author: By SKEEL, J:

text:
    SULLIVAN, Patrolman, No. 31, Plaintiff-Appellant, v. CIVIL SERVICE COMMISSION OF THE CITY OF EUCLID, OHIO et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23614.
    Decided January 26, 1956.

      Phillip C. Barragate, Barragate, Wedren, Gottermeyer & Pahrenbach, for plaintiff-appellant.
    Paul H. Torbet, for defendants-appellees.
   OPINION

By SKEEL, J:

This appeal comes to this Court on questions of law from a judgment of the Common Pleas Court of Cuyahoga County finding that there was “sufficient cause for the removal of the appellant as a police officer of the City of Euclid, Ohio.” The plaintiff-appellant was a patrolman of the Police Department of the City of Euclid. On June 29th, 1953, an order of suspension was filed with the Civil Service Commission of the City by Gerald J. Sullivan, Chief of Police, as follows:

“Patrolman John Sullivan, Badge No. 31, has been suspended for violating Rule 2, Article 3, being engaged directly or indirectly as a vendor of intoxicating liquors. The rule states that no member of the Department of Police of the City of Euclid, Ohio, shall be engaged directly or indirectly as a vendor of intoxicating liquor.”

Upon hearing before the Mayor, the appellant was found guilty and the Mayor filed the following certificate with the Civil Service Commission :

“John L. Sullivan, Patrolman, No. 31, address 168 East 205th Street, Euclid, Ohio, was tried before me July 3rd, 1953, for violating Article 3 of Rule 2 of the Rules and Regulations governing the Euclid Police Department, ‘For being engaged directly or indirectly as a vendor of intoxicating liquors’ at 21109 Euclid Avenue from April 4, 1953 until June 29, 1953. I found him guilty as charged and dismissed him from the Euclid Police Department.”

An appeal was taken to the Civil Service Commission where on July 16, 1953, a hearing was had and a transcript of the testimony taken. The Commission sustained the appellant’s dismissal by the Chief of Police and his removal from the Department by the following order:

“The Commission further finds that by virtue of the Charter of the City of Euclid, Article 5, Section 1, the Honorable Kenneth J. Sims, Mayor, heard the within matter, which was brought before him by virtue oí the Rules and Regulations of the Department of Police of the City of Euclid under Article 3, Rule 2; that John Sullivan was discharged for specific violation of said rules and regulations.
“The Commission further finds the said removal was for cause.
“It is, therefore, the order of this Commission that the Judgment of the Honorable Kenneth J. Sims, Mayor, be, and is, hereby affirmed.”

An appeal was taken from the foregoing order to the Common Pleas Court of Cuyahoga County by notice of appeal filed July 27, 1953, where, upon the hearing on the transcript, the court found there was reasonable grounds for the removal of the appellant. No question is presented by the parties as to the regularity of the proceedings from the filing of charges and the suspension of the appellant by the Chief of Police until the trial on appeal before the Civil Service Commission. Such failure does not waive the question of the jurisdiction of the mayor to hear the complaint and remove the appellant from office hereafter considered.

The only place in the file before us where the order of the Commission is found is in the appellees’ brief where only a part of the finding is set forth. We will assume, however, that the full order is properly journalized upon the records of the Commission, there being no objection to this part of the record in the appeal presented to the Common Pleas Court.

The facts which are the basis of the removal of the appellant are not in great dispute. The appellant between April 4, 1953 and June 29, 1953, was a Patrolman in the Police Department of the City of Euclid, he having joined the force on February 1st, 1949. Sometime prior to the dates first mentioned, the brother of the Chief of Police of Euclid was the owner of The John L. Sullivan Beverage Store located at 21109 Euclid Avenue in the City of Euclid. The State of Ohio had issued to John L. Sullivan a C-2 Permit to sell beer and wine in packages to customers to carry out and not for consumption on the premises at this address. The permit was issued under the authority of §4303.12 R. C. Upon the death of John L. Sullivan, his widow sold the business to the appellant’s wife and Ruth Santry who became partners in carrying on the business. When the Chief of Police was informed that his nephew’s wife was going to purchase the business from his sister-in-law, he having received such notice from the Liquor Department, on appellant’s wife making application for a C-2 License, he informed his nephew, appellant herein, that he would consider that if his wife did go into the business of selling wine and beer to the carry out trade under a C-2 Permit, the appellant would be in violation of Article 3 of Rule 2 of the Police Department of Euclid and subject to dismissal. Rules 1 and 2 and Article 1-3 of Rule 2 are as follows:

“Rule 1: The Chief of Police may suspend from duty, for hearing by the Director of Public Safety, any officer or patrolman, who in the judgment of the Chief has violated any rule or order regularly issued by the Department of Police, and every such suspension shall immediately be reported to the Director of Public Safety as provided by law; or he may deprive members of their vacation days for violation of any rule.
“Rule 2: The following shall be deemed specific cause for the suspension under charges, of any member of the Department of Police.
“Article 1: For-intoxication while on duty, or while in uniform.
“Article 2: For being a user of intoxicating liquor to excess.
“Article 3: For being engaged directly or indirectly as a vendor of intoxicating liquors.”
* * * (Articles 4-21 omitted.) (Emphasis ours.)

The appellant’s wife purchased the business with one, Ruth Santry, and, with such partner, proceeded to operate it as The John L. Sullivan Beverage Store. The appellant was then called before the Chief of Police (his uncle), was suspended for violation of Article 3 of Rule 2, for being directly or indirectly engaged as a vendor of intoxicating liquor, found guilty by the order above quoted and upon appeal to the Civil Service Commission, his conviction and removal from office was affirmed for like reason upon the order as above quoted.

His Appeal to the Common Pleas Court was perfected as provided by law in which appeal the court found from the transcript of the evidence that there was sufficient cause for removal, the court holding by its journal entry:

“On appeal under §143.27 It. C. and after due consideration of the Transcript of the evidence, and the briefs of the parties, and the proceedings before the Civil Service Commission being found legal and regular and the cause of appellant’s removal as a Policeman of the City of Euclid being sufficient under the evidence, Appeal is denied. Judgment is rendered for the appellee, and for costs. No record.”

An examination of the transcript of-the evidence taken before the Civil Service Commission shows that the appellant took no part in the actual conduct of the beverage store business. There is no evidence that he was ever in the store at 21109 Euclid Avenue, after the purchase of the business by his wife and her partner, or that he took any part directly or indirectly in the conduct of the business of the store. He did help his Aunt on a few occasions while she was operating the business after her husband’s death but such acts are not the subject of the charges filed with the Civil Service Commission by the Chief of Police or were they the subject of the trial before the Mayor. The only evidence in the record which could be the basis of the finding by the Commission that the Mayor was justified in the removal of the appellant for “being engaged directly or indirectly as a vendor of intoxicating liquors” which was affirmed by the Common Pleas Court is that the appellant might derive some financial benefit or be relieved of some financial burden because of his wife’s activities in The John L. Sullivan Beverage Store. The City in its brief, in support of its contention that there were sufficient grounds for the removal of appellant quotes from the trial court’s Memorandum as follows:

“Surely the Civil Service Commission was entitled to conclude from this evidence that any proceeds from Valerie Sullivan’s work or share of the profits in The John L. Sullivan Beverage Store would be added to the common Sullivan family fund and dispersed by Valerie Sullivan for the benefit of the appellant and his children, whom he had the primary duty to support.
“Even had the appellant been a record owner or an actual employee of The John L. Sullivan Beverage Store, it is not likely that he would have secured any different or greater financial benefit.
“But even had Valerie Sullivan spent all proceeds from The John L. Sullivan Beverage Store solely on herself, such application of the monies derived from the sale of beer and wine would have necessarily lightened the responsibility of the appellant to support his wife and thus he would have directly gained.
“The Civil Service Commission further might have found from the evidence that this common family fund, in which would be mingled patrolman’s pay and beer and wine profits, might well have been subject to pay off present or future obligations of Valerie Sullivan arising out of the ownership or operation of The John L. Sullivan Beverage Store.”

The words of Rule 2, Article 3, “to engage directly or indirectly as a vendor of intoxicating liquor,” cannot be so interpreted as prohibiting financial gain from the sale of such commodities. If it could be said that the appellant had an interest in the business or induced persons to patronize the store or in any other way contributed to or induced sales of packaged intoxicating beverages as part of and in furtherance of the business conducted by his wife, then there could be no doubt but that he would be in violation of the rule but there is not a bit of evidence to support any such contention. The fact that there may be a financial benefit derived by the appellant does' not establish or tend to establish “engaging directly or indirectly as a vendor of intoxicating liquor.”

It is also argued or suggested that the interpretation of the rule must be broadened to include a prohibition of his wife’s being engaged in such business because her conduct might be such as to require the defendant, in the discharge of his duties as a police officer, to make an investigation of her place of business to determine if the law is being violated or to arrest her for violating laws regulating the sale of intoxicating beverages and that it would be difficult for him to perform his duties as a policeman under the circumstances, or that he might be negligent in performing his duties by reason of his relationship to the part owner of the business. The answer to that contention is that if the time ever comes when such a charge of malfeasance or misfeasance in office might be justified, such charge should be filed against him and prosecuted in due form.

We find no evidence in this record to justify the conclusion that the appellant violated Rule 2, Article 3, of the Rules of the Police Department of the City of Euclid promulgated by the Director of Public Safety as published in 1950 and shown by City’s Exhibit No. 1.

It should be noticed that the Rules of the Department provide that:

“The following shall be deemed specific cause for the suspension under charges of any member of the Department of Police.” (Emphasis ours.)

It is clear that the Rules were adopted upon the authority of §737.13 R. C., which provides:

“The director of public safety of a city shall classify the service in the police and fire departments in conformity with the ordinance of the legislative authority thereof determining the number of persons to be employed in the departments, and shall make all rules for the regulation and discipline of such departments, except as otherwise provided by law.”

