author: By HUNSICKER, PJ.

text:
    LAKEWOOD FIREMEN’S RELIEF AND PENSION FUND, Trustees, et, Plaintiffs-Appellants, v. COUNCIL OF THE CITY OF LAKEWOOD et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24150.
    Decided July 16, 1957.
    Henry J. Williams, for plaintiffs-appellants.
    George E. Fedor, Director of Law, City of Lakewood, for defendantsappellees.

      (HUNSICKER, PJ, DOYLE, J, of the Ninth District; GRIFFITH, J, of the Seventh District, sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, PJ.

This is an appeal on questions of law from a judgment awarded to the appellees, Council of the City of Lakewood, and others.

An action for a declaratory judgment was filed by the trustees of the Lakewood Firemen’s Relief and Pension Fund, the trustees of the Lakewood Police Relief and Pension Fund, and certain contributor pensioners of such funds, against the members of the city council of Lakewood and the city of Lakewood, Ohio.

In this action, a declaration was sought to interpret the pension laws of the state of Ohio in such a way as to make it mandatory upon the city of Lakewood to appropriate sufficient money from its general fund to pay the past due and current pension awards made by the trustees of the two pension funds to those entitled to receive such monies.

The trial court refused to so interpret the law and dismissed the petition for a declaratory judgment. Thereafter, an appeal was lodged in this court.

The parties stipulated nearly all of the facts. These stipulations, plus a small amount of additional evidence by way of exhibits, constitutes the record before us.

The parties, in stipulation number 14, state the question before this court as follows:

“That the sole issue in this case is the construction and interpretation of paragraph 2 of §741.09 and paragraph 4 of §741.40 R. C., as to whether the provisions thereof impose a duty upon the legislative authority, or whether it is optional with the legislative authority to appropriate from' the general fund sufficient money to meet current relief and pension payments.”

Appellants point out that the Revised Code (in §741.02 for the firemen, and in §741.32 for the policemen), provides that in this municipal corporation “there shall be established and maintained” a relief and pension fund for the employees of these departments. They then assert that these provisions of §§741.09 and 741.40 R. C., make it a mandatory duty of the council of Lakewood to appropriate each year, out of the general fund of the city, sufficient funds to meet the current relief and pension payments.

The appellants insist that the word “may” in these sections (§§741.09 and 741.40 R. C.), must be read “shall,” and the phrase “established and maintained” found in §741.02 R. C., and §741.32 R. C., must be interpreted to mean that the city of Lakedood is required to keep its pension funds in such amount that all those on the pension rolls will be paid their full pension award each month as it becomes due.

We sympathize with those persons who, after contributing for many years to a pension fund with the expectation of receiving their full award at the time set each month, find that they cannot be certain when and how much they will receive.

We cannot agree, however, with the claims of the appellants. Our interpretation of the words and phrases in dispute herein leads us to the conclusion that there is no mandatory duty on the council of the city of Lakewood to appropriate from the general funds of the city to either the firemen’s relief and pension fund, or the police relief and pension fund, any monies to meet the pension payments.

The council of the city of Lakewood cannot be expected to impoverish other city functions to meet the pension payments.

We believe it was with this thought in mind that the word “may” was used in the statute so as to permit, and hence not require, appropriations out of the general funds of a municipality to these two pension and relief groups.

The judgment of the trial court must be affirmed.

DOYLE and GRIFFITH, JJ, concur.


source: Caselaw Access Project

author: Per CURIAM.

license: Public Domain

text:
    STATE ex rel PATRICK, Jr., Relator-Appellee, v. BALDINE et, Respondents-Appellants.
    Ohio Appeals, Seventh District, Trumbull County.
    No. 1267.
    Decided September 9, 1952.
    Reed Battin, Warren, for relator-appellee.
    Leo Luchette, Solicitor of the Village of Hubbard, for respondents-appellants.
   OPINION

Per CURIAM.

In this opinion the parties will be called relator and respondents respectively.

The trial judge sustained relator’s motion to retax costs in an action in mandamus brought in the court of common pleas by relator, a member of the Police Department of the Village of Hubbard, against respondents, one of whom was the mayor thereof. Relator prevailed in that action in which respondent mayor was compelled to “set forth in detail a statement of the alleged guilt of said Joseph Patrick, Jr. (relator) claimed to be the cause of suspending him for thirty days from his position as patrolman of the Village of Hubbard, Ohio.”

The trial judge treating relator’s motion as an action for damages rendered judgment in favor of relator Patrick against “respondent in the sum of $500 together with all costs of this action.”

Respondent Baldine appealed from that judgment to this court on questions of law, and by assignment of error contends that “the court erred in assessing damages, including attorney’s fees, against respondent Mayor arising out of this mandamus action”; and argues that the issue presented by his appeal is “whether or not the court of common pleas may assess costs and reasonable attorney fees to the relator in a mandamus action where the relator has prevailed in the court of common pleas, has prevailed in the court of appeals, and has prevailed in the supreme court of the state of Ohio.”

The law is so well settled that the trial judge could legally retax costs in the case we review and impose a penalty upon respondent that we will waste no' time discussing it.

The question presented to us is whether he legally retaxed the costs; and whether he could allow relator damages as part of the costs in a mandamus action brought by relator individually in his own right and not as a taxpayer.

We answer the second portion of that question in the negative, and support our conclusion by §12299 GO, which provides:—

“When a peremptory mandamus has been directed to a public officer, body, or board, commanding the performance of a public duty specially enjoined by law, and the court finds that such officer, or a member of such body or board, without just excuse, refused or neglected to perform the duty so enjoined, it may impose a penalty not exceeding five hundred dollars, upon such officer or member. When collected it shall be paid into the treasury of the county wherein the duty ought to have been performed, and its payment shall be a bar to an action for any penalty incurred by such officer or member by reason of such refusal or neglect ”

That section of the General Code is the only section thereof applicable to the proceedings we review.

