any permit issued pursuant to Chapters 4301. and 4303. R. C., for the violation of any of the applicable restrictions of such chapters or of any lawful rule or regulation of the .board or other sufficient cause, and for the following causes: * * And, on appeal, §119.12 R. C.: * * * * * The court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and such additional evidence as the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law. In the absence of such a finding, it may reverse, vacate, or modify the order or make such other ruling as is supported by reliable, probative, and substantial evidence and is in accordance with law.”

Appellant cites Robert E. Olin v. Board of Liquor Control, unreported, No. 185,761, Common Pleas Court, Franklin County, decided January 22, 1953. It should be noted, however, that in this case, the trial judge merely held that it had “no alternative open to this court but to affirm the Board if we find that the order is supported by reliable, probative, and substantial evidence and is in accordarice with law.” (Emphasis ours.) The emphasized portion of the section was found in the cited case. It is not found in the instant case. Ganson v. Board of Liquor Control, unreported, No. 185,706, Franklin County Common Pleas Court, February 25, 1953, decided before the Andrews case in the Supreme Court, holds that “if the reviewing court finds from the record that the order is supported by reliable, probative, and substantial evidence, it has no power to reverse or modify.” Attention was especially directed to the conclusion that abuse of discretion was no longer a test on judicial review from orders of administrative agencies. This judgment was affirmed in this Court of Appeals and our opinion may have suggested that the overall reason of the trial judge is sound, but it is doubtful if we at any time held that under the law of the Farrant case, the Common Pleas Court could not reverse for abuse of discretion if it did not find that the record was suported by reliable, probative, and substantial evidence and was in accordance with law.

The case of Delmonte Cafe, Inc. v. Department of Liquor Control, 74 Abs 459, 460, where this court held that the Common Pleas Court on the appeal from the Board of Liquor Control “had no power under the statute to modify the penalty by reducing it from forty-five (45) days to fifteen (15) days,” is not parallel to the situation here presented. The Common Pleas Court in the cited case had found not only that the order from which the appeal was taken “is supported by reliable, probative, and substantial evidence” but also “is in accordance with law.” Upon the form of the order as made by the Common Pleas Court, that court was authorized to modify the order of the Board. It conforms to the syllabus in the Andrews case and, particularly, to the statement of Judge Stewart in the opinion at page 280 thereof:

“The court must read and consider all the evidence offered by both sides and must appraise all the evidence as to the credibility of the witnesses, the probative character of the evidence and the weight thereof. In other words, the court may reverse, vacate or modify the order of the agency, unless it finds that it ‘is supported by reliable, probative and substantial evidence and is in accordance with law.’ ”

The violations charged against the permittee were found, both by the Board of Liquor Control and by the Common Pleas Court, to have been committed. The Board was expressly authorized upon the finding of such violations to suspend or revoke the permit. Sec. 4301.25 R. C. Its order, then, was clearly in accordance with law. When the Common Pleas Court found that the order was supported by reliable, probative, and substantial evidence, its further finding that the penalty pronounced was contrary to law was inconsistent and unauthorized.

It is, therefore, our opinion that the court exceeded its authority in holding that the penalty pronounced was contrary to law and in modifying the order of the Board of Liquor Control. It should have been affirmed upon the earlier- finding. It will be so ordered.

Judgment reversed. Cause remanded with instructions to affirm the order of the Board of Liquor Control which was under review on the appeal of the permittee.

PETREE, PJ, BRYANT, J, concur.


author: By PHILLIPS, J. .

text:
    JOHNSON, Plaintiff-Appellant, v. MANNERS, a Minor, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3910.
    Decided October 9, 1957.

      Ralph R. Thombs, Youngstown, for plaintiff-appellant.
    William E. Pfau, William E. Pfau, Jr., Youngstown, for defendantappellee.
   OPINION

By PHILLIPS, J. .

Plaintiff appeals on questions of law from a judgment of the court of common pleas entered upon a jury verdict returned for defendant in her action against defendant, a minor, to recover damages for personal injuries/

Mahoning Avenue, a main thoroughfare of the city of Youngstown, extends in a general easterly and westerly direction within the corporate limits thereof and crosses Richview Avenue, the southerly portion of which, known as South Richview Avenue, dead ends at Mahoning Avenue about one hundred twenty-five feet west of the place where the northerly portion thereof, known as North Richview Avenue, dead ends at Mahoning Avenue.

North Brockway Avenue extends in a northerly direction from Ma-honing Avenue about one hundred twenty-five feet west of South Rich-view Avenue. Traffic moving on that street and Mahoning Avenue at that point is controlled by an automatic traffic signal light.

About 9:15 P. M. on February 28, 1955, plaintiff was in the act of crossing from the south to the north side of Mahoning Avenue at a place where an extension of the westerly sidewalk of South Richview Avenue would cross Mahoning Avenue at a time when the light controlling traffic at North Brockway and Mahoning Avenues indicated red. blocking traffic at North Brockway and Mahoning Avenue, when defendant allegedly operated his automobile in an easterly direction on Mahoning Avenue, allegedly against such traffic signal, into collision with plaintiff at a time when she was just approaching the mid-line of Mahoning Avenue, the vehicular travelled portion of which at that place was about forty feet wide.

Plaintiff objected to the following answer with reference to the speed of defendant’s car, and allowance thereof remaining in the bill of exceptions:—

“I am really no judge of speed, but he was going slow.”

Ruling on the objection the trial judge said, and we believe rightly:—

“No; strange as it may seem to you, I am going to allow that answer to stand. While he says he is not a judge of speed, that is a case of how the car appeared to be in motion to him, and I think it may remain. with an exception to the ruling.”'

Subsequently in the trial of the case a witness answered with reference to the speed of defendant’s car:—

“I don’t know any approximate speed, but he wasn’t going fast.”

Plaintiff’s counsel objected to the foregoing answer. Whereupon counsel for defendant said “it may be stricken,” and the trial judge added “I would have to sustain that.” Plaintiff’s counsel argues, erroneously we believe, that this was evidence of the fact that the trial judge should have sustained plaintiff’s objection to the former answer quoted supra.

In State v. Auerbach, 108 Oh St 96, syllabus 1, it is said:—

“It is a general rule that any person of ordinary intelligence, who has had an opportunity for observation, is competent to testify as to the rate of speed of a moving automobile; the qualifications of the witness to judge accurately going to the weight which the jury may give his testimony rather than to its competency. Unless an abuse of discretion appears in permitting an expression of such opinion, no prejudicial error intervenes.”

Under the assigned ground of “error of law appearing on the record prejudicial to the rights of the plaintiff which prevented her from having a fair trial and receiving substantial justice” plaintiff complains that the issue of contributory negligence, which she contends was not raised by the pleadings nor the evidence, was “interjected by the court at the instance of the defendant in his special requests to charge before argument,” which the court submitted to the jury, “and reiterated and reemphasized the contents” thereof “in his general charge.”

In the case of Centrello v. Basky, 164 Oh St 41, at page 47, the supreme court said:—

“This court has held in several instances that, even though the pleadings do not raise the issue of contributory negligence, if it arises in a case by virtue of the evidence, the court should charge on that subject. Bradley v. Cleveland Ry. Co., 112 Oh St 35, 146 N. E., 805; Fries v. Cincinnati St. Ry. Co., 138 Oh St 537, 37 N. E. (2d), 193; 29 O. Jur., 785, Section 234. Compare Schreiber v. National Smelting Co., 157 Oh St 1, 104 N. E. (2d) 4.”

Without setting forth here, in our opinion plaintiff’s testimony and that of her mother, Leola Rosser, raised the issue of contributory negligence.