Sec. 737.12 R. C., also provides:

“The chief of police and the Chief of the fire department shall have exclusive right to suspend any of the deputies, officers, or employees in their respective departments and under their management and control, for incompetence, gross neglect of duty, gross immorality, habitual drunkenness, failure to obey orders given them by the proper authority, or for any other reasonable and just cause.
“If any such employee is suspended, the chief of police or the chief of the fire department, as the case may be, shall forthwith certify such fact in writing, together with the cause for such suspension, to the director of public safety, who, within five days from the receipt thereof, shall proceed to inquire into the cause of such suspension and render judgment thereon. Such judgment, if the charge is sustained, may be either suspension, reduction in rank, or dismissal from the department. Such judgment shall be final except as otherwise provided by law.
“The director, in any investigation of charges against a member of the police or fire department, shall have the same powers to administer oaths and to secure the attendance of witnesses and the production of books and papers as are conferred upon the mayor.”

This section provides the penalties that may be imposed for “incompetence, gross neglect of duty, gross immorality, habitual drunkenness, failure to obey orders given by the proper authority or for any other reasonable and just cause.” The penalties are:

“Suspension, reduction in rank or dismissal from the Department.” The word suspension here means to withhold the right to exercise the duties of the office of a policeman for a limited time. The word “suspension” as used in the Rules of the Police Department of the City of Euclid must be given the same interpretation as the word is given in the statutes granting the power to establish them. Where the grounds depended upon as the basis for disciplinary action against a police officer is an article within a rule which prescribes the limits of the penalty to be invoked for its infraction, any greater penalty than that provided for in the rule imposed against one found in violation of such article is contrary to law. A holding upon appeal from an order removing a police officer from office for the alleged violation of an article of such rule (there being no provisions for removal) that there was sufficient cause for removal, must be reversed as contrary to law.

The final question presented by this record is whether or not the Mayor of the City of Euclid is vested with power to try a police officer upon charges and to take disciplinary action against him if in the judgment of the Mayor, the charges are sustained by sufficient evidence. There is no provision for the appointment of a safety director by the Charter nor does the Charter directly spell out procedure to be followed where charges are filed against a police officer except to say that the Mayor shall have power of appointment or removal of a police officer from office subject to State Law.

The Rules, the violation of which is the basis of this action, specifically provide:

“The Chief of Police may suspend from duty for hearing by the Director of Public Safety * * (Emphasis ours.)

No mention of the Mayor is found anywhere in the Rules as adopted. If the Mayor was vested with power to hear charges filed against a member of the police department, it must be found elsewhere in the Charter. We find no such provision.

This Court, as was true of the trial court, will take judicial notice of the classification of Municipal Corporations and their advancements, reduction and surrender of powers. (Sec. 703.23 ft. C.) The City of Euclid, as is shown by the evidence, and as is known to the Court by reason of judicial notice, is a Charter City deriving its powers of government directly from Art. 18, Secs. 3 and 7 of the Ohio Constitution, its Charter having been adopted by the Electors of the City on June 19, 1951, Effective January 1st, 1952. The powers of the Mayor are provided for by Art. 4 of the Charter. Section D of the Charter is as follows:

“The Mayor shall exercise supervision ahd control of all the executive departments and divisions of the City. He shall be the chief conservator of the peace within the City and shall see that all laws, ordinances, and resolutions are faithfully obeyed, and enforced. He shall have the power to appoint, promote, transfer, reduce, or remove any officer or employee of the City, but such power shall be subject to the other provisions of this Charter, or to the Laws of Ohio where it is beyond the competence of this Charter to provide: and such power of removal shall be exercised over a member of a Board or Commission after complaint and hearing, only for neglect of duty, incapacity, incompetency, or malfeasance in office.” (Emphasis added.)

Article 5 of the Charter, Sec. 1 provides:

“The City shall have a Department of General Administration, a Department of Service, a Department of Finance, and a Department of Law. The Mayor shall appoint as the head of each department, a director, who shall exercise supervision and control of his department and who shall serve at the pleasure of the Mayor. Each director shall have such powers and duties as shall be prescribed by this Charter and the Council. There shall be a Department of Police and a Department of Fire under the supervision of chiefs, as prescribed by the Laws of Ohio, responsible to the Mayor, who shall be the executive head thereof. The City shall also have a Civil Service Commission, a City Planning Commission, and a Recreation Commission. The Counncil may by ordinance establish additional departments, boards, or commissions, or divisions thereof, and provide for them as it may deem necessary. With the exception of the departments, boards, or commissions established by this Charter, the Council may combine or abolish any department, division, board, commission, non-elective office, or job classification and may authorize one person to serve in any capacity in two or more departments, divisions, boards, or commissions, when such positions are not incompatible.”

Art. 5, Sec. 7, provides in part:

“The Civil Service Commission shall provide by rule for the ascertainment of merit and fitness as the basis for appointment and promotion in the service of the City as required by the Constitution of Ohio, and for appeals from the action of the Mayor in any case of transfer, reduction, or removal. The action of the Commission on any such appeal shall be final except as otherwise provided by the Laws of Ohio. * * *”

These sections of the Charter recognize that in dealing with police officers, there are areas in which the State Law supersedes the Rules adopted by Charter or Ordinances passed as authorized by the Charter. The extent of the power conferred through the Home Rule Article of the Constitution of Ohio upon Municipal Corporations must be limited to those subjects that are of local concern because such corporation must of necessity remain a part of and subject to the control of the State on all matters of state-wide significance. The cases recognize a distinction between “municipal affairs” and “questions of state-wide concern.” By what may be called the majority view, the function of preserving law and order is a matter of state-wide concern, the municipal corporation being merely an agency of the state in the field of criminal law enforcement. It is for this reason that the management of the Police Department, the primary agency of law enforcement, is controlled in matters of tenure of office, by state law which, of necessity, must supersede local control. 105 A. L. R. 244, Annot. 259. Cincinnati v. Gamble, 138 Oh St 220.

The Supreme Court of Ohio, in dealing with this question, in the case of State, ex rel. v. Sherrill, 142 Oh St 574, said:

“1. Section 3, Article XVIII of the Constitution, which grants to municipalities authority to exercise al powers of local self-government, including the power to adopt and enforce within their limits such local police, sanitary and other similar regulations as are not in conflict with general laws, has application to every city and village regardless of whether it has adopted a charter form of government.
“2. The words ‘general laws,’ as used in the phrase ‘not in conflict with general laws’ in Section 3, Article XVIII of the Constitution, refer to laws enacted by the General Assembly.
“3. A city or village which adopts a charter for its government pursuant to the permissive authority granted by the Constitution or the General Code does not thereby become an independent sovereignty and such municipality has no greater power to exercise local self-government than a non-charter municipality.
“4. In general, matters relating to the members of a police department are of state-wide concern and are under the control of state sovereignty.
“5. The acts passed by the General Assembly which provide that in each city there shall be a department of public safety administered by a director of public safety who shall have all powers and duties connected with and incidental to the appointment, regulation and government of the police department, and the power to inquire into the cause of suspension of any police officer and to render judgment thereon, are ‘general laws’ within the meaning of Section 3, Article XVIII of the Constitution.
“6. Where a charter of a municipality and an administrative code enacted under authority thereof grant to a municipal officer, called a city manager, power to appoint, dismiss, suspend and discipline all officers in the administrative service (which service includes members of the police department), such provisions in the charter and administrative code cannot prevail as against the provisions of the General Code; and a police officer, suspended for the claimed violation of certain rules of the police department, has a right to insist that the director of public safety inquire into the cause of such suspension and render judgment thereon regardless of such provision in the city charter or administrative code.
“7. A writ of prohibition will be awarded to prevent the city manager of any city not organized pursuant to §3515-19 et seq, GC, from inquiring into the cause of suspension of a police officer of such city or rendering judgment thereon, where such threatened action is contrary to law.”

Sec. 737.11 R. C., provides in part:

sf: #
“The police and Are departments in every city shall be maintained under the Civil Service System.”

Sec. 737.01 R. C., provides:

“In each city there shall be a department of public safety, which shall be administered by a director of public safety. The director shall be an elector of the city and shall be appointed by the mayor.”

Sec. 737.02 R. C., provides in part:

“He (the director of public safety) shall have all powers and duties connected with and incident to the appointment, regulation and government of these departments (Fire and Police) except as otherwise provided by law.”

Sec. 737.12 R. C., supra, provides that the Chief of Police has the exclusive right to suspend a police officer for causes mentioned in the statute and the procedure to be followed by notice to the director of public safety who shall conduct the trial and impose the penalty if the facts justify imposition of any of the penalties therein provided for.

Sec. 143.27 R. C., dealing with “Civil Service” provides:

“The tenure of every officer or employee in the classified service of the state and the counties, cities, and city school districts thereof, holding a position under §143.01 to 143.48, inclusive, R. C., shall be during good behavior and efficient service; but any such officer or employee may be removed for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, violation of such sections or the rules of the commission, or any other failure of good behavior, or any other acts of misfeasance, malfeasance, or nonfeasance in office.
“In all cases of removal, the appointing authority shall furnish such employee with a copy of the order of removal and his reasons for the same, and give such officer or employee a reasonable time in which to make and file an explanation. Such order with the explanation, if any, of the employee shall be filed with the commission. Any such employee so removed may appeal from the order of such appointing authority to the state civil service commission or the municipal civil service commission, as the case may be, within ten days after the date of such removal, in which event the commission shall forthwith notify the appointing authority and shall hear, or appoint a trial board to hear, such appeal within thirty days from and after its filing with the commission, and it may affirm, disaffirm, or modify the judgment of the appointing authority, and the commission’s decision is final. In the case of the suspension, demotion or removal of a chief of police or a chief of the fire department or any member of the police or fire department of a city, an appeal on questions of law and fact may be had from the decision of the municipal civil service commission to the court of common pleas of the county in which such city is situated. Such appeal shall be taken within ten days from the finding of the commission.”