Joseph J. Baldine was sued in his official capacity as Mayor of the village of Hubbard, and not as an individual.

As an individual he was a stranger to the action. No judgment could be legally rendered against him as an individual in the action we review.

It is apparent that the trial judge treated relator’s motion as an action for damages, not one for retaxing costs. Clearly he was in error in doing so. His sole authority upon this motion was to tax the costs of the mandamus action and to impose a penalty not to exceed $500.00, which by the provisions of §12299 GC, would be required to be paid into the county treasury.

The judgment of the court of common pleas is reversed for error of the trial judge in sustaining relator’s motion and in entering judgment in his favor, and in including attorney’s fees as costs of the mandamus action, for which we find no authority.

The cause is remanded to the court of common pleas for further proceedings to be had in accordance with law.

GRIFFITH, NICHOLS and PHILLIPS, JJ, concur.


author: By LEACH, J.

text:
    JOHNSON SERVICE COMPANY, Plaintiff, v. GLOBE INDEMNITY COMPANY, Defendant.
    Common Pleas Court, Franklin County.
    No. 191708.
    Decided January 3, 1957.
    Benjamin F. Levinson, for plaintiff.
    J. Paul McNamara, for defendant.
   OPINION

By LEACH, J.

This action was instituted by plaintiff against the defendant Bonding Company to recover $1,800.00 on a performance bond in the form required by §153.57 R. C., and executed by the D. E. Gardner Company, principal contractor, and the bonding company as surety in connection with a contract with the Board of Trustees of the Columbus Public Library of the City of Columbus, Ohio, for the construction of a building known as the addition to the Columbus Public Library. In carrying out this contract, Gardner, as principal contractor, awarded a contract for the installation of plumbing and heating to J. Frank Bowen, Inc. as a sub-contractor. Bowen in turn placed an order for a temperature control system and we conclude from the evidence that there is due to plaintiff from Bowen the sum of $1800.00, this being the full amount of such purchase price.

The basic issue involved in this case is whether plaintiff furnished to the bonding company a statement of the amount due “not later than ninety days after the acceptance of such building, work, or improvement by the duly authorized board or officer” within the meaning of that language as contained in §153.56 R. C.., and whether the instant action was commenced “not later than one year from the date of acceptance of such building, work, or improvement” as required by this same section.

The question presented herein is somewhat similar to that presented in the case of Johnson Service Company v. American Casualty Company, No. 190,192, decided by this Court this same day and involving the same counsel. For that reason we will not quote in full the statute in question or discuss in as much detail the respective contentions of the parties as otherwise would be necessary.

The notice to the bonding company was furnished by the plaintiff on July 14, 1954, and this suit was commenced on February 2, 1955.

On June 12, 1951, the Board of Trustees, by resolution authorized the employment of one Harry T. Roderick as architect for the addition to the main building. A written agreement was then entered into between Roderick and the Board, through its President, including the usual provisions that the architect would supervise the work of construction. On June 19, 1952, the Board entered into a Construction Contract with Gardner in the amount of $202,310.00. This contract provided, in part, as follows:

“Article 5 — Acceptance and final Payment — Final payment shall be due thirty days after substantial completion of the work provided the work be then fully completed and the Contract fully performed.

“Upon receipt of written notice that the work is ready for final inspection and acceptance, the Architect shall promptly make such inspection, and when he finds the work acceptable under the Contract and the Contract fully performed he shall promptly issue a final certificate, over his own signature, stating that the work provided for in this Contract has been completed and is accepted by him under the terms and conditions thereof, and that the entire balance found to be due the Contract, and noted in said final certificate, is due and payable.”

On July 14, 1953, after inspection of the job by Gardner, the contractor, his son, the general superintendent, the librarian, and the architect, the architect addressed a letter to the Board of Trustees, stating that his office accepted the addition to the Columbus Public Library with the following understanding:

“The contractor shall guarantee the work installed against defects in material and workmanship for a period of one (1) year from date of acceptance by the owner * * *

“It is the intent that the foregoing work shall be complete in every respect, and that any material or work not specially mentioned or shown in the drawings, but necessary to wholly complete the work, shall be furnished by the contractor.”

On July 14, 1953, the Board adopted a resolution “That payment in full - be made to the contractor and architect on the Main Library Addition Contract as soon as all the work has been fully completed, and subject to the approval of the Chairman of the Grounds and Buildings Committee.”

On July 27, .1953, the architect approved in writing Gardner’s request for final payment in the amount of $3033.40. Thereafter, on July 28, 1953, a voucher was issued in the amount of $3033.40 for “Balance due on contract, addition to Main Library,” certified by the librarian as being correct and approved by the President of the Board and by the Secretary of the Board. On the same day a check was issued to Gardner in the amount of $3033.40, signed by the President of the Board and by the Clerk of the Board.

On August 4, 1953, the Board adopted a resolution “that the action of the President and Treasurer in authorizing the payment from the Building & Repair Fund of $3033.40, final amount to complete contract with David Gardner, Contractor, and $285.62, balance due on fee to Harry T. Roderick, Architect, be approved.”

It is stipulated by the parties that all of the foregoing documents and records are part of the public records of the Board of Trustees and were available for inspection by the public generally, including the plaintiff.

