author: By CASE, J.

text:
    THOMPSON, Plaintiff, v. LOWMAN, Defendant.
    Common Pleas Court, Fayette County.
    No. 22452.
    Decided May 31, 1958.
    Marie A. Joniec, Canton, for plaintiff.
    Hamilton & Kramer, Columbus, for defendant.
   OPINION

By CASE, J.

This action was instituted to recover damages for personal injuries arising out of a collision between the respective automobiles of the parties hereto on March 16, 1957.

The files and records show that plaintiff’s petition was filed on March 28, 1958, and reads as follows:

“Now comes the plaintiff, James Thompson, and says that at all times hereinafter referred to, he was the owner of a 1950 Studebaker automobile.
“Plaintiff further says that on or about the 16th day of March, 1957, at or about the hour of 3:30 o’clock A. M., he was operating his said automobile in a westerly direction on Route No. 3, approximately six miles West of Washington Court House, Ohio; that said Route No. 3 is a duly dedicated State route running in an easterly and westerly direction; and that at the above described location, the said Route No. 3 makes a curved turn towards the South.
“Plaintiff further says that while he was driving his said automobile at the time and place aforesaid, the defendant, James Wilbert Lowman, was driving his 1950 Ford in an easterly direction on said Route No. 3; that as he approached said curve on the right side of the center line, the defendant drove around said curve on the left side of said center line and collided with the automobile being driven by the plaintiff.
“Plaintiff further says that said collision directly and proximately caused the said 1950 Studebaker automobile to turn over and that said collision was directly and proximately caused by the negligence of the defendant in the following respects, to-wit:
“1. In failing to have his automobile under control;
“2. In driving across and to the left of said center line;
“3. In failing to stop, turn, or alter the course of his car in time to avoid said collision.
“Plaintiff further says that as a direct and proximate result of the negligence of the defendant as hereinbefore stated, he was injured by being thrown against the sides, top, and front side windows of the said 1950 Studebaker automobile, so that he was thereby internally and externally injured; that he received multiple lacerations and abrasions of the forehead; contusions of the face and arms; a whiplash injury and a severe sprain of the neck; and injury to the cervical plexus; lacerations of the right wrist; contusions of the right bicep muscle, and an injury to the ulnar nerve. Plaintiff further states that by reason of said injuries, plaintiff has suffered a decrease in his hearing in the right ear and is loosing and will continue to' loose the use of his right arm and the grasping power in his right hand.
“Plaintiff further says that his entire nervous system has been shocked and depleted, and that he has suffered severe pain, discomfort, and mental anguish and will continue to suffer considerable pain and mental anguish in the future.
“Plaintiff says that it was necessary for him to secure the services of a physician, surgeon, and a hospital to treat his injuries; that by reason thereof, he has incurred an expense, and will continue to require the services of a physician for some time to come and believes that his total medical expenses will amount to' approximately Two Thousand Dollars ($2000.00).
“Plaintiff further says that prior to the time of said accident, plaintiff was in good health and physical condition and was capable and did earn Sixty-ffve Dollars per week; and that by reason thereof, plaintiff has been unable to engage full time in gainful work, all to the damage of the plaintiff.
“Plaintiff further states that he has reasonable grounds to believe and does believe that his injuries are permanent.
“WHEREFORE, Plaintiff prays for judgment against the defendant in the sum of One Hundred Fifty Thousand Dollars ($150,000), together with the costs herein expended.”

The files and records also show that the following motion was filed herein on April 29, 1958:

“Now comes the plaintiff, James Thompson, by his attorney, and moves the Court for Judgment upon the petition filed herein, the defendant, James Wilbert Lowman, being in default of answer or other pleadings.”

And, on April 29, 1958, this Court made and issued the following entry:

“The Court, coming now to consider Plaintiff’s motion filed this date for judgment upon his petition, and it appearing that Defendant was duly served in this cause as required by law on April 3, 1958, and that said defendant is in default for answer or other pleading as provided by law, do find:
“That, upon consideration of the files and records in this cause, it appears that Plaintiff’s motion is well made and should be sustained;
“That, Defendant, James Wilbert Lowman, being in default of answer or other pleading, judgment should be rendered in favor of Plaintiff and against Defendant; and
“That this cause should be scheduled and assigned for hearing on Wednesday, May 14, 1958, at 10:00 A. M., for the purpose of taking proof of and assessing damages.
“It is, therefore, ORDERED, ADJUDGED AND DECREED that Plaintiff’s aforesaid motion be, and hereby the same is, sustained;
“It is further ORDERED, ADJUDGED AND DECREED that judgment be, and hereby judgment is, rendered in favor of Plaintiff and against Defendant on the pleadings; and
“It is further ORDERED that this cause be, and hereby the same is, scheduled and assigned for hearing on Wednesday, May 14, 1958, at 10:00 A. M., for the purpose of taking proof of and assessing damages.
“It is further ordered that a copy of this entry and order be served by mailing same, registered mail, return receipt requested, to Defendant at his address of record herein.”

The files and records further show that such copy of said entry and order was so mailed and received by said defendant on April 30, 1958.

On May 9, 1958, the following motion, memorandum and affidavit were filed herein on behalf of defendant, James Wilbert Lowman:

“MOTION
“Now comes the defendant, James Wilbert Lowman, and moves the Court for an order vacating and setting aside the Entry filed herein on April 29, 1958, which said Entry ordered a default judgment entered in favor of the plaintiff.
“Defendant further moves the Court for leave to file an Answer to the Petition of the plaintiff and tenders herewith his Answer responsive to the issues made in the Petition.”
“MEMORANDUM
“In support of the foregoing Motion the Court is respectfully referred to the affidavit of the defendant, James Wilbert Lowman, which shows that he is now and has been since January 3, 1956 in the active service as a member of the United States Air Force, with the 87th Fighter Interceptor Squadron, and who has been stationed at Lockbourne Air Force Base, southeast of Columbus, Ohio since August 1, 1956.
“The Court by inspecting the files and records in this cause will see that no affidavit was filed by the plaintiff at the time or prior to taking the default judgment to make a showing that the defendant was not on active duty in the armed services. The failure by the plaintiff to comply with the express provisions of the Soldiers and Sailors Civil Relief Act of 1940 (Title 50, U. S. C. A. Appendix Sec. 520) makes the Entry of the default judgment irregular and void. As shown by the Affidavit of the defendant during all of the period after he was served with summons he was on his official duties at the- Lockbourne Air Force Base and he was unable to obtain counsel. The provisions of the Soldiers And Sailors Civil Relief Act which apply to this situation are in part as follows:
“‘(1) In any action or proceeding commenced in any Court, if there shall be a default of any appearance by the defendant, the plaintiff, before entering judgment shall file in the court an affidavit setting forth facts showing that the defendant is not in military service. If unable to file such an affidavit plaintiff shall in lieu thereof file an affidavit setting forth either that the defendant is in the military service or that plaintiff is not able to determine whether or not defendant is in such service. If an affidavit is not filed showing that the defendant is not in military service, no judgment shall be entered without first securing an order, of the court directing such entry, and no such order shall be made if the defendant is in until after the court shall have appointed an attorney to represent defendant and protect his interest, and the court shall on application make such appointment.’ (Emphasis added.)
“It has been uniformly held by the Courts that the Soldiers and Sailors Civil Relief Act of 1940 is an Act for the sole and exclusive benefit of the members of the armed services and when it appears that a defendant in an action in any Court is a member of the armed services on active duty, the Court is required under the terms of said Act to see that the interests of said defendant are adequately protected.
“The plaint conditions of the Federal Statute require that the procedure therein provided for be followed and carried out before a default judgment may be properly entered. In this case the fact is clear that there was no attempt made on the part of the plaintiff to comply with the provisions of the Act. The judgment Entry, therefore, has been irregularly obtained by the plaintiff and should be vacated and defendant permitted to answer to the petition.”
“AFFIDAVIT
“James Wilbert Lowman, being first duly sworn, deposes and says that he is the defendant in the foregoing case; that from the time he was served with a summons in this case up until the present time he has been on active duty in the United States Air Force with the 87th Fighter Interceptor Squadron and has been residing at the Lockbourne Air Force Base, approximately twelve miles southeast of the City of Columbus, Ohio. His serial No. is AF-165-25663.
“Affiant further says that he enlisted in the Air Force at Indianapolis, Indiana on the 3rd day of January, 1956, when he was eighteen years old. Affiant further says that he had no opportunity to obtain counsel to represent him in said proceeding and actually did not consult with counsel until he talked to Mr. Hamilton and Mr. Kramer on May 3, 1958; that at that time they explained to affiant that a default judgment had been taken against him in the above case and explained to affiant what the meaning was of the term, and that at that time he arranged for them to represent him in said action.
“Further affiant saith not."

The files and records further show that the following notice was filed on May 9, 1958, and a copy thereof mailed to plaintiff’s attorney:

“Plaintiff will take Notice that the Motion of the defendant in the foregoing cause will come on for oral hearing before the Honorable John Case, Judge of said Court, on Wednesday, May 14, 1958 at ten o’clock, A. M., Washington Court House, Ohio.”

Subsequent to the receipt thereof, plaintiff’s attorney made an oral application to the Court requesting that the hearing for the purpose of taking proof of and assessing damages, as scheduled and assigned by the aforesaid entry of April 29, 1958, be postponed to a date to be fixed by the Court and same was approved with the consent of counsel for defendant.

Defendant’s said motion came on for hearing and was heard on May 14, 1958, at which time defendant’s attorneys completed a tender of the answer referred to in the second paragraph of defendant’s said motion and same was merely placed in the file until such time as this Court has granted or denied defendant’s motion for leave to file same.