From the foregoing sections, it is crystal clear that in a City, the method by which charges against one who is a member of a police department may be filed and the procedure and jurisdiction to try the questions presented are in the Director of Public Safety. Such a function is quasi-judicial in nature (State, ex rel. v. Sherrill, supra, page 585), and the fact that the appellant submitted to the alleged jurisdiction of the Mayor to determine the issues of fact and law presented by the charges did not confer upon the Mayor jurisdiction. Rohn v. Dunbar, 13 Oh St 572, Gilliland v. Admr. of Seller’s 2 Oh St 223, Sherrets v. Tuscarawas Savings & Loan Co., 78 Oh Ap 307, 70 N. E. 2nd 127.

The Charter of the City of Euclid does not provide for a Director of Public Safety but there is provision which authorizes the Council to create necessary departments. The law requires that there shall be a director of public safety in a City. The Charter of the City of Euclid cannot change the rule as thus provided. The Mayor was, therefore, without power to hear and determine the charges against the appellant and until such charges are the subject of a legal hearing before one authorized by law to pronounce judgment, there is no lawful order from which an appeal can be taken to the Civil Service Commission.

For the foregoing reasons, the judgment of the common pleas court is reversed as contrary to law and against the evidence.

Exceptions. Order see journal.

KOVACHY, PJ, HURD, J, concur.


source: Caselaw Access Project

author: By HANNA, J.

license: Public Domain

text:
    KEKIC et, Plaintiffs, v. LINZELL, Director of Highways, Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 681764.
    Decided June 6, 1956.

      Halle, Haber, Berick & McNulty, Cleveland, David A. Kaufman, of Counsel, Stephen W. Kormendy, Cleveland, for plaintiffs.
    C. William O’Neill, Atty. Geni., Hugh E. Kirkwood, Ass’t. Atty. Geni., Columbus, for defendants.
   OPINION

By HANNA, J.

This is an action brought by the plaintiffs as owners of real estate situated at the southeast corner of the intersection of St. Clair Avenue with East 30th Street in the City of Cleveland, seeking to enjoin the Director of Highways from appropriating this real estate and demolishing the buildings thereon incident to the construction of State Route U. S. 42R, more popularly known as the Inner Belt Freeway.

The use which the Director of Highways proposes to make of plaintiffs’ premises is a temporary one, the buildings to be demolished and the land used as a detour road until the completion of State Route U. S. 42R at this point, at which time possession of the land will be returned to plaintiffs.

The power of eminent domain is an incident of sovereignty and its exercise for the purpose of building roads is traceable in history at least to the days of the Roman Empire. But when the right of eminent domain is given it is a delegated right and its exercise is limited to the purpose for which it is conferred.

We are not unmindful of the fact that in the present instance it is proposed to demolish buildings owned by plaintiffs, who by hard work and frugal living have acquired this income-producing property to provide for their needs in the sunset of their lives. The possibility that the plaintiffs may not adequately be compensated in a condemnation proceeding serves to remind us of the well settled rule of law that statutes under which the right to appropriate is sought to be invoked must be strictly construed.

It is the contention of the plaintiffs that since the sole use of the property will be to provide a detour road for St. Clair Avenue traffic during the construction of a bridge spanning the Freeway at St. Clair Avenue, the defendant is without authority to make such appropriation, since this portion of St. Clair Avenue is not a part of the State Highway system. It is the contention of the Director that both the bridge and the detour road are incident to the construction of the Freeway and such authority to appropriate is conferred on him by §§5501.11 and 5511.02 R. C.

It is also urged by the plaintiffs that the Inner Belt Freeway as planned would traverse the line of St. Clair Avenue below the St. Clair street level and that to conform to such plan it would be necessary to construct an underpass or grade separation. This, they say, would eliminate crossing at grade on a highway, no authority for which exists as to state highways save that provided in Chapter 5523 R. C. We do not consider the proposed construction to be such a separation of traffic at grade as comes within the purview of Chapter 5523 R. C., and shall forego a discussion of the Chapter’s provisions as not germane to the issues herein presented.

However, an analysis of §§5501.12 and 5511.02 R. C., is necessary to a determination of the issues. Sec. 5501.12 R. C. (Duties and Powers of the Director of Highways) is five paragraphs in length but the pertinent parts of it read:

“The Director may purchase or appropriate property necessary for * * * or any other highway improvement and may purchase or appropriate for such length of time as is necessary and desirable, such additional property as is required for the construction and maintenance of * * - detour roads * * * incident to any highway improvements which he is or may be authorized to locate or construct.”

Sec. 5511.02 R. C. (Limited Access Highways or Freeways) provides, inter alia:

“The director of highways may lay out, establish, acquire, open, construct ~ ‘limited access highways’ or ‘freeways’ in the same manner in which the director may lay out, establish, acquire, open, construct * * * highways. The director shall have all additional authority relative to such ‘limited access highways’ or ‘freeways’ as he possesses relative to highways * * (Emphasis added.)

The plaintiffs reason that if St. Clair Avenue were a state highway and construction of a state bridge along its route the purpose of the appropriation, and if the detour road were required as incident to such construction, no injunction would lie in their favor, because the appropriation would be one authorized by §5501.12 R. C. But because St. Clair Avenue is not a state highway they urge that the state cannot exercise eminent domain over property needed for or incident to the construction of such bridge and they are entitled to the protection of this court against the unlawful attempt to appropriate their property.

So far as the record shows, St. Clair Avenue would continue to serve as an east-west traffic artery without a bridge at this point were it not for the proposed Inner Belt Freeway construction. It must then be held that the bridge is incident to the construction of State Route U. S. 42R, and the detour road over plaintiffs’ property also incident to it.

To determine if the Director of Highways has the right to appropriate plaintiffs’ property for such length of time as is necessary or desirable, we must look to the language of the statute relating to Freeways as part of the state highway system (§5511.02 R. C.), and the language of §5501.11 R. C., the statute conferring on the Director power to appropriate property necessary for the location or construction of highways.

Clearly these statutes are in pari materia and should be construed together since both deal with the Highway Director and with highways in the state system, and may be considered as having a common subject, policy and spirit, to-wit: A better state highway system.

It is conceded that the Director may appropriate property needed for highway purposes under §5501.11 R. C. This Court is of the view that when the General Assembly adopted §5511.02 R. C., and in its provisions gave the Director “all additional authority relative to such ‘limited access highways’ or ‘freeways’ as he possesses relative to highways,” it brought within the scope of his duties and powers the right to appropriate property necessary for detour roads incident to the construction of a limited access highway. Otherwise, the language “additional authority 11 * * as he possesses relative to highways” must be given a strained construction or held to be meaningless.

Familiar rules of statutory construction require that we ascribe to the lawmaking body an intent that its legislative efforts be not in vain. We must also indulge the presumption that it used the language contained in the statute advisedly and intelligently. Admittedly, the legislature could have repeated all of the verbiage used in other statutes by which authority relative to highways is given to the Director. Its critics might then accuse it of needless tautology. But it chose to refer to the authority rather than restate or enumerate the provisions conferring it, a not-uncommon practice among legislative bodies. In trying to be brief, we do not feel that the lawmakers became obscure.

Perhaps it would have made the question easier of determination had the draftmanship of §5511.02 R. C., been as thorough, as explicit, and as detailed as Chapter 5537 R. C., dealing with the Turnpike Commission. But such is a rarity as the author points out in 37 O. Jur., at page 510:

“Although statutes are seldom written in such precise or categorical terms as point out inclusively and exclusively all their intended applications, the presumption is that language has been employed with sufficient preciseness to disclose the intent. Accordingly the province of construction is to arrive at the true sense of the language of the act.”

Construing §5511.02 and 5501.11 R. C., together, logic supports the conclusion that the Director may appropriate property necessary for the location or construction of a limited access highway in the same manner as he may for any other highway improvement, and may in like manner purchase or appropriate for such length of time as is necessary and desirable such additional property as is required for the construction and maintenance of detour roads incident to the location or construction of such limited access highway.

The Supreme Court of Ohio has frequently upheld the right of the Director to use discretion as to the-manner in which he shall exercise the authority and power conferred upon him by statute. The most recent of its pronouncements on this subject is found in Rothwell v. Linzell, 163 Oh St 517.

There is credible evidence before the Court as to the volume and nature of traffic on St. Clair Avenue, and as to the characteristics of streets in the vicinity of East 30th Street and St. Clair Avenue. There is credible evidence before the Court that it is sound from an engineering standpoint, and proper constructional procedure to locate the detour road on the south side of St. Clair Avenue, rather than the north side. The Director’s decision to so locate it does not appear to the Court to be an abuse of discretion vested in him by law, but contrariwise, a reasonable exercise of it.

It is the opinion of the Court that the acts contemplated by the Director and the appropriation action instituted by him in pursuance thereof are not in violation of the provisions of Article I, Section 19 of the Constitution of Ohio that:

“private property shall ever be held inviolate but subservient to the public welfare * *

To the extent that plaintiffs’ rights will suffer interference, it will be because of a lawful taking for public use.

The law contemplated that the plaintiffs will be fully compensated. We trust that they will be. It is apprehension that they may not be fully compensated, which makes unpleasant the duty of deciding adversely to them. But, under the law and the evidence as we view it, this Court is impelled to conclude that the plaintiffs are not entitled to an order enjoining the Highway Director from proceeding in the appropriation action instituted in this court.


author: By THE COURT:

text:
    STATE, Plaintiff-Appellee, v. LYLE, Defendant-Appellant.
    Ohio Appeals, Second District, Miami County
    No. 506.
    Decided November 29, 1955.
    James H. De Weese, Pros. Atty., Troy, for plaintiff-appellee.
    Forrest L. Blankenship, Troy, for defendant-appellant.
   OPINION

By THE COURT:

The defendant was charged with operating a motor vehicle while under the influence of intoxicating liquor, in violation of §4511.19 R. C. He was found guilty and sentence pronounced on July 9, 1955. Motion for a new trial was filed October 3, 1955, and overruled as of that date. No notice of appeal was filed in the trial court. Leave to appeal in this Court is controlled by §2953.05 R. C., which reads:

“Appeal under §2953.04 R. C., may be filed as a matter of right within thirty days after sentence and judgment. After 30 days from sentence and judgment, such appeal may be filed only by leave of the court or two of the judges thereof.”