In the case of Patton v. Pennsylvania Railroad Co., 136 Oh St 159, at page 165, the court said:—

“ ‘Surely it will not do for one to claim the right to recover simply because he has looked and did not see, if the conditions are such that, had he looked, he must have seen. When he says he did look, and the conditions establish the fact that any one who- looked would have seen, then, if he says he did not see, his own evidence establishes the fact that he did not look, though he may think he did.’ See, also, Cincinnati, N. O. & T. P. Ry. Co. v. Farra (6 C. C. A.), 66 F., 496; Erie Rd. Co. v. Hurlburt (6 C. C. A.), 221 F., 907.”

The trial judge submitted to the jury, over plaintiff’s objection, the following requests to charge before argument:—

“1. The legislature of the State of Ohio passed a statute which was in full force and effect on the day this accident happened. A part of that statute provided as follows: ‘Pedestrians shall not step into or upon a public road or highway without looking in both directions to see what is approaching.’ And I say to you as a matter of law that a violation of this statute is negligence per se or negligence in itself.
“2. The defendant, Richard Manners, had the right to assume, in the absence of knowledge to the contrary, that the plaintiff in this case, Leola Johnson, in attempting to cross Mahoning Avenue would act as a person of ordinary care and prudence and exercise ordinary care to make use of her senses of sight and hearing for her own protection.
“3. If you find from the evidence in this case that the view of the plaintiff, Leola Johnson,' from the curb to the west for vehicular traffic moving easterly on Mahoning Avenue at said time and place was somewhat obstructed by automobiles parked near the intersection and along the southerly side thereof, and you further find that the plaintiff attempted to cross said Mahoning Avenue at or near the intersection of South Richview Avenue and passed said parked cars, then I say to you as a matter of law that the plaintiff was charged with the duty of exercising ordinary care to make use of her senses of sight and hearing for her own protection as would a person of ordinary care and prudence.
“4. If you find from the evidence in this case that the plaintiff, Leola Johnson, in attempting to cross the street at the time and place in question failed to act as a person of ordinary care and prudence and failed to make use of her senses of sight and hearing for her own protection, and that such failure on her' part directly contributed in the slightest degree to cause this accident and her resulting injuries, then I say to you as a matter of law that the plaintiff cannot recover in this case and your verdict must be for the defendant, Richard Manners.
“5. If you find from the evidence in this case that the plaintiff, Leola Johnson, stepped into or upon Mahoning Avenue without looking in both directions to see what was approaching, then I say to you as a matter of law that the plaintiff would not have the right of way at this intersection.

Plaintiff contends that the submission of the above requests to charge was prejudicial to her because by such charges the trial judge said in effect that plaintiff crossed Mahoning Avenue at the time and place at her peril, and the trial judge usurped the province of the jury by specifying the nature of plaintiff’s conduct, and left the inference with the jury that automobiles parked in the vicinity of the place where she crossed Mahoning Avenue obscured her view and that she stepped out from behind them.

With reference to request to charge number one, the supreme court in the case of Wolfe, Admr. v. Baskin, 137 Oh St 284, said in the eleventh paragraph of the syllabus:—

“11. Under §6310-36 GC, a pedestrian who steps into or upon a public street without looking in both directions to see what is. approach-, ing is guilty of negligence per se.”

With reference to request to charge number two, the supreme court said in the case of Swoboda v. Brown, 129 Oh St 512, in the eighth paragraph of the syllabus:—

“One may rightfully assume the observance of the law and the exercise, of ordinary care by others, and action by him in accordance with such assumption in the absence of notice or knowledge to the contrary is not negligence.”

The cases of Beers v. Zettelmeyer, 155 Oh St 520, and Wolfe, Admr. v. Baskin, supra, dispose of plaintiff’s objection to charges numbered three and four.

Sec. 4511.01 K. C., disposes of request to charge number five in defendant’s favor.

On the ground that reasonable minds could draw no “reasonable inference of negligence on the part of the plaintiff” plaintiff complains that the verdict of the jury is “not supported by sufficient evidence,” and is “contrary to the weight of the evidence.” We do not so interpret the evidence.

Now plaintiff claims that the trial judge erred to her prejudice in his general charge to the jury by over-emphasis of the issue of contributory negligence referred to by plaintiff in two special requests submitted by her and charged by the trial judge: Plaintiff charges the trial judge erred to her prejudice by repeating unnecessarily the duty imposed upon plaintiff to look before starting to cross Mahoning Avenue; and erred in repeating defendant’s requests to charge before argument numbered 2, 3, 4 and 5; and erred in requiring of plaintiff a higher degree of care than that imposed upon her by law; and .erred in charging the jury that the “defendant was required to use ordinary care”; and erred in summarizing the issues in a confusing, conflicting and misleading manner.”

In 4 O. Jur. (2nd), Paragraph 993, Page 269, it is said:—

“In determining the question of prejudicial error in the instructions of the trial court to the jury the charge must be taken as a whole and the portion which is claimed to be erroneous must be considered in its relation to, and as affected by, the other parts of it. * * * If, from the entire charge, it appears that a correct statement of the law was given in such a manner that the jury could not have been misled, no prejudicial error can be held to have resulted. * * *
“Consequently, if the charge considered as a whole appears to be fair and proper and to state the law of the case correctly and in a way reasonably calculated to enable the jury to understand the rules of law which they are to apply to the evidence before them, the judgment will not be reversed because the language of some part of the charge may, if taken alone, be objectionable or subject to criticism, or because some clause, sentence, or paragraph standing by itself is erroneous, inaccurate, obscure, ambiguous, or misleading or confusing. Nor will the judgment be reversed, provided the parts excepted to are not in themselves calculated to mislead, because particular paragraphs fail to embrace every condition to a recovery or a defense, or fail to amount to a complete exposition of the law upon the subject with which it deals. * * *.
“But in any case, in determining whether the charge properly and sufficiently states the issues, consideration must be given to all that has been said to the jury, including the special charges given before argument, the general charge, and requested charges given in connection therewith.”

In the case of Centrello v. Basky, supra, in which this court was reversed, the supreme court said:—

“* * * what was said afterward was inadvertent and misplaced, but it was not, upon a consideration of the entire record and an examination of the general charge as a whole, as grevious or consequential as either the court of appeals or the plaintiff regarded it. Western Ohio Ry. Co., v. Faurburn, Admr., 99 Oh St 141, 124 N. E., 131; Ochsner, Admr., v. Cincinnati Traction Co., supra; Youngstown Municipal Ry. Co. v. Mikula, a Minor, 131 Oh St 171 1 N. E. (2d), 135.
“Of course, every litigant is entitled to a fair and properly conducted trial, and serious errors committed during the progress of a trial should be noticed and acted upon by a reviewing court, but, where it is apparent that the errors complained of are not so flagrant or important as to have patently influenced the result of the trial a reviewing court should be slow to interfere.”

On the two-issue rule the supreme court in the case of Centrello v. Basky, supra, at page 49, said:—

“Such rule is that, where a general verdict is returned for one of the parties, and the mental processes of the jury have not been tested by special interrogatories to indicate which issue was determinative of the verdict, it will be presumed that all issues were resolved in favor of the prevailing party. And where a single determinative issue has been presented free from error, error in presenting another issue will be disregarded. The Ohio cases expounding and applying such rule, beginning with Sites v. Haverstick, 23 Oh St 626, are numerous. Among them are Jones v. Erie Rd. Co., supra; Ochsner, Admr., v. Cincinnati Traction Co., 107 Oh St 33, 140 N. E., 644; Knisely v. Community Traction Co., 125 Oh St. 131, 180 N. E., 654; Leonardi v. A. Habermann Provision Co., 143 Oh St 623, 56 N. E. (2d), 232; Bush, Admr., v. Harvey Transfer Co., 146 Oh St 657, 67 N. E. (2d), 851.”