It does not appear that the Board of Trustees ever adopted a formal resolution, stating in specific language that “We do hereby accept the building, work, or improvement consisting of an addition to the Main Library Building.” It is the contention of the plaintiff that in the absence of such a specific resolution, such work has never been accepted. We do not agree with this contention and conclude, as a matter of fact, that the work in question was accepted, at least by August 4, 1953, when the Board by formal resolution, approved the payment of the “final amount to complete contract.” As pointed out by Marshall, C. J. in his opinion in Southern Surety Company v. Schmidt, 117 Oh St 28, at page 35, the statute does not define acceptance, or in any way indicate what amounts to acceptance, except that it is provided that the acceptance must be made by the duly authorized board or officer. As pointed out in our decision of this day in the case of Johnson Service v. American Casualty Company, Judge Marshall, in the reasoning in his opinion, relied strongly upon the case of Illinois Surety Company v. United States, 240 U. S. 214, and also at page 39, pointed out that in the Schmidt case, compliance had not been had with the requirements of the contract as to “Acceptance and Final Payment.” Here it is undisputed that the requirements of Article 5 of the contract between the Board and Gardner as to “Acceptance and Final Payment” were complied with. In the language of the United States Supreme Court in the case of Illinois Surety Company v. United States, the amount which the Board was finally bound to pay was fixed administratively by the proper authority.

In our opinion, there was, fit least by August 4, 1953, “an administrative determination of the actual completion of the work in accordance with the terms of the contract and in compliance with the plans and specifications” within the meaning of that language as contained on page 40 of Judge Marshall’s opinion in the Schmidt case. This having been done by documentary evidence which constituted public records, including of course the resolution of August 4, 1953, such was a matter of public record and readily ascertainable.

The various cases cited by the plaintiff in the opinion of this Court are distinguishable for the reasons alluded to in our decision this day in the American Casualty Company case. Even if we assume that a formal resolution be necessary to constitute an acceptance, in our opinion, the formal resolution of August 4, 1953, was such a resolution. True it did not use the word “accept” or “acceptance” but the necessary legal effect of this resolution was to find that pursuant to the terms of the contract, Gardner was entitled to payment of the final amount. By the terms of the contract he was only entitled to the final amount thirty days after substantial completion of the work “provided the work be then fully completed and the Contract fully performed.” Necessarily we have, therefore, an administrative determination by the Board itself, by formal resolution, that the work has been “fully completed” and the contract “fully performed.”

In our opinion, the issue before this Court is not whether the work, in fact, had been fully completed and the contract fully performed, but only whether the proper administrative determination had been so made. We conclude that it was so made, at least by August 4, 1953.

This case is somewhat complicated by the fact that the records of the plaintiff admitted into evidence, shows some work performed by employees of the plaintiff after August 4, 1953. It is impossible to determine from the evidence the exact nature of this work and whether, as claimed by plaintiff, it was done pursuant to the contract between plaintiff and J. Frank Bowen, Inc., or whether, as claimed by the defendant, this was additional work necessitated by the installation of an elevator by the Board of Trustees under a separate and distinct contract with another contractor. Even assuming that the performance of this work would somehow negate the prior acceptance by the Board of August 4, 1953, and we do not so conclude, it appears that the last work of any nature done by employees of plaintiff at the library building was on December 27, 1953. Even if by some process of legal legerdemain, we were to conclude that the prior acceptance of August 4, 1953, were moved forward, it would seem that at best it could not be moved forward beyond the date of December 27, 1953. Thus, even if we accept the date of December 27, 1953, as being the date of “acceptance,” plaintiff’s cause of action would fail since the required notice was not furnished the Bonding Company within ninety days thereafter nor was suit brought within one year.

Plaintiff in this action makes the additional contention that since a receiver was appointed for J. Prank Bowen, Inc. on November 24, 1953, it was not required to give notice and in support of this contention, relies upon the cases of National Surety Company v. Lumber Company, 32 Oh Ap 147, and Royal Indemnity Company v. Wood, 10 Fed. (2d) 501. In the first place, the receivership here in question took place more than ninety days subsequent to the acceptance on August 4, 1953.

In the second place, the bond was given by Gardner and not by Bowen and Gardner did not become insolvent or unable to complete the contract.

In the third place, these two cases were decided in 1928 and 1926 respectively, and, in our opinion, are completely irreconcilable with the case of Atkinson v. Orr-Ault Construction Company, 124 Oh St 100, decided in 1931.

We conclude, therefore, that the Board of Trustees of the Columbus Public Library did, within the purview of §153.56 R. C., accept the building, work, or improvement in question on August 4, 1953, that the statement furnished to the Bonding Company by the plaintiff on July 14, 1954, was not furnished within ninety days after the acceptance and that this action having been commenced on February 2, 1955, does not comply with the requirements of §153.56 R. C., that “said action be commenced not later than one year from the date of acceptance of said building, work, or improvement.” We therefore find the issues in this case in favor of the defendant and find that deféndant is entitled to final judgment. Entry may be prepared accordingly, reserving exceptions.


text:
    JOHNSON SERVICE COMPANY, Plaintiff-Appellant, v. GLOBE INDEMNITY COMPANY, Defendant-Appellee.
    No. 5639.
    Decided December 4, 1957.
    Lurie & Gifford, Benjamin F. Levinson, Columbus, for plain tiff-appellant.
    J. Paul McNamara, Columbus, for defendant-appellee.
   OPINION

Per CURIAM.

Appeal on questions of law from judgment of the Franklin County Common Pleas Court in favor of The Globe Indemnity Company defendant-appellee.

The assignment of errors, briefs of the parties and record have been carefully considered. Finding no error therein prejudicial to the plaintiff-appellant, the said assignment of errors is overruled and the judgment of the court below is hereby affirmed and the cause remanded.

PETREE, PJ, BRYANT and MILLER, JJ, concur.


text:
    JOHNSON SERVICE COMPANY, Plaintiff, v. AMERICAN CASUALTY COMPANY, Defendant.
    Common Pleas Court, Franklin County.
    No. 190192.
    Decided January 3, 1957.
    Benjamin F. Levinson, for plaintiff.
    J. Paul McNamara, for defendant.
   OPINION

By LEACH, J.

