author: By THOMAS, J:

text:
    STATE, Plaintiff, v. HARLAND, Defendant.
    Common Pleas Court, Geauga County.
    Decided 1951.
    Charles P. Baker, Jr., Painesville, for plaintiff.
    Mark Sperry, George Buchwalter, Chardon, for defendant.
   OPINION

By THOMAS, J:

Defendant demurs to all seventy-two (72) counts of his indictment. The counts relate to thirty-one (31) different telephone calls which the defendant is charged with having permitted George Gordon, a prisoner in the county jail, to make “beyond the confines of his cell” on twenty-four (24) different days between the hours of 8:00 P. M., and 8:00 A. M. These days specified are during the period from March 13, 1951, through May 7, 1951.

Each count refers to one or more telephone calls made on the same day. For each day’s calls, whether one or more, the defendant is charged severally under §§12886, 12849 and 12850 GC.

As his chief claim that the indictment is insufficient he urges that he is not informed as to whether the State charges that he

“actively performed the acts which the State contends constitutes a violation of the statutes in question, or whether the State will contend that he had knowledge of or consented to the acts being performed by others and that such knowledge and consent forms the basis of the charges set forth in the indictment.”

The absence of such allegations is evident.

The necessity for such allegations is contested by the State, which contends that

“In the case at bar all of the counts of the indictment are couched in the exact wording of the statute and then there is added thereto specific facts of the persons, time and place which constitute the violation of the section charged. Certainly the defendant is given notice of the offense of which he is charged. The indictment is complete and proper on its face.”

Counts one, two and three typify all the'counts. Each will be examined in the light of defendant’s claim that an essential element of each offense charged is personal active performance of the acts charged or knowledge of or consent to the acts being performed by others.

Count one, states (omitting formal allegations):

“Stuart Harland on or about the 4th day of April, 1951, at the County of Geauga aforesaid, having charge of the county jail of Geauga County, Ohio, did neglect or refuse to obey or conform to a rule or regulation lawfully prescribed by the Court of Common Pleas of said County for the management and regulations of such jail, or did omit or neglect to perform a lawful duty in respect thereto, to-wit: permitted one, George Gordon to go beyond the confines of his cell and use the jail telephone at 10:06 o’clock P. M. on April 4, 1951.”

Except for the concluding language (following the word, to-wit), this count is drawn in the language of §12886 GC, which provides:

“Whoever, having charge of a county jail, neglects or refuses to obey or conform to a rule or regulation lawfully prescribed by the court of common pleas for the management and regulation of such jail, or omits or neglects to perform a lawful duty in respect thereto, shall be fined not less than five dollars nor more than one hundred dollars.”

Attention must be paid to a recent decision of the Supreme Court (State v. Yudick, 155 Oh St, 269), to the effect that an indictment for automobile manslaughter, couched in the language of §6307-18 GC, and which enumerates certain sections of the traffic code claimed to be violated and which seeks to specify the nature of those violations, must assert sufficient facts to constitute violations of such sections of the traffic code. This qualifies the general rule of criminal pleading, authorized by §13437-4 GC, and recognized in the Yudick decision, that an indictment may charge an offense “in the words of the enactment describing the offense or declaring the matter charged to be a public offense.”

In view of the language of the counts of the present indictment, the rule of the Yudick case is applicable here.

Thus, the concluding language of Count One which reads:

“to wit: permitted one, George Gordon, to go beyond the confines of his cell and use the jail telephone at 10:06 o’clock P. M., on April 4, 1951,”

seeks to specify the manner in which “Stuart Harland * * * having charge of the county jail,”

“Did neglect or refuse to obey or conform to a rule or regulation lawfully prescribed by the Court of Common Pleas * * * for the management and regulation of such jail, or did omit or neglect to perform a lawful duty in respect thereto.”

In conformity with the Yudick decision it is essential that the concluding language of Count One state facts which constitute a neglect or refusal of the Sheriff to conform to a lawfully prescribed jail rule or an omission or neglect to perform a lawful duty in respect to the jail.

It is first essential to determine the. meaning of “neglect” as used in §12886 GC. “Neglect” obviously means something different than “refusal” for the statute outlaws a “neglect” or “refusal.”

“Refusal” means a denial, a declination to do what is requested or ordered. A “refusal” is a wilfull, conscious and deliberate act.

“Neglect,” on the other hand, signifies a failure to act which may be unintentional. It is like the term negligence which the Supreme Court has said “does not involve intent or a purpose to do a wrongful act or to omit the performance of a duty.” Tighe v. Diamond, 149 Oh St, 520 at 524.

That the word “neglect” as used in §12886 GC, is devoid of the element of intention is substantiated by the fact that in §12850 GC (which section will be considered in connection with Count Three), the word “neglects” is modified by the word “Wilfully.”

“Neglect as used in §12886 GC, is construed to mean an unintentional failure to act, whereas (as later explained), “wilfully * * * neglects,” as used in §12850 GC, is construed to mean intentionally failing to act.

It follows that §12886 GC may be violated by an unintentional failure to conform to a lawfully prescribed jail rule or by an unintentional failure to perform a duty in respect to the jail.

Since Wilfulness is not an essential element of a violation of §12886 GC, no reason is perceived why a sheriff may not be guilty of a violation of this section wholly as the result of the neglect of a deputy to conform to a lawfully prescribed jail rule even though the sheriff was unaware of and did not consent to the deputy’s neglect.

A sheriff is enjoined by statute (§3157 GC) to have charge of the county jail, to have charge of and to keep safely all persons confined there, to attend to the jail, and to govern and regulate the jail according to any lawfully prescribed jail rules.

Even in the absence of a statute making these duties nondelegable a sound public policy would require that these duties, whose performance is essential to public order, remain with the sheriff where they are placed by law.

But, the principle of non-delegability has statutory sanction. For by §2831 GC, a sheriff is expressly made responsible for a deputy’s neglect of duty and a deputy’s mis-conduct in office.

Its legal effect is that although a sheriff may assign to deputies the physical tasks of guarding and caring for prisoners, of enforcing lawfully prescribed- jail rules, and of safely keeping the prisoners, the sheriff cannot thereby relieve himself of, but on the contrary is accountable for any neglect of duty or mis-conduct in office of a deputy, which arises in the deputy’s performance of these assigned tasks.

If a sheriff cannot delegate his statutory responsibility to conform to lawfully prescribed jail rules, and if by statute he is responsible for a deputy’s neglect to conform to such rules, then every such neglect of a deputy is imputed to the sheriff.

Wilfulness not being an element of §12886 GC, but the gist of a violation of that section being any unintentional failure to conform to a lawfully prescribed jail rule, a sheriff may violate that section by his own neglect or by the imputed neglect of a deputy.

It is recognized that public officers may be held criminally negligent for the wrongful acts of their subordinates. Thus in Larmore v. State, 24 A. 2d, 284, the Maryland Court of Appeals in 1942 upheld a conviction of county commissioners for “unlawfully and negligently” allowing, approving and passing for payment certain fictitious and fraudulent claims against the county.

The commissioners sought to excuse the passing of the fraudulent claims on the fact that it was done by their chief clerk on whom they of necessity placed great reliance in the performance of their duties. The .Court rejected this excuse by saying, in effect, that the commissioners’ statutory duties were non-delegable.