Plaintiff complains in her seventh assigned ground of error in a case in which she argues that “the facts in this case are simple and few, and with one or two exceptions were not much in conflict on the trial,” and that the trial judge erred to her prejudice by refusing “to supplement the general charges requested by the plaintiff.” We do not so conclude.

We find no error prejudicial to plaintiff in the respect charged in this assigned ground of error.

The judgment of the court of common pleas is affirmed.

NICHOLS and GRIFFITH, JJ, concur.


author: By FISHER, J.

text:
    GUIDA et, Plaintiffs, v. THOMPSON et, Defendants.
    Common Pleas Court, Tuscarawas County.
    No. 32630.
    Decided April Term, 1957.

      Van Blanchard,- Coshocton, for plaintiffs Victor J. Guida et.
    Raymond C. Rice, Leslie R. Early, New Philadelphia, for defendants Wm. Thompson et.
   OPINION

By FISHER, J.

This is an action for a declaratory judgment for the interpretation of four deeds, a mortgage, lease and mechanics lien involving real property consisting of about 82.50 acres in Tuscarawas County, Ohip, and determining the rights and interests of the various parties and claimants therein.

In order to properly understand the various legal complications involved, the factual situation should first be summarized. In 1949 John M. Thompson executed a warranty deed for the real property above mentioned to Carl M. Thompson and Mary L. Thompson, and Raymond T. Thompson and Lois P. Thompson, and the heirs of their bodies, with the following significant recitations: “Know All Men by These Presents, That John M. Thompson, widower, the Grantor, for the consideration of One Dollar and other valuable considerations — ($1.00) received to my full satisfaction of Carl M. Thompson and Mary L. Thompson and Raymond T. Thompson and Lois P. Thompson, and the. heirs of their bodies, the Grantees, do give, grant, bargain, sell and convey unto the said Grantees, their heirs the following described premises, situated in the United States Military District, County of Tuscarawas and State of Ohio:” * * * “leaving hereby conveyed 82.50 acres.” * * * “It is agreed that Carl M. Thompson and Mary L. Thompson are to occupy the east side of the farm and Raymond T. and Lois P. Thompson are to occupy the west side of the farm hereby conveyed, the line between the two parts of the farm to be agreed upon between all the parties of interest. Deed to John M. Thompson recorded in Vol. 214, page 391, of the Tuscarawas County deed records, be the same more or less, but subject to all legal highways. TO HAVE AND TO HOLD the above granted and bargained premises, with the appurtenances thereof, unto the said grantees, their heirs forever. And I, the said Grantor, do for myself and my heirs, executors and administrators, covenant with the said Grantees, their heirs, that at and until the ensealing of these presents, I am well seized of the above described premises, as a good and indefeasible estate in FEE SIMPLE, and have good right to bargain and sell the same in manner and form as above written, and that the same are free from all incumbrances whatsoever, and that I will WARRANT AND DEFEND said premises with the appurtenances thereunto belonging to the said Grantees, their heirs and, against all lawful claims and demands whatsoever. In Witness Whereof, I have hereunto set my hand, the 3rd day of November, in the year of our Lord one thousand nine hundred and forty-nine. John M. Thompson” (signed) * * *.” (Emphasizing throughout deeds ours, indicating typewritten words on printed form; and signature of John M. Thompson being in handwriting.) The deed was prepared on a printed form filled in by typewriter.

In 1953 the said John M. Thompson executed a quitclaim deed to the said Carl, Raymond, Mary and Lois Thompson for the same premises with the following significant recitations: “have given, granted, remised, released and forever quit claim and do by these presents absolutely give, grant, remise, release and forever quit claim unto the said grantees their heirs and assigns forever, all such right and title as I, the said grantor, have or ought to have in and to the following described piece or parcel of land, situated in the Township of Mill, County of Tuscarawas and State of Ohio:

“(Same description as refered to in'Exhibit ‘B’, supra)
“The purpose of this-deed is to correct a warranty deed, 30847, dated November 3, 1949, recorded in Vol. 307, p. 367, Deed Records, Tuscarawas County, Ohio, wherein the scrivener of said deed inadvertently added after the names of the grantees the following words, ‘and the heirs of their bodies,’ when it was the intention of the grantor to convey fee simple title to the grantees named herein without any reservation or restriction.
“To have and to hold the premises aforesaid with the appurtenances thereunto belonging to the said grantees, their heirs and assigns, so that neither the said grantor nor his heirs nor any other person claiming title through or- under them, shall or will hereafter claim or demand any right or title to the premises or any part thereof; but they and everyone of them shall by these presents be excluded and forever barred.”

In 1954 the said Carl, Mary, Raymond and Lois Thompson executed a warranty deed to Victor J. Guida and Rose J. Guida conveying “unto the said grantees their heirs and assigns forever” 5.018 acres out of the aforesaid 82.50 acre tract.

On March 12, 1955, the Guidas executed a mortgage to the Gnadenhutten Bank on a part of said 5.018 acre tract, and other premises, to secure the payment of $15,000.00. This mortgage was recorded March 29, 1955.

On March 1, 1955, the Guidas executed a lease to the Cities Service Oil Company on a part of said 5.018 acre tract, which lease was recorded May 6, 1955. The lessors subsequently assigned their interest in this lease to Central National Bank of Cleveland to secure an obligation for $13,000.00 dated May 3, 1955.

On June 8, 1955, Furbay Electric Supply Company perfected a mechanics lien on a part of said premises last described as security for $966.82, recorded July 12, 1955.

On October 15, 1955, the said Carl, Mary, Raymond and Lois Thompson executed a standard fee simple deed to Joseph Guida and Mary Guida for the balance of said 82.50 acre tract, which was recorded October 21, 1955.

The said John M. Thompson died on the 2nd day of March, 1955, leaving surviving him two sons, Carl M. Thompson and Raymond T. Thompson and other children named in the petition, and also children of the said Carl M. Thompson and Mary L. Thompson, and of Raymond T. Thompson and Lois P. Thompson, also named in the petition.

The issues are made up by the petition of the plaintiffs, Victor and Rose Guida, Carl and Mary Thompson, Raymond and Lois Thompson and Joseph and Mary Guida, seeking to have the respective interests acquired by them to be declared estates in fee simple; the answers of William Thompson, Charles Thompson, Harry Thompson, Edward P. Thompson and Betty Garner, brothers and sisters of said Carl M. Thompson and Raymond T. Thompson, seeking to have the original grant by the 1949 deed declared an estate in fee tail; the answer of James S. Patrick, guardian ad litem and trustee for born and unborn issue of the bodies of Carl M. Thompson and Mary L. Thompson, husband and wife, and Raymond T. Thompson and Lois P. Thompson, husband and wife, asking the Court to protect their interests in the suit; the answer of Furbay Electric Supply Company, Central National Bank of Cleveland, and the Gnadenhutten Bank setting up their respective interests and asking that they be protected.

It is the contention of the petitioners (1) that notwithstanding the 1953 quitclaim deed from the original donor, John M. Thompson, to the original donees, Carl, Mary, Raymond and Lois Thompson, the effect of the 1949 deed was to grant and convey to said donees a fee simple estate in the 82.50 acre tract described therein; and, (2) if the 1949 deed does not have that effect, the estate tail vested by it in said donees was enlarged into an estate in fee simple by the 1953 deed.

The contestants contend that the 1949 deed had the effect of conveying a fee tail estate from John M. Thompson to the said Carl M. Thompson and Mary L. Thompson, Raymond T. Thompson and Lois P. Thompson, donees in tail, and the heirs of their bodies; and that the 1953 quitclaim or corrective deed did not have the effect of enlarging the fee tail estate created by the 1949 deed into an estate in fee simple.