No explanation is forthcoming for the failure of defendant to file his notice of appeal as a matter of right within the thirty days after sentence and judgment as provided by this section of the code.

The fact that leave to appeal may be filed only by leave of the Court or two of the judges thereof, implies that there must be some reason appearing to support and justify such leave.

We discussed the requisites to support an order of this Court for leave to appeal in a criminal case in State v. Kramer, 70 Abs 97, 127 N. E. (2d) 61.

The motion for leave will be denied.

MILLER, PJ, HORNBECK, J, concur.

WISEMAN, J, not participating.


author: By CLIFFORD, J.

text:
    HENDERSON, d. b. a. HENDERSON’S BAR, Appellant, v. RUTKOWSKI, Director, Department of Liquor Control et, Appellees.
    Common Pleas Court, Franklin County.
    No. 188524.
    Decided February 1, 1954.
    Nolan, Boesch & Wolff, Charles H. Boesch, Dayton, for appellant.
    C. William O’Neill, Atty. Geni., Kiehner Johnson, Asst. Atty. Geni., Columbus, for appellees.
   OPINION

By CLIFFORD, J.

This is an appeal from the decision of the Board of Liquor Control suspending for a period of thirty (30) days the Class C-2, D-l, D-2, and D-3 permits of the appellant. The charge is selling malt beverages in excess of 3.2% alcohol by weight to a minor under the age of twenty-one years in violation of §4301.22 R. C. (§6064-22 GC) and the Regulations of the Board of Liquor Control.

Four police officers of the Dayton Police Department entered the business premises of the appellant, and after being seated in a booth, two of the officers observed a sale and consumption of beer to Charles M Buckley, a minor. This action is a result of that observation.

The fundamental point upon which this action turns is the age of Charles M. Buckley. Although the issue of identity beclouds the record, a critical reading of the testimony conclusively establishes that the Charles M. Buckley named in the department’s charge is the minor involved in the transaction at issue.

Another perennial issue arising in these cases, whether the alcoholic content of the beverage was above the legal limit, is disposed of by the waitress at page twenty-two of the record. She testified she had served the boy six per cent beer.

The contention of counsel that there was no knowledge on the part of the permit holder or his employees that the boy was not yet twenty-one years of age is without merit. This branch of the court has passed upon this question in Clarence G. Hach, d. b. a. Anchor Bar v. The Board of Liquor Control et al., No. 188708 and In the Matter of Sons Bars and Grills Company, d. b. a. Melody Show Bar, No. 188719, 53 O. O. 320, 69 Abs 582. This branch of the court is mindful of the decisions of another branch of this court to the contrary, but to the court sitting in the case at bar the law in Ohio on the issue of knowledge, or scienter as it is sometimes called, is that enunciated at 115 ALR 1230. The court has more fully examined the issue of knowledge in the two cases above cited.

The counsel for appellant also maintains that the age of the minor in question has not been shown. It is true that from a reading of the whole record the exact age of the boy has not been established. Even the father of the boy involved testified that the boy was twenty-one years old on July 6, 1953. and later testified that he was twenty years of age on the same date. The date the beer was sold to the boy was June 19, 1953. But this inconsistency in the father’s testimony is not sufficient for reversal of the board’s order. The testimony of the father was consistent on the material issue of underage, and it satisfies §4301.22 R. C. (§6064-22 GO, which provides in part that “no intoxicating liquor shall be sold to or handled by any person unless he shall have attained the age of twenty-one years.” Since neither party to this aption saw fit to introduce a birth certificate, nor give any reason for the failure to bring in such a certificate, credence is given the board when it based its order on the testimony of the father. The testimony of the boy’s father, if taken alone, is sufficient to sustain a finding of the boy’s under age. The testimony of appellant, the bartender and the waitress is not convincing.

This court cannot weigh the evidence. Sata, appellant v. Board of Liquor Control et al., 88 Oh Ap 88, 43 OO 377, citing Farrand v. State Medical Board, 151 Oh St 222, 39 O. O. 41, 85 N. E. 2d 113. The court finds the order of the Board of Liquor Control to be supported by reliable, probative and substantial evidence and that the order of the board is in accordance with law. The order is affirmed.


author: By BARTLETT, J.

text:
    GALLOWAY, Plaintiff, v. COLUMBUS-BROAD CORPORATION, d. b. a. BROAD-LINCOLN HOTEL, Defendant.
    Common Pleas Court, Franklin County.
    No. 190207.
    Decided December 29, 1954.

      David dayman, Samuel L. Zuravsky, for plaintiff.
    Hamilton & Kramer, for defendant.
   OPINION

By BARTLETT, J.

Application to reconsider the Court’s Previous ruling is OVERRULED, wherein the Court sustained the motion of plaintiff for leave to file an amended petition on certain conditions.

Counsel for defendant urge that the instant case does not present a situation where plaintiff’s rights “are entirely subject to the frailties of the pleader in drawing his complaint,” since there is no “omission” to state essential facts, which may be supplied by an amended petition.

The frailties of the pleader may involve overstatement as well as understatement. (Emphasis ours.)

In the case of Davies v. Columbia Gas and Electric Corp., 51 Abs 372, the plaintiff asks leave to file an amended petition, after a demurrer had been sustained to the original petition, and the Trial Court of this county refused the request, stating as follows:

“Plaintiff advances the claim that the petition can be so amended as to state facts sufficient to constitute a cause of action as a class suit.
“The court has held that the action as pleaded is an attempt to bring in the form of a class suit separate causes of action for damages which is not proper, and no change in the pleadings can avoid this rule.” p. 377, Davies case, supra.

In other words, this trial court placed its refusal to permit the amended petition to be filed in the Davies case on the fact the plaintiff had over-pleaded the facts in his original petition, a defect which could not be remedied by an amended petition.

The Court of Appeals reversed this ruling in the Davies case, supra, stating on p. 377 of its per curiam opinion:

“In denying the plaintiff the right to remedy the defect by filing an amended petition, the court in effect is denying the plaintiff his day in court. In the exercise of a sound discretion the trial court should grant to plaintiff an opportunity to properly state a cause of action.”

Counsel for defendant beg the question, when they state “here are all the facts properly before the Court.”

Counsel, also state, “If the facts are as the plaintiff swears them to be, the trial court, as a matter of law, must sustain a motion for a directed verdict at the close of the plaintiff’s case.” Let this be conceded it proves nothing.

We have counsel for the plaintiff representing to the Court that they believe they can offer an amended petition in good faith that will properly state a cause of action, and our Court of Appeals in the Davies case says the trial court in the exercise of a sound discretion should grant plaintiff that “opportunity.”

In the case of Ellis v. Victor Electric Products, Inc., 85 Oh Ap 170, the Court of Appeals of Hamilton County held it should be “clear that all of the facts stated and expected to be proved by plaintiff do not constitute a cause of action.” Counsel for plaintiff offer to plead facts different from the original petition.

Also in the Davies case, supra, our Court of Appeals on p. 377, said:

“If the plaintiff tenders an amended petition in good faith in which the defect in the original petition has been remedied * * * the trial court in the exercise of a sound discretion should permit the amended petition to be filed.” (Emphasis ours.)

This Court is not inclined to impugn the good faith of counsel for the plaintiff who represent they believe they can present an amended petition that remedies the defect of their original petition. That is their problem.

Motion to reconsider overruled. Entry accordingly with exceptions by counsel for defendant.


author: By GRIFFITH, J.

text:
    CROW, Disbarment, In re.
    Ohio Appeals, Second District, Champaign County.
    No. 138.
    Decided December 17, 1955.

      Reed M. Winegardner, Washington C. H., J. Harvey Crow, Cleveland, In Propria Persona for appellant.
    Richard P. Faulkner, Edwin L. English, Russell B. Holding, Urbana, D. H. Jackman, London, for the Committee.
    (FESS, J, of the Sixth District; GRIFFITH and NICHOLS, JJ, of the Seventh District, sitting by Special Assignment.)
   OPINION

By GRIFFITH, J.

On February 5, 1955, charges were preferred against J. Harvey Crow in the Common Pleas Court of Champaign County, which charges were prepared by four attorneys theretofore appointed by the Common Pleas Judge as a committee to investigate and, if there is probable cause, to submit and prosecute the same. Three members of the committee were from Champaign County, and the fourth was from the neighboring County of Madison.

The complaint was for misconduct and unprofessional conduct in office involving moral turpitude and was supported by 11 specifications. On February 14th, a copy of these charges, certified by the Clerk, was served upon appellant at his office at 1409 N. B. C. Building, Cleveland, by registered mail; also on February 14, 1955, the Sheriff of Cuyahoga County served J. Harvey Crow by personally handing to him a true and certified copy of the charges for disbarment.

On February 23rd, the case was assigned for trial by order entered on the journal. Time fixed was April 18, 1955. Appellant was notified of the date fixed. On April 16th, appellant filed the following motion;

“Now comes J. Harvey Crow for the purpose of this motion, and for no other purpose and not intending to submit to the jurisdiction of this court and without submitting himself to the jurisdiction of this court; and not intending to enter an appearance in this cause but appearing especially for this motion, moves the court to set aside the summons issued herein against him, and to quash the service of summons made on him and the return of the Sheriff thereon for the following reasons.
“1. That the venue of said action is not in Champaign County.
“2. That the legal residence of said J. Harvey Crow at the time of filing said petition was and now is in Cuyahoga County, Ohio.
“3. That said J. Harvey Crow maintained an office for the practice of law and at the time of filing said petition did and for a long time prior thereto did maintain an office in Cuyahoga County, Ohio for the practice of law.
“4. That service of summons was made upon said J. Harvey Crow at his office 1409 N. B. C. Building, Cleveland, Ohio, by the sheriff of Cuyahoga County, Ohio.
“5. That this is an action in personam and personal service is necessary.
“6. That said action must be maintained in the county that personal service can be made.
“7. That no personal service was made in Champaign County, Ohio.
“8. That the venue of said action is in Cuyahoga County, Ohio.
“9. That the statutes of Ohio do not provide for service in a foreign county in this action.
“That said motion will be heard upon Affidavits hereto attached to said motion and others that might be filed with the permission of said court.
J. Harvey Crow
Reed M. Winegardner
Attorneys for J. Harvey Crow”

At the time of the filing of the motion, appellant filed affidavits and brief. The affidavit of the Clerk of the Board of Elections of Cuyahoga County was to the effect that the appellant was an elector of Cuyahoga County on February 5, 1955.