“It is understandable that officers provided with a clerk in whom they have confidence should leave much of the performance of their, duties to her; but they cannot, except at their peril, leave to her duties which the statute commits to them.”

And direct authority for applying §2831 GC to a criminal case against a sheriff is provided by State v. Wedin, 89 A., 753, which holds that a statute similar to §2831 GC makes a sheriff criminally liable for a deputy’s neglect in permitting an escape from jail.

In Count One, the concluding statement charges that the defendant

“permitted one, George Gordon, to go beyond the confines of his cell and use the jail telephone at 10:06 o’clock P. M., on April 4, 1951.”

This statement tells the manner in which the State claims that the defendant neglected to conform to a lawfully prescribed jail rule (the rule in question requires prisoners to be confined in their cells from 8:00 P. M., to 8:00 A. M.). It fixes the place. It pin points the time. It designates the specific offense.

It is therefore sufficient to charge that the defendant permitted George Gordon to leave the confines of his cell to use the jail telephone at the designated time since the defendant would be liable, under §12886 GC (assuming it is proved that the jail rule was lawfully prescribed), if George Gordon was allowed out of the confined area of the jail, at the specified time, irrespective of whether he was allowed out by the defendant personally or by a deputy without the defendant’s knowledge or consent.

Hence it is decided that the concluding statement of Count One states a violation of §12886 GC.

Count One, therefore, sufficiently notifies the defendant of an offense against §12886 GC. The demurrer is over-ruled as it pertains to Count One, and all similar counts (Counts 4, 7, 10, 13, 16, 19, 22, 25, 28, 31, 34, 37, 40, 43, 46, 49, 52, 55, 58, 61, 64, 67, 70).

Count Two (omitting formal allegations), states:

“Stuart Harland on or about the 4th day' of April, 1951, at the county aforesaid, being sheriff of said county and having the care and custody of said county jail, did permit a prisoner to wit: one, George Gordon, to be dealt with less strictly than intended by his sentence, to wit: permitted said George Gordon to go beyond the confines of his cell and use the jail telephone at 10:06 o’clock P. M. on April 4, 1951.”

This count is drawn in the language of §12849 GC, which provides:

“Whoever, being a sheriff, jailer or other person having the care and custody of a jail, permits it to become foul or unclean so that the health of a prisoner may be endangered, or permits a prisoner to be dealt with less strictly than intended by his sentence, shall be fined not more than one hundred dollars.”

It is manifest that the concluding statement of Count Two, which reads:

“to wit: permitted said George Gordon to go beyond the confines of his cell and use the jail telephone at 10:06 o’clock P. M. on April 4, 1951,”

seeks to specify the manner in which it is claimed that “Stuart Harland * * * being sheriff of said county and having the care and custody of said county jail,”

“did permit a prisoner to wit: one, George Gordon to be dealt with less strictly than intended by his sentence.”

On its face the statement that George Gordon (previously referred to as a prisoner) was beyond the confines of his cell, and used the jail telephone at 10:06 o’clock P. M., on April 4, 1951, describes treatment of a prisoner which is less strict than his sentence intended. A prisoner’s sentence is to be served in jail and not outside of confinement.

It is charged that defendant permitted this condition. The verb “permit” is likewise employed in §12849 GC to describe the offense. If “permit” is used to describe the offense in the statute, then “permit” is sufficient to specify the nature of the offense charged in the indictment.

Furthermore, a person may permit a condition to exist by means of the act of another for which he is responsible, and intention on the part of the principal to permit the condition to exist is not essential to fix the principal’s responsibility.

If a deputy permitted a prisoner to be treated less strictly than the sentence intended this would constitute either a neglect of duty or misconduct in office on the part of the deputy.

Under §2831 GC, discussed above, such a neglect of duty or misconduct in office is imputed to the sheriff.

Wilfulness not being essential to a violation of §12849 GC, a sheriff may violate the section either by his own act or by the imputed act of a deputy in permitting a prisoner to be treated less strictly than his sentence intended.

Since Wilfulness is not essential to charging a violation of §12849 GC, the concluding statement of Count Two is therefore adequate and the count is found to be sufficient.

The demurrer is over-ruled as it pertains to Count Two, and to all similar counts (Counts 2, 5, 8, 11, 14, 20, 23, 26, 29, 32, 35, 38, 41, 44, 47, 50, 53, 56, 59, 62, 65, 68, 71).

Count Three (omitting formal allegations), states:

“Stuart Harland on or about the 4th day of April, 1951, at' the county aforesaid, being sheriff of said county did wilfully refuse or neglect to perform a lawful duty in a criminal case or proceeding, to wit: the case of the State of Ohio v. Joe Green aka George Gordon, in that said sheriff permitted said George Gordon to go beyond the confines of his cell and use the jail telephone at 10:06 o’clock P. M., on April 4, 1951.”

This count is drawn in the language of §12850 GC, which provides:

“Whoever, being a clerk, sheriff, coroner, constable or other ministerial officer, wilfully refuses or neglects to perform any lawful duty in a criminal case or proceeding, or, being an officer, delays to serve a warrant legally issued and delivered to him when in his power so to do either alone or by calling assistance, if the offense charged be a felony, shall be fined not more than five hundred dollars or imprisoned not more than thirty days, or both; or, if the offense charged be a misdemeanor, shall be fined not more than one hundred dollars or imprisoned not more than twenty days, or both.”

The concluding statement of Count three, which reads:

“to wit: the case of the State of Ohio v. Joe Green aka George Gordon, in that said sheriff permitted said George Gordon to go beyond the confines of his cell and use the jail telephone at 10:06 P. M., on April 4, 1951,”

attempts to specify the manner in which “Stuart Harland * * * being sheriff of said county

“did wilfully refuse or neglect to perform a lawful duty in a criminal case or proceeding.”

Sec. 12850 GC expressly requires that the neglect be wilful. The word “Wilfull” or “wilfully” in statutes of this kind means, at least, intentional and by design. 43 Am. Jur. Public Officers, Section 329, P. 129. State v. Williams, 94 Vt. 423, 111 A. 701. Also, see In re Sulzmann, 29 N. P. (N. S.) 92, affd. 125 Oh St, 394, which similarly defines “Wilfully neglects” as used in the Removal of Officers Statute (§10-1 GC).

A sheriff therefore, cannot unintentionally violate §12850 GC. He may violate it by personal conduct if he acts intentionally and by design. He may also violate it if he knowingly allows a deputy to fail to perform a lawful duty in a criminal case, or if he consents to such failure after it has occurred. But a sheriff cannot be criminally responsible for a neglect of a deputy in failing to perform a duty in a criminal case, if the sheriff did not approve of or consent to its occurrence.

To make a sheriff criminally responsible under §12850 GC for his unintentional acts would disregard the element of wilfulness which is expressly made an element of this crime.

The concluding statement of Count Three specifies the offense predicated on §12850 GC in these words:

“to wit: the case of the State of Ohio v. Joe Green aka George Gordon in that said sheriff permitted said George Gordon to go beyond the confines of his cell and use the jail telephone at 10:06 P. M. on April 4, 1951.”