This action was instituted by plaintiff against the defendant Bonding Company to recover the sum of $3050.00 on a performance bond in the form required by §153.57 R. C., and executed by J. Frank Bowen Co. Inc., contractor, as principal and the Bonding Company as Surety in connection with a contract with the Board of Education of the City School District of Columbus, Ohio, for the heating, ventilating and plumbing work on the addition and modernization of a school building. This case was submitted to the Court, the jury having been waived. '

In carrying out that contract, Bowen entered into a contract with the plaintiff for the furnishing of certain labor and materials. The contract price agreed upon between Bowen and the plaintiff was $4,550.00, of which $1500.00 was paid, leaving a balance of $3050.00.

Sec. 153.56 R. C., reads as follows:

“Any person, firm or corporation to whom any money is due on account of having performed any labor or furnished any material in the construction, erection, alteration, or repair of any public building or other public work or improvement as provided in §153.54 R. C., at any time after* performing such labor or furnishing such material, but not later than ninety days after the acceptance of such building, work, or improvement by the duly authorized board or officer, shall furnish the sureties on said bond, a statement of the amount due to any such person, firm, or corporation.

“No suit shall be brought against said sureties on said bond until after sixty days after the furnishing of said statement. If said indebtedness is not paid in full at the -expiration of said sixty days, said person, firm, or corporation may bring an action in its own name upon such bond, as provided in §§2307.06 and 2307.07 R. C., said action to be commenced not later than one year from the date of acceptance of said building, work, or improvement.” (Emphasis added.)

The sole issue presented in this case is whether plaintiff furnished the Bonding Company a statement of the amount due “not later than ninety days after the acceptance” and whether this action was commenced “not later than one year from the date of acceptance.”

It is undisputed that plaintiff furnished the Bonding Company such a statement on January 21, 1954, and this suit was commenced on June 17, 1954.

Basically, it is the contention of the plaintiff that the work in question never has been accepted by the Board of Education within the purview of §153.56 R. C. On the contrary, it is the contention of the defendant that §153.56 R. C., authorizes acceptance by an officer as well as by a duly authorized Board and that the work in question was accepted by W. V. Drake, Clerk-Treasurer of the Board, on May 1, 1953.

On April 17, 1951, the Board adopted a resolution approving the recommendation of the Superintendent of Schools that Freshwater and Harrison, architects, be employed in connection with the remodeling of an addition to the Second Avenue School. On May 3, 1951, a written agreement was entered into between the Board of Education and Freshwater and Harrison, the agreement being signed on behalf of the Board by its Vice-president and Mr. Drake as Clerk-Treasurer. By resolution of January 7, 1952, the Board awarded a contract to J. Frank Bowen, Inc. in the amount of $44,350.00 for the addition and modernization of such school. On January 10, 1952, the Board, acting by its President and Clerk-Treasurer, entered into a contract with Bowen for such work and in connection with this contract, the Bonding Company executed its statutory bond. The contract between the Board and Bowen provided for certain monthly payments and further provided “on substantial completion of the entire work, a sum sufficient to increase the total payment of 90% of the Contract price, and thirty days thereafter, provided the work be fully completed and the Contract fully performed, the balance due under the Contract.”

The agreement between the Board and the architects provided that the architects should furnish complete supervision throughout the period of construction. On April 29, 1953, the architects certified to the Board that final payment was due to Bowen under the terms of the Contract between Bowen and the Board, dated January 10, 1952. On April 30, 1953, Edward Kromer, employed as a Structural Engineer for the Board of Education as a full-time employee supervising the construction and improvement of school buildings, and sometimes designated by the Board of Education as its architect, certified to the Board that such final payment was due to Bowen. On May 1, 1953, the Clerk-Treasurer, Mr. W. V. Drake, certified such payment as being correct, such was approved by' the President of the Board, and payment made at that time.

Mr. H. C. Kuhnle, the present Clerk-Treasurer, testified that the procedure followed in handling this contract with Bowen, was the same as the procedure followed by the Board in all of the Board’s contracts for improvements, additions or reconstructions. It appears that the Board did not at any time formally adopt a resolution stating specifically that they did hereby accept the improvement in question. It further appears that the Board has never followed this procedure of adopting such a formal resolution but instead, has always followed the procedure as in the instant case.

It appears from the work sheets of the plaintiff as to this particular job that the last work done by it at the Second Avenue School was on April 5, 1953. The contract between the Board and Bowen provided that the contract should be substantially completed on or before September 1, 1952, and the Second Avenue School was actually opened as a remodeled building on September 2, 1952. The work sheets of the employer indicate that most of the hours of work of their employees on the Second Avenue School took place prior to September 16, 1952, although, as heretofore indicated, we find isolated hours of work running until April 5, 1953.

As heretofore stated, it is the contention of the plaintiff that the work in question never has been accepted by the Board of Education in view of the fact that it has never adopted a formal resolution, stating in effect: “We hereby accept the work on the Second Avenue School.” In support of this contention plaintiff makes reference to certain language in the opinion of Vickery, J. of the 8th District Court of Appeals in the case of Royal Indemnity Company v. Buckeye Brick Company, 7 Abs 501, wherein he stated that “The statute of Ohio undoubtedly had in mind a resolution as to the improvement so that it would be definite and determined when those who claimed liens against it could determine the time when they must file their claims or be forever barred.” This same judge, however, in Royal Indemnity Company v. American Slide and Supply Company, 8 Abs 282, held as to a school contract that the work had been accepted “by Director Hogan” and that the statute authorized acceptance either by the Board or by an officer. We are in agreement with the opinion expressed by Judge Vickery that the statute permits acceptance by an officer as well as by a Board and conclude that there was acceptance within the purview of §153.56 R. C., on May 1, 1953. We conclude that the actions of the President of the Board of Education and the Clerk-Treasurer on that date did constitute an acceptance.

Judge Vickery also stated in the first case that the allowing of a final estimate does not necessarily constitute acceptance. It will be noted, however, in the instant case that the final payment was not the payment of an estimate but was payment in accordance with the terms of the.contract which provided for payment to an amount of 90% of the contract price upon substantial completion and only provided for final payment thirty days after substantial performance and only “provided the work be fully completed and the contract fully performed.”