The affidavit of Max E. Gustin, an attorney at Cuyahoga County, was to the effect that the appellant has offices at 1409 N. B. C. Building and had had the same for ten years past, and the affidavit of the appellant himself was to the effect that for a long period of time prior to February 5, 1955, he had been a resident and voter of Cuyahoga County.

The Committee prepared a brief and filed it on Monday morning, April 18th and also filed affidavits of the Common Pleas Judge, the Probate Judge, and the Prosecuting Attorney of Champaign County, the substance of which affidavits was to the effect that the appellant is presently practicing law in Champaign County and has numerous cases pending in each court.

When the Court convened at 9:30 A. M., on April 18th, appellant did not appear but was represented by Attorneys Reed M. Winegardner and Frank L. Nevius, who argued the motion to quash.

After consideration thereof, the court overruled this motion. Motion then was made for a continuance, and the same was overruled. Numerous motions were made by counsel for the appellant testing the preliminary matters of jurisdiction, venue and service, continuances of trial, etc.

On Tuesday morning, April 19th, the appellant appeared in person at the trial and demurred to the first specification which, after consideration thereof, was sustained by the Court, but various motions were overruled.

Trial was carried on during April 19th and 20th, then adjourned to May 9th; it then carried through May 13th and, at the close of that day, the Court found the appellant guilty on specifications 2, part of 4, all of 5 and 7, announcing its decision at about 5:00 P. M. of that day.

In this appeal, there are 34 errors assigned, the first of which reads:

“The Court erred in overruling the motion filed by J. Harvey Crow to quash the service of summons made upon the said J. Harvey Crow, he having appeared especially for said motion.”

The motion goes to the matter of venue. It asserts that the venue of this action is not in Champaign County since the appellant, at the time of the filing of the charges, was a resident of Cuyahoga County and practicing law there.

Venue means the county in which the action is brought for trial This proceeding is brought pursuant to §4705.02 R. C., which reads:

“The Supreme Court, court of appeals, or court of common pleas may suspend or remove an attorney at law from office or may give private or public reprimand to him as the nature of the offense may warrant, for misconduct or unprofessional conduct in office involving moral turpitude, or for conviction of a crime involving moral turpitude. Such suspension or removal shall operate as a suspension or removal in all the courts of the state. The clerk of court upon such suspension or removal shall send a copy thereof to the supreme court, the court of appeals, and to the federal court of the district in which said attorney resided at the time of trial for such action as is warranted. Judges of such state courts are required to cause proceedings to be instituted against an attorney, when it comes to the knowledge of any judge, or when brought to his knowledge by the bar association of the county in which such attorney practices that he may be guilty of any of the causes for suspension, removal or reprimand.”

While the statute does not state where the proceedings shall be filed, we do know, from a reading of the record, that the actions of misconduct alleged occurred in Champaign County; that the appellant on February 5, 1955, was a resident of Cuyahoga County and, further, that he was on that date, a practicing attorney in Champaign County representing clients having numerous cases pending in the Courts of that county.

We find and hold that the proper place of the trial of this case was in Champaign County. There was no error on the part of the Trial Court in holding that the venue of this action laid in Champaign County.

The second error assigned reads:

“That the Trial Court erred in holding that it had jurisdiction in this action.”

Did the Trial Court have power or authority to hear and determine this cause? In the Lieberman Case, 163 Oh St 35, Syllabus 1 reads:

“A proceeding to suspend or remove an attorney at law from office is strictly statutory and constitutes an action at law only, and the only appeal provided in such proceeding is one on questions of law.”

Sec. 4705.03 R. C., requires personal service. The record discloses that a copy of the written charges filed against the appellant, stating the ground of complaint, was served upon him at or about the time the same were filed.

Appellant contends that this being a civil action in personam, §2307.30 R. C. applies. Appellant was not served in Champaign County but was served by the Sheriff of Cuyahoga County, the county where he resides. Service was had upon him, but he is complaining because it was made on him in Cuyahoga County instead of Champaign County.

The practice of law is state wide in its operation. Appellant was an officer of the Court of Champaign County; had practiced there for years and is still practicing there, and the service on him was sufficient, the venue properly laid in Champaign County, and the Court had complete jurisdiction over both the person and the subject matter.

We find no merit to the first three assignments of error.

Coming now to the fourth assignment of error which reads:

“That the Court erred in failing to comply with the motion to make a separate finding of fact and conclusion of law filed by the appellant.”

The Trial Court announced its decision on May 13th at about 5:00 P. M., by the reading of the journal entry which the Court prepared. The Clerk of Courts Office was then closed. On May 14th at 8:10 o’clock A. M., this journal was filed in the Clerk’s Office. At 10:40 A. M. of the same day, the appellant filed his written motion for separate findings of fact and conclusions of law, as provided by §2315.22 R. C. At 11:25 o’clock of the same day, the appellant filed notice of appeal which reads as follows:

“Now comes J. Harvey Crow and hereby gives notice of appeal to the Court of Appeals for the Second District of Ohio from the judgment rendered by the Court of Common Pleas in the above entitled action on the 14th day of May, 1955. This appeal is on questions of law. J. Harvey Crow.”

The partial bill of exceptions before this Court failed to reveal any action by the Trial Court on this motion, and there are no separate findings in the record. Failure of the Court to make the requested findings equates its refusal so to do. The filing of the notice of appeal is not inconsistent with the filing of a request for findings since the request is with a view of excepting to the Court’s decision upon questions of law involved in the trial.

Sec. 2315.22 R. C., is mandatory. In the case of Levick v. Bonnell, 137 Oh St 453, the Court held that the application was timely filed when it was filed the day following that of the judgment entry when it was filed without being submitted to opposing counsel. True, the Court prepared this journal, and not counsel, but that fact has no bearing on the rights of this appellant.

This Court, in the case of Weikert v, Weikert, 68 Abs 257, has held that where a case is tried to the Court upon request of either party, the Court shall state in writing its conclusions of law and findings of fact; that this statute (§2315.22 R. C.), confers a substantial right, and it is mandatory upon the Court to comply with such requests, and the failure to do so constitutes prejudicial error unless it appears from the record that the party making the request is not prejudiced thereby.

We hold that the application for findings was timely filed, and the filing of the notice of appeal did not operate as a waiver of the appellant’s right to such findings, and the failure to make such findings constitutes prejudicial error.

A re-trial of this case is not necessary. The case is reversed and remanded to the Trial Court with directions to make findings of facts and conclusions of law and re-enter such judgment, as the case may require, as of the date the findings are filed in the Clerk’s Office.

This is not a general remand for diminution of the record, but is a remand for the Trial Court to make its findings of fact and conclusions of law and goes no further back than to the point where this error was committed, to wit, failure of the Trial Court to make and journalize the conclusions of fact found separately from the conclusions of law. We are not passing on the other errors assigned. The rights of the parties to appeal, after such findings have been made and filed, are preserved.

Judgment reversed. Case remanded to the Court of Common Pleas for further proceedings in accordance with this opinion. Costs to abide final judgment.

FESS and NICHOLS, JJ, concur.


author: By HUNSICKER, J:

text:
    SOBOCINSKI, Appellee and Appellant, v. CLEVELAND (City) (CLEVELAND TRANSIT SYSTEM), Appellee, DOWD, Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23617.
    Decided April 16, 1956.

      J. Harold Traverse and Victor M. Todia, for plaintiff-appellee and appellant, Edmund R. Sobocinski.
    McConnell, Blackmore, Cory, Burke & Kundtz, for defendant-appellee, City of Cleveland.
    William M. Byrnes, William A. Kane, for defendant-appellant, Ernest S. Dowd.
    (STEVENS, PJ, HUNSICKER and DOYLE, JJ, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, J:

This is an appeal on questions of law.

On November 28, 1951, Edmund R. Sobocinski was walking east on the north sidewalk of Euclid Avenue, in the city of Cleveland, Ohio, when he was struck by an automobile driven by Ernest S. Dowd. Dowd, who was going west on Euclid Avenue, was making a right turn from Euclid Avenue into the driveway of the Union Club of Cleveland, and in doing so he passed in front of a City of Cleveland passenger bus which was also proceeding west in the north lane of traffic on Euclid Avenue. This Cleveland passenger bus struck the Dowd car at the right rear corner and pushed it across the curb line onto the sidewalk at the point where Sobocincki was walking.

A trial, to a jury, <pf an action filed by Sobocinski against Dowd and the City of Cleveland resulted in a verdict in favor of Sobocinski against Dowd, and a verdict in favor of the co-defendant City of Cleveland. From the judgment rendered on such verdict, Dowd appeals to this court from the judgment against him, and from the judgment in favor of the City of Cleveland. Sobocinski also appealed from the judgment in favor of City of Cleveland, although at the hearing of this cause, his counsel asked that no action be taken on such appeal if the judgment in favor of Sobocinski against Dowd should be affirmed.

Dowd sets out fourteen assignments of error, which need not be copied herein, since we will examine the principal claims of error in this opinion.

Dowd, beginning with his notice of appeal, claims the trial court erred in not granting a new trial to Sobocinski on the verdict and judgment the City of Cleveland obtained in its favor, and that the trial court erred in giving an instruction before argument requested by the City of Cleveland.

We cannot, even assuming that the requested instruction was erroneous, understand how this co-defendant, Dowd, can complain against one of the alleged tort-feasors, unless the giving of that instruction also affected the rights of Dowd in his defense of the claim made against him.