It is evident that this statement contains no express language which charges the defendant with acting intentionally. It does, hov/ever, charge that the defendant “permitted” George Gordon to go beyond the confines of his cell to use the telephone at the time designated.

In the ruling on the defendant’s motion to quash service on the indictment it was concluded that the word “permitted” sufficiently charged an intentional act since the first signification of the word “permit” implies that the mind has consented. 70 C. J. S., 566.

However, the word “permit” does not absolutely import an intentional conscious act. Thus the note in C. J. S. supra, says that in its second sense “permit”

“means negative action, something less than consent, implying no affirmative action and involving no intent but being mere passivity, abstaining from preventive action.”

Wilfulness being an essential element of §12850 GC, the concluding statement of Count Three, which seeks, to specify the offense, must unequivocally assert that the defendant acted intentionally and wilfully.

It is seen that the word “permit” may or may not imply consent and intention. To allege that a person permitted something to happen does not therefore unqualifiedly charge that the person acted intentionally and wilfully.

On further consideration of the meaning of the word “permit,” and in view of the Yudick decision, the effect of which is to require the concluding statement of Count Three to contain facts which definitely charge the defendant with acting wilfully, it is determined that the absence therefrom of an unequivocal charge of wilfulness renders Count Three defective and insufficient.

Defendant’s demurrer will therefore be sustained as to Count Three and all similar counts (Counts 3, 6, 9, 12, 15,18, 21, 24, 27, 30, 33, 36, 39, 42, 45, 48, 51, 54, 57, 60, 63, 66, 69 and 72).

The other grounds of defendant’s demurrer insofar as they apply to Counts One, and Two, were considered and over-ruled in connection with defendant’s motion to .quash service of the indictment. For the same reasons they are now denied.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    MONTE YOUNG, INC., Plaintiff-Appellant, v. WHETZEL, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2114.
    Decided November 1, 1950.

      Horn & Zarka, Dayton, for plaintiff-appellant.
    Landis, Ferguson, Bieser & Greer, Dayton, for defendantappellee.
   OPINION

By THE COURT:

Submitted on motion of defendant-appellee to dismiss the appeal on two grounds: First, that the order of the Common Pleas Court overruling the motion of the plaintiff-appellant for judgment on the pleadings, which is the order from which the appeal is taken, is not a final order; second, that the assignments of error and brief of plaintiff-appellant were not filed within fifty days after filing the notice of appeal.

The record shows that the appeal is taken from the order of the Common Pleas Court overruling plaintiff-appellant’s motion for judgment on the pleadings. Plaintiff-appellant did not stand on this order and permit judgment to be entered against it. An order overruling a motion for judgment on the pleadings, with nothing more, is not a final order constituting a predicate for an appeal. Meyer v. Daniel, 147 Oh St 27, 67 N. E. 789.

The record shows that the plaintiff-appellant did not file its assignments of error and brief within fifty days after the filing of the notice of appeal as required by Rule VII of this Court. This Court has consistently ruled that in appeals upon questions of law the appeal will be dismissed for failure to file assignments of error and briefs within the time prescribed by Rule VII. Peck v. County Commissioners, 28 Abs 702; Seifer v. Industrial Commission, 29 Abs 52; Brown, Gdn. v. Brown, 35 Abs 527, 42 N. E. (2d) 509. See also Anderson v. Industrial Commission, 135 Oh St 77, 19 N. E. (2d) 509.

The motion to dismiss the appeal will be sustained on both grounds.

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


author: By HUNSICKER, PJ.:

text:
    PECYK, Admr., Plaintiff-Appellee, v. SEMONCHECK, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22284.
    Decided January 14, 1952.
    Jack G. Day, for plaintiff-appellee.
    Rager, Forrester, Briggs & Wincek, for defendant-appellant.
    (HUNSICKER, PJ, DOYLE, J, of the Ninth District; NICHOLS, 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 rendered on the verdict of a jury.

The plaintiff, as administrator of the estate of Walter Pecyk, deceased, filed an action in the Municipal Court of Cleveland, Ohio, against the defendant, Michael Semoncheck, wherein such administrator, Anthony Pecyk, alleged that Semoncheck “did wilfully utter and publish concerning” the father of the plaintiff (who was the plaintiff’s and is now the appellee’s decedent), “false, malicious and defamatory matter” as follows:

“I knew Toney Pecyk’s father for 24 years, and I know he’s a Communist or Communist sympathizer, and I can prove it.”

The above statement was orally made at a meeting of the Political Action Committee of the Congress of Industrial Organizations in Cleveland, Ohio.

An action was filed by Walter Pecyk, the decedent, during his lifetime, against Michael Semoncheck, for damages based on the alleged slander. Upon the death of Walter Pecyk, the action, under §11397 GC, abated and was dismissed. Thereafter, the appellee herein, as administrator of the estate of Walter Pecyk, filed, under favor of §11235 GC, an action against Semoncheck for the injury to the “person” of Walter Pecyk by reason of the alleged slander. See: Smith v. Buck, 119 Oh St 101.

The amended petition, upon which the action was tried, did not allege any special damages occurring as a result of the oral statement alleged to have been made by Semoncheck.

The question determinative of this appeal is: Is the oral statement that a person “is a Communist or a Communist sympathizer” slander per se?

In the case of Schoedler v. Motometer Gauge & Equipment Corp., et al., 134 Oh St 78, the court said, at page 84:

“To constitute a cause of action in slander, the words spoken must either be actionable per se or special damage must be alleged. If they are slanderous per se, damage will be presumed; otherwise, special damage must be alleged in order to render them actionable.

“In Davis v. Brown, 27 Oh St 326, the court said that words, to be actionable per se, must come within one of the following classes:

“ T. The words must import a charge of an indictable offense, involving moral turpitude or infamous punishment; or,

“ TI. Impute some offensive or contagious diseases calculated to deprive the person of society; or,

“ ‘III. Tend to injure him in his trade or occupation.’ ”

Thus' it is seen that Ohio has consistently followed the rule which was explicitly stated in Davis v. Brown, 27 Oh St 326.

In the instant case, the words spoken of the father of Anthony Pecyk did not “import a charge of an indictable offense, involving moral turpitude or infamous punishment,” and they did not indicate in any way that the one of whom the words were spoken had an “offensive or contagious disease” which would deprive such person “of society.”

Did the words used “tend to injure” Anthony Pecyk’s father (Walter Pecyk) “in his trade or occupation”? There was no charge of this nature in the petition, for it charges only that the statement was “calculated to injure the deceased in his reputation as a man and a citizen,” and “to bring him into public scandal, infamy and disgrace * *

Many early cases have discussed the question of what words, when spoken, are or are not actionable per se, among them being:

Dial, Admr., v. Holter, 6 Oh St 228 (an action for libel and slander), in which it was determined that “Words spoken of another, charging him with maliciously removing the cornerstone of lands, are, per se, actionable.”

Alfele v. Wright, 17 Oh St 238, words by one partner charging the other partner with burglary and larceny “are not actionable, without special damage.”

Hollingsworth v. Shaw, 19 Oh St 430, “an action of slander cannot be maintained for calling the plaintiff a deserter, without averment and proof of special damage.”