Here we have a situation where the architectural firm employed for the supervision of the particular work, certified to the Board that the contractor was entitled to final payment, where a permanent employee of the Board in charge of all construction, made the same certification, followed by a certification by the Clerk-Treasurer, and followed by approval for payment by the President of the Board of Education. We know of no provision of law which would prevent a Board of Education from operating in such a manner and our attention has been directed to none.

Reference should be made to the case of Southern Surety Co. v. Schmidt, 117 Oh St 28, wherein Marshall, C. J„ concluded “that the ‘acceptance’ under the Ohio statute must be an administrative determination of the actual completion of the work in accordance with the terms of the contract and in compliance with the plans and specifications, and that this must be fixed by public record and readily ascertained.” Here, we conclude that there was “an administrative determination of the actual completion of the work in accordance with the terms of the contract and in compliance with the plans and specifications.” In view of the fact that the contract provided for final payment only when “the work be fully completed and the contract fully performed,” it follows that the administrative determination that the contractor was entitled to final payment, was an administrative determination of the actual completion of the work in accordance with the terms of the contract. All of this was done by public record, the parties having stipulated that all of the various records heretofore referred to, were public records, open to the public, and from which such facts could be ascertained.

It will be noted that the opinion of Marshall, C. J„ relied strongly by way of analogy on the decision of the United States Supreme Court in the case of Illinois Surety Company v. United States, 240 U. S. 214. The federal statute under consideration by the United States Supreme Court, used the word “settlement” instead of “acceptance.” The Court therein stated:

“We think that the words ‘final settlement’ in the Act of 1905 had reference to the time of this determination when, so far as the government was concerned, the amount which it was finally bound to pay or entitled to receive was fixed administratively by the proper authority. It is manifestly of the utmost importance that there should be no uncertainty in the time from which the six months’ period runs. The time of the final administrative determination of the amount due is a definite time fixed by a public record and readily ascertained. As an administrative matter, it does not depend upon the consent or agreement of the other party to the contract or account.”

Judge Marshall concluded that “This reasoning has application to the instant case.”

It should be noted that in the Schmidt case, Judge Marshall at the top of page 39, directed attention to the fact that the contract there in question contained a provision “Acceptance and Final Payment,” the provisions of which had not been complied with at the time “acceptance” was claimed to have taken place in that case.

Plaintiff also makes reference to the case of Nesbitt v. Massachusetts Bonding and Insurance Company, 38 Abs 299. In our opinion, that case on its facts is entirely distinguishable from the instant case. In that case it is clear that there had never been a final accounting or acceptance of the work done by the contractor in question. Instead of that, in an effort to help another contractor secure money from P. W. A., the Board, without meeting or adopting any resolution, individually signed a document purporting to accept the work of all contractors, including those who obviously were still on the job.

In summary, we conclude that there was an acceptance of the work in question within the scope and intendment of §153.56 R. C., on May 1, 1953. The statement having been furnished by the plaintiff to the bonding company on January 21, 1954, more than ninety days after the acceptance, and the suit having been commenced on June 17, 1954, more than one year from the date of acceptance, and plaintiff’s right to any recovery being predicated on compliance with the requirements of §153.56 R. C., we find for the defendant.

Entry may be prepared accordingly, reserving exceptions.


text:
    JOHNSON SERVICE COMPANY, Plaintiff-Appellant, v. AMERICAN CASUALTY COMPANY, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5638.
    Decided December 4, 1957.
    Lurie & Gifford, Benjamin F. Levinson, Columbus, for plaintiff-appellant.
    J. Paul McNamara, Columbus, for defendant-appellee.
   OPINION

Per CURIAM.

This is an appeal on questions of law from judgment of the Franklin County Common Pleas Court in favor of the American Casualty Company, defendant-appellee. We have carefully considered the assignment of errors, briefs of the parties and record. Finding no error therein prejudicial to plaintiff-appellant, the said assignment is overruled and the judgment of the court below is hereby affirmed.

PETREE, PJ, BRYANT and MILLER JJ, concur.


author: By BRYANT, J.

text:
    PICKREL et, Plaintiffs-Appellees, v. HROBON, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5827.
    Decided March 4, 1958.
    Philip C. Ebeling, Dayton, for plaintiffs-appellees.
    Edwin M. Tuttle, of Herbert, Tuttle, Applegate & Britt, Columbus, for defendant-appellant.
   OPINION

By BRYANT, J.

This matter comes on for consideration upon the motion of William G. Pickrel, et al., plaintiffs-appellees, to dismiss the appeal on law and fact of May T. Hrobon, defendant-appellant. Pickrel, et al., will be referred to as plaintiffs and Mrs. Hrobon as defendant.

The first ground of the said motion is as follows;

“1. The action below was a statutory action for a declaratory judgment which is not appealable on questions of law and fact.”

In support thereof, counsel for plaintiffs argue that only questions known as chancery cases at the time of the adoption of the 1912 Constitution may be the subject of the appeal on questions of law and fact that this action was for a declaratory judgment; that the right to brin a declaratory action was created by statute in 1933, and hence that a appeal on questions of law and fact is not permitted.

Counsel for defendant disputes this, claiming some declaratory ac tions may be the subject of a law and fact appeal while others are no They urge that the nature of the declaratory judgment action must t looked to to tell whether or not it is a law action or one where equitah relief is the main objective and that in the latter case, which the say is the case here, a law and fact appeal is permissible.

It has been held by the Supreme Court of Ohio that an action fc a declaratory judgment may possess attributes either of law or equil depending upon the particular case. In Sessions, et al., v. Skelton et a 163 Oh St 409 the third branch of the syllabus is as follows:

“3. An action for a declaratory judgment is sui generis in the sen: that it is neither one strictly in equity nor one strictly at' law; it purely a procedural remedy wherein the court having jurisdiction ms apply such principles of equity or of law as may be necessary to adjud cate the issues presented.”