The instruction complained against is as follows:

‘T charge you as a matter of law that where one without fault is confronted with circumstances of unanticipated peril and imminent danger, he is not held to the exercise of the same quality of care or cautious conduct that prudent persons would exercise where no such peril or danger is present.
“If you find that the CTS bus driver was without fault, confronted with an unanticipated peril and imminent danger, and if you further find that he acted as a reasonably prudent person would act under such circumstances, then he was not negligent and your verdict must be for the defendant, City of Cleveland, despite the fact that a collision occurred between the CTS bus and the automobile.”

It is to be noted that this instruction, the only special instruction before oral argument to the jury, is linked to the parties to the action, and covers a matter which was very much in evidence. The City of Cleveland claimed, and the evidence sustained its claim, that Dowd cut directly in front of the bus from a lane of traffic next south of the lane in which the transit bus was traveling. The bus operator was unable, at the moment when Dowd crossed directly in front of him, to instantly bring his bus to a full stop or to swerve to the left and avoid striking the Dowd car. All the credible evidence pointed to the creation of an emergency which then confronted the bus driver. The City of Cleveland was entitled to an instruction on the subject of emergency.

The rule announced in the case of Satterthwaite v. Morgan, Jr., 141 Oh St 447, was not changed by any statement in the case of Bush, Admr., v. Harvey Transfer Co. et al, 146 Oh St 657, at pages 664 and 665. The case of Peters v. Weaver et al, 97 Oh Ap 31, also sets out the rule with respect to emergency action on the part of a driver of a motor vehicle. And see: II Restatement of the Law of Torts, Sec. 296.

It is claimed, as heretofore noted, that Dowd and the City of Cleveland were joint tort-feasors. It is the well-settled rule in Ohio that there is no contribution between joint tort-feasors. Royal Indemnity Co. v Becker et al, 122 Oh St 582. There was a great conflict in the evidence, and the jury believed that only Dowd was at fault; and by their verdict they absolved the City of Cleveland from all liability in the premises.

Dowd now seeks to shift some or all of the blame onto the City. This he cannot do, for where the law does not require contribution between joint tort-feasors, and one of the two defendants is dismissed, only the plaintiff in such a case has the right to appeal the judgment of dismissal.

We find no Ohio case directly on this point, but cases from other jurisdictions where there is no contribution between joint tort-feasors, so hold. See:

Bremner v. Hendrickson et al, 31 Fed. 2d 893.

Davies, as Trustee, v. Land O’Lakes Racing Assn. (Minn.), 69 N. W. 2d 642, wherein the court said, at p. 648, that “an appellant may not assign error affecting other parties but may assign only error that is prejudicial to him. * * * That defendants on appeal cannot question the dismissal of an action against a co-defendant in whose favor a verdict has been returned and against whom, appellants have asserted no claim is well established ~ ®.”

Peters v. City and County of San Francisco et al. (Calif.), 260 P. 2d 55.

Raich, etc., v. Aldon Construction Co. et al. (Calif.), 276 P. 2d 822.

Glassman et al, v. City of New York et al. (N. Y. App.), 135 N. Y. S. 2d 597.

We therefore determine that, as to the appellant Dowd, he cannot, under the facts of this case, complain that the trial judge committed prejudicial error when the judge gave an instruction relative to the care required by the bus driver when confronted with an emergency.

Another claimed error most strongly urged upon us concerns the amount of the verdict. Appellant Dowd insists that the damages awarded by the jury are greatly excessive and appear to have been given under the influence of passion and prejudice.

We do not so find. The evidence shows that Sobocinski has scars and calcification in his leg, and some increase in calcification around the hip joint, which is shown by the x-ray pictures taken three or more years after the accident. The muscle tissue has, as a result of the injury, been replaced with fibrous tissue. Sobocinski underwent painful surgery and was off work for ten weeks. He now has excess fluid in the knee joint, and an enlarged right hip and calf of the right leg.

The orthopedic surgeon who testified as an expert witness for Sobocinski, said there was a change in the quality or character of the tissues of the right thigh which is characteristic of scarring in the deeper tissues. He also said that Sobocinski has some bone formation in the thigh as a result of the injury, and that he has some bony thickening over the end of the second right metacarpal bone at the wrist level, although this does not interfere with the use of the right hand.

Sobocinski said he tires more easily when on his feet, but that his work requires him to be on his feet; he still suffers pain in his right leg and must take treatment nearly every day, using hot applications to alleviate this pain. He walks with a slight limp. All of. these permanent injuries are a direct result of the accident.

When a reviewing court, faced with this evidence, comes to a consideration of the nature of these injuries and reflects upon the degree of pain yet reasonably certain to be suffered during the normal life expectancy of Sobocinski, it must conclude that the verdict herein was not given as a result of passion or prejudice. This verdict and the judgment thereon is not excessive, and certainly not against the manifest weight of the evidence.

We have examined all of the claimed errors, and find none prejudicial to the substantial rights of either the appellant Dowd, or the appellant Sobocinski.

The judgment is affirmed.

STEVENS, PJ, DOYLE, J, concur.


text:
    COLUMBUS (City), Plaintiff-Appellee, v. GLOVER, Defendant-Appellant.
    Common Pleas Court, Franklin County.
    No. 192510.
    Decided July 28, 1955.
    Frank A. Reda, Police Prosecutor, for city of Columbus, appellee.
    Isadore L. Margulis, Columbus, for defendant-appellee.
   OPINION

By BARTLETT, J.

After a review of the evidence in the Police Court as shown by the transcript thereof, the judgment of conviction in the trial court is hereby reversed and a new trial granted for the following reasons.

1. The corpus delicti of the alleged offense was not established. Defendant not required to answer a charge against him, in the absence of evidence upon the part of the prosecution sufficient to establish the corpus delicti. 12 O. Jur. Criminal Law, Sec. 295, p. 300.

The only proof before the Court, was the testimony of the police officer as to what defendant said. Extra Judicial confessions alone are not sufficient to prove the body of the crime. 12 O. Jur. Sec. 431, p. 448.

2. No competent evidence was offered which would sustain a conviction. The only witness was the officer who did not see defendant operate the motor vehicle. In fact defendant was not at the alleged scene of the offense charged. A blood test was taken, and the officer was permitted to testify that the specimen of blood tested 16. without any showing the officer was present for the test, or that he knew anything about such test, or what it means. The Court itself had no evidence before it as to what 16. means.

3. The defendant did not take the witness stand, yet the Court itself, asked the officer if the defendant had any previous record, and the officers testified as to 3 previous arrests, but there was no showing of any convictions. Thereafter the Court found the defendant guilty and passed sentence.

It is a serious offense to drive a motor vehicle while under the influence of alcohol, in fact such conduct is dangerous.

Yet we must not forget that we are not living in a Police State, but under a constitutional form of government, including a Bill of Rights, sacred to all of us. It is very dangerous to ignore those rights.

4. The judgment of conviction and the sentence, on the weight of the evidence, is reversed, and a new trial granted.


author: By CASE, J.

text:
    PIERSON et, Plaintiffs, v. MERRITT et, Defendants.
    Common Pleas Court, Fayette County.
    No. 21990.
    Decided May 16, 1956.

      W. S. Paxson, Washington C. H., for plaintiffs.
    Maddox & Hire, Washington C. H., for defendants.
   OPINION

By CASE, J.

On August 4, 1955, plaintiffs filed their petition herein which reads as follows:

“Plaintiffs have a legal estate in and are entitled to the possession of the following described property, situate in the city of Washington, County of Fayette and state of Ohio, towit:
“Being lot numbered Two Hundred and Sixty (260) in the Washington Improvement Company’s sub-division of lands in and adjoining the city of Washington C. H. Fayette County, Ohio, known as 603 Eastern Avenue.
“The defendants, James p. Merritt and Helen Merritt, unlawfully keep plaintiffs out of the possession thereof.
“Wherefore plaintiffs pray judgment for the possession of said property.”

On September 15, 1955, by leave of court first had and obtained, the defendants filed thereto the following answer and cross-petition:

“For answer to plaintiffs’ petition, defendants herein deny that plaintiffs are entitled to the possession of the real estate described in plaintiffs’ petition or that said defendants unlawfully kept plaintiffs out of possession thereof.
“Having fully answered, defendants pray that plaintiffs’ petition be dismissed and that they recover their costs herein expended.”
“By way of cross-petition, the defendants herein, James P. Merritt and Helen Merritt, say that on the 17th day of November, 1947, they entered into a written contract with plaintiffs for the purchase of the real estate described in plaintiffs’ petition; that defendants herein have fully complied with the terms and conditions set forth in said contract for purchase of real estate, but that plaintiffs herein are not able to deliver unto defendants a general warranty deed for said real estate, free and clear of all dower rights and other encumbrances by reason of defective title thereto in plaintiffs herein; that defendants herein had no knowledge of said defective title until on or about the 25th day of April, 1955, upon which date defendants application for a mortgage loan for the purpose of payment in full of existing balance to said plaintiffs was refused by reason of defective title to the real estate described in plaintiffs’ petition.
“Defendants herein hereby tender the sum of S194.00 as payment in full of all monthly payments and interest payments due plaintiffs herein from the first day of May, 1955, until the first day of October, 1955, being the sum of $125.00 as monthly payments in accordance with said contract and the sum of $69.00 as interest in accordance with said contract and pray that same be disbursed in accordance with the proper orders and findings of this court; that defendants herein are ready, able and willing to pay the entire balance of said purchase price, in accordance with said contract, upon date plaintiffs are in position to deliver to defendants a general warranty deed for said real estate as provided in said contract.
“Wherefore, defendants pray that plaintiffs herein be directed by this court to take all necessary and proper steps to comply with the terms and provisions of said contract by furnishing to defendants a general warranty deed for the real estate described in plaintiffs’ petition, free and clear of all dower rights and other encumbrances and upon their failure so to do that defendants recover from plaintiffs the sum of Three Thousand Seven Hundred Fifty Dollars ($3,750.00) with interest thereon at 6% per annum from the 17th day of November, 1947, and for such other and further relief to which defendants may be entitled, both in law and in equity.”