Davis v. Brown, 27 Oh St 326, “Words spoken, charging a man with sodomy, are not actionable without alleging special damage; * * *” such an act not then being a crime. See also, Melvin v. Weiant, 36 Oh St 184.

Hayner v. Cowden, 27 Oh St 292, “Words, charging a clergyman with drunkenness, when spoken of and concerning him in his office or calling, are actionable per se.”

Words which tend to subject a person to public hatred, ridicule or contempt, are actionable per se, if written, but such words when orally spoken do not give rise to an action in slander per se. State v. Smily, 37 Oh St 30, Bigelow v. Brumley, et al, 138 Oh St 574, at page 592. See also, Sweeney v. Beacon Journal Pub. Co., 66 Oh Ap 475.

As has been said in the case of Melvin v. Weiant, supra, at page 185:

“We fully agree with counsel for the plaintiff, that the words spoken of his client were of the grossest and most scandalous character. It would be difficult to put into words, a charge, which, if believed, would more certainly exclude from society the one against whom the same was made, or more surely expose him to public odium and disgrace.”

Judge Doyle of this court correctly indicated the attitude concerning the belief of the loyal citizens of this country when he stated in the case of Fawick Airflex Company, Inc. v. United Electrical, etc., et al., 56 Abs 419, at page 422:

“The Communist Party abroad, with its American counterpart, is presently the powerful force which has caused and is causing the destiny of nations to hang in the balance in the ideological struggle between the communistic-thinking and democratic-thinking peoples of the world; the party in its struggle for power would make ‘merchandise of * * * American principles’ * * *.”

In the instant case, there is nothing in the petition or in the evidence to indicate that Walter Pecyk was injured in his trade or calling by reason of the scandalous statement made concerning him. Therefore, notwithstanding our belief that such a statement would subject Walter Pecyk to public hatred, ridicule and contempt by the vast majority of American citizens, yet, without an allegation and proof of special damage, the words used herein are not actionable.

We do not say that one who is called a “Communist or Communist sympathizer” cannot recover damages for the slander thus committed. We do say that in order to recover damages for such a slander it is necessary to allege and prove special damage to the one about whom such words are used. Where such special damage is alleged in the petition, the action will lie.

The trial court, under the state of the record before us, committed prejudicial error in submitting the case to a jury.

We have examined all other claimed errors, and find none prejudicial to the substantial rights of the appellant.

The judgment is reversed, and final judgment is awarded to the appellant, Michael Semoncheck. Exceptions. Order See Journal.

DOYLE, J, NICHOLS, J, concur.


author: By THE COURT. By THE COURT.

text:
    MORSE et, Plaintiffs-Appellees, v. DEVAULT et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4695.
    Decided October 10, 1951.
    Russel S: Welch, Columbus, for plaintiffs-appellees.
    Herbert & Dombey, Thomas W. Applegate, William A. Richards, Columbus, for defendants-appellants.
   OPINION

By THE COURT.

Submitted upon motion by the plaintiffs-appellees seeking an order dismissing the appeal on questions of law and fact for the reason that no bond was furnished as required by §12223-6 GC.

The record reveals that a notice of appeal was filed August 21, 1951, and it is therefore apparent that the time for the filing of such bond has expired. The motion will be sustained but in accordance with §11564 GC the cause will be retained for appeal on questions of law only. The appellants will be granted leave to perfect said appeal in accordance with the Supplement to Rule VII of this Court.

HORNBECK, PJ, MILLER, J, concur.

WISEMAN, J, not participating.

ON MOTION TO DISMISS APPEAL

No. 4695. Decided December 5, 1951.

OPINION

By THE COURT.

Submitted upon motion of the plaintiff-appellee seeking an order dismissing the appeal on questions of law for failure to perfect said appeal in accordance with the order of this Court issued on October 10, 1951.

The motion is well made, the appeal will not be dismissed, but the judgment will be affirmed as we think this to be the proper entry.

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


author: By WEBER, J.

text:
    CONNECTICUT GEN. LIFE INS. CO. v. BIRZER BLDG. CO. et al.
    Common Pleas Court, Hamilton County.
    Nos. A-113084, A-113085.
    Decided April 7, 1950.

      Burke & Cooney, Cincinnati, for plaintiff.
    Conrad Magrish, James G. Headley, Robert F. Dreidame, William B. Davis, Sidney C. Brant, Cincinnati, Hiram Bolsinger, Norwood, Charles M. Evans, Alton E. Purcell, Cincinnati, for defendants.
   OPINION

By WEBER, J.

The matter set forth in the two petitions and amended petitions requires the rendition of certain money judgments, determination of the validity of liens, foreclosure of the mortgages and sale of the properties, and also to determine priorities and marshaling of liens.

In order to expedite the sale of the property, this opinion is directed solely to the determination of the validity of the lien filed by the defendant, Anthony Birzer, rendering judgment on the notes set out in the two petitions and ordering the foreclosure of the two mortgages given to secure the two notes and the sale of each of the properties respectively described in each of the cases.

On December 1, 1947, Anthony Birzer recorded a lien in Lien Book 61, page 467, under the provisions of §8339 et séq GC, on all the real estate owned by the Birzer Building Company, including the real estate described in the petitions filed in the above two cases, for work previously done. Anthony Birzer, on December 13, 1947, filed a petition and on April 6, 1948, an amended petition, Case No. A-107970, describing the real estate described in the petitions filed in cases No. A-113084 and A-113085, praying for a judgment of $2,750.00 and for a determination of the validity and priority of his lien and for a foreclosure and sale of the real estate.

The only defendants in Case No. A-107970 are the Birzer Building Company and Mack Wahn. The Birzer Building Company was in- default for answer. On January 3, 1949, a decree was entered by Judge Hess rendering judgment for the plaintiff, Anthony Birzer, in the sum of $2,750 with interest from November 20, 1947, the total judgment being $2,935.50, with interest from January 3, 1949, also that the said lien of Anthony Birzer was a valid lien. On January 5, 1949, the General Casualty Company of America filed a motion to be made a party and to vacate said judgment. On January 13, 1949, the Hilltop Building Materials, Inc., filed a motion to be made a party and to vacate said judgment. Both motions were overruled.

On May 10, 1948, the Birzer Building Company executed a note to the Connecticut General Life Insurance Company and secured the same by mortgage recorded May 19, 1948. in Mortgage Book 2210, page 462, on the real estate described in the petition of the Connecticut General Life Insurance Company filed November 6, 1948, Case No. A-113085.

On May 10, 1948, the Birzer Building Company executed a note to the Connecticut General Life Insurance Company and secured the same by mortgage recorded on May 19, 1948, in Mortgage Book 2210, page 457, on the real estate described in the petition of the Connecticut General Life Insurance Company filed November 6, 1948, Case No. A-113084.

The Birzer Building Company, Anthony Birzer, the General Casualty Company of America were made defendants in cases No. A-113084 and A-113085. There were other defendants, including numerous holders of mechanics’ liens filed under §8310 et seq GC. On July 29, 1949, The Lawyer’s Title Insurance Company was made a party in these cases.