At page 415 of the majority opinion by Zimmerman, J., is was sail

“It has been observed that the an action for a declaratory judgmei is sui generis in the sense that it is neither one strictly in equity nor oi strictly at law; it may possess attributes of both. Although declarato: judgment actions had their origin in controveries (controversies) peculi; to equity, such an action may be utilized in a matter which is strict legal. A declaratory judgment action creates no new or substanti rights. It is purely a procedural remedy, and in determining the issu presented such principles of law or of equity may be invoked as a appropriate. When such an action partakes of equity it calls for tl application of equitable principles and when it partakes of an actii at law it utilizes any available legal principles necessary to dispose the issues. See Borchard on Declaratory Judgments (2 Ed.), 237 et sec

In Westerhaus Co., Inc., v. City of Cincinnati et al., 165 Oh St 32 the first, second and third branches of the syllabus are as follows:

“1. Whether an action is legal and, therefore, appealable on que tions of law only or equitable and, therefore, appealable on questio of law and fact is determined from the pleadings and the issues ma thereby. I

“2. Where a petition indicates that the primary or paramount issv raised are equitable and any other relief sought is merely inciden to the equitable relief sought, the case is a ‘chancery case.’

“3. An action may be a ‘chancery case’ even though declárate judgment relief is sought therein.”

Taft, J., in the opinion in the Westerhaus case, supra, refers wi approval to the prior holdings that if the case below is a “chancery ca: it is appealable upon law and fact. He cites in support thereof Mey v. Meyer, 153 Oh St 408, and Connelly v. Balkwill, 160 Oh St 430. In t latter case paragraph one of the syllabus reads:

“1. Whether an action is legal and, therefore, appealable on questic of law only or equitable and, therefore, appealable on questions of law and fact is determined from the pleadings and the issues made thereby.”

The Westerhaus case, supra, was decided June 6, 1956.

In 16 O. Jur. (2d), 643, Declaratory Judgments, §11, Nature of Proceeding, it is said:

“An action for a declaratory judgment is essentially a special statutory proceeding. Such an action is sui generis in the sense that it is neither one strictly in equity nor one strictly at law. But the Code provisions providing for declaratory judgments do not establish or change any substantive rights; they simply broaden the remedies, but do not, and could not, change the essential nature of an action itself. Therefore, whether a particular action for a declaratory judgment is legal or equitable in nature, and whether legal or equitable principles may be invoked, is dependent upon the nature of the issues raised. In determining the issues presented such principles of law or of equity may be invoked as are appropriate. When such an action partakes of equity it calls for the application of equitable principles, and when it partakes of an action at law it utilizes any available principles necessary to dispose of the issues.

“Applying the above principles, a matter primarily involving the construction of a written agreement and determining the right to maintain a mandatory injunction for a violation of a restriction in a deed is equitable in nature. * * *”

Applying the tests above set forth to the pleadings and issues in the case now before us, it would appear that the proceeding below was primarily equitable in nature. Plaintiffs attached to their petition an exact copy of the signed agreement between defendant and plaintiffs for their legal services and asked the court to construe their rights and to order an accounting on behalf of the defendant with respect thereto. In both causes of action, plaintiffs allege they have made demand upon defendant for an accounting and in each case it is alleged defendant has failed or refused so to do.

In 1 O. Jur. (2d), 206, Accounts and Accounting. §49, reads:

“The existence of a fiduciary relationship between the parties is ground for equitable jurisdiction of an action by one to compel an accounting by the other. * * *”

“Equitable jurisdiction over accounting by various other persons in fiduciary relations such as principal and agent, principal and factor, attorney and client, and partner, exists. * * *”

For the reasons above set forth the first ground for the motion to dismiss is not well taken and must be overruled.

The second ground is as follows:

“2. No bond was filed as required by law in order to support an appeal on questions of law and fact.”

In support of this ground, plaintiffs refer to §2505.06 R. -C., which provides as follows:

“Except as provided in §2502.12 R. C., no appeal shall be effective as an appeal upon questions of law and fact until the order, judgment, or decree appealed from is superseded by a bond in the amount and with the conditions provided in §§2505.09 and 2505.14 R. C., and unless such bond is filed at the time the notice of appeal is required to be filed.”

On behalf of the defendánt it is claimed that all provisions of the bond statute have been complied with and that a bond in the sum of $85,000 as approved by the lower court is now on file with the Clerk of Courts of Franklin County.

We have examined the papers in this case and have failed to find airy order fixing such bond at $85,000. We find that the court below decided the case on July 25, 1957 and on October 11, 1957 by journal entry, duly filed, overruled a motion for a new trial and entered judgment for $76,015 and interest in favor of plaintiffs and against defendant on plaintiffs’ first cause of action. The court further found that plaintiffs were entitled to receive, upon sale of the subject property, twenty-five percent of any amount received in excess of $352,234.61 under the circumstances therein described.

It was on October 31, 1957 that the notice of appeal on questions of law and fact was filed and on the same date a journal entry was filed fixing the amount and conditions of the supersedeas bond required under §2505.06 R. C. Instead of fixing the supersedeas bond for twice the amount of $76,909.15 and interest or an amount approximating $153,818.37 and interest, the court set the amount at $110,000. The entry reads as follows:

“This day this cause came on to be heard upon application to fix a supersedeas bond in the above action and the same was heard in open court with both parties present, and the Court finds the parties have agreed upon additional security for any judgment and that a bond should be approved.

“WHEREFORE, it is hereby ordered and decreed that a supersedeas bond be fixed in the sum of One Hundred Ten Thousand ($110,000) Dollars and that the Clerk of Court shall take the defendant as principal on the bond and Emil M. Hrobon & Maxine Hrobon as security on said bond and that in view of other security being agreed upon between the parties further security is hereby dispensed with.”