On September 26, 1955, plaintiffs filed the following answer to defendants’ cross-petition:

“For answer to the cross petition of the defendants plaintiffs admit that on the 17th day of November, 1947, the defendants entered into a written contract with plaintiffs for the purchase of the real estate described in plaintiffs’ petition, but deny each and every other allegation therein.
“Wherefore plaintiffs pray that said cross petition be dismissed at the costs of said defendants.”

On December 30, 1955, said cause came on for trial before the judge of this court. From the stipulations, testimony and exhibits adduced of record herein, it appears that the essential facts may be summarized as set forth in plaintiffs’ brief as filed herein on January 6, 1956, to-wit:

“Title of the plaintiffs to the property involved in this action was conveyed to Mary Pierson by deed from Fred A. Carlson, administrator of the estate of Millie Thomas, deceased, who died the owner of the fee simple title thereto. Said deed was executed and delivered in compliance with an order of the Probate Court of this County in case No. 3750 in which said administrator had filed a petition against the heirs of Millie Thomas praying for an order of sale of said real estate to pay debts and costs. In the petition it was alleged that said real estate had been appraised by the estate appraisers at $500.00. In truth it had been appraised at $600.00. None of the defendants answered denying the allegation in the petition as to said appraised value. Judgment was rendered finding that ail defendants were properly before the Court; that said real estate was appraised at $475.00 and no further appraisement was necessary; that sale was necessary to pay debts; and the Court ordered that said administrator soli it at not less than $475.00. the appraised value, and at private sale. Order of private sale was issued May 8, 1839 to said administrator. He returned it the same day reporting that he had sold it to Mary Pierson for $525.00. The Court approved an entry approving and confirming the sale and ordered the administrator to execute and deliver the deed above referred to, for all the right, title and interest of the said Millie Thomas in said real estate to the purchaser, which was done upon payment of said purchase price to said administrator. Said deed was recorded in Fayette County Deed Record 66 page 203. The administrator filed his final account, which was approved and confirmed.
“On November 17, 1947 plaintiffs sold said property to James P. Merritt and Helen Merritt, the defendants herein, under a land contract, which was introduced in evidence and admitted. Said defendants paid the payments under said contract until May 1, 1955. This suit was then filed to recover possession of said premises. The reason given by defendants for discontinuing said payments is that they applied to Leesburg Federal Savings and Loan Association on one occasion and to First Federal Savings and Loan Association on another for a loan with which to pay the Piersons the balance owing on said contract and Mr. William Lovell, attorney for said associations, had refused to approve the loans, for the reason that Mrs. Pierson’s title was defective. Mr. Lovell confirmed this and said that he had examined the title and upon finding that the property had been sold by the administrator of Millie Thomas for less than its appraised value he considered said title defective.”

The basic issues raised by the pleadings and the evidence in this case is whether or not plaintiffs are capable of conveying said real estate to defendants by a deed of general warranty, free and clear of all dower rights and other incumbrances, as specifically called for in said land contract executed by the parties on November 17, 1947.

Defendants contend that plaintiffs’ title is defective for the reason that the administrator of the estate of Millie Thomas, deceased, procured confirmation of the sale of said real estate to Mary Pierson at private sale for less than the appraised value thereof contrary to the provisions of §10510-39 GC, which was then in full force and effect.

It must be admitted that §10510-39 GC was so in force and provided as follows:

“Where the sale authorized by the court is private, the real estate shall not be sold for less than the appraised value; when the sale is at public auction the real estate if improved shall not be sold for less than two-thirds of the appraised value, or if not improved, for less than one-half the appraised value. If, in private sales, after one bona fide effort to sell under the statute, no sale has been effected, or if in public sales the land remains unsold for want of bidders when offered pursuant to advertisement, the court iray fix the price for which such real estate may be sold, or may set aside the appraisement and order a new appraisement. If such new appraisement does not exceed five hundred dollars, and upon the first offer thereunder at public sale there are no bids, then upon the motion of any party interested the court may order the real estate to be readvertised and sold at public auction to the highest bidder.”

In their brief, defendants have summarized this issue in this case as follows:

“Defendants feel that the issue in this case, is whether the aforesaid sale by the administrator constituted a void or voidable sale of said real estate to the plaintiff, Mary Pierson. Defendants are fully aware that collateral attacks are not permitted if a court had the power to make the order that he so made, in this case, confirming sale and ordering deed.
“We think that the authority submitted by plaintiffs refer to irregularities where the court obtained proper jurisdiction.

See Stites v. Widener, 35 Oh St. 555; Binns v. Isabel, 72 Oh Ap 222.

“In conclusion, we feel that the Probate Court could not overrule the statute in effect upon date of sale, namely, §10510-39 GC, and that by reason of said statute the court was without authority to make its order and, therefore, plaintiffs were not in position and are not now in position to comply with the terms and conditions of the land contract introduced into evidence in this case.”

The Court has considered and searched the two decisions cited and referred to above and fails to find factual similarity to the case at bar or rules of law which would be determinative of said issue raised herein.

The Court notes that §10510-41 GC, was in full force and effect on the date of the aforesaid sale and provided as follows;

“The petitioner shall make return of his proceedings under the order of sale; and the court after careful examination thereof, if satisfied that the sale has in all respects been legally made, shall confirm it and order the petitioner to make a deed to the purchaser.”

Plaintiffs’ brief takes the position that the deed from the administrator of Millie Thomas to Mary Pierson was a valid conveyance of said real estate, and argue as follows:

“Plaintiffs contend that the title is not defective. My claim is that although the Probate Court erred in finding that said real estate was appraised at $475.00, when it had been appraised at $600.00, such an error was one that the parties to said action should have pointed out to the Court at that time. The petition alleged that it was appraised at $500.00, which was incorrect. The parties defendant should have answered and corrected said mistake. The return on the order of sale reported the sale at $525.00, which was more than the appraised value found by the Court. Any party to said action could have had the -sale set aside at that time by showing this mistake to the Court. But they said and did nothing to correct it and have done nothing since to complain about it. The administrator distributed the proceeds and filed his account.
“Sec. 10510-44 GC, which was in effect at the time of this sale, reads as follows:
“ ‘The deed made in pursuance of the order of the court, shall be received in all courts as prima facie evidence that the petitioner in all respects observed the directions of the court, and complied with the requirements of the law, and shall vest title to the real estate in the purchaser, in like manner as if conveyed by the deceased in his lifetime or by the ward free from disability.’
“In 24 O. Jur. p. 61, Sec, 80 the following appears:
“ ‘Furthermore, all irregularities are cured after the sale is made and confirmed. It is said that the final order of confirmation, having the effect of a final conclusive judgment, cures all such irregularities, misconduct, and unfairness in the making of the sale, departures from the provisions of the decree of sale, and errors in the decree and the proceedings under it; and, if the court had jurisdiction and the officer the authority to sell, it makes the sale valid as against collateral attack, even though irregular and voidable before, and though grounds sufficient to prevent confirmation existed.
“Citing 16 R. C. L. p. 85, Sec, 62 as authority.

Also see 34 C. Jur. Sec. p. 621, Sec. 643 (e); 24 O. Jur. p. 91, Sec. 126, p. 92, Sec. 128, p. 93, Sec. 129.

“What more need be said? Applying the law above quoted to the facts in this case I submit that there is no defect in the title of the plaintiffs. No interested party is so claiming. And if he were, I would say that his remedy is against the administrator of the estate, as suggested by the Supreme Court in the case of H. V. Ry. Co. v. White, etc., 87 Oh St 413, the second syllabus of which follows;
“ ‘Where such lands are sold at private sale for their full value, the executor must account for the total amount of the purchase price received by him, if necessary for the payment of debts. If sold for less than the full value, he must, nevertheless, account for the full value thereof.’
“The innocent purchaser should not have to defend his title against any such claims.”

In Addams & Hosford Ohio Probate Practice & Procedure (Fourth Edition) at page 641, it appears that the provisions of former §10510-41 and §10510-44 GC, are now combined in §2127.35 R. C., which became effective October 1, 1953. In the text and citations thereunder, beginning on page 643 (2. Confirmation), it is stated in part as follows:

“The confirmation or approval of the sale by the court is the judicial ascertainment of its validity and legality, and the decree so made can not thereafter, in any collateral proceeding, be questioned. * * * ”

And, at page 645 (4. Errors cured by confirmation), it is further stated in part that:

“A sale for less than the appraisement is cured by the confirmation, * s¡t

and the case of Spaulding v. Baldwin, 31 Ind. 376, is cited in support thereof.

In the case of Spaulding v. Baldwin, supra, the Supreme Court of Indiana held in part:

“An application to sell lands in the course of administration stands upon the footing of an ordinary adversary judicial proceeding in a court of superior jurisdiction.
“Where jurisdiction has been acquired in such a proceeding, subsequent errors in the course of its exercise — as in the order of sale and its confirmation — however grave and glaring, will not subject the judgment to successful collateral attack.”

At pages 377 and 378 thereof (Spaulding v. Baldwin, supra), the court stated in part as follows:

“* * * the answer discloses that the sale, being private, was ordered to be made for not less than two-thirds of its appraised value — the law requiring the full appraised value — and that the sale was for two-thirds of a cent less than two-thirds of the appraisement. That the probate court ordered and confirmed such a sale, may have been error which would have reversed its judgment; but it does not follow that the proceeding is to be held void when questioned collaterally. The order of sale and its confirmation were steps in the exercise of jurisdiction. If that had been acquired, subsequent errors, such as these, however grave and glaring, would not subject the judgment to successful collateral attack. * * * Nor can decisions as to the special statutory powers conferred on courts, where the statute must be followed at every step, in order to give validity to the exercise of the power, be deemed in point upon the present question. It has been so long settled in this State as to close the question against further controversy, that an application to sell lands in the course of administration stands upon the footing of an ordinary adversary judicial proceeding in a court of superior jurisdiction.”