At said hearing, plaintiff’s attorney filed and submitted to defendant’s counsel the following brief:

“The court’s attention is invited to the Soldiers’ and Sailors’ Civil Relief Act of 1940, Title 50, USCA Appendix, No. 520, Sub-sections 1 and 4:
‘“(1) In any action or proceeding commenced in any court, if there shall be a default of any appearance by the defendant, the plaintiff, before entering judgment shall file in the court an affidavit setting forth facts showing that the defendant is not in military service. If unable to file such affidavit plaintiff shall in lieu thereof file an affidavit setting forth either that the defendant is in the military service or that plaintiff is not able to determine whether or not defendant is in such service. If an affidavit is not filed showing that the defendant is not in the military service, no judgment shall be entered without first securing an order of court directing such entry, and no such order shall be made if the defendant is in such service until after the court shall have appointed an attorney to represent defendant and protect his interest, and the court shall on application make such appointment. Unless it appears that the defendant is not in such service the court may require, as a condition before judgment is entered, that the plaintiff file a bond approved by the court conditioned to indemnify the defendant, if in military service, against any loss or damage that he may suffer by reason of any judgment should the judgment be thereafter set aside in whole or in part. And the court may make such other and further order or enter such judgment as in its opinion may be necessary to protect the rights of the defendant under this Act (No. 501 et seq. of this appendix).
“(4) If any judgment shall be rendered in any action or proceeding governed by this section against any person in military service during the period of such service or within thirty days thereafter, and it appears that such person was prejudiced by reason of his military service in making his defense thereto, such judgment may, upon application, made by such person or his legal representative, not later than ninety days after the termination of such service, be opened by the court rendering the same and such defendant or his legal representative let in to defend; provided it is made to appear that the defendant has a meritorious or legal defense to the action or some part thereof. Vacating, setting aside, or reversing any judgment because of any of the provisions of this Act (No. 501 et seq. of this Appendix) shall not impair any right or title acquired by any bona fide purchaser for value under such judgment. (Oct. 17, 1940, c. 888, No. 200, 54 Stat. 1180). (Emphasis ours.)
“It is the contention of the plaintiff that Sub-section 1 of No. 520, Soldiers’ and Sailors’ Civil Relief Act of 1940, Title 50, USCA Appendix, is not applicable to the issues in question. The affidavit concerning military service of a defendant is not jurisdictional in that the Act authorizes entry of judgment notwithstanding the absence of the affidavit when an order directing such entry has been secured.
“Sub-section 4 of No. 520 of the Soldiers’ and Sailors’ Civil Relief Act of 1940, Title 50, USCA Appendix, specifically provides that a default judgment rendered in any action or governed by this proceeding may be opened by the court if it appears that the defendant was prejudiced by reason of his military service in making a defense thereto and provided that the defendant has a meritorious or legal defense to the action or any part thereof.
“Plaintiff is unable to locate any statements in defendant’s motion or affidavit stating that the defendant was prejudiced by reason of his military service in making a defense to this action and that he has a meritorious or legal defense to the action or some part thereof.
“It is the plaintiff’s contention that Sub-section 4 of No. 520 of the Soldiers’ and Sailors’ Civil Relief Act of 1940, Title 50, USCA Appendix, specifically provides that the application for vacating, setting aside or reversing any default judgment must state that the defendant was prejudiced by reason of his military service in making a defense and must set forth in said application defendant’s meritorious or legal defense to said action.
“In response to defendant’s statement that the failure of the plaintiff to comply with the express provisions of the Soldiers’ and Sailors’ Civil Relief Act of 1940, Title 50, USCA, Appendix, No. 520, makes the entry of default judgment irregular and void, the court’s attention is invited to Snapp v. Scott, et al, 167 P. 2d 870, Syllabus 5:
“ ‘ (5) A default judgment taken without the affidavit required by the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50, USCA Appendix, No. 520 is not void but voidable only at the instance of a service man, and by him only upon proper showing of prejudice and injury.’
“The court’s attention is further directed to Hynds, et al v. City of Ada, ex rel, Mitchell, et al, 158 P. 2d 907, which held that a default judgment taken without proper affidavit under Section 20 of the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 USCA Appendix, is not void but merely voidable at the instance of a service man on proper showing of prejudice and injury.
“The court’s attention is invited to Lyle v. Hasking, 168 Pacific 2nd Ed., 797; Bell v. Niven, 35’ S. E., 2nd Ed., 182; and Morris Plan Bank of Georgia v. Hadsall, 41 S. E„ 2nd Ed., 881, relative to an analysis of law applicable to default judgments granted by the court without the filing of an affidavit setting forth facts showing that the defendant is in military service. The courts have held in the above matters that default judgments entered without complying with the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 USCA Appendix, are not void but only voidable at the instance of the service man and then only upon a proper showing that his interest has been prejudicially affected by reason of his military service and that said service man has a legal or meritorious defense.
“Inasmuch as the defendant in his affidavit and motion failed to aver or establish facts indicating that he has been prejudiced by reason of his military service or that he has a legal or meritorious defense, plaintiff believes that defendant’s motion should be overruled.”

Upon due consideration of all matters of record herein, it clearly appears and the Court do find:

1. That plaintiff’s action was instituted in this Court as provided by law;

2. That Defendant was served with summons as required by law;

3. That Defendant failed to answer, demurrer,- or otherwise plead or enter any appearance within the time prescribed by state statute;

4. That an entry of default judgment for Plaintiff and against Defendant was made and entered on April 29, 1958;

5. That, before said default judgment entry was made and entered, plaintiff failed to file any affidavit as directed by the provisions of the Soldiers’ and Sailors’ Civil Relief Act of 1940, Title 50, USCA Appendix, Section 520, Subsection l;

6. That Defendant received a copy of said default judgment entry on April 30, 1958;

7. That, from the time Defendant was served with summons in this action and up to the time Defendant’s motion, memorandum and affidavit were filed herein, on May 9, 1958, Defendant had been on active duty in the United States Air Force with the 87th Fighter Interceptor Squadron and had resided at the Lockbourne Air Force Base, approximately twelve miles southeast of the City of Columbus, Ohio;

8. That, from the. time Defendant was served with summons in this action and up to the time Defendant’s motion, memorandum and affidavit were filed herein, Defendant actually did not consult with counsel until on May 3, 1958;

9. That Defendant’s affidavit herein was executed on May 6, 1958, while he was on active duty in the United States Air Force with the 87th Fighter Interceptor Squadron and residing at the Lockbourne Air Force Base, approximately twelve miles southeast of the City of Columbus, Ohio;

10. That, at the hearing upon Defendant’s motion herein, on May 14, 1958, Defendant was not present and the Court asked Defendant’s counsel if it would be desirable to continue said hearing to a time when Defendant would be present and testify concerning his efforts to' obtain counsel, or his lack of opportunity to obtain counsel, prior to May 3, 1958, and to testify in what manner and to what extent Defendant was prejudiced by reason of his military service in making his defense to the within action prior to May 3, 1958;

11. That Defendant’s counsel thereupon represented to the Court that no continuance of said hearing was desired by Defendant in order to .produce such testimony; and Defendant’s counsel further represented to the Court that the testimony of Defendant upon a continuance of said hearing would produce only a repetition of that information which was already before the Court;

12. That Defendant’s statement in his affidavit, — “that he had no opportunity to obtain counsel to represent him” — raised a question of fact to be considered by this Court in the light of all facts and circumstances shown by the record herein;

13. That Defendant’s motion fails to state and set forth the ground, or grounds, upon which the first paragraph of his motion, seeking to vacate and set aside said default judgment, is based;

14. That, in the second paragraph of Defendant’s memorandum in support of his motion, Defendant cites and sets forth the provisions of Subsection (1) of Section 520 of Title 50 (Soldiers’ and Sailors’ Civil Relief Act of 1940), and therein contends that Plaintiff’s failure to comply with said provisions “makes the Entry of the default judgment irregular and void”;

15. That, upon due consideration of the statute and case law applicable thereto, it • clearly appears this contention on the part of Defendant is without merit or support; for it is a well established rule of law that a “default judgment taken without proper affidavit required by Soldiers’ and Sailors’ Civil Relief Act is not void but merely voidable at instance of a serviceman on proper showing of prejudice and injury. Soldiers’ and Sailors’ Civil Relief Act of 1940 No. 200 et seq., 50 U. S. C. A. Appendix, No. 520 et seq.” (Quoted from headnote 5, Hynds et al. v. City of Ada ex rel. Mitchell et al., 158 Pacific Reporter, 2d Series, 907, at page 908);

16. That Defendant’s motion fails to state and set forth the ground, or grounds, upon which the second paragraph of his motion, seeking leave to file an answer to the petition of the plaintiff, is based;

17. That, in the last paragraph of Defendant’s memorandum in support of his motion, Defendant contends that, since no attempt was made on the part of Plaintiff to comply with the provisions of the Soldiers’ and Sailors’ Civil Relief Act (Title 50, U. S. C. A. Appendix Sec. 520, Subsec. 1), the judgment entry was irregularly obtained by the plaintiff and should be vacated and Defendant permitted to answer to the petition;

18. That, upon due consideration of the statute and case law applicable thereto, it clearly apears this contention on the part of Defendant is without merit or support; for it is a well established rule of law that “the Act provides its own remedy when a judgment is rendered against a person in military service, in the provisions in No. 520 (4) for the reopening of the judgment to let in the defendant and his legal representative to defend, upon application within ninety days after termination of the military service.” (Quoted from Duggan v. Franklin Square Nat. Bank, 170 Federal Reporter, 2d Series, 922, at page 924);

19. That, this Court, in the interest of justice, should and must consider Defendant’s motion, memorandum and affidavit herein as component parts constituting an application by the Defendant within the meaning and intent of the remedial provisions of subsection (4) of said Section 520;