On September 10, 1948, work was stopped on the two building projects. It is claimed there was a default in the payments on the notes and that the conditions of the mortgages were broken. In Case No. A-113084 the plaintiff asks for a judgment against the Birzer Building Company in the sum of $2,749.80, for moneys advanced according to the terms of the contract, with interest at four per cent per annum from October 1, 1948, foreclosure of the mortgage and sale of the property described in the petition and a determination of priority and marshaling of liens.

In Case No. A-113085 the plaintiff asks for a judgment of $10,914 for moneys advanced according to the terms of the contract, with interest at four per cent per annum from September 1, 1948, foreclosure of the mortgage and sale of the property described in the petition and a determination of priority and marshaling of liens.

The Hilltop Building Materials, Inc., which filed three mechanics’ liens under the provisions of §8310 et seq GC, in their answer claims that the lien of Anthony Birzer is invalid.

The General Casualty Company of America in their answer also claims that the lien of Anthony Birzer is invalid. With notice of the lien of Anthony Birzer The Lawyer’s Title Insurance Company insured the title to the properties described in these petitions; the Birzer Building Company as principal and the General Casualty Company of America as surety executed a bond indemnifying The Lawyer’s Title Insurance Company against loss by reason of the claim or lien of Anthony Birzer under its title of insurance.

The first question determined in this opinion is whether the judgment rendered in the decree entered by Judge Hess on January 3, 1949, is res judicata and binding on all the defendants in these two cases. The mortgage interest of the Connecticut General Life Insurance Company is derived from the title of the Birzer Building Company to the real estate described; the interest of The Lawyer’s Title Insurance Company and the interest of the General Casualty Company of America are derived, through said mortgage, from the title of the Birzer Building Company to the real estate described. The parties are all in privity of estate with the Birzer Building Company, the defendant in Case No. A-107970.

The holders of the mechanics’ liens against the property filed under §8310 et seq GC, also derive their interest from the title of the Birzer Building Company to the property described, and they are also in privity of estate with the Birzer Building Company, the defendant in Case No. 107970. All these parties defendants claim that their interests existed in the property described in the petition in Case No. A-107970. These interests were acquired during the pendency of said suit. If they had an interest, they were proper, though not necessary parties; they could have intervened in said suit at any time before judgment, that is, before January 3, 1949, and contested the validity of the lien of Anthony Birzer. Their motions to be made a party were filed after the entry of the decree rendering judgment in favor of Anthony Birzer and declaring his lien to be valid. The precise question is whether that decree is res judicata and binding on all said parties in the cases now before the Court, namely, A-113084 and A-113085.

Sec. 11300 GC provides the rule for determining this question: “When the summons has been served or the publication made, the action is pending so as to charge third persons with notice of its pendency. While pending, no interest can be acquired by third persons in the subject of the action, as against the plaintiff’s title.” This rule is well settled and is clearly explained in the case of Cook v. Mozer, 108 Oh St 30, at pages 36 and 37, 140 N. E. 590, at page 592: “The general rule is that one not a party to a suit is not affected by the judgment., The exception is that one who acquires an interest in property which is at that time involved in litigation in a court having jurisdiction of the subject-matter and of the person of the one from whom the interests are acquired, from a party to the proceeding, takes subject to the judgment or decree, and is as conclusively bound by the result of the litigation as if he had been a party thereto from the outset. This is so irrespective of whether he has been made a party to the proceeding, or had actual notice of the pendency of the' proceeding, and even where there was no possibility of his having had notice of the pendency of the litigation. It is immaterial that a purchaser was a bona fide purchaser and for a valuable consideration. * * * It has been said that it is essential to the existence of a valid and effective lis pendens that three elements be present: (1) The property must be of a character to be subject to the rule; (2) the court must have jurisdiction both of the person and the res; and (3) the property or res involved must be sufficiently described in the pleadings. It may be added that the litigation must be about some specific thing that must be necessarily affected by the termination of the suit.” See also Restatement of the Law of Judgments, Chap. 4, Section 89, p. 433 and also Chap. 4, Section 83, p. 389.

A case exactly in point is reported in Stout v. Lye, 103 U. S. 66, 26 L. Ed. 428.

Since this case answers all the questions with regard to res adjudicata raised in the two cases under consideration the court thinks it is sufficient to support the conclusion it will reach to quote at length from said case. The facts of the case are: November 10, 1873, the bank recorded its mortgage on certain described real estate, and on January 15, 1876, it commenced a suit against Lye to foreclose and process was served upon Lye, January 20, 1876, in the Court of Common Pleas of Allen County, Ohio. The Stouts commenced suit in the United States District Court for the Northern District of Ohio, December 29, 1875, to recover a money judgment. Judgment was rendered January 31, 1876, and the effect of the judgment, under the statute then in force, was to bind the lands from the first day of the term, that is, January 4, 1876. February 23, 1876, the Stouts commenced a second suit on the judgment in said Federal Court making the bank a party and setting up the invalidity of the bank’s mortgage. March 7, 1876, the bank obtained a judgment against Lye in their suit in the Allen County Court for the amount of their note and a decree for foreclosure. In their answer in the second suit in the Federal Court the bank set up these facts and, based upon those facts, the second suit in the Federal Court was dismissed.

“The mere fact, therefore, that the Stouts commenced this suit in the Circuit Court before judgment was rendered in the State court in favor of the bank is of no importance. The point to be decided is whether the judgment in the State court binds the Stouts, they not having been parties to the suit in which it was rendered. The rule is, that where suits between the same parties in relation to the same subject-matter are pending at the same time in different courts of concurrent jurisdiction, a judgment on the merits in one may be used as a bar to further proceedings in the others.

“It is also an elementary rule that ‘if, pending a suit by a mortgagee to foreclose the equity of redemption, the mortgagor makes a second mortgage, or assigns the equity of redemption, an absolute decree of foreclosure against the mortgagor will bind the second mortgagee or assignee of the equity of redemption.’ * * *

“As this incumbrance was created pendente lite, there can be no question that it comes within the rule just stated as governing such transfers, unless the rights of the parties are changed because the lien, when created, bound the property from January 4 as against other liens and conveyances made by the mortgagor. The inquiry is not as to the extent or validity of the lien, but whether the holder is any less an incumbrancer, pendente lite, because although his incumbrance was actually created while the suit was pending, it bound the land, for certain purposes, from an earlier date. Confessedly the lien of the bank, if its mortgage was valid, was in any event superior to that of the judgment. The only point in controversy is as to the necessity of making such an incumbrancer a party to a pending suit in order to cut off by a foreclosure his interest thus acquired in an equity of redemption. No doubt the Stouts, as soon as their judgment was rendered, had a lien on the mortgaged property, which for some purposes antedated the foreclosure suit; but until they had secured their lien they would not have been heard to contest the validity of the bank’s mortgage, or the amount that was due on the mortgage debt. * " * They might have appeared in the Common Pleas and asked to be admitted to defend the bank’s suit, or for some other appropriate relief. * * By electing to bring a separate suit the Stouts voluntarily took the risk of getting a decision in the Circuit Court before the State court settled the rights of the parties by a judgment in the suit which was pending there. Failing in this, they must submit to the same judgment that has already been rendered against their representative in the State Court. * f * It is true the mortgagor did not set up as a defense that the bank had no right to take the mortgage, or that he was entitled to certain credits because of payments of usurious interest, but he was at liberty to do so. Not having done so, he is now concluded as to all such defences, and so are his privies.”