The primary question therefore involved in this suit is whether by the deeds of John M. Thompson, the original donor, executed by him in 1949 and 1953, the grantees, Carl M. Thompson and Mary L. Thompson (husband and wife), and Raymond T. Thompson and Lois P. Thompson (husband and wife), became vested with an estate in fee simple or with an estate in fee tail in the real property described in said deeds. To understand the question better it should be pointed out that the 1953 quit-claim deed, according to the recitations therein, was for the purpose of “correcting” the 1949 deed by making it appear that the words “and the heirs of their bodies” were inadvertently inserted therein when allegedly it was the intention of the grantor to convey to said grantees a fee simple title in said premises.

Oral evidence was offered by some of the defendants in an attempt to throw light upon the intention of the parties when the 1949 deed was executed, the value of which is doubtful, as the Court, in construing this instrument and its legal effect must be guided by fundamental rules of construction recognized by our courts, the first of which is that the intention of the parties as expressed in the deeds shall be given effect, if at all possible. In other words, as stated in section 81 on deeds, 17 O. Jur. (2d); “At law, a deed is conclusively presumed to express the intention of the parties, and the court must seek for the real meaning intended to be expressed by the language used in the deed, * * * the question being not what the parties meant to say, but the meaning of what they did say.” (Larwill v. Farrelly, 8 Oh Ap 356.) Furthermore, deeds are to be construed as a whole in arriving at the intention of the parties, that is, each part must be construed with reference to every other part thereof. (17 O. Jur., [2d], Section 82.) It is universally conceded in English and American Jurisprudence that an absolute fee simple estate is the entire interest in the land, with infinite duration, and inheritable by the collateral as well as the lineal heirs of the person having such estate; whereas an estate in fee tail is one restricted in its course of descent at law to certain heirs, namely, those of the body. The first matter for consideration is, therefore, whether the 1949 deed conveyed a fee simple or a fee tail estate. If that can be determined from the language of the instrument itself, resort to the oral evidence in the case will‘be unnecessary; and if the 1949 deed conveyed a fee simple estate, then it would also be unnecessary to consider the effect of the 1953 deed.

The word “heirs” was necessary to create a fee simple estate by deed at common law, but in 1925 a statute was enacted in Ohio, §5301.02 R. c., declaring that words of inheritance or succession are not necessary to create an estate in fee simple and that every grant or conveyance shall be construed to pass the whole estate or interest unless it clearly appears by the deed that the grantor intended to convey a less estate. (20 O. Jur. [2d] 237.) The usual form of conveyance in fee simple is a grant “to A and his heirs and assigns forever,” and one of ohe incidents of such an estate is the power of unlimited alienation. However, in a fee tail estate the course of descent is usually restricted to the heirs of the donee’s body. The form most generally used is “to A and the heirs of his body.” Thesé latter estates are of common law origin, having derived their existence from the statute de donis which had the effect of making them inalienable where the limitation was to some particular heir or class of issue of the grantee instead of to the general heirs. If there were no heirs of the class to whom the estate is limited, the property reverted to the donor. (19 Am. Jur. 508-509; Pollock v. Speidel, 17 Oh St 439.) If the donee in tail died leaving heirs of the class to whom the estate was limited by the grant, as heirs of the body, it passed to them in fee simple by operation of law. (Sec. 2131.08 R. C.) Thus, where lands were conveyed by deed “to A, the heirs of his body, and assigns, forever,” A took an estate tail. (Pollock v. Speidel, supra; Dungan v. Kline, 81 Oh St 371.)

A fee tail must not, however, be confused with a life estate. Although its endurance is only for the life of the donee in tail, it has certain attributes of a fee simple estate that a life estate does not have, chief among which is that the fee is vested by the grant in the first donee in tail and passes from him upon his death to the immediate heirs of his body in fee simple; whereas in life estates the fee is vested in the remainderman and not in the life tenant.

Parole evidence being inadmissible to contradict or change the legal effect of a deed (17 O. Jur. [2d] 240), in determining the nature of the estate conveyed by such instrument resort must be made, if possible to the operative words used therein by the donor. • While such words are necessary, it is sufficient if they are found in any part of the deed, and are so used as to express the intention of the donor. (6 Thompson, page 417.) The phrase in the 1949 deed “received to my full satisfaction of Carl M. Thompson and Mary L. Thompson and Raymond T. Thompson and Lois P. Thompson and the heirs of their bodies, the grantees, do give, grant, bargain, sell and convey unto the said grantees, their heirs,” with the next two words “and assigns” stricken out, contains the attributes of a fee tail grant. Although the habendum and warranty clauses of the deed use the words “their heirs” with the words “and assigns” stricken out, they can be reconciled with the granting clause as indicating “heirs of their bodies.” In 17 O. Jur. (2d) page 205 it is stated: “The habendum clause may make definite a granting clause as to the time for which the grant is made, or explain or qualify the term ■heirs’ in the granting clause so as to limit the grant to the issue of the grantee * *

The very fact that the words “and assigns” are stricken out of the granting, habendum and warranty clauses in the deed as above indicatecl, shows an intention to restrict the alienation of the estate by the grantees so that their heirs cannot be deprived of their inheritance. This is consistent with a fee tail grant. In re Jones estate, decided by the Third District Court of Appeals in. 1943, 44 Abs 339, where the granting clause in the deed recited that the premises were conveyed to “Thomas T. Jones and heirs of his body,” and the habendum clause recited that it was for the use of “Thomas T. Jones, his heirs and assigns forever,” and in the warranty clause it was recited “Thomas T. Jones and his heirs of his body,” the Court, in applying the well known rule of construction that typewritten phrases are given effect over printed phrases if there is any inconsistency between them, held that the grant entitled ’Thomas T. Jones as the first tenant in tail to full enjoyment of all the rights and subject to all the disabilities incident to that species of estates, and upon his death the right of entry accrued to the issue of his body with an estate absolute in fee simple. There is nothing in the policy of the law to discourage estates in fee tail other than the court rule that where the language of the instrument conveys equally well two different estates, that construction will be placed upon it which will confer an estate in fee simple in preference to an estate tail. (Darling v. Hippel, 12 O. C. D. 754.) The language of the 1949 deed is definitely inconsistent with a fee simple grant.

Another argument advanced by plaintiffs, that by the form of the grant it would appear that the heirs of the bodies of Carl M. Thompson and Mary L. Thompson and Raymond T. Thompson and Lois P. Thompson were intended by the donor to have a present estate in and to the premises. That such was not the intention of the donor is borne out by the agreement clause of the deed, to-wit: “It is agreed that Carl M. Thompson and Mary L. Thompson are to occupy the east side of the farm and Raymond T. Thompson and Lois P. Thompson are to occupy the west side of the farm hereby conveyed, the line between the two parts of the farm to be agreed upon between all the parties of interest.” It is a well settled proposition of law in American and English Jurisprudence that the words “heirs of their bodies” do not refer to specific grantees or purchasers under an instrument, but that their interest is the bare possibility of eventually becoming heirs, the maxim being “Nemo est haeres viventis” (No one is the heir of a living person). (Dungan v. Kline, 81 Oh St 371, 384; Pollock v. Speidel, 27 Oh St 86.) Such heirs have no immediate estate as they take by inheritance, not by purchase. (20 O. Jur. (2d) 284-285.)

Applying these rules of construction it is the view of the Court without necessity of resorting to oral evidence that the 1949 deed in question vested in Carl M. Thompson and Mary L. Thompson and Raymond T. Thompson and Lois P. Thompson an estate tail in the 82.50 acres therein conveyed. The question then arises whether the 1953 quitclaim deed from the original donor, John M. Thompson, to these donees in tail had the effect of enlarging their estate tail into a fee simple estate and thereby enabling them to defeat the inheritance of their issue to the real property conveyed.