The bond in this case is entered in “Capital Record of Miscellaneous Bonds No. 2, Page 225.” This supersedeas bond reads in part as follows:

“KNOW ALL MEN BY THESE PRESENTS, That we, May T. Hrobon, Emil M. Hrobon and Maxine Hrobon are held and firmly bound unto plaintiffs in the sum of one hundred ten thousand and no/100 Dollars, to the payment of which sum, well and truly to be made, we do hereby jointly and severally bind ourselves, our successors, heirs, executors and administrators.

“Signed by us, and dated this 31st day of Oct. 1957.

“THE CONDITION OF THE ABOVE OBLIGATION IS SUCH, That, ENTRY FILED OCT. 31, 1957:

“This day this cause came on to be heard upon application to fix a supersedeas bond in the above action and the same was heard in open court with both parties present, and the Court finds the parties have agreed upon additional security for any judgment and that a bond should be approved.

“WHEREFORE, it is hereby ordered and decreed that a supersedeas bond be fixed in the sum of One Hundred Ten Thousand ($110,000100) Dollars and that the Clerk of Court shall take the defendant as principal on the bond and Emil M. Hrobon and Maxine Hrobon, as securitiy (security) on said bond and that in view of other security being agreed upon between the parties further security is hereby dispensed with.”

“Gessaman, Judge”

“Edwin M. Tuttle”

“Then this obligation to be void; otherwise to remain in full force and virtue in law.”

“(Known as Cordelia May Hrobon)”

Note: Above is printed in ink.

“Executed in Presence of”

“Dorothy Campbell” “May T. Hrobon”

“Deputy Clerk” “Emil Hrobon”

“Maxine Hrobon”

Attached to the above bond are two certificates from the office of the Franklin County Auditor, each of which contain the following statement:

“This is to Certify, That the Principal and sureties subscribing to the appended bond appear on the tax lists of Franklin County, Ohio, with the taxable valuations shown opposite their names:”

On one of the certificates property standing in the name of Emil M. & Maxine Hrobon located at 2861 S. Dorchester Road is valued at $18,020.00, while on the other, property standing in the name of Cordelia M. Hrobon located at 1969 Chatfield Road is valued at $26,050.00. The second said certificate bears this notation: “Accepted on advice of Judge Gessaman.”

We are unable to find any other or any further evidence that the supersedeas bond complies with the statute. Sec. 2505.09 R. C., requires not only that the principal amount, of the bond shall be not less than the amount of judgment and interest but also that there be sufficient-surety. The said §2505.09, supra, R. C. is as follows:

“No appeal shall operate as a stay of execution, except as provided in §§2505.11 and 2505.12 R. C., until a supersedeas bond is executed by the appellant to the adverse party with sufficient surety and in such sum. not less than the amount of the judgment and interest, as is directed by the court making the order which is sought to be superseded or by the court, to which the appeal is taken. Such bond shall be conditioned as provided in §2505.14 R. C.” (Emphasis added.)

In a case such as this, the appellant was required to be the principal on the bond and is the one primarily liable for the full amount of judgment, interest and costs which may be ultimately found to be due from such appellant. In order for the sureties to qualify, property they own is required in addition to that which may be owned by the appellant.

Hence, from the records available to us it would appear that property having a tax value of $18,020.00 and nothing else is pledged as surety for the appellant on a bond in the principal sum of $110,000. By no stretch of the imagination could this be said to comply either with the statute or the order of Judge Gessaman. The second ground of the motion is well taken and will, therefore, be sustained.

The third and final ground of the motion to dismiss is as follows:

“The trial brief required by Rule 7, Sub-division B, to be filed within fifty (50) days has not been filed by appellant.”

Plaintiffs urge that the notice of appeal was filed October 31, 1957 and they contend under Rule VII, B, of this court that the appellant should have filed a trial brief within fifty days thereafter. The rule referred to namely, Rule VII, B, is as follows:

“Unless otherwise ordered by the court or a judge thereof, upon appeals on questions of law and fact, counsel for plaintiff shall, within fifty (50) days after filing the notice of appeal, file with the Clerk his trial brief.

“Within fifteen (15) days after plaintiffs brief has been filed and a copy thereof served on opposite counsel, such opposing counsel shall file like briefs, and brief in reply thereto shall be filed within seven (7) days thereafter.”

It will be noted that the obligation of this rule applies to the plaintiffs in the court below, in this case, appellee. It is to be doubted if plaintiffs seek to invoke this rule against themselves. This ground must, therefore, be held not to be well taken.

In light of our conclusions as set forth above the first and third grounds of the motion to dismiss will be overruled and the court having found the second ground shown upon the present apparent condition of the record to be well taken, will be sustained and the appeal will be dismissed as an appeal on law and fact, but will be retained as an appeal on questions of law with the usual time allowed defendant to settle her bill of exceptions.

PETREE, PJ, MILLER, J, concur.


text:
    BARLET, Petitioner-Appellant, v. ALVIS, Warden et, Respondent-Appellee.
    United States Court of Appeals, Sixth Circuit.
    No. 13005.
    Decided May 31, 1957.
    John Brown, Cincinnati, for appellant.
    William Saxbe, Atty. Geni., John W. Shoemaker, William M. Vance, Columbus, for appellee.
    Before ALLEN, MARTIN and MILLER, Circuit Judges.
   OPINION

Per CURIAM.

Frank Barlet appeals from denial by the United States District Court of his petition for writ of habeas corpus. He avers that his constitutional rights had been violated in his trial in the Common Pleas Court of Hamilton County, Ohio. Among other things, he alleged gross and prejudicial conduct of the prosecuting attorney which, he said, was concurred in and condoned by the trial judge.