20. That, under the express provisions of said subsection (4), the default judgment herein entered on April 29, 1958, may “be opened” and the Defendant “let in to defend” if it appears that Defendant was prejudiced in making his defense by reason of his military service;

21. That, according to the information reflected in Defendant’s affidavit filed herein, Defendant had been in military service and residing at Lockbourne Air Force Base about twelve miles from Columbus, Ohio, when he was served with summons in this action (on April 3, 1958), and Defendant had continued in such military service and had continued to reside at said Base up to and including the date on which Defendant swore to and signed' said affidavit (on May 6, 1958);

22. That, according to the information reflected in Defendant’s affidavit herein, Defendant “had no opportunity to obtain counsel to represent him in said proceedings and actually did not consult with counsel until he talked to Mr. Hamilton and Mr. Kramer on May 3, 1958;”

23. That, in Defendant’s motion, memorandum or affidavit, it does not appear that there was any change in defendant’s active duty status in the United States Air Force, with the 87th Fighter Interceptor Squadron, which provided Defendant with any opportunities to obtain and consult with counsel (on May 3, 1958, and May 6, 1958) that had not also been available to Defendant on one or more occasions from April 3rd to April 26th, 1958;

24. That Defendant’s affidavit states that he was on active duty in the United States Air Force with the 87th Fighter Interceptor Squadron when he talked to Mr. Hamilton and Mr. Kramer on May 3, 1958; and it also appears that Defendant was “on active duty” when he swore to and signed said affidavit on May 6, 1958;

25. That, upon due consideration of all of the information reflected in the record and in Defendant’s motion, memorandum and affidavit, it appears that Defendant has intentionally declined to show or state his efforts, if any, to obtain counsel (between April 3rd and 26th, 1958), or his lack of opportunity to obtain counsel (between April 3rd and 26th, 1958);

26. That, upon the facts and reasons hereinabove set forth, it does not appear that Defendant was prejudiced in making his defense to the instant action by reason of his military service within the meaning and intent of said subsection (4) of the aforesaid Act;

27. That Defendant’s motion, as to each of its parts and in its entirety, is not well made and should be overruled; and

28. That Plaintiff’s counsel should prepare an entry in conformity herewith, reciting that this decision is incorporated by reference as if fully rewritten therein, noting therein appropriate exceptions on behalf of Defendant, and submit same to Defendant’s counsel for approval by on or before June 10, 1958, and Defendant’s counsel shall forward same to this Court by on or before June 17, 1958.


source: Caselaw Access Project

author: By WISEMAN, J:

license: Public Domain

text:
    THOMPSON, Plaintiff-Appellee, v. LOWMAN, Defendant-Appellant.
    Ohio Appeals, Second District, Fayette County.
    Nos. 310, 311.
    Decided October 29, 1958.

      Marie A. Joniec, Canton, for plaintiff-appellee.
    Hamilton & Kramer, By Lee H. Kramer, Donald M. Hamilton, Jr., of Counsel, Columbus, for defendant-appellant.
   OPINION

By WISEMAN, J:

This is an appeal on questions of law from the judgment of the Common Pleas Court of Fayette County, overruling motion of defendant-appellant to vacate and set aside the default judgment theretofore entered in said cause and in overruling defendant’s motion for leave to file an answer.

At the time of the filing of the default judgment, the defendant was in military service. The defendant failed to file an answer or other pleading, until notified that a default judgment had been taken and that the matter was set for hearing for the purpose of assessing damages. Subsequently, the defendant filed a motion to vacate the default judgment and for leave to file an answer, on the ground that no affidavit had been filed as directed by the provisions of the Soldiers and Sailors Civil'Relief Act of 1940, Title 50, U. S. C. A. Appendix, Section 520, Sub-section 1. In support of the motion defendant filed an affidavit stating that he was in military service at the time of the rendering of the default judgment, and “further that he had no opportunity to obtain counsel to represent him in said proceedings.” The court expressed a willingness to continue the matter to give the defendant an opportunity to testify concerning his inability to obtain counsel, and to what extent the defendant was prejudiced by reason of military service in making his defense. Counsel for the defendant stated that no continuance was necessary; that a hearing would only produce a repetition of that information which was already before the court.

From an order overruling the motion to vacate and for leave to plead, defendant appeals. This action of the trial court is assigned as the sole ground of error.

The defendant contends that the failure to file a military affidavit rendered the judgment void; whereas the plaintiff contends that the judgment is valid but subject to be vacated under certain conditions.

The controlling provisions of the Soldiers and Sailors Civil Relief Act of 1940, Title 50, U. S. C. A., Appendix, Section 520, Sub-Sections 1 and 4, are as follows:

“(1) In any action or proceeding .commenced in any court, if there shall be a default of any appearance by the defendant, the plaintiff, before entering judgment shall file in the court an affidavit setting forth facts showing that the defendant is not in military service. If unable to file such affidavit plaintiff shall in lieu thereof file an affidavit setting forth either that the defendant is in the military service or that plaintiff is not able to determine whether or not defendant is in such service. If an affidavit is not filed showing that the defendant is not in the military service, no judgment shall be entered without first securing an order of court directing such entry, and no such order shall be made if the defendant is in such service until after the court shall have appointed an attorney to represent defendant and protect his interest, and the court shall on application make such appointment. Unless it appears that the defendant is not in such service the court may require, as a condition before judgment is entered, that the plaintiff file a bond approved by the court conditioned to indemnify the defendant, if in military service, against any loss or damage that he may suffer by reason of any judgment should the judgment be thereafter set aside in whole or in part. And the court may make such other and further order or enter such judgment as in its opinion may be necessary to protect the rights of the defendant under this Act (sections 501-548 and 560-590 of this Appendix).
“(4) If any judgment shall be rendered in any action or proceeding governed by this section against any person in military service during the period of such service or within thirty days thereafter, and it appears that such person was prejudiced by reason of his military service in making his defense thereto, such judgment may, upon application, made by such person or his legal representative, not later than ninety days after the termination of such service, be opened by the court rendering the same and such defendant or his legal representative let in to defend, provided it is made to appear that the defendant has a meritorious or legal defense to the action or some part thereof. Vacating, setting aside, or reversing any judgment because of any of the provisions of this Act (said sections) shall not impair any right or title acquired by any bona fide purchaser for value under such judgment. Oct. 17, 1940, c. 888, Sec. 200, 54 Stat. 1180.”

It will be observed that the filing of the military affidavit is not made a jurisdictional matter. The Act authorizes entry of judgment notwithstanding the absence of the affidavit when an order of court directing such entry has been secured. The failure to file such affidavit does not affect the judgment, and is only an irregularity. Snapp v. Scott, 167 P. 2d., 870 (Okla.); State, ex rel. Smith v. District Court, 179 P., 831, 834 (Mont.), Sub-section 4 prescribes the procedure to be followed in vacating a judgment. The judgment, upon application of the defendant, may be vacated when it is made to appear; (1) that the defendant was prejudiced by reason of his military service in making his defense; and (2) that the defendant has a meritorious or legal defense to the action.

When the judgment is rendered without filing the requisite affidavit, the courts have uniformly ruled that the judgment is not void, but only voidable, subject to being vacated at the instance of the service man, but only upon proper showing that he has been prejudiced by reason of his military service in making defense. Wilterdink v. Wilterdink, 184 P. 2d, 527, 531, 532; Hynds et al. v. City of Ada, ex rel. Mitchell, et al., 158 P. 2d., 907 (Okla.); Lyle v. Haskings, 168 P. 2d., 797 (Wash.); Bell v. Niven, 35 S. E., 2d., 182 (N. C.); Morris Plan Bank of Georgia v. Hadsall, 41 S. E. 2d., 881 (Ga.); Lightner et al v. Boone, 45 S. E. 2d., 261, 228 N. C., 199. And further the defendant must make a proper showing of a meritorious or legal defense to the action. Bell v. Niven and Lightner v. Boone, supra, in the instant case the defendant failed to show that he was prejudiced by reason of his military service in making defense.

Furthermore, we question the sufficiency of the proffered answer which was in the nature of a general denial. In such case special facts showing a meritorious defense should be pleaded. See Vol. 32, O. Jur. 2d., Sec. 638, page 320 (cases cited). The burden of proof is on the person who seeks to vacate the judgment. Wilterdink v. Wilterdink, supra, at page 531.

The defendant failed to make a proper showing for vacating the judgment. The trial court properly overruled defendant’s motion.

Judgment affirmed.

HORNBECK, PJ, CRAWFORD, J, concur.


author: By BRYANT, J.

text:
    MICHEL, Plaintiff-Appellant, v. WEBER, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5861.
    Decided November 5, 1958.
    Donald S. McNamara, Keith McNamara, Columbus, for plaintiff-appellant.
    Arthur M. Sebastian, Columbus, for defendant-appellee,
   OPINION

By BRYANT, J.

William Michel, plaintiff, appellant, brought suit in the Common Pleas Court of Franklin County against Roland L. Weber, defendant, appellee, for a judgment for $35,000 for personal injury and property damage claimed to have resulted from a collision between automobiles driven by Michel and Weber at the intersection of Bellows Avenue and Martin Street in Columbus, Ohio on November 24, 1953. The case was tried before a judge and jury and resulted in a verdict for the defendant, whereupon Michel has appealed to this court on questions of law.

On behalf of Michel there are three assignments of errors. The first one alleged error in the court’s general charge; the second, that the verdict and judgment are not sustained by sufficient evidence and the third, that the verdict and judgment are contrary to law. These are discussed together in the brief of appellant and will be so treated here.

In his amended petition Michel alleges that Bellows Avenue runs east and west and Martin Street runs north and south, the two intersecting at right’ angles. It is further alleged that Michel was driving his 1940 Plymouth automobile south on Martin Street and Weber was driving his 1953 Buick automobile west on Bellows Avenue, that as they approached the intersection Michel was on the right and Weber on the left and that Weber was under a duty to yield the right-of-way, failed to do so, and this failure was the direct and proximate cause of the collision and resulting damage.