To determine the effect of the 1953 quitclaim deed requires an examination of statutory law and its interpretation by the courts. It is apparent from the language of this deed that it was the intent of the donor, John M. Thompson, to vest an estate in fee simple to the property conveyed in Charles M. Thompson and Mary L. Thompson, and Raymond T. Thompson and Lois P. Thompson, but the question arising is whether the donor, after his execution of the 1949 deed, had such an estate or interest in the property conveyed that he could do this. Sec. 2131.08 R. C., provides: “All estates given in tail, by deed or will, in lands or tenements lying within this state, shall be and remain an absolute estate in fee simple to the issue of the first'donee in tail. * * *>> This statute abrogated the common law rule under the statute de donis, although generally speaking many of the common law attributes were retained through interpretation: Thus in Pollock v. Speidel, 17 Oh St 439, the court stated: “We agree with counsel for the defendant that the words ‘heirs of his body’ used in the conveyance to James Pollock, are words of limitation, not of purchase; and that his issue take, not as purchasers, but by descent; but this is to be understood as meaning that the issue takes the estate ‘as an estate of inheritance and as being of the prescribed line of issue or inheritance, and not by direct descent from his immediate ancestor; since he takes, per formam doni from the person who first created the estate.’” This statement of the law is a little better clarified in the fourth syllabus which states: “Though the issue, in such case, take by descent, yet the tenant in tail is not the source of their title; they take, per formam doni, from the person who first created the estate, and are therefore not estopped by the deed of the tenant in tail.”

Under authority of the Pollock decision, supra, which has never been overruled, the first tenant in tail cannot by a sale and conveyance bar the en-tail or deprive his issue of the right of succession to the inheritance. In Hoppes v. Red Cross, 71 Abs 259, it was held:

“The donee of the estate in fee tail preserved for the lifetime of the first taker only, has both the privilege and the power to create any interest in the land which could be created by a person having an estate in fee simple absolute. However, any interest so created may be defeated, upon the death of the donee in tail, by the persons entitled after the donee under the limitation which created the estate. This characteristic holds true whether the first donee in tail purports to convey an estate in fee simple absolute, or an interest given as security in the form of a mortgage, or an interest to be held in trust, and whether the conveyance is voluntary or involuntary.” (Restatement, Property, Vol. I, section 89; Hausser on Real Property, page 206.) It seems apparent from these authorities that the characteristics of the title of the tenants in tail are such that they cannot convey an estate in the property which will endure beyond their lifetime if their issue assert their rights.

It is contended by plaintiffs that the effect of the 1953 deed is to combine the reversion in expectancy of the donor with the “condition” of the fee tail created by the 1949 deed and thereby invest the first donees in tail with an estate in fee simple absolute. Such a result could have been accomplished under the fee simple conditional estate practice recognized under the common law prior to the statute de donis. Thus, in a grant to A and the heirs of his body, upon the birth of issue to A as contemplated by the grant the condition was discharged and the estate was supposed to become absolute like a fee simple in the grantee. To abrogate this practice which enabled the donee in tail to bar his own issue, the statute de donis was enacted in England in 1285. (19 Am. Jur. 498.) The effect of this statute was to abolish fee simple conditional estates, and the interest of the grantee thereafter became an estate tail or fee tail, which became inalienable in the hands of the donee in tail.

While the possibility of reversion on failure of issue remaining in the donor is not an estate, there is authority to the effect that the donor can release it to the person holding the intermediate estate, the first donee in tail. But this does not have the effect of converting the estate tail into an estate in fee simple in the hands of the first donee in tail so as to enable him to alien it in fee simple to a third person and thereby defeat the heirs of his body from acquiring it by descent upon his death. In Harkness v. Corning, 24 Oh St 427, it was held that: “It was intended by the statute to restrict the entailment to the immediate issue of such donee, and on the determination of his interest in the estate, and of such rights as the law annexed to it while held by him, to enlarge the estate tail in the hands of such issue into an absolute estate in fee simple.” The same effect was intended by the statute de donis of making estates inalienable where the limitation was to some particular heir or class of issue of the grantee instead of to the general heirs. (19 Am. Jur. 508.) The only probable effect of an original donor’s release of his reversion expectancy to the donee in tail would be to defeat donor’s possibility of reversion in event the donee should die without issue and thereby vest the estate in the donee’s general heirs in fee simple.

Plaintiffs cite the Vine Street Congregational Church opinion by Judge Gorman of Cincinnati, 20 Ohio Dec. 573, as authority supporting their position. It must be borne in mind, however, that the Vine Street Church case involved an estate upon condition subsequent, and that Judge Gorman’s opinion, able and exhaustive as it is, deals almost exclusively with conditional estates and not with fee tail estates. In the third syllabus of this decision it is stated: “The grantor in a deed which conveys a fee simple title subject to the happening of a condition (which might never happen) whereby title was to revert to grantor or his heirs or assigns on the happening of such condition, has an interest or right in such title that he can release to the owner of the conditional fee who is in possession before condition broken; and the ordinary form of quitclaim deed is sufficient to effect such release.” We do not see where this decision has any application whatsoever to the issues in the instant case, as estates on condition are subject to be defeated upon the happening or failure of some subsequent condition or event. The condition must be annexed to the conveyance and is usually considered valid if not repugnant to the grant, or if not against public policy. (20 O. Jur. 350: 19 Am. Jur. 522.) No such provision or conditions appear in the 1949 deed. In a fee tail estate the possibility of reverter to the original donor is that the donee in tail die without issue. In the instant ease the tenante in tail are living and have issue.

Do Carl M. Thompson and Mary L. Thompson, and Raymond T. Thompson and Lois P. Thompson, the donees in tail, have such an interest in the property that notwithstanding the possibility of reverter was released to them by the 1953 deed of John M. Thompson, the original donor, they can alienate the premises in fee simple so as to defeat the possibility of inheritance of their issue? This is the crux of the matter. As just pointed out, under the common law fee simple conditional practice before the statute de donis, that could have been accomplished, but we have yet to find a single modern authority to the effect that in Ohio an estate tail can be enlarged into an estate in fee simple absolute through the release by the original donor of his possibility of reversion to the donee in tail. The trend of Ohio authorities seems to be otherwise.

There have been various methods by which entailments were barred or destroyed in the past because the courts did not regard entailments with much favor; but as fast as the courts devised disentailing methods, the legislative authorities would legislate against them. In 31 C. J. S. 36 are stated some of the methods employed at one time or another in various jurisdictions to defeat entailments, chief among which were: (1) Common recoveries and fines, not recognized in Ohio, and (2)- provisions in the instrument creating the entail, which are recognized in Ohio, and practically all jurisdictions.

A common recovery is defined in 19 Am. Jur., page 510 as “a conveyance on record, a fictitious proceeding invented to give a tenant in tail an absolute power to dispose of his estate in fee simple.” It is unknown in Ohio. (20 O. Jur. r2d], 293.) A near approach to it is the attempt of the original donor in these proceedings to vest an estate in fee simple in the tenants in tail by his quitclaim deed of 1953, and the subsequent conveyances by the donees in tail to the Guidas, but can the original donor change the form of the gift once it has vested as an estate tail by a previous transfer when no estate remains in him? By the form of the gift the donees took the entire estate for themselves and the heirs of their bodies. The donor had nothing left which he could grant —only a possibility of reverter which could be released to the donees in tail, but which could not defeat the inheritance of their issue.