The case of Coe v. Erb, 59 Oh St 259, 52 N. E. 640, cited by the General Casualty Company of America does not involve the doctrine of lis pendens and therefore is not in point.

This court holds that the judgment in favor of Anthony Birzer, the plaintiff therein, against the Birzer Building Company, defendant therein, for the sum of $2,935.50, with interest at the rate of six per cent per annum from January 3, 1949, and the finding that the lien recorded on December 1, 1947, in Lien Book 61, page 467, to secure the payment of said amount, is a valid lien, rendered in the decree entered on January 3, 1949, in Case No. A-107970, are res judicata and binding on the parties in Cases No. A-113084 and A-113085.

This court further” finds that there is due the plaintiff therein, the Connecticut General Life Insurance Company, from the defendant therein, the Birzer Building Company, on the promissory note set forth in the first cause of action in Case No. A-113084, the sum of $10,914 with interest at the rate of four per cent per annum from September 1, 1948; that the mortgage recorded on May 19, 1948, in Mortgage Book 2210, page 457, executed to secure the payment of said note, is a valid lien on the real estate described in the petition; and that the conditions of said mortgage have been broken, and that the mortgage be foreclosed and said real estate sold.

The court further finds that the chattel mortgage set forth in said petition is a valid and subsisting lien on the chattel property therein described, and that the plaintiff is entitled to have said chattel property sold to pay it the amount due it as aforesaid.

The court further finds that there is due the plaintiff therein, the Connecticut General Life Insurance Company, from the defendant therein, the Birzer Building Company, upon the promissory note set forth in the first cause of action in Case No. A-113085, the sum of $2,749.80, with interest thereon at the rate of four per cent per annum from the first day of October, 1948; that the mortgage recorded on May 19, 1948, in Mortgage Book 2210, page 462, executed to secure the payment of said note is a valid lien on the real estate described in said petition; that the conditions of said mortgage have been broken and that said mortgage be foreclosed and the said real estate sold.

The court further finds that the chattel mortgage set forth in said petition is a valid and subsisting lien on the chattel property therein described, and that the plaintiff is entitled to have said chattel property sold to pay it the amount due as aforesaid.

Cases No. A-113084 and A-113085 are continued for a further opinion determining the priorities of the several lien-holders and the final distribution of the proceeds of the sale of said real estate.

A decree should be prepared accordingly in each of said cases.


text:
    CONNECTICUT GEN. LIFE INS. CO. v. BIRZER BLDG. CO. et al.
    Common Pleas Court, Hamilton County.
    Nos. A-113084, A-113085.
    Decided April 27, 1950.

      Burke & Cooney, Cincinnati, for plaintiff.
    Conrad Magrish, James G. Headley, Robert F. Dreidame, William B. Davis, Sidney C. Brant, Charles M. Evans, Cincinnati, Hiram Bolsinger, Norwood, Alton E. Purcell, Cincinnati, for defendants.
   OPINION

By WEBER, J.

On April 7, 1950 the Court filed a partial opinion, 101 N. E. 2d 403, in which it was held, by reason of the doctrine of res judicata, that the judgment in favor of Anthony Birzer was a valid judgment and also that the lien of Anthony Birzer recorded December 1, 1947 in Lien Book 61, page 467, was a valid lien. The opinion also rendered two judgments in favor of The Connecticut General Life Insurance Company for monies advanced on its two notes and held that a mortgage recorded May 19,1948 in Mortgage Book 2210 page 462, securing the payment of one of said notes, and the mortgage recorded May 19, 1948 in Mortgage Book 2210, page 457, securing the payment of the other note, were valid encumbrances and ordered foreclosure of said mortgages and the sale of the properties therein described.

The opinion also held valid the chattel mortgages set forth in the petitions.

The purpose of this opinion is to render judgments on the cross-petitions of the other defendants and to determine the priority of the various liens and order of distribution of the proceeds of the sale of the real estate described and the distribution of the proceeds of the sale of the materials covered by said chattel mortgages, decision of which questions were deferred in the previous opinion.

The court finds that there is due to The McGibney and Baker Excavating Company from the Birzer Building Company the sum of $2478.93 with interest at six per cent per annum from the 8th day of September 1948, as claimed in its cross-petition, and judgment is rendered for said amount. No lien was filed covering this claim.

The court finds that there is due to the J. & V. Rack and Company from the Birzer Building Company the sum of $3306.75 with interest at the rate of six per cent per annum from the 1st day of July 1948, as claimed in its cross-petition and that its liens securing said amount, recorded August 3, 1948 in Lien Book 62 page 124, and recorded August 3, 1948 in Lien Book 62 page 127, and recorded August 26, 1948 in Lien Book 62 page 152, are valid and subsisting liens on the property therein described, and also the sum $681.60 with interest at the rate of six per cent per annum from the 30th day of June 1948, as claimed in its cross-petition and that the lien securing said amount recorded August 3, 1948 in Lien Book 62 page 125 is a valid and subsisting lien on the property therein described and judgment is rendered accordingly.

The court finds that there is due to the Harry Riemeier Lumber Company from the Birzer Building Company the sum of $1512.88 with interest at the rate of six per cent per annum from the 9th day of July 1948, as claimed in its cross-petition, and that its lien recorded August 23, 1948 in Lien Book 62 page 156, securing this amount, is a valid and subsisting lien on the property therein described and judgment is rendered accordingly.

The court finds that there is due to Frank Adams and Company from the Birzer Building Company the sum of $1031.07 with interest at the rate of six per cent per annum from the 16th day of July 1948, as claimed in its cross-petition and that its lien securing said amount recorded September 8, 1948 in Lien Book 62 page 162 is a valid and subsisting lien on the property therein described and judgment is rendered accordingly.

The court finds that there is due to Neal Kersey from the Birzer Building Company the sum of $706.95 with interest at the rate of six per cent per annum from the 15th day of July 1948, as claimed in his cross-petition and that his lien recorded September 2, 1948 in Lien Book 62 page 163 is a valid and subsisting lien on the property therein described and judgment is rendered accordingly.

The court finds that there is due to the Hilltop Building Materials, Inc. the sum of $3,428.71 with interest at the rate of six per cent per annum from the 15th day of August 1948, as claimed in its cross-petition and that its liens securing said amount recorded September 1, 1948 in Lien Book 62 page 158, Lien Book 62 page 159 and Lien Book 62 page 160 are valid and subsisting liens on the property therein described and judgment is rendered accordingly.

There is no evidence of this defendant’s claim to a judgment for this amount against the General Insurance Company of America.

The court further finds that said defendant has no claim against the General Casualty Company of America, as surety upon the bond (Exhibit 42).

The court finds that there is due to The Norwood Sash and Door Manufacturing Company from the Birzer Building Company the sum of $210.12 with interest at the rate of six per cent per annum from the first day of June 1948, as claimed in its cross-petition and that its lien securing said amount recorded July 22, 1948 in Lien Book 62 page 114 is a valid and subsisting lien on the property therein described and judgment is rendered accordingly.