The United States District Court afforded him a hearing with full opportunity to show wherein his constitutional rights had been violated. This he utterly failed to do. The attorney who had represented petitioner-appellant at the trial in the State court had been chosen by him; and no showing has been made that the attorney failed to represent him properly, or that he exhibited any lack of skill in doing so. Whether the attorney made mistakes of judgment in conducting the defense is immaterial. The Supreme Court of Ohio has held recently that the remedy for denial of a fair trial on the ground of the inefficiency of counsel is by appeal and not by habeas corpus proceedings, where the court had jurisdiction of the crime and of the person. McConnaughy v. Alvis, 165 Oh St 102, 59 O. O. 103, 133 N. E. (2d), 133.

Here, the court had jurisdiction, both of the crime and of the person of the petitioner. Accordingly, the judgment of the district court denying the petition for writ of habeas corpus is affirmed.

It is so ordered.


author: By HOLTSBERRY, J.

text:
    KING et, Plaintiffs, v. NEWARK TRUST COMPANY, Defendant.
    Common Pleas Court, Licking County.
    No. 41123.
    Decided June 25, 1957.

      Virginia Weiss, Newark, for plaintiffs.
    John David Jones, Richard C. Kibler, Newark, for defendant.
   OPINION

By HOLTSBERRY, J.

Plaintiffs allege in their third amended petition that the Newark Trust Company, Administrator of the estate of Samuel R. Francis, deceased, pursuant to the direction of the Probate Court of Licking County, Ohio, sold to plaintiffs at a judicial sale at public auction, two parcels of real estate situated on Clarendon Street in Newark, Licking County, Ohio; they further allege that the description of said real estate which appeared both in the administrator’s deed and in the notice of sale, which appeared in the Newark Advocate, was erroneous and misleading in that it did not include a four foot exception therefrom and that said exception was of record in the deed records of Licking County, Ohio, Volume 346 at page 531. Plaintiffs further allege that the terms of sale were $100.00 cash at the time of sale and balance at the time of the delivery of deed. That after bidding in the property at judicial sale they paid one John Sachs, Vice President and Trust Officer of the Newark Trust Company, who was acting on behalf of said Newark Trust Company. They further allege that said officer made representations to them that a title examination had been made by the bank’s attorneys and that the administrator’s deed to be given was as good as any warranty deed and that the title was guaranteed and that as a result of said representations they were misled and did not have a title examination because of their reliance thereon; they allege that as a result thereof they were damaged and pray for damages in the amount of $1000.00, against the Newark Trust Company.

The Newark Trust Company, Administrator of the estate of Samuel R. Francis, filed an answer denying- the allegations. Trial by jury was waived by the parties and the case was submitted to the Court upon the evidence.

After careful consideration the Court finds that certain conversations did take place between Mr. Sachs and Mr. King, in which Mr. Sachs, on one occasion, told him that the Newark Trust Company had their own attorneys to examine the title for them but that it was his responsibility to get his own attorney for a title examination. In his testimony he stated he pled with him to get a title examination. Mr. Sachs further testified that he told him several times to do this but that he answered: “No, 1 don’t need to do that.” Further, Mr. Sachs testified that he absolutely made no guarantee of title and made no statement that the administrator’s deed was as good as a warranty deed.

The Supreme Court of Ohio in the case of Union Savings Bank v. Pike Building Company, Hosea, 518, fully and clearly sets forth the doctrine of caveat emptor as applied to judicial sales, and holds that a purchaser is a party to the sale and bound to take judicial notice of the character, condition and amount of the property sold.

Section 37.11 (c) of McDermott’s Ohio Real Property Law and Practice states the rule of caveat emptor applies in all its rigor to purchasers at judicial sales.

Section 65, Taylor’s Revision of Merwine’s Judicial Conveyance of Real Estate, 2nd Edition, states that a purchaser at a judicial sale is bound to search the record to ascertain the condition of the title before bidding, and failing to do so he must abide by the consequences of his neglect.

The object of an advertisement is not to apprise the purchaser of all details connected with the title, but merely to attract them by a general description of the property to be sold. (24 O. Jur., page 98.) The notice of sale is to inform the public of the nature and condition of the property and the time, place and terms of the sale; all this is to attract bidders and prevent a sacrifice of the property. Technical errors or mistakes do not effect the sufficiency of the notice where the above objects are attained. Purchasers are volunteers who are not required to bid or buy and all are charged with the duty to ascertain the character and condition of the property, as the maxim, ‘id certum est quod certum reddi potest,’ applies as an obvious corollary to the rule of caveat emptor. ■

For neglect and failure to ascertain the purchaser must stand as though he had full knowledge. As to the title, he buys at his own risk and in the absence of fraud, it must be his misfortune under the established rule that one who neglects an obvious precaution should abide by the consequences. A person, therefore, having no legal right to rely upon an advertisement in the first instance, cannot later be heard to complain. (Peoples Liberty Bank & Trust Company v. Cornett, 86 Oh Ap 222.)

In the O’Conner Case, 29 Oh St 652, where, by mistake, real estate was advertised as dry land in the City of Toledo, but in fact was partly covered with water in a navigable stream, the court went so far in this extreme case as to hold the sale binding. (Also see Arnold v. Donaldson, 46 Oh St 73; Kain v. Weitzel, 72 Oh Ap 229; 68 A. L. R., 671; 24 O. Jur. page 95.)

The conclusion must be reached that a purchaser at a judicial sale is bound to judge for himself as to the title of the land he purchases unless he is dissuaded from so doing by representations of some kind; and in the absence of fraud or express warranty the purchaser has no relief against a defect in the title or any restrictions appertaining to said property, nor has a purchaser at such sale any relief for any unsuitableness of the land for any particular purpose which an examination that he was free to make would have revealed.

The Court finds from the evidence that instead of plaintiffs being misled by the offer of defendant they were informed that they should have a title examination and that there were no representations made that the administrator’s deed to be given was as good as any warranty deed, and the title was not guaranteed.

This Court must conclude that there was a completely regular judicial sale and that this is a clear case requiring the application of the rule, “Let the buyer beware.”

The Court finds the issues herein in favor of the defendant.