Notwithstanding the faet that the fictitious proceedings of fines and common recovery resorted to at common law to defeat entailments have never been recognized in Ohio, the donor may, nevertheless, reserve that power in the entailment instrument. In 19 Am. Jur., page 511, it is stated: “In the absence of statute a conveyance in fee by a tenant in tail can affect his interest only and is ineffective to bar the issue in tail or affect the remainder expectant on the estate in tail. The donor of the estate in tail, however, in the instrument creating the estate, may empower the donee in tail to convey the fee simple and thus bar the entail. The donor may also reserve to himself the power to convey and bar the entail.” Subsequently the same statement appears in annotated cases 1912 B on Page 57. It is significant that these statements of the law are taken from Ohio decisions, notably Aiken v. Spillman, 4 O. N. P. 297, 6 Ohio Dec. 409, and Yoder v. Ford, 10 Ohio Dec. reprint 475. It is self-evident therefore that had John M. Thompson, the original donor, reserved this power in the 1949 entailment deed, the 1953 deed would have effectively barred the entail, but no such power was reserved.

Just what application §2131.06 R. C., may have in. such a situation has never been determined by our courts. This section is comparatively new, having been adopted January 1, 1932, and provides: “An expectant estate cannot be defeated or barred by any transfer or other act of the owner of the intermediate or precedent estate, nor by any destruction of such precedent estate by disseizen, forfeiture, surrender, merger, or otherwise; but an expectant estate may be defeated in any manner which the party creating such estate, in the creation thereof, has provided for or authorized. An expectant estate thus liable to be defeated shall not, on that ground, be adjudged void in its creation.” It is not essential that this Court determine whether or not this statute is applicable, but inasmuch as the interest of the issue of the donees in tail has the characteristics of the expectancy of an heir, the statute would appear to be applicable. It is interesting to note, therefore, that this statute embodies the judicial principles declared by our courts in the Aiken and Yoder cases, supra. Thus, it appears that the interest of the donees in tail is such that they cannot convey an estate in the property that will endure beyond their own lives. (20 O. Jur. [2d] 288.) In Hausser’s Real Property, at page 263 it is stated: “The inability of the first donee in tail to transfer interests continuing beyond his lifetime against the wishes of the persons entitled to take after his death, is indicative of the law of Connecticut and Ohio.” However, this does not mean that the donees in tail cannot, alienate their interests in the property during their own lifetimes. In Vol. I, Restatement of Law of Property, Section 89, it is provided as follows: “A person who has an estate in fee tail preserved as such, for a single lifetime only, has both the privilege and the power to create any interest in the land so held which could be created by a person having an estate in fee simple absolute therein, except that the interest so created may be defeated upon the death of the conveyor by the persons entitled after such conveyor, under the form of limitation which created the estate in fee tail.” The “persons entitled after the conveyor” within the meaning of that phrase as used in Section 89 supra, are the issue of the first donees in tail. Such interests created by the donees in tail do not, however, automatically terminate with their death, but, after their death become defeasible by the persons .entitled thereto in fee simple, which are their issue. (See Section 95, Vol. I, Restatement on Property.)

What are the rights of creditors? The rule laid down in Section 90 (b) Restatement, supra, is that when a debtor has no interest in land except an estate in fee tail reserved as such for a single lifetime only, a creditor cannot secure in satisfaction of his claim an indefeasible interest in such land for longer than the lifetime of the debtor. The interest in such land so obtained includes, for the duration of the debtor’s life, the privilege to make all uses of the land which the debtor himself could lawfully make. The “debtor” above referred to is the tenant in tail, but it stands to reason that those holding under the tenant in tail have no greater interest in the land than a tenant could convey and that the rule operates upon them in like manner.

This does not mean that Carl M. Thompson and Mary L. Thompson, and Raymond T. Thompson and Lois P. Thompson, the tenants in tail, or those claiming under them, have no immediate remedy should they desire to exercise it during the lifetime of the tenants in tail. We have a disentailment statute which authorizes courts of common pleas t© order the sale of such estates upon proper application when satisfied that the sale would be beneficial and would do no substantial injury to the heirs in tail. The statute referred to is §5303.21 R. C., which provides: “In an action by the tenant in tail or for life, or by the grantee or devisee of a qualified or conditional' fee, or, of any other qualified, conditional or determinable interest, or by a person claiming under such tenant, grantee, or devisee, or by the trustee or beneficiaries, if the estate is held in trust, courts of common pleas may authorize the sale of any estate, whether it was created by will, deed, or contract, or came by descent, when satisfied that such sale would be for the benefit of the person holding the first and present estate, interest, or use, and do no substantial injury to the heirs in tail, or others in expectancy, succession, reversion, or remainder. This section does not extend to estates in dower.” It is to be noted that this is an old statute, having been in effect in 1867 when the Pollock v. Speidel case, supra, was decided, and with respect to which the Supreme Court in that case had this to say: “Various provisions in this act evince the sedulous care with which the rights of those who are entitled to the inheritance, after the first donee in tail or for life, have been guarded; and the whole act evidently proceeds on the idea that, without such legislation, the first donee in tail could not sell and convey the estate in fee simple.” It is therefore apparent that by statutory fiat and its interpretation by the Supreme Court of this state the donees in tail herein were without legal authority to make conveyances of the premises described in the 1949 and 1953 deeds which would endure beyond their own lives except by compliance with said statutory provisions.

It is the conclusion of the Court that:

(1) The 1949 deed from John M. Thompson to Carl M. Thompson and Mary L. Thompson, and Raymond T. Thompson and Lois P. Thompson, conveyed a fee tail estate.

(2) The 1953 deed did not have the effect of enlarging this fee tail estate into an estate in fee simple.

(3) All persons holding under Carl M. Thompson and Mary L. Thompson, and Raymond T. Thompson and Lois P. Thompson, the tenants in tail, have no greater interest or estate than such tenants’ themselves have, and are therefore limited in their enjoyment or possession of said premises to the lifetimes of said tenants in tail.

(4) Upon the death of said tenants in tail their issue become vested with an absolute estate in fee simple in the premises.

(5) Upon the decease of said tenants their issue are not estopped by any act of the tenants in tail in alienating said premises.

(6) The lessees and creditors have no greater rights than the tenants in tail themselves have.

(7) Disentailment may be effected only by proceedings under §5303.21 R. C,


author: By BRYANT, J.

text:
    UNION BUILDING & CONSTRUCTION CORP., Appellant, v. BOWERS, Tax Commissioner, Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5943.
    Decided December 9, 1958.
    Carlton S. Darguseh, Carlton S. Dargusch, Jr., Jack H. Bertsch, Columbus, for appellant.
    William Saxbe, Atty. Geni., John M. Tobin, Asst. Atty. Geni., Columbus, for appellee.
   OPINION

By BRYANT, J.

The Union Building & Construction Corp., a foreign corporation organized under the laws of New Jersey, herein called “Construction Corp.,” has appealed to this court from a final order of the Board of Tax Appeals.

From the record, it appears that a tax department examiner conducted an audit of the records of the Construction Corp. and also the records of the Union Building & Equipment Corp., also organized under the laws of New Jersey, herein called “Equipment Corp.,” the Equipment Corp: being a wholly owned and operated subsidiary of the Construction Corp.

As a result of these audits, Stanley J. Bowers, Tax Commissioner of Ohio, appellee herein, made an assessment against the Construction Corp. of $1,626.28 for delinquent sales tax and penalty, and also an assessment of $13,523.73 for delinquent use tax and penalty, being a total of $15,150.01.

The Construction Corp. filed a petition for reassessment which came on for consideration before appellee. The ground for objecting to the sales tax assessments was that the items in question were used or consumed directly in the production of tangible personal property for sale by manufacturing and processing under the provisions of §5739.01 R. C.

There were four objections to the use tax assessment as follows: d) Rentals from the Equipment Corp. to the Construction Corp. were “merely intercompany charges between a parent corporation and its wholly-owned subsidiary” and were without consideration; (2) The Equipment Corp. did not intend to use the equipment in Ohio at the time it was purchased and therefore the so-called rentals are not taxable; (3) Rental items in question also represent casual rentals and (4) Said items were used or consumed directly in the production of tangible personal property for sale by manufacturing and processing in accordance with §5741.01 R. C.