The rules of law so stated and discussed in the Spaulding case, supra, do not appear to be contrary to or in conflict with the pertinent statutory and case law of the State of Ohio. In the case at bar, it is undisputed that all interested parties were properly before the court in said land sale proceeding; that the order of sale and confirmation of sale were made and issued in the exercise of said court’s jurisdiction to authorize and approve the sale of real estate to pay debts of said decedent’s estate and costs of administration; and there is no evidence whatsoever to show or indicate any collusion or fraud on the part of said administrator in applying for or procuring such order of sale or confirmation thereof by the court, or to show or indicate that Plaintiff, Mary Pierson, was not a bona fide purchaser, or that she possessed any knowledge prior to said sale that the purchase price which she was to pay was less than the appraised value thereof.

On the other hand, it is clearly established by the evidence of record herein that neither the plaintiffs nor defendants had any knowledge that said real estate had been sold to plaintiffs by said administrator for $75.00 less than the appraised value thereof until many years after the same had been sold and deeded to plaintiffs and until approximately seven or eight years after plaintiffs had resold said premises to defendants under the land contract alleged in defendants’ cross-petition.

In the light of the undisputed facts of record herein and the statutory and case law hereinabove discussed and referred to. this Court is unable to find any justification which would warrant and support defendants’ contentions that (a) plaintiffs’ title was defective for the reason that said administrator procured confirmation of sale of said real estate at private sale for less than the appraised value thereof; (b) that said sale constituted a void or voidable sale to plaintiff, Mary Pierson; (c) that said Probate Court was without authority or jurisdiction to order such sale and confirm the same under the provisions of §10510-39 GC; and (d) that plaintiffs were not in position and are not now in position to comply with the terms and conditions of the land contract of record herein.

Each and all of said contentions are bottomed upon the presumption that the provisions of §10510-39 GC expressly and specifically preclude the Probate Court from acquiring or exercising valid jurisdiction in land sale proceedings to order and confirm the sale of real estate upon private sale at less than the appraised value even though the petition filed therein, the order of sale made thereon, the return of sale filed in compliance therewith, and the confirmation thereof by the court, recited that such real estate had been sold for more than the appraised value.

Under all of the facts and circumstances of record in this case, this Court is of the opinion that the rule of law pronounced by the Supreme Court of Ohio, second sentence, paragraph 2, of the syllabus in Hocking Valley Ry. Co. v. White, 87 Oh St 413, is applicable to the case at bar; and that, under the facts and circumstances of record herein, the force and effect of said land sale proceedings in the Probate Court of Payette County was to vest title to said real estate in the plaintiff, Mary Pierson, in like manner as if conveyed by the deceased Millie Thomas in her lifetime (§10510-44 GC).

This Court coming now to consider plaintiffs’ petition herein which sets forth an action in ejectment and defendants’ answer and cross-petition thereto, finds that defendants’ answer denies the plaintiffs are entitled to possession of said real estate or that defendants unlawfully kept plaintiffs out of possession thereof; that defendants’ cross-petition alleges that a land contract was entered into between the parties for the purchase of said premises by defendants, and that defendants have fully complied with the terms and conditions of said contract. Plaintiffs’ answer to said cross-petition admits said land contract but denies each and every other allegation contained in defendants’ cross-petition.

The testimony adduced on behalf of the parties shows that defendants made all payments called for by said contract through and including the month of April, 1955; and the files and records of this Court further show that defendants have tendered by depositing with the Clerk of this Court, $194.00 on September 15, 1955 (as payment in full of all monthly payments and interest payments due plaintiffs herein from the first day of May, 1955, until the first day of October, 1955, being the sum of $125.00 as monthly payments in accordance with said contract and the sum of $69.00 as interest in accordance with said contract); and have subsequent thereto deposited with said Clerk of Court $100.00 on December 30, 1955, $25.00 on February 18, 1956, $25.00 on March 20, 1956, and $25.00 on April 28, 1956.

From all of the evidence and testimony of record herein, it appears that defendants, on the date of the trial (December 30, 1955) had complied with all of the terms and conditions of said land contract and were ready, willing and able to carry out the terms and conditions of said contract and to complete the purchase of said real estate according to the terms of said contract, provided the plaintiffs were ready, willing and able, upon its completion by said defendants, to execute and deliver a deed of general warranty for said premises, free and clear of all dower rights and other incumbrances. It also appears of record herein that plaintiff, Mary Pierson, testified that said payments, hereinabove referred to, were proper and acceptable, and that plaintiffs were ready, willing and able to execute and deliver a warranty deed, free and clear of all dower rights and other incumbrances, provided the defendants paid the balance of the purchase price called for by the terms of said contract.

Therefore, upon due consideration of all the facts and circumstances hereinbefore set forth and discussed, this Court finds that there is no dispute between the parties concerning the payments made and tendered pursuant to and in substantial compliance with the terms and conditions of the contract; that the payments so made and tendered are acceptable to the plaintiffs; and that, upon tender by defendants of the balance called for by said contract, the plaintiffs are ready, willing and able to execute and deliver the warranty deed as required by said contract.

In view of all of the findings hereinabove set forth, the Court further finds:

1. That plaintiffs’ petition states an action for the recovery of real property; that defendants’ answer thereto joins the issues therein; that, from all of the evidence adduced herein, plaintiffs have failed to sustain the burden of proof required to sustain the recovery so sought by plaintiffs; and that, by reason thereof, plaintiffs’ petition should be dismissed;

2. That defendants’ cross-petition herein demands affirmative relief in the nature of declaratory judgment; that plaintiffs’ answer to said cross-petition joins the issues thereon within the spirit of the declaratory judgments provisions of Chapter 2721 R. C., and discloses that a real controversy between these adverse parties exists which is justiciable;

3. That, in the relief sought by defendants’ cross-petition, defendants have pleaded facts which justify a declaration by the court as to their rights which would terminate the controversy between plaintiffs and defendants herein;

4. That undisputed evidence and facts of record herein show that the administrator of the estate of Millie Thornes, deceased, conveyed the real estate in question to Mary Pierson, one of the plaintiffs herein, by deed dated May 8, 1939 (recorded in Deed Book 66, page 203, Recorder’s Office of Payette County, Ohio); that said deed was executed and delivered pursuant to land sale proceedings had in case No. 3750, in the Probate Court of Payette County, Ohio; that said sale and conveyance were in conformity with the order of sale and the order confirming said sale was duly made and entered by said Probate Court therein on May 8, 1939; and that said administrator filed his first and final account in the administration of said estate on August 1,1939, and the same was approved and confirmed by said Probate Court on September 9, 1939;

5. That, under, the facts and circumstances of record herein, and applying thereto the applicable statute and case law of Ohio, although the deed so executed and delivered to Mary Pierson constituted prima facie evidence that said administrator of Millie Thomas, deceased, had in all respects observed the direction of the Probate Court and complied with the requirements of the law, such presumption of law could, by proper proceedings, be rebutted and overcome so as to compel said administrator to account for the full value of the real estate so sold;

6. That the enforcement of such liability on the part of said administra tor to account therefor is not properly before or within the jurisdiction of this court when the cross-petitioner, as in the case at bar, was not a party to said land sale proceedings before said Probate Court;

7. That, in the case at bar, this court should consider such liability on the part of said administrator as arising solely from the mandatory provisions of §10510-39 GC (§2127.33 R. C.), and that the failure of said administrator to comply therewith does not as a matter of law create a defect in the interest conveyed and title vested pursuant to the express and mandatory provisions of §10510-44 GC (§2127.35 R. C.);

8. That, under the facts and circumstances of record herein, and applying thereto the applicable statute and case law of Ohio, the deed so executed and delivered to Mary Pierson conveyed the interest in said real estate which was directed to be sold by said Probate Court, and said deed vested title to such interest in the purchaser, Mary Pierson, in like manner as if said real estate had been conveyed by the deceased, Millie Thomas, in her lifetime;

9. That plaintiffs and defendants entered into a valid written land contract for the sale and purchase of said real estate on November 17, 1947; that, pursuant to the provisions thereof, defendants have to date in good faith performed the acts required of them and are ready, willing and able to perform all acts by them yet to be performed as provided and called for by the terms thereof; and that plaintiffs have to date acted in good faith and are ready, willing and able to perform all acts by them yet to be performed as provided and called for by the terms of said contract;

10. That the petition filed herein by plaintiffs, the answer and cross-petition thereto filed by defendants, and plaintiffs’ answer to defendants’ cross-petition were the means and method through which these parties sought an adjudication and declaration of plaintiffs’ title to said real estate and their respective rights and duties under the aforesaid land contract;

11. That, even though it is undisputed that said real estate was sold and deeded to Mary Pierson by said administrator through land sale proceedings as ordered and confirmed by said Probate Court at a price which was $75.00 less than the appraised value thereof, such irregularity did not constitute or create any defect in the right, title and interest so conveyed to and acquired by the said Mary Pierson;

12. That the land contract made and entered into by plaintiffs and defendants on November 17, 1947, is a valid and subsisting contract which is now in force and effect and is in no way modified or rescinded by these proceedings in the case at bar; and the parties thereto are fully bound and obligated to carry out the terms and conditions thereof;

13. That the right, title and interest, which plaintiffs thereby contracted to convey to defendants, is not subject to any encumbrance, lien or other defect claimed by defendants to be connected with and arising out of the aforesaid sale thereof to Mary Pierson at a price which was $75.00 less than the appraised value thereof; and

14. That plaintiffs are seized of and vested with all of the right, title and interest conveyed by the aforesaid administrator’s deed of May 8, 1939, and are obligated to convey same to defendants according to the terms and conditions of said land contract of November 17, 1947; and that defendants are obligated to pay the balance due and accept the deed called for pursuant to the terms and conditions of said land contract.

The Court further finds that counsel for defendants should prepare an entry in conformity with the foregoing findings, with appropriate notation therein of exceptions on behalf of each and all of the parties plaintiff and defendant, and taxing the costs of this proceeding equally between the parties; and thereupon submit same to counsel for plaintiffs and to this court for approval by on or before May 31st, 1956.