The court finds that the lien of Anthony Birzer recorded on December 1, 1947 in Lien Book 61 page 467 is prior to the two mortgages of The Connecticut General Life Insurance Company recorded on May 19, 1948 in Mortgage Book 2210 page 457 and Mortgage Book 2210 page 462 and also prior to all the mechanics’ liens herein listed.

It is claimed that although said Anthony Birzer lien may be prior to said mortgages and said mortgages prior to the mechanics’ liens, the Anthony Birzer lien has no priority over the mechanics’ liens herein listed. This claim is based on two grounds:

1. That the Anthony Birzer lien is for work which was the “commencement of said construction, excavation or improvement,” and makes the effective date of the mechanics’ liens the same as the date of the performance of said work. As hereinafter pointed out such claim is untenable.

2. That since the Anthony Birzer lien was filed under §8339 GC, it is denied priority over the mechanics’ liens by reason of the provisions of §8341 GC which reads in part as follows: “But if several persons have or obtain liens under the provisions of the next two preceding sections, against the property of the same employer; they shall have no priority among themselves, but all must be paid pro rata. Nor shall they have priority over those obtaining liens under other sections of this chapter, providing therefor, but the persons obtaining liens thereunder shall have priority .as provided therein.”

The prorating prescribed is among those who have filed liens under §8339 GC and not among holders of liens under said section and holders of liens under §8310 GC. The provision that such liens shall have no priority over liens obtained under other sections was necessary as a saving clause in view of the fact that priority is given under §8339 GC over certain specific liens and for labor performed within a certain period. The meaning of this provision is that no priority shall be gained for liens obtained under §8339 GC because of the peculiar nature of the lien, that is for manual labor performed for an employer, regardless of the date of the recording. That such liens shall have no priority merely because of their nature is manifested by the further provision “but the persons obtaining liens thereunder (that is under other sections, such as §8310 GC) shall have priority as provided therein.” Priority to liens acquired under §8339 GC is not denied under all circumstances and such is not the purpose of the provision. Rather the purpose of the provision is to preserve the priority to liens acquired under other sections, including §8310 GC, according to the provisions of such other sections. Referring to §8321 GC we find that the mechanics’ liens recorded under §8310 GC: “have no priority among themselves” but they have priority to all other liens “which may attach to or upon such construction, excavation, machinery, or improvement, or to, or upon the land upon which they are situated, which shall either be given * * * the commencement of said construction, excavation, or improvement.”

As hereinafter pointed out, the Anthony Birzer lien was not for work constituting the commencement of construction, etc., and was recorded December 1, 1947, which was long prior to the commencement of said construction or improvement and is therefore prior to the mechanics’ liens recorded under §8310 GC.

Anthony Birzer, in addition to claiming the priority of his lien, also contends that the mortgagee, The Connecticut General Life Insurance Company, under the provisions of §8321-1 GC is obligated to pay off said lien without reference to the proceeds of the sale. This contention cannot be sustained for the reason that the mortgagee has the option of discharging prior liens or taking its mortgage subject thereto. Paragraph 1 of §8321-1 GC provides: “Said mortgagee may at any time pay off said prior encumbrance or encumbrances, or withhold the amount thereof for that purpose.”

It will be noted that the word may is used in the above provision, but that the word shall is used in other provisions of the same section. This court agrees with the conclusion of the court in Ulmer v. Portage Construction & Finance Co., 26 Ohio N. P., N. S., 257, 283: “that when the Legislature used the words may and shall it did so designedly.”

Priority Between Mortgage and Mechanics’ Liens

To determine the priority between the mechanics’ liens herein listed and the two mortgages, the mortgages must be treated as having two possible characteristics, namely construction mortgages and mortgages recorded prior to the “commencement of the construction, etc.”

1. The parties intended to and expressly made the mortgages construction mortgages. Paragraph 18 of the mortgages provides in part: “And the mortgagor and mortgagee hereby covenant and agree that this mortgage is made in pursuance of, and subject to, the provisions of §§8321 and 8321-1 GC and that the mortgagee is hereby authorized and empowered to do all things in said sections provided by the mortgagee to be done and that the proceeds of said mortgage will be disbursed by the mortgagee in accordance with the provisions of said sections.”

Sec. 8321-1 GC provides in part as follows: “the lien of [said] mortgage * a *shall be prior to all mechanic’s, material men’s and similar liens and all liens provided for in this chapter that are Sled for record after said * * * mortgage is filed for record, to the extent that the proceeds thereof are used and applied for the purposes aforesaid and pursuant to the provisions of this section, * * * regardless of the time when the money secured thereby is advanced.”

It is admitted that of the amount of $10,914, advanced under the mortgage referred to in case No. A-113084, the sum of $2573 was advanced contrary to the provisions of §8321-1 GC, and that of the amount of $2,749.80, advanced under the mortgage referred to in case No. A-113085, the sum of $1372 was advanced contrary to the provisions of §8321-1 GC. Therefore said mortgages, considered as construction mortgages, are liens prior to the mechanics’ liens only to the extent of $8341 in case No. A-113084, with interest at four per cent per annum from September 1, 1948, and only to the extent of $1377.80 in case No. A-113085, with interest at the rate of four per cent per annum from October 1, 1948.

Whether the holders of any of the mechanics’ liens have released or waived any of their rights with reference to the amounts advanced contrary to the statute will be determined hereinafter.

2. The purpose of §8321-1 GC is to give to a construction mortgage priority over mechanics’ liens although the mortgage was recorded subsequent to the effective date of the mechanics’ liens. However, it has been held that the provisions of this section of the Code were not intended to and do not, of their own force, prevent priority to a mortgage recorded prior to the commencement of the work. Rider v. Crobaugh, 100 Oh St 88, 125 N. E. 130. The two mortgages were recorded May 19, 1948. The mechanics’ liens were all recorded thereafter. It therefore becomes necessary to determine on what day the first work was done or the first materials were furnished. The test to be applied is well stated in the case of the North Shaker Boulevard Company v. Harriman National Bank, 22 Oh Ap 487, 493, 153 N. E. 909, 910: “was the work, improvement, or construction of such a nature that apparently, obviously, and visibly it formed in and of itself a component part of the structure, so that when the structure arose from the ground the work, improvement, or construction commenced prior to the mortgage would appear as part of the structure itself as a physical identity which, speaking in its own behalf, would indicate the situation prior to the recording of the mortgage?” See also DeWitt Ohio Mechanics’ Liens, Section 202.

The work of Anthony Birzer for which he filed a lien on December 1, 1947 under §8339 GC and for which he could not have filed a lien under §8310 GC, see Robert V. Clapp Co. v. Fox, 124 Oh St 331, 178 N. E. 586, was performed prior to December 1, 1947. The nature of that work, as described by Anthony Birzer in his lien, was such that it cannot qualify under the above test as the “commencement of the work.”

The statute provides that “The several liens herein provided for shall be liens from the date the first labor * * * was furnished by the [original] contractor.” Sec. 8321 GC. The original contract for construction was entered into on May 10, 1948 (Exhibits 6 and 7). The various mechanics’ liens were acquired by reason of labor done and materials furnished under the original contract but the work of Anthony Birzer was performed prior to the execution of said contracts. Furthermore, the photographs taken on May 19th or May 20, 1948 (Exhibits 40 and 41) by Louis Graf, a Registered Engineer, who surveyed the property, and his testimony in reference to the conditions then existing on the land, show that on May 10, 1948, the day on which the mortgages were recorded, there was no work done or materials supplied which would meet the above test. According to the evidence the first materials were furnished by the Norwood Sash and Door Manufacturing Company on May 27, 1948 and the first definite grading and excavation was done by J. & V. Rack & Company on May 28, 1948; until that time nothing was done which could after-wards be considered a component part of the structure. That the parties intended the mortgages should be recorded before the commencement of the work is indicated by that part of paragraph 18 of the mortgages, which reads as follows: “The mortgagor hereby represents that no work has been commenced or materials furnished to or in connection with any improvements on the mortgaged premises before the date hereof and will not be commenced or furnished until after the date of the recording of this mortgage,” and the evidence above referred to shows that in fact no such work had been commenced or materials furnished on the day the mortgages were recorded. The mortgages were therefore recorded prior to the effective date of the several mechanics’ liens. However, the proceeds of the loan secured by said mortgages were to be advanced in future installments and the extent of the priority of the advances is covered by the rules laid down in the case of Kuhn v. Southern Ohio Loan and Trust Company, 101 Oh St 34, 126 N. E. 820: “Syllabus 1. A mortgage, duly recorded, given for definite future advances, which the mortgagee is obligated to make, is entitled to priority for the full amount of such advances over a subsequent mortgage, recorded after the former one, though prior to the making of such future advances.”

The mortgagee herein was obligated to make definite future advances in a certain manner, according to paragraph 17 of the mortgages, which reads in part as follows: “That the funds to be advanced herein are to be used in the construction of certain improvements on the lands herein described, in accordance with a building loan agreement between the mortgagor and mortgagee dated May 10, 1948 which building loan agreement is hereinafter mentioned.”

The said agreement, as set forth in paragraph 18 of the mortgages, is that they “are made in pursuance of and subject to the provisions of §8321-1 GC.”

Whether such a situation destroys the priority gained by the fact that the mortgages were recorded before the effective date of the mechanics’ liens has not been decided although it was referred to in the case of In re Taylor, 6 Cir., 20 F. 2d 8, 10: “There is no language in the * * * mortgages stipulating that they shall be considered as mortgages within the meaning of §8321-1 GC, or that the rights and obligations of the parties should be governed by such section; and we need not consider the case as if such language were present.”

The mortgages under consideration did stipulate that the terms of said section of the General Code were the terms of the contract and fixed the obligations of the mortgagee as to future advances. The mortgagee therefore acquired no priority as to the advances that were made on June 11, 1948, (Exhibits 10 and 15) that is, after the effective date of the mechanics’ liens, and in a manner different than that imposed by the contractual obligation.

Whether treated as construction mortgages or mortgages recorded prior to the effective date of the liens, the mortgage set forth in case No. A-113084 is prior to the mechanics’ liens to the extent of $8,341 and the mortgage set forth in case No. A-113085 is prior to the mechanics’ liens to the extent of $1,377.80, unless the said amounts of the priorities of the mortgage liens are increased by reason of waivers executed by some of the mechanics’ lien holders.

Waivers

The plaintiff claims that some of the defendants released their rights to mechanics’ liens to whatever extent that said liens would prevent the mortgages from being prior liens to the full extent of all payments made by the mortgagee. This claim is based upon the following language in the receipts for monies advanced, Exhibits 14 and 18: “In consideration of the payments made as hereunder provided under the heading ‘Amount Received,’ before the completion of his, its or their respective part of said improvements, the undersigned covenant that his, its or their respective lien rights against said premises for the amounts that will be due upon the completion of his, its or their respective part of said improvements shall be subject and inferior to your mortgage thereon.”

The case of Whitmer v. Arthur, 23 Ohio N. P., N. S., 481, holds: “The waiver of all right of lien by one who has furnished labor or materials is not open to attack for want of consideration.”

Neither the facts nor the reasoning in said case supports such a conclusion. The better rule is that stated in 57 C. J. S., Mechanics’ Liens, §223, page 795: “waiver of a mechanics’ lien must be supported by a consideration in order to be effective.”

The right to a mechanics’ lien is a valuable legal right, the surrender of which by release, or otherwise, except estoppel, must be supported by a valuable consideration in order to be effective.

Doing what one is legally bound to do is not a valuable consideration. The mortgagee under the statute and its contracts was bound to make the payments for which said receipts were given.

' Paragraph 4 of §8321-1 GC provides: “Such mortgagee shall pay on the order of the owner, the accounts of such material men * * *, the amounts due for material then furnished and labor then performed on said improvement.”

It will be noted that the language in the above provision is shall pay amounts due for material then furnished, etc. As heretofore pointed out, §8321-1 GC in some of its provisions uses the word may and in other provisions the word shall and such distinctions were intentionally made by the legislature. The direction to make said payments (Exhibits 12 and 17) was that the owner “authorizes and orders you to pay * * * amounts under the heading Now Due.” The mortgagee was bound to pay and there is no acceleration of the time that the payment was required to be made or any other alteration in the legal position of the mortgagee. Furthermore, these payments were the first payments made and at that time there were sufficient funds on hand to make the payments and no reasonable anticipation that there would be insufficient funds to complete the work.

The court holds that the releases or waivers were not binding for want of a valuable consideration.

It is the judgment of the court that the priorities of liens are as above set forth and in accordance therewith the proceeds of the sale of the real estate described in the petitions should be.distributed in the following order:

1. To Anthony Birzer the sum of $2,935.50 with interest at the rate of six per cent per annum from January 3, 1949:

2. To The Connecticut General Life Insurance Company the sum of $8,341 with interest at the rate of four per cent per annum from September 1, 1948 and the sum of $1,377.80 with interest at the rate of four per cent per annum from October 1, 1948;

3. The full amounts of the respective judgments on the mechanics’ liens listed herein or if the balance of the fund is insufficient to pay all in full it should be prorated among the holders of the mechanics’ liens;

4. If the mechanics’ lien holders are paid in full the judgment of The McGibney and Baker Excavating Company should be next paid in full;

5. Any remaining funds should be distributed as provided by law.

Chattel Mortgages

Certain lumber has been delivered by the Harry Riemeier Lumber Company and is now on the properties but has not yet been incorporated into the buildings. Against said lumber the plaintiff has two chattel mortgages, which the court has held to be valid and subsisting liens and the said Harry Riemeier Lumber Company has a mechanics’ lien which the court has held to be a valid and subsisting lien. It has been stipulated by said parties that the lien of the Harry Riemeier Lumber Company is superior to the plaintiff’s chattel mortgages as to such of said lumber as is now on the property and has not been paid for and that the quantity and type of said lumber is now unknown but will be determined by counsel of said parties, and when so determined will be sold separate and apart from the sale of other chattels covered by the plaintiff’s chattel mortgages.

Please draw entry accordingly.

Supplementary Opinion

Decided May 31, 1950.

In the opinion filed on April 27, 1950 it was pointed out that the Harry Riemeier Lumber Company had filed a mechanics’ lien for $1,512.88; also that at least part of the lumber furnished by said company was on the real estate described but unincorporated into the structure. Further reference was made to the stipulation between the Harry Riemeier