Some idea of the nature of the operation giving rise to the various assessments may be gained from a report of Wayne W. Rouch appearing in the file in this case on form 807-C, which is as follows:

“Prime contractor on New Route 40 from Springfield, Ohio to Enon Road West of Springfield, including a portion of new Valley Pike.
“Bulk in assessment includes rental equipment by invoice from Union Bldg, and Eqpt. Company to Union Bldg, and Construction Corp. for Months Aug., Sept, and Oct. 1956 according to billing and job cost on project No. 253 of State of Ohio Highway Department.
“Other items include tires and such as billed direct to the home office Passaic, N. J.
“Equiptment (Equipment) parts as purchased in the State and out of the State, including Tools wire Rope used on Heavy Equiptment (Equipment). (Words in parenthesis added.)
“Plumbing Electric wiring as used in office’s Mobile Office units and Bldg, used for repair parts and maintenance.
“Mobile Office Units invoiced from Union Bldg, and Construction Corp. listed as purchased from Mobile Office Inc. plus delivery charge.
“Local rental Eqpt with out operator and rough Hardwood lumber used as bins for separation of Gravel and sand for use in concrete mixer storage.
“The large portion of invoices in file were billed to State of Ohio Department of Highway % of Union Bldg. & Construction Corp. one reason a number of invoices did not show Sales Tax.”

The Tax Commissioner overruled the several objections made by the Construction Corp. and affirmed the assessments but allowed conditional remission of the penalties. This final order of the Tax Commissioner was appealed to the Board of Tax Appeals. In connection with the appeal to the Board of Tax Appeals the parties agreed to the following stipulation:

“It is agreed by and between the parties hereto and their counsel that the following shall be considered as the facts for purposes of this case:
“1. Union Building and Construction Company is a New Jersey corporation engaged in the business of constructing highways, principally in eastern seaboard states, and is qualified to do business in Ohio, with its principal place of business in this state at Valley Pike and Enon Road, Springfield, Ohio.
“2. Union Building and Equipment Company is a New Jersey corporation whose function is to hold title to construction machinery, equipment and repair parts, and to ‘rent’ these items to Union Building and Construction Company. Union Building and Equipment Company is a wholly owned and operated subsidiary of Union Building and Construction Company, and the two corporations have the same officers and board of directors.
“3. The ‘rentals’ from Union Building and Equipment Company to Union Building and Construction Company were of items of construction machinery, equipment and repair parts and were originally purchased by Union Building and Equipment Company with no intention that the machinery and equipment would be used in any particular state.
“4. Union Building and Construction Company has not carried on any operation in Ohio excepting for highway construction on new Route 40, west of Springfield, such construction having begun in July of 1956, and continuing to the present time. The machinery, equipment and repair parts for this operation were ‘rented’ by Union Building and Construction Company from Union Building and Equipment Company, and are the same as are here in issue.
“5. At the times the machinery, equipment and repair parts in question were transferred from Union Building and Equipment Company to Union Building and Construction Company, there was no payment of money. Union Building and Equipment Company entered on- a memorandum of account a debit in a specific amount against Union Building and Construction Company for the ‘rental’ of equipment so transferred, and The Union Building and Construction Company entered on a memorandum of account a credit to Union Building and Equipment Company in a specific amount for the ‘rental’ of equipment so transferred. The memoranda of account above referred to were kept in the usual course of business by both the equipment and construction companies, but the entries on these memoranda were not and have not been entered on the books of the companies.
“6. Subsequently, Union Building and Equipment Company determined to cancel the ‘rentals charges’ and accordingly the credits and debits were cancelled on June 1, 1957.
“7. Insofar as may be material, if the Treasurer of Union Building and Construction Company and Union Building and Equipment Company, Mr. James A. Slater, were called to testify, he would state that the purposes in having title to machinery, equipment and repair parts held by Union Building and Equipment Company and ‘rented’ to Union Building and Construction Company are two-fold: first, to provide a practical method of allocating machinery, equipment and repair parts costs into each particular job by having Union Building and Equipment Company charge the costs as rentals to each job; and second, to insulate Union Building and Construction Company from the financial hazards of the construction operations.
“8'. There were no written contracts of ‘rental’ or other tangible evidence thereof, excepting schedules of ‘rentals,’ which have been attached hereto as Exhibit A.
“9. It is understood that the terms ‘rental’ and ‘charge for rental,’ and their equivalents are not used in a legal sense and are not to be taken as conclusive of any issue in this case.”

The Board of Tax Appeals affirmed the assessments whereupon the Equipment Corp. filed a notice of appeal to this court complaining of seven errors alleged to have been committed by the Board of Tax Appeals. These alleged errors are as follows:

“(1) The Board erred in affirming the use tax assessed by the Tax Commissioner against appellant’s machinery and equipment;
“(2) The Board erred in holding that there has been ‘rentals’ of machinery and equipment by appellant from Union Building and Equipment Company;
“(3) The Board erred in holding that accounting entries between appellant and Union Building & Equipment Company were actual and valuable consideration for the so called ‘rentals.’
“(4) The Board erred in holding that appellant promised to pay money or its equivalent to Union Building and Equipment Company for the so called ‘rentals’;
“(5) The Board erred in holding that the so-called ‘rentals’ to appellant from Union Building and Equipment Company were supported by actual and valuable consideration;
“(6) The Board erred in holding that the cancellation of the so called ‘rentals’ to appellant, Union Building and Equipment Company did not void the rentals;
“(7) The Board erred in other respects both in law and fact apparent from its decision, the face of the record and the transcript.”

However, we note that in the brief of appellant four errors only are assigned which are as follows:

“1. The Board of Tax Appeals erred in holding that the equipment in question was rented by Union Building and Equipment Company to Union Building and Construction Company.
“2. The Board of Tax Appeals erred in holding that there was a rental in money, or for a consideration or for a price, under the use tax statute.
“3. The Board of Tax Appeals erred in holding that the memoranda of debits and credits were promises to pay money and were consideration, under the use tax statute.
“4. The Board of Tax Appeals erred in other respects both in law and fact apparent from the transcript, record, and decision.”

We have searched the record for jurisdictional averments necessary in case of appeals to this court from the Board of Tax Appeals. It must be remembered that not all final orders of the Board of Tax Appeals may be appealed to this court, but only those of which the Tenth District Court of Appeals is by statute given jurisdiction. For example, in the first numbered paragraph of the stipulation, it is stated that the appellant is admitted to do business in Ohio, with its principal place of business in Ohio located in Springfield, Clark County, Ohio, which is located in the Second Appellate District. From the statements made during argument, it might be inferred that other facts exist which would confer jurisdiction upon this court, but the record is lacking in direct averment on this question.

Perhaps the answer may be found by reference to BTA file, Case No. 35333, ST. ASSESSMENT No. F-587, and to an Inspection Report Form ' 807-B, dated January 7, 1957, signed by Thomas P. Gilroy, for appellant, and Wayne W. Rouch, examiner, for appellee, which in answer to question 8(e) contains the information that appellant’s statutory agent resides in Columbus, Ohio. A fact of this consequence should not be hidden away in this fashion.

It would appear that the principal argument of appellant is that if the Construction Corp. and its wholly owned and controlled subsidiary, the Equipment Corp., were but a single corporation, there would be no tax due and hence we should disregard the existence of the two corporations and treat them as one. From the argument and also in paragraph seven of the stipulation, we are informed that this corporate arrangement was for the purpose of allocating costs and to “insulate” appellant from “financial hazards” of “construction operations.”

We are not dealing here with what might have been, but with a factual situation brought about entirely by the voluntary actions of appellant who now seeks to avoid the consequences of such acts. It is unrealistic to assume that the “Equipment Corp.” could go on year after year “renting” valuable, expensive equipment to the “Construction Corp.” without any charge of any kind, whether it be called rental or some other terms which amounts to the same thing.