There were three specifications of alleged negligence: (1) the alleged failure of Weber to yield the right-of-way; (2) alleged failure of Weber to maintain a lookout ahead and observe Michel’s car and (3) alleged failure of Weber to swerve his care to avoid the collision.

The answer filed by Weber admitted allegations respecting the location and character of the two streets and that they intersect at right angles, that Michel was driving south at Martin Street and Weber was driving west on Bellows Avenue and that their automobiles “came into collision” from which Michel sustained some injuries. The answer denies the nature and extent of injuries claimed and denies generally all other allegations not admitted to be true.

Perhaps the main objection raised by counsel for Michel is that the court in its general charge included instructions to the jury with respect to contributory negligence, it being the theory of Michel that the record was lacking in any evidence warranting a charge as to contributory negligence and hence that it was erroneous and prejudicial. It is not urged that the instructions as given were incorrect but rather that they were not called for by any of the evidence in the case and hence were prejudicial.

We note that the court gave special instructions at the request of counsel in advance of arguments, that contributory negligence was one of the topics of such special instructions, and that the general charge only is complained of in the assignments of errors.

The question therefore is whether or not the trial court committed prejudicial error in charging upon contributory negligence in light of the testimony in this case. It appears to be admitted by both parties in the case that the accident occurred at an unmarked intersection and that there was neither traffic light nor stop sign located at the intersection.

There were, however, other facts brought out and other statements made which were properly before the jury and which have some bearing '•on the question before us. In the first place, Martin Street appears to be little more than a lane or alley. It is sixteen and one-half feet in width and has no sidewalks. On the other hand, Bellows Avenue appears to be approximately twice as wide or thirty-two or thirty-three feet in width. It further appears that the collision occurred at 8:30 or 9:00 P. M. on November 24, 1953, when darkness had fallen and both cars had their headlights burning. It further appears that the streets were wet and that rain or drizzle was falling or had very recently fallen.

There was some testimony concerning hedges or shrubbery along both sides of Martin Street just north of Bellows Avenue (Record p. 153) and Weber testified that there was an automobile parked on the north side of Bellows at or a short distance east of the intersection with Martin Street.

There was a sharp difference in the testimony of Michel and Weber with reference to the location and speed of the two vehicles. With reference to the location of his car and that of Weber’s when he first saw it. Michel testified as follows (Record p. 160):

“Q. And where was his (Weber’s) car when you saw it first?
“A. It was four or five maybe car lengths down the street when I saw it.
“Q. When you say ‘Down the street’ what do you mean?
“A. That was east of Martin.
“Q. East of Martin. Now I don’t want tb be technical, Mr. Michel; but didn’t you yesterday say he was two or three car lengths?
“A. Maybe that is right, two or three, something in that.
“Q. But again you can’t tell us what you mean in feet by car lengths?
“A. No, sir, I can’t.
“Q. Where were you when you saw Mr. Weber’s car two or three car lengths away?
“A. I had not yet entered the intersection, I was approaching the intersection, I just I believe got past the corner of the house, I could see cater-cornered through.” (Word in parenthesis added.)

Michel further testified (Record pp. 164 and 165) as to the location of the two cars when he first saw Weber’s car as follows:

“Q. You put an arrow so it will show he is going west. I believe you can sit down now, Mr. Michel. Can you tell us approximately how far north of Bellows Avenue, that is the north curb line of Bellows the front end of your car was?
“A. I believe the front end of my ear was just — it was almost to the curb line, we was — I was getting ready to enter the intersection.
“Q. You just indicated it was about at the corner of this house or the south line of this house, do you mean to change that?
“A. I thought you meant the position of my car.
“Q. Yes, the position of your car when you saw the Weber car, haven’t you put it on the diagram as you say it was?
“A. Well, I figure that is close enough, yes.
“Q. My question is, Mr. Michel approximately how far was it from this north curb line of Bellows Avenue to the front end of your car when you first saw the Weber car?
“A. Maybe five feet, six feet.
“Q. Five or six feet?
“A. Uh-huh.
“Q. All right; and what did you do?
“A. I proceeded on, sir.
“Q. And proceeded to make a right hand turn?
“A. Yes.
“Q. And at what speed were you proceeding?
“A. I don’t believe I was going fifteen miles an hour; fifteen miles an hour or something about there.
“Q. You say you don’t believe you were going fifteen miles an hour?
“A. Around fifteen miles, I wasn’t going over fifteen, I don’t believe, sir.”

From what has been set forth above it would appear that Michel claimed he was traveling not to exceed fifteen miles an hour, that when he was a few feet away from the intersection he saw Weber’s car, which was then a much greater distance away from the intersection, whereupon he entered the intersection with the intention of making a right-hand turn. Weber testified (Record p. 200):

“Q. Well, now tell the Jury, Roland, what happened as you approached and entered the intersection at Martin Avenue and Bellows Avenue?
“A. Well, I was coming up going west on Bellows and a car came out of Martin and we come together.
“Q. Do you know who was operating that car that came out of Martin?
“A. Bill Martin.
“Q. Michel?
“A. Michel.
' “Q. Did you know Bill Michel before that night?
“A. No, I didn’t.
“Q. Well, now, did you see Michel’s car before the accident occurred?
“A. Well, for a few seconds.
“Q. Where was it, Roland, when you first saw it?
“A. Well, its front wheels was on the curb line.
“Q. The curb line of what?
“A. Of Martin — or Bellows.
“Q. You mean the north curb line of Bellows?
“A. Yes.
“Q. Then what did that car do?
“A. Come on out.
“Q. Then what did it do, anything else?
“A. Well, we collided, then it went on down, turned west.
“Q. And what happened to your car?
“A. Mine stopped — well, I applied my brakes and turned to the left, it was a little better than — not much more than half in the intersection.”

Weber further testified (Record p. 202):

“Q. Now did you have any opportunity in the short time you saw Bill Michel’s car before the accident to form any judgment as to the speed the Michel car was going as it came out of Martin Avenue?
“A. Going considerably faster than I was.
“Q. How fast were you going?
“A. Twenty miles an hour.”

Weber further testified (Record p. 206):

“Q. You told us where the Bill Michel car was when you first saw it, where were you when you first saw Michel’s car?
“A. Standing in front of mine.
“Q. Beg pardon?
“A. Oh, do you mean after it hit?
“Q. Before the accident, immediately before the accident. You have already said where he was. I am asking where your car was when you first saw him?
“A. I was about two foot or maybe a foot and half in the intersection.
“Q. When you say into the intersection, you are referring to being beyond the east line of Martin Avenue, is that it, is that what you mean?
“A. Yes.”

From what has been set forth above it is apparent that it was Weber’s claim that he was already partly in the intersection at the time Michel’s car entered it and that the speed of Michel’s car instead of being fifteen miles an hour as testified to by Michel was “considerably faster” than twenty miles an hour.

It is not necessary for us to determine which of the two conflicting claims was right. In this state of the record the court quite properly charged upon contributory negligence and submitted the conflicting testimony to the jury for their determination.

It is not in dispute that as Michel approached the intersection he had the intention of making a right turn and that at the time of the collision he was in the process of making such a right turn. It is the contention of defendant that by making a turn, Michel lost his preferential status.

Sec. 4511.41 R. C., provides as follows:

“The operator of a vehicle, streetcar, or trackless trolley shall yield the right of way at an intersection to a vehicle, streetcar, or trackless trolley approaching from the right.”

Sec. 4511.0KSS) R. C., formerly §4511.01(RR) R. C., provides as follows:

“‘Right of way’ means the right of a vehicle, streetcar, trackless trolley, or pedestrian to proceed uninterruptedly in a lawful manner in the direction in which it or he is moving in preference to another vehicle, streetcar, trackless trolley, or pedestrian approaching from a different direction into its or his path.” (Emphasis added.)

Cited in support of this view is the case of Gratziano, dba Grandview Cab Co. v. Grady, 83 Oh Ap 265, decided by the Court of Appeals of Franklin County, Ohio in 1948, in which branches two, seven, nine and ten of the syllabus are as follows:

“2. Sec. 6307-40 GC, which gives the preferential right of way to a vehicle approaching from the right, applies where the vehicle on the right proceeds ‘in a lawful manner’ and continues to proceed ‘in the direction in which it * * * is moving,’ as provided in §6307-2 GC.
“7. The Uniform Traffic Act was intended to expedite the flow of traffic, to eliminate traffic hazards and to prevent collisions.”
“9. The driver of the vehicle on the left has a right to assume that the driver of the vehicle on the right will continue to proceed in the direction in which he is moving.
“10. The driver of the vehicle on the right is given the preferential right of way at an intersection over the driver of the vehicle on his left as long as the former proceeds in the direction in which he is moving; when he changes direction he loses his preferential right of way.” (Emphasis added.)

The case of Gratziano v. Grady, supra, was explained in the case of Singer v. Brinks, Inc., 56 Abs 118, decided by the Court of Appeals of Franklin County in 1949 in which a driver who was on the right stopped his car and then proceeded on in the same general direction. The argument was made that the use of the word, “uninterruptedly,” in the statute removed the preferential status in the case of such a stop. The court held otherwise and in an opinion by Miller, P. J., at page 120, said:

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

We feel that the decisions above cited correctly and clearly state the law and that the preferential status of the person on the right at an intersection is lost if he turns either to the right or left and remains with him only if he proceeds in a lawful manner in the direction in which he was traveling.

For the reasons above set forth we conclude that the assignments of errors are not well taken, that the court did not err in its general charge to the jury, that the verdict and judgment are in accord with the evidence and are not contrary to law.

The judgment of the court below will therefore be affirmed at the costs of appellant.

PETREE, PJ, MILLER, J, concur.


author: Per CURIAM:

text:
    MACZKO, Plaintiff-Appellee, v. WABASH FIRE AND CASUALTY INSURANCE CO., Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24579.
    Decided December 11, 1958.
    Joseph L. Newman, for plaintiff-appellee.
    Crossen & Chamberlin, for defendant-appellant.
   OPINION

Per CURIAM:

This appeal comes to this court on questions of law from a judgment for the plaintiff entered on. the verdict of a jury upon trial in the Municipal Court of Cleveland. The plaintiff’s action was for damages based on the terms of a policy of insurance insuring plaintiff against loss and damage to his bulldozer resulting from theft. Plaintiff’s petition alleges that said bulldozer was stolen whereby it was damaged.

The policy provisions upon which the action is based provide:

“To pay for direct and accidental loss of or damage to automobile caused by fire; lightning, or theft, including loss or damage due to the following:
«2) * * *
«2) * * *
“3) Larceny, robbery, or pilferage.”

The bulldozer of the plaintiff was being used to dig basements along a new street (Donnybrook Road) then being constructed and not yet paved, running between Warrensville Center Road and Northñeld Road just south of the Southgate Shopping Center. The plaintiff left this equipment on the job after the workday was over on January 10, 1957 (which was a Thursday). He did not return to work because of bad weather until the following Monday or Tuesday. Upon his return, he alleges that it was discovered that the bulldozer had been moved and in the process, the left gear housing had been broken. It is the claim of the plaintiff that the damage was the proximate result of the theft of this equipment.

From a judgment for the plaintiff, the defendant claims the following errors:

. “1. The Court erred in submitting this case to a jury.
“2. The Court erred in failing to grant Defendant’s Motion for Judgment.”

In the defendant’s brief, he also claims error in the court’s charge to the jury.

In its general charge to the jury, the court defined the terms larceny or theft as follows:

“Now, of course, we have to take ‘stolen’ in the ordinary sense of the term. Something which is stolen is taken from the owner or one in possession rightfully without the consent or knowledge of such person and removes it from the place where it was found.”

The element of the crime of larceny missing from this statement of the law as given is “with intent to steal.” Without a showing of intent to steal, the crime of larceny is not shown. In this case the omitted element of “intent- to steal” was very material. Under the charge as given, the mere moving of the bulldozer would be sufficient to show theft. '

There seems to be no general exception to the charge or specific exception to the error committed in defining larceny. However, the error is of such a serious character as to make it appear that if a correct charge were given, a totally different result could have obtained. Sec. 2321.03 R. C., provides in part:

“* * * Error can be predicated upon erroneous statements contained in the charge, not induced by the complaining party, without exceptions being taken to the charge.”

In the second paragraph of the syllabus in the case of Todd v. East Liverpool Publishing Company, 9 C. C. N. S. 249 (affirmed 81 Oh St 521), it is said:

“The fact that no exception was taken to the charge of the court, does not prevent the raising of the question oh review as to whether the verdict was contrary to law, where it was apparently the result of erroneous instructions.”

The court, in its charge, also eliminated from the jury’s consideration the question of the duty of the plaintiff to establish his case by the greater weight or the preponderance of the evidence. In this the rights of the defendant were prejudicially affected. The court instructed the jury as follows:

“The claim is based — the defendant has admitted in his answer, that the insurance policy was in full force and effect but denies that the tractor — the bulldozer was stolen or that there is any liability under the policy.
“So you must determine that from the facts as to whether or not the plaintiff has proved his case. I will say ordinarily, by preponderance of the credible evidence, that the defendant, as is his right, has not offered any witnesses for the defense and so there is no preponderance to be considered because preponderance means the weight of it, weight as between two parties.
“The plaintiff must prove, however, that the credibility of the evidence would be such as to warrant the judgment in his behalf.
sfc *
“Ordinarily we would say it is because you would have to analyze the testimony between the plaintiff and the defendant and their witnesses. But you must, with equal objectivity and fairness, analyze the testimony of the plaintiff and his witness. Have they, proved that the article was stolen?”

To suggest that a different rule in weighing the evidence is required in a case where the defendant does not present witnesses, where there is not the slightest suggestion that there were, in fact, witnesses available, constitutes error. Nor is the fact that all the witnesses, sworn, were presented by the plaintiff, a circumstance that relieves the plaintiff of the burden of proving the essential facts in making out his case, by the preponderance of the evidence. Under such circumstances, as in any other case, the jury is not bound to believe the testimony of one or more of the witnesses. They still must determine the credibility to be given to the testimony of each witness, and from the credible evidence determine whether all of the facts essential to the plaintiff’s case are sustained by the greater weight of the evidence. Here the defendant, by answer, after admitting the issuance of the policy of insurance and the terms thereof, put in issue all of the other claims of the plaintiff. He also appeared at the trial and cross-examined each witness. Under these circumstances, the jury must be instructed that it must find from the evidence submitted that it is more probable, than not, that the facts necessary to make out plaintiff’s case have been shown by the greater weight of the evidence. Such an instruction must include a definition of what is meant by the “preponderance of the evidence” to guide the jury in its deliberating.

For the foregoing errors in the court’s charge, the judgment is reversed and cause remanded for further proceedings.

SKEEL, PJ, HURD and KOVACHY, JJ, concur.

SKEEL, PJ, concurs in the reversal of the judgment but believes that the plaintiff failed to present any evidence that the bulldozer was the subject of the theft.


author: By PETREE, PJ.

text:
    FLOYD, Guardian of Estate of Arthur Dunford, An Incompetent, Plaintiff-Appellant, v. CLYNE et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24544.
    Decided December 18, 1958.
    Clarence J. Oviatt, Lody Huml, for plaintiff-appellant.
    Clyne, Kane, Ray & Talty, for defendants-appellees.
    (HUNSICKER, PJ, of the Ninth District, HORNBECK, PJ, of the Second District, PETREE, PJ, of the Tenth District, sitting by designation in the Eighth District.)
   OPINION

By PETREE, PJ.

This is an appeal on questions of law in a case which arose in the Court of Common Pleas of Cuyahoga County and which was brought by the guardian of Arthur Dunford, an incompetent, against Clyne and McCrone, defendants, claiming that they had seemed a quit-claim deed from Dunford which was fraudulent, null, and void, and seeking an order from the court to require Defendant Monroe, County Treasurer, to pay to plaintiff $2’332.32, remaining from a tax sale on 18.04 acres of land in Cuyahoga County.

Dunford died before the cause came to trial, and the Court of Common Pleas revived the cause in the name of plaintiff, Florence D. Floyd, who had been appointed administratrix of the estate of Arthur Dunford. Defendants Clyne and McCrone had filed an answer and cross-petition also seeking the surplus funds in the hands of the County Treasurer. The trial court granted the motion of Defendants Clyne and McCrone for judgment at the close of the opening statement and awarded judgment to said defendants on their cross-petition.

Apparently, the court was relying upon the case of Czako v. Orban, 133 Oh St 248, the syllabus of which reads as follows:

“The right to cancel a deed obtained from a grantor by mistake, fraud, duress, or undue influence descends to his heirs if it existed in the ancestor unimpaired at the time of his death.”

The instant case should be distinguished from Czako v. Orban, supra, for the title did not exist in Arthur Dunford at the time of his death or at the time of the purported quit-claim deed to Defendants Clyne and McCrone. Months before the purported quit-claim deed, the 18.04 acres of land had been forfeited to the state of Ohio. The administratrix had tendered the $100 admittedly paid by Clyne and McCrone and had asked the court to grant her the surplus over and above the amount required by the state to pay the taxes on the land-forfeiture sale of July 13, 1953, the property having been forfeited to the state about March 13, 1953, while the purported deed was dated July 11, 1953.

In Skehan v. Larkin, 41 Oh Ap 85, Paragraphs 2 and 3 of the headnote are as follows:

“2. Right of action to set aside gifts of personal property by decedent only passed to personal representative who is real party in interest (§§10673 and 10678 GC).
“3. Testatrix’s brother, who was legatee, could not maintain action to set aside gifts of personal property by testatrix to executrix because not real party in interest (§§10673 and 10678 GO.”

We hold that the administratrix had the right to maintain an action to obtain the surplus remaining after the state had been paid the taxes and costs incident to the sale and that such surplus is personal property. The trial should have been permitted to proceed, evidence taken, and a determination made as to whether the instrument under which Defendants Clyne and McCrone were attempting to obtain the surplus was null and void.

Incidentally, Clyne and McCrone had sued in a separate action for this surplus, and their case had been consolidated for trial with that of the administratrix. This is not an action to regain title in the name of the former owner, Dunford, but an attempt to regain the surplus in the name of Dunford’s administratrix. Such surplus is personal property, and if the so-called quit-claim deed is a nullity, Clyne and McCrone have no right to said surplus.

It is our opinion that this action is one maintained on behalf of the real party in interest and that the motion of the defendants to dismiss should have been overruled. The judgment of the Court of Common Pleas for Defendants Clyne and McCrone on their motion to dismiss plaintiff’s petition and to grant them judgment on their cross-petition will be reversed, and the cause will be remanded to the Court of Common Pleas of Cuyahoga County for the trial of the issues in full and on the merits. All assignments of error of the appellant, plaintiff in the lower court, are well-taken and sustained.

Judgment reversed and cause remanded.

HORNBECK, PJ, HUNSICKER, PJ, concur in judgment.


author: By THE COURT:

text:
    STATE, Plaintiff-Appellee, v. GARDNER, Defendant-Appellant.
    Ohio Appeals, Second District, Fayette County.
    No. 317.
    Decided October 13, 1958.
    Rollo M. Marchant, Pros. Atty., for plaintiff-appellee.
    Charles E. Carter, Springfield, for defendant-appellant.
   OPINION

By THE COURT:

Submitted on motion of defendant-appellant “to strike from the file and record in this action:

“a. The motion filed by the Prosecuting Attorney Rollo M. Marchant, in the Court of Common Pleas in Case No. 4210 on September 17,1958, and
“b. The journal entry filed September 17, 1958 by ‘Judge P. Case’ ordering this attorney to show cause on Friday October 3, 1958 why a transcript of the testimony at the trial of this cause should be prepared and furnished to said Defendant at the Expense of the State of Ohio for the following reason to wit.
“No. 1. That on September 17 this action was pending in this Court of Appeals by Virtue of a Notice of Appeals filed in the Court of Common Pleas on September 12, 1958 from the judgment and sentence rendered by said Court on September 5, 1958 and the same was entered on the docket by the Clerk of the Court of Common Pleas and Court of Appeals, therefore the Judge of the Court of Common Pleas has lost jurisdiction in this action.
“No. 2. That at the time the entry signed September 17, 1958 by the Honorable John P. Case said Court had no jurisdiction as said jurisdiction was lost upon the filing in said Court a Notice of Appeal.
“No. 3. That on September 17, 1958 when the motion was filed and an order was made in the trial Court, the Court of Common Pleas, said Judge had no authority to make any order, nor was there any case pénding in said Court where the Prosecuting Attorney could file any Motion.”

Counsel for defendant urges that the rulings of the trial judge of September 17, 1958, were made without jurisdiction to consider and enter them.

It is stated that the notice of appeal was filed September 12, 1958. Manifestly, nothing done in the trial court subsequent to that date would be reviewable by this court on this appeal. The action to which objection is noted, if unauthorized, must be reached by some proceeding other than that which is available on this appeal.

The motion will be overruled in both branches.

The motion of defendant-appellant for extender of time within which to file brief and assignments of error will be granted and the time extended until November 1, 1958.

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


author: By DULL, J.

text:
    CARTHAGENA LOCAL SCHOOL DISTRICT OF THE ST. HENRY LOCAL SCHOOL DISTRICT, Contest of, In re.
    Common Pleas Court, Mercer County.
    No. 15033.
    Decided December 30, 1958.
    Max Harley, Greenville, for contestors.
    Dean James, Pros. Atty., for contestees.
   OPINION

By DULL, J.

This election contest was submitted to the court upon a stipulated set of facts which are as follows: “The parties herein, namely, the Contestors, by their Counsel, and the Board of Education of Mercer County, Ohio, and the Board of Elections of Mercer County, Ohio, designated Committee in opposition, do hereby stipulate the facts as follows, to-wit:

“1. That the Board of Elections of Mercer County, Ohio, made an investigation with respect to the election contested, and that as a result of such investigation they did make a finding of facts as set forth below.
“2. That the vote upon the issue contested by the Petition, as certified by the Board of Elections of Mercer County, Ohio, was as follows:
“In favor of the transfer proposed — 82
“Against the transfer proposed — 73
“3. That the results of the election, upon said issue, were certified by the Board of Elections of Mercer County, Ohio, on the 10th day of November, 1958.
“4. That the issue contested is the proposed transfer of a portion of the Carthagena Local School District to the St. Henry Local School District, as set forth in the Petition of the Contestors. A copy of the ballot used in the election, upon such proposed transfer, is attached hereto and made a part hereof, as if fully set forth herein.
“5. That said issue was submitted to the electors of the Carthagena Local School District, under the provisions of §3311.22 R. C. That said Carthagena Local School District includes part of four voting precincts in Mercer County, Ohio, said four precincts being known as ‘Marion West,’ ‘Butler East,’ ‘Franklin West’ and ‘Granville.’
“6. That the contest arose out of the election thereon conducted and held on November 4,1958, and the procedure and balloting in issue under the Petition and the Answer was that had on said date in the precinct known as ‘Marion West.’
“7. That the Board of Elections of Mercer County delivered a total of 201 ballots on said issue to the precinct officials at said ‘Marion West’ precinct, but that said precinct officials failed to deliver the ballot upon such issue to the first 106 electors who presented themselves to said precinct, and who were eligible to vote upon said issue.
“8. That, when the relevant ballots were tabulated according to what is known as the ‘poll book tally sheet method,’ the following facts were developed:
“(a) That a total of 175 persons, who were eligible to vote upon such issue, presented themselves to the said ‘Marion West’ precinct at said election.
“(b) That there were a total of 81 of the ballots of such issue deposited in the ballot box in said precinct.
“(c) That under tabulation, in accordance with said poll book tally sheet method, 94 electors qualified to vote upon said issue at such precinct either were not issued ballots’ by the precinct officials or were issued ballots on said issue which said ballots were not returned to the ballot box. However, of such total of 94, the number who received ballots but whose ballots were not deposited in the ballot box. However, of such total of 94, the number who received ballots but whose ballots were not deposited in the ballot box, could not, in any event, total more than four.
“9. That, in tabulating the relevant ballots on such issue, in accordance with what is known as the ‘ballot accounting method,’ the following facts are shown:
“(a) That 106 persons who were eligible to vote on such issue presented themselves to such precinct prior to the discovery by the precinct officials that the ballots on this issue were not being passed out to the qualified electors.
“(b) That, of such 106 qualified electors who had not previously been issued the ballot on such issue, 16 re-presented themselves to the precinct officials, after having been notified that the ballot on such issue had not been given to them at their first appearance at the polls and that said 16 were thereupon issued ballots on such issue.
“(c) That, based upon the figures as shown in sub-paragraphs (a) and (b) above 90 qualified electors, upon such issue, at such precinct, were never issued ballots upon the issue in question.
“10. That, in arriving at computations to determine the number of qualified electors upon the issue who did not receive a ballot on the issue, different results are obtained and that the cause of the discrepancy between the two methods cannot be factually determined.
“11. That, upon discovery by the precinct officials that the ballots upon this issue were not being distributed to qualified electors on this issue, the following persons were notified: Mr. and Mrs. John Wenning, Ben Wenning, Anna Hartke and Mr. and Mrs. John Kunkler. Notification was made by a person designated for such purpose by the Board of Election. The above persons, in so far as was known, were the only persons who did not reside at St. Charles Seminary, who were notified to vote upon the issue and who had not received a ballot on the issue at the time of discovery of the failure to distribute.
“That Mr. and Mrs. John Wenning, Ben Wenning and Anna Hartke returned to the polls and were issued ballots on this issue. Mr. and Mrs. John Kunkler did not return to the polls and, therefore, were not issued ballots on this issue.
“12. That the Rector of St. Charles Seminary was notified of the failure to issue the ballots in question. Said Rector then notified persons residing in such Seminary who had presented themselves to the polls and were qualified, but who had not been given a ballot on said issue. In notifying said residents of such Seminary said Rector did not notify at least 20 qualified electors. One of the methods used in informing such qualified electors was by public address system in one of the two dining halls of such institution.
“13. That there was no re-count had upon such issue.
“The foregoing being within the knowledge of the undersigned, they herewith submit the same to the Court as stipulations of fact herein.”

The pivotal question presented by this case to the court for an answer is this: Shall the Carthagena Local School District election of November 4, 1958, be invalidated because at least 90 eligible voters who presented themselves at the polls at one of the 4 precincts were not given proper ballots and none of whom returned to the polls to vote, although more than a majority of such 90 voters were notified, either directly or indirectly, fin time for them to return?

The courts of the land have gone to extreme lengths to preserve the validity of all elections.

“Strictly speaking, all provisions of the election laws are mandatory in the sense that they impose the duty of obedience upon those who come within their purview, but irregularities which were not caused by fraud and which have not interfered with the full and fair expression of the voters’ choice should not effect a disfranchisement of the voters. Errors innocently made and not in violation of the substantial rights of the electors are not grounds for invalidating an election. Honest mistakes or mere omissions on the part of- the election officers, or irregularities in directory matters, even though gross, if not fraudulent, will not render an election, or particular votes cast therein, invalid, unless they affect the result of the election, or render it uncertain. Mere irregularities which do not go to the foundation of the election will not invalidate it, although the provisions of the statute have been technically violated, if it appears that there has been a fair election and a comparatively full vote, and no fraud or attempt to deceive or mislead.” Vol. 19, O. Jur. 2d, Elections, Sec. 138, pp. 143 and 144.
“Acting pursuant to the power and duty conferred upon them to provide instrumentalities by which elections are to be accomplished, the legislatures of the various states have established elaborate and rigid rules and regulations for the conduct of elections. Before an election, such provisions are generally regarded as mandatory and their observance may be insisted upon and enforced, but after an election, they are regarded in a somewhat different light, and the general rule in such case is that a departure from the mode of holding an election as prescribed by statute, which does not deprive legal voters of their right to vote or permit illegal voters to participate in the election or cast uncertainty on the result, does not affect the validity of the election, unless the statute expressly declares that the particular act is essential to the validity of an election or that its omission shall render the election void or unless there is a violation of a constitutional requirement.” Vol. 18, Am. Juris., Elections, Sec. 206, pp. 319 and 320.
“Voters who have done all in their power to case their ballots honestly and intelligently are not to be disfranchised because of an irregularity, mistake, error, or even wrongful act, of the officers charged with the duty of conducting the election, which does not prevent a fair election and in some way affect the result. Elections should never be held void unless they are clearly illegal; it is the duty of the court to sustain an election authorized by law if it has been so conducted as to give a free and fair expression of the popular will, and the actual result thereof is clearly ascertained. It has even been held that gross irregularities not amounting to fraud may not vitiate an election.” Vol. 29, Corpus Juris. 2d, Elections, Sec. 214, p. 309.

The authorities have attempted to draw a distinction between the directory and mandatory provisions'of the election laws. If, in general, the provision of the election laws violated was a directory provision, then the election has been allowed to stand. If, again in general, the provision of the election laws violated was a mandatory provision, then the election has been invalidated.

But when is a provision of the election law merely directory? When does it become mandatory? As Shakespeare in HAMLET put it so well: “ — ay, there’s the rub.”

“No universal rule can be fixed to distinguish between directory and mandatory provisions of statutes, and whether an enactment is one or the other depends upon legislative intention, to be ascertained from nature and object of the act and consequences which would result from any given construction.” Carr v. Board of Education, Vol. 150, N. E. 2d, 583 (1958), Item 2 of the syllabus.
“Statutory provisions fixing the time for the opening and closing of the polls have been uniformly held to be directory merely, unless such provisions are declared to be essential by the statute itself, and, as a general rule, irregularities in the opening and closing of the polls will not invalidate the vote cast thereat, in the absence of a showing of fraud or the loss or denial of substantial rights occasioned thereby. Accordingly, an election will not be invalidated by reason of the fact that the election officers, instead of closing the polls at the time provided by statute, kept them open an extra half hour, where there was no fraud or collusion, and not enough illegal votes were cast after the time fixed by statute for closing to change the result of the election. It was also held, in an early case, that the vote cast at certain precincts would not be rendered invalid by reason of the polls having been temporarily closed during the noon hour, where it appeared that no fraud had been practiced and no substantial right violated.” Vol. 19,0. Jur. (2), Elections, Sec. 116, pp. 118 and 119; Fry v. Booth, Vol. 19 Oh St 25; Re Chagrin Falls, Vol. 91 Oh St 308.
“It should be remembered, however, that, all statutes tending to limit the citizen in the exercise of the right of suffrage are to be con-¿trued liberally in his favor, and that the courts are loath to disfranchise voters who are wholly innocent of wrongdoing. As a consequence, it is a firmly established general rule that votes will not be rejected, even though election officers fail to comply with the directory provisions of a statute, if there is no fraud or other irregularity and the failure to comply is unintentional; nor is it material in this connection that the failure of the election officers to perform their duty subjects them to penalties.” Vol. 18, Am. Juris., Elections, Sec. 225, p. 331.

If, however, the ^regularities in an election are tainted with fraud, illegality or are such as to render the results of the election uncertain, the general tendency is for the courts to declare such elections a nullity.

“But if the irregularities in an election are so great and so flagrant in character as to render it impossible to separate the illegal from the legal votes, and to raise a doubt as to how the election would have resulted had such irregularities not occurred, they must be deemed fatal to the validity of the election and to warrant the rejection of the entire vote of the election district.” Vol. 19, O. Jur. 2d, Elections, Sec. 138, pp. 144 and 145.
“The failure of election officers to obey the mandatory provisions of a statute relating to the conduct of the election and designed to secure the secrecy and integrity of the ballot may so taint the votes with irregularity as to cause the rejection of the entire vote of the district.” Vol. 18, Am. Jur., Elections, Sec. 225, p. 331.
“An election will be vitiated by irreguarities which are so numerous that they must be attributed to fraud rather than honest mistake; and although no actual fraud is apparent yet an election will be invalidated where the whole conduct of the election officers shows such gross negligence and disregard of their official duties as to leave the judicial mind in doubt as to how the election resulted, or would have resulted but for such wide spread irregularities. Vol. 29, Corpus Juris. 2d, Elections, Sec. 214, at p. 309.
“Mere inadvertence, mistake or ignorance in failing to observe each statutory requirement will not necessarily void either ballot or election so long as- voter’s intention may be clearly ascertained, no voter was disfranchised, fraud was not present and secrecy of ballot was not impaired; but if failure to comply with statutory provisions in particular case affected secrecy of ballot, disfranchised any voter, or resulted in perpetration of fraud, ballot or election must be pronounced void.” Hester v. Kamykowski, Vol. 150, N. E. 2d 196 (1958), Item 8 of the syllabus.
“Where irregularities in an election are so great and so flagrant in character as to render it impossible to separate the illegal from the legal votes and raise a doubt as to how the election would have resulted had such irregularities not occurred, they must be deemed fatal to the validity of the election and warrant the rejection of the entire vote of the election district.”
“Where, in an election contest, it appears that certain electors, in number several times greater than the plurality of votes awarded by the election authorities to the winning candidate over his opponent, were each delivered two identical ballots; that each such elector voted both ballots so delivered to him thus causing such ballots to be illegally cast: and that such illegal ballots were not subject to identification and rejection; such irregular and illegal voting is of such magnitude as to require the court to declare such election void and to set it aside.” Otworth v. Bays, Vol. 155 Oh St 366 (1951), Items 1 and 2 of the syllabus.

In this case, too many ballots were passed out to the voters instead of too few being passed out as in the case under study. Nonetheless, the court declared such election void and set it aside.

“Where there is not even substantial compliance with §3505.11 R. C., which sets up a mandatory minimum requirement as to the number of ballots, the election will be held void.”
. “Secs. 3501.19 and 3501.21 R. C., providing for the number of polling places for voting, are clear and unequivocal, and their requirements are mandatory.” In re Election of Council of Oak Harbor, Vol. 57 O. O., p. 426 (1953), Items 1 and 2 of the syllabus.

The facts in this case are quite similar to those in the case under study. The election officials failed to pass out enough ballots. At page 427 of the opinion the courts states: “Since this statute (§3505.11 R. C.), creates a mandatory minimum requirement, what is the effect of a violation of its terms? It is the opinion of this court that said violation voids the election for the office of council. Much stress has been placed on the fact that a trend was established in the election at 5:00 p. m. and that to set aside the election, the court must indulge the presumption that those voters refused a ballot, would have voted in such a way as to have changed the outcome. This court is of the opinion that in cases of this nature, courts should indulge in no presumption. The fact that one person was .refused a ballot, under the circumstances existing here, would be enough to put the election in doubt and to void that election. The knowledge that the ballots were exhausted, might keep many from even approaching the polls, and this court might with the same degree of relevancy indulge the further presumption that those who approached the polls during the period would be merely those who “didn’t get the word.” If courts decide contested election cases on such doubtful presumptions, it will have the effect of rendering our election laws directory only, and result in the eventual abolition of the traditional safeguards of voting. For a board of elections to fail to furnish the minimum ballots required by law, and subsequently have the ballots exhaustéd before closing time, would render the total vote in these precincts void irrespective of the number of people refused the right to vote. The election laws that pertain to the fundamental operation of voting, such as ballots and their make-up, should be rigidly enforced. Any relaxation of such enforcement will only invite fraud and corruption.”

The creation of a county board of elections, its duties and authority are provided for by statute (§3501.06 R. C., et seq.).

Similarly, the selection of the precinct election officials, their duties and authority are provided for by statute (§3501.22 R. C., et seq.).

Sec. 3505.18 R. C., provides in part: “If voting machines are not being used in that precinct, the judge in charge of ballots shall then detach the next ballots to be issued to such elector from Stub B attached to each ballot, leaving Stub A attached to each ballot, hand the ballots to the elector, and call his name and the stub number on each of such ballots. The clerk shall enter such stub numbers opposite the signature of such elector in the poll book. The elector shall then retire to one of the voting compartments to mark his ballots.”

Here the mandatory duty of the precinct election official is set forth in such a clear and succinct language that none should misunderstand. In case of some 90 eligible voters, the precinct election official of the “Marion West” precinct did not carry out this mandatory duty. For all practical purposes these 90 voters were disfranchised. They fall within the first classification as found in Vol. 12A at page 410 of Words and Phrases: “By ‘disfranchised voters’ is meant persons denied the right, by whatever means, to vote; persons permitted to vote, but whose votes, by reason of fraud, violence, or other wrong, have not been counted as cast.”

The attempt of the precinct election officials to notify, either directly or indirectly, these disfranchised voters in order that they might return to the polls and cast their votes, while laudable, runs smack into the barbed wire of §3599.12 R. C. This statute provides in part: “No person shall vote or attempt to vote in any primary, special, or general election in a precinct in which he is not a legally qualified voter; or vote or attempt to vote more than once at the same election;------Whoever violates this section shall be fined not less than fifty nor more than one thousand dollars or imprisoned not less than one nor more than five years or both.” As has been stated so frequently and at such length that its meaning may be lost; it’s not only a right but a privilege to vote. But to vote more than once at the same election is a crime.

The primary and basic responsibility for a fair, honest and lawful election rests upon the county board of elections. This duty the members cannot shift or dodge. The board has the duty to instruct the precinct election officials as to the offices to be filled and the issues to be voted upon, the number and forms of the ballots and other details relevant to the conduct of the election. This duty the county board of elections either neglected or performed it in such a manner that no lasing impression was made — an occupational regret even among great pedagogues. Such negligence deserves censure.

But the practical responsibility — the responsibility directly to the voters — for the lawful conduct of an election falls on the precinct election officials. If no instructions or incomplete instructions were given by the county board of elections relative to the conduct of the election, it was their duty to make timely inquiry. This they failed to do. For which they deserve the sharpest censure.

The voters, too, cannot escape some censure. They should know what offices are to be filled and what issues are to be voted upon. If they didn’t receive the proper ballots they should have asked for them. But, alas, an informed electorate is a political scientist dream. And criticizing the electorate has much the same practical effect as criticizing the dream itself. But we can dream, can’t we? As Emerson in his essay on POLITICS so neatly phrased it: “But the wise know that foolish legislation is a rope of sand, which perishes in the twisting; that the State must follow, and not lead the character and progress of the citizen; the strongest usurper is quickly got rid of; and they only who build on Ideas, build for eternity; and that the form of government which prevails is the expression of what cultivation exists in the population which permits it. The law is only a memorandum.”

It is, therefore, the finding of the court that the precinct election officials by their failure to pass out the proper ballots to some 90 eligible voters in the precinct known as “Marion West” failed in the perform- • anee of a mandatory duty. This failure was not cured by an attempt to notify either directly or indirectly such voters to return and cast their votes. The failure to perform such mandatory duty was such an irregularity as to cast the gravest doubt on what the results of the election would have been had all these 90 some eligible voters cast their votes.- Not only does this figure 90 exceed the plurality of 9 votes by which the issue was decided, it exceeded the number of the votes in favor of the issue or the number of votes against the issue.

Hence, under the law of Ohio, it is the considered opinion of the court that the only order possible is: that the Carthagena Local School District election of November 4, 1958, be invalidated and set aside.

A journal entry may be prepared accordingly.


author: By WOODS, Referee in Bankruptcy.

text:
    HOSE, Bankrupt, In re.
    IN THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION.
    Nos. 79540, 79541.
    Decided October 20, 1958.
    Harry J. Dworkin, Cleveland, for bankrupts.
    Willard Barry, Cleveland, for Fireside Finance Corp., Objecting Creditor.
   MEMORANDUM OF REFEREE

By WOODS, Referee in Bankruptcy.

Grover Brenton Hose of Cleveland, Cuyahoga County, Ohio, was adjudicated a bankrupt on March 4, 1958, and Marvin L. Gardner of Cleveland, Ohio, was appointed as Trustee in Bankruptcy; and Joan Hose, his wife, also of Cleveland, Cuyahoga County, Ohio, was adjudicated a bankrupt on the same day, and Marvin L. Gardner of Cleveland, Ohio, was appointed her Trustee in Bankruptcy.

Petitions of bankrupts for discharge came on for hearing and specifications of objections on like grounds to the discharge of both husband and wife were filed by Fireside Finance Corporation of Cleveland, Ohio, to which bankrupts filed exceptions to the specifications of objections to discharge; and at the hearing on the questions raised by both bankruptey proceedings, decision on the exceptions to specifications was reserved and upon the full hearing the two cases were submitted and briefs were filed.

The specifications of objections to the discharge of bankrupts were on the grounds that bankrupts had issued a false financial statement in writing as to their financial condition upon which credit was extended by said objector. The relevant statute, Section 14(c) of the Bankruptcy Act, provides:

“The Court shall . . . discharge the applicant unless he has . . .(3) obtained money or property on credit, or obtained an extension or renewal of credit, by making or publishing, or causing to be made or published, in any manner whatsoever, a materially false statement in writing respecting his financial conditions:”

Bankrupt, the husband, was a printer employed by the Forest City Publishing Company of Cleveland, Ohio, and the wife was a PBX operator employed by Hornblower & Weeks, Union Commerce Building, Cleveland, Ohio. The husband’s salary was $80.00 per week and the wife’s salary was $100.00 every two weeks.

The financial statements relied upon by Fireside Finance Corporation were executed by husband and wife on August 29, 1956 and is offered as Objector’s Exhibit “4-A.” Counsel for an objector claims that, relying on said statement, a loan was made by objector to bankrupts following the execution of the financial statement, which furnishes the only ground for which counsel for objector claims his client relies upon in this proceeding.

At the hearing and in the brief of counsel for objector as filed are introduced exhibits and from these it appears that bankrupts had two loans from Fireside Finance Corporation, the first made on June 20, 1956. From the exhibits as to the loans ef bankrupts with Fireside, offered in evidence at the hearing and attached to objector’s brief, the record of bankrupt husband and wife as to loans with Fireside is as follows:

(*) (The financial statement given to Fireside for the first loan was not offered in evidence.)

The objections of Fireside to the discharge, of bankrupts was based on claims of false financial statement made by bankrupt as to their debts on August 29, 1956 and the testimony at the hearing concerned the last loan, No. 4065, and the financial condition of bankrupts when this was made.

The evidence shows that the debts listed for the last loan amounted to $1,-319.24, as appears in the financial statement signed by bankrupts. One debt not listed was the debt to Fireside under the former loan of $450.00 and yet, notwithstanding the financial statement of some months before, the objector charges it was deceived as to the debts of its former customers, these bankrupts, who had previous dealings with the objector.

Thus, from the evidence at the hearing and the exhibits offered, it appears that the financial statement claimed to have been relied upon by the objector was not the true financial statement of the condition of bankrupts. Also, the evidence indicated that the objector must have known of the financial condition of bankrupts where there had been a previous loan made by the objecting finance company before the financial statement was made upon which Fireside as an objector now relies. In this situation, it can hardly be said that the finance company relied upon the financial statement when the company and its agents had been previously doing business with bankrupts. As to the reliance of the objector upon the written statements of bankrupts, it should be noted that on August 29, 1956 the objector took a chattel mortgage on an automobile and a note for $520.00 was signed by both husband and wife. This is at least some evidence as to how much reliance the objector placed on the financial statements of bankrupts.

On the basis of the evidence offered here it cannot be seriously considered that the financial statement was of any great importance on this second transaction with bankrupts or that reliance was placed upon this by objector in making the last loan. So the old question is again at issue presented in a discharge proceeding as to how much reliance can be given to the claim of an objecting finance company or the testimony of its officers and agents that they were fooled or deceived by bankrupts who misstated their outstanding debts while securing loans when the company had a previous loan with the bankrupts.

Notwithstanding the many authorities presented in the excellent brief filed by counsel for objector, the ruling which has been followed in this Court seems to be again applicable here to the effect that the burden is on the objector to show that the false statements issued by bankrupts were sufficient to require a finding that the objector had been deceived thereby, and that a finding of a discharge was not in order.

The grounds for refusing a discharge to a bankrupt are statutory, and as to materially false statements, there are many cases: Judge Davis said in Tabac v. Morimura Airi & Co., 21 Fed. (2) 161 (3CC 1927) 10 ABR ns 538, that:

“Intent of the bankrupt is the touchstone by which his right to a discharge must be tested.”

This case was affirmed on review in Morimura Airi & Co. v. Tabac 297 U. S. 24 (1929) 13 ABR ns 277.

The cases hold that to prevent a discharge a statement must be false and fraudulent and must be a materially false statement, and that is intentionally untrue. It was said in Re. Venturella Co., 25 Fed. Sup. 332, 39 ABR ns 527 (D. C. Conn. 1938) affirmed 102 Fed. (2) 1022 — that a materially false financial statement, on the ground of which a bankrupt’s discharge may be denied, must be one the falsity of which is known to the bankrupt and must be made in an attempt to deceive.

An early case is Re: Matthews, 47 ABR 39 (7 CCC 1921), where Judge Evans said, pg. 39:

“From our examination of the evidence, we are unable to. say this finding was erroneous. That a false property statement was made is conceded.”

In this Circuit in Third National Bank v. Shatten, 81 Fed. (2) 538 (1936) 31 ABR ns 10, Judge Hicks adopted such rule and the syllabus is: “A false statement in writing which is enough to warrant denial of discharge must be knowingly false or made recklessly without an honest belief in its truth and with a purpose to mislead or deceive.” In his Opinion, Judge Hicks said (pg. 15):

“The right to the discharge was addressed to the discretion of the' court (In Re. Merritt CCA, 9th Cir.) 13 ABR ns 47, 28 Fed. (2) 679: Baesh-Ross to 1 Co. v. Stephens, supra: not to an arbitrary discretion, of course, but to its sound judicial discretion. We do not find that there was a gross abuse of the court’s function.”

The findings must be that the proof fails to show that the agents or officers of the finance company relied upon false statements when making this loan to bankrupt husband and wife.

To the same effect was the finding of this referee in Re. Bristor, Case No. 68711, in which a denial of discharge was entered by the Referee, and this was affirmed by His Honor Judge Jones on review April 30, 1954. Also, there is the recent case in the Southern District of Ohio In re Casseldine 105 Fed. 2d 645 1952 where His Honor Judge Nevin reversed the findings of a referee where discharge was refused by referee in a case where the facts were quite similar to those presented here. As in the case at bar, bankrupts had a loan with Fireside Finance Corporation and when a new loan was negotiated, as appears at page 646 of that Opinion, when complaint arose as to her financial statement, Court stated “Bankrupt’s agent was fully conversant with her indebtedness and knew all about her financial conditions due to the fact that she had dealt with the company since at least 1949.” In the present case bankrupts had dealt with Fireside since August 29, 1956, nearly a year longer than in the Casseldine case.

Again, in the recent case of In re Leonard, 122 Fed. Sup. 214 (S. D. Cal. 1954), the court had the same question as presented here, and the Fourth Syllabus is as follows:

“Whenever giving of false financial statement is urged as ground for denial of discharge in bankruptcy, to accomplish denial of discharge, it must be found that credit was obtained as proximate results of the statement. Bankruptcy Act Sec. 14c (1, 3), 11 U. S. C. A. Sec. 32c (1, 3).”

Congress, in passing the law, never intended to make the Bankruptcy Court a collection agency. Other recent unsuccessful efforts to make this Bankruptcy Court a collection agency are to be found In re Barnhardt, 58 Abs 118, 1950, and McDaniel dba Parnell Lumber Company, 107 Fed. Supp. 794 (1951). Such was also the finding In Re Groscost, 230 Fed. (2d) 608, in which this referee and the District Court were affirmed by the Court of Appeals of the 6th Circuit.

Finally, upon the proof offered, bankrupts have established that each was entitled to a discharge in this proceeding, and the burden thus shifts to Objector to establish by a preponderance of the evidence that bankrupts were guilty of fraud by the making of materially false statements in writing respecting their financial condition. This burden the objector has failed to meet in both cases, and it must be found that the objections to each discharge are overruled and discharges granted, which ruling disposes of the specifications of objections to discharge.

The entry is that specifications of objections to the discharge of each bankrupt be overruled and dismissed and discharges granted.