There is no denying the fact that there were two corporations and the Tax Commissioner of Ohio and the Board of Tax Appeals promptly overruled the arguments advanced by appellant that because of the common ownership they should be treated as though they were one corporation. In our opinion, both the Board of Tax Appeals and the Tax Commissioner were fully warranted in the conclusions they reached. Appellee relies upon the recent decision of the Ohio Supreme Court in the case of Rochez Bros. Inc. v. Bowers, Tax Commr., 166 Oh St 396, decided May 29, 1957. While the syllabus is limited to a holding as to the exemption of property used or consumed in constructing a public utility, the last two pages of the opinion by Taft, J., starting with the last two paragraphs on page 399 to the end thereof, discusses a somewhat similar situation in which Rochez Bros, and another company organized a separate corporation to hold title to equipment and to facilitate accounting for and repair of that equipment.

The fact that in the case now before us one corporation owns all of the stock in the equipment corporation, while in the Rochez Bros. Inc. case, supra, the stock of the equipment corporation was divided between two other corporations, does not change the rule nor in our opinion does it weaken the applicability of the Rochez Bros. Inc. case, supra, as authority. That tax was made to apply in the Rochez Bros. Inc. case, supra, and for the same reasons,- the tax must apply here.

Appellant can not take the benefits arising from having two corporations and at the same time escape the hazards.

It follows that the assignments of errors are not well taken and they are accordingly overruled and held for naught and the judgment and final order of the Board of Tax Appeals should be and hereby is affirmed.

PETREE, PJ, MILLER, J, concur.


author: By SKEEL. PJ.

text:
    STEWART, Plaintiff-Appellee, v. ADMINISTRATOR, BUREAU OF UNEMPLOYMENT COMPENSATION et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24506.
    Decided October 15, 1958.
    Bernard Mosesson, N. D. Rollins, for plaintiff-appellee.
    William Saxbe, Atty. Geni., Richard F. Patton, for defendants-appellants.
   OPINION

By SKEEL. PJ.

This appeal comes to this Court on questions of law from a judgment of the Court of Common Pleas, Cuyahoga County, reversing an order of the Board of Review of the Bureau of Unemployment Compensation, dismissing appellee's application for benefits, and remanding the case to the Bureau for further proceedings.

On November 1, 1955, the claimant, Minnie Stewart, filed an application for determination of benefit rights with the Ohio Bureau of Unemployment Compensation. The application shows that she was discharged by her employer, The Aetna Window Cleaning Company, on October 26, 1955. An issue of fact was presented by the application of whether or not the claimant was discharged for just cause. The administrator disallowed the claim on November 15, 1955. A reconsideration was requested on November 23,1955 and on November 25, 1955, the administrator affirmed the order of November 15, 1955. On December l, 1955, the claimant filed a notice of appeal to the Board of Review from the determination of the administrator on reconsideration entered November 25, 1955. Notice was given on December 12, 1955 to the claimant that the hearing on appeal before the Board would be held December 19, 1955, and on that day a full hearing was had before a referee. The testimony taken at this hearing was thereafter transcribed and is found in the transcript.

Sec. 4141.28 R. C., provides as follows:

“* * * The proceedings at the hearing before the referee shall be recorded by mechanical means or otherwise as may be prescribed by the board. Such record shall not be a part of the record on rehearing before the board or a part of the record certified by the board to the court of common pleas. Unless said claim is further appealed to the board, such record of proceedings need not be transcribed. * * *”

On January 4, 1956, the referee, acting on behalf of the Board, filed its decision affirming the order of the administrator upon reconsideration on November 25, 1955, and notice was given to all interested parties.

On January 10, 1956, the applicant filed with the Bureau an application for leave to institute a further appeal from the decision of the referee. Notice of such an application to institute further appeal from the decision of the referee was given to- the interested parties on January 26, 1956. On June 28, 1956, the Board of Review, Bureau of Unemployment Compensation, rendered its decision disallowing the application to institute further appeal. Notice of the decision of the Board was mailed to the applicant July 16, 1956.

The transcript then shows that a notice of appeal to the Court of Common Pleas was filed with the Clerk of Courts of Cuyahoga County on August 3, -1956, and a copy sent by registered mail to the Administrator of the Bureau of Unemployment Compensation, 427 Cleveland Avenue, Columbus, Ohio and to The Aetna Window Cleaning Company, 1430 East 27th Street, Cleveland, Ohio.

Sec. 4141.28 R. C., in part, provides:

“All interested parties shall be notified of the referee’s decision and the reasons therefor, which shall become final unless, within ten days after such notification was mailed to the last known post-office address of such parties, the board on its own motion removes or transfers such claim to itself or, an application to institute a further appeal before the board is filed by any interested party and such appeal is allowed by the board.
“When any claim is removed or transferred to the Board on its own motion, or when an application to institute further appeal is allowed by the board, the board shall review the decision of the referee and shall either affirm, modify, or reverse such decision. Before rendering its decision, the board may remand the case to the referee for further proceedings. When the board disallows an application to institute a further appeal, or renders its decision affirming, modifying, or reversing the decision of the referee, all interested parties shall be notified of such decision or order by mail addressed to the last known post-office address of such parties.
“Any interested party may, within ten days after notice of the board’s decision or order was mailed to the last known post-office address of such parties, file notice with the board of intention to appeal any such decision or order of the board adversely affecting such party to a court of common pleas and request a rehearing by the board. Such notice and request for rehearing shall be filed with the board in the manner and in the form and at such place as may be prescribed by the board. When any such notice and request is so filed with the board, the board shall afford all interested parties a fair rehearing. All interested parties shall be notified of the board’s decision on rehearing and the reasons therefor by mail addressed to the last known postoffice address of such parties. A complete record shall be kept of each case heard before the board on rehearing. All testimony of any rehearing before the board shall be recorded but need not be transcribed unless the disputed claim is appealed to a court of common pleas.
“Any interested party may, within thirty days after notice of the decision of the board on rehearing was mailed to the last known post-office address of all interested parties, appeal from the decision of the board on rehearing to the court of common pleas of the county wherein the appellant, if an employee, is resident or has his principal place of business in this state. * * *”

The applicant completely omitted the last step to be taken before the administrative agency, as provided by §4141.28 R. C., as a prerequisite to an appeal to the court. Before seeking relief by appeal to the court of common pleas, an applicant or any party dissatisfied with the order or decision of the board, if he desires to appeal to the court of common pleas shall be required, within ten days of notice of such order or decision of the board, to give notice of his intention to appeal such order or decision to the court of common pleas and request a rehearing. Whereupon the board must, upon proper notice to all parties, grant such party a “fair hearing.” A record of the testimony taken at the rehearing shall be made but need not be transcribed unless the claim is appealed to the court.

The statute then provides that any interested party, within thirty days after notice of the decision of the board on rehearing, may appeal such decision to the court of common pleas (the statute fixing the county in which such appeal is to be taken) by notice of appeal filed with the clerk of the court, the board and all interested parties in the manner provided by the statute.

Until all of the procedural steps are taken before an administrative agency, as are provided by law, the court of common pleas cannot acquire jurisdiction of the subject matter of the action.

Here the order of the Court of Common Pleas is to return the case to the Bureau and afford the claimant a hearing, which by statute is allowed only if notice is given within ten days from notice of the decision of the Board. The limitation of time within which such last appeal before the board is to be taken is jurisdictional and the court of common pleas is not vested with authority to direct that such hearing shall be had after the time provided by law has passed. /

The order of the Court of Common Pleas is, therefore, reversed and final judgment is entered for the appellant.

HURD and KOVACHY, JJ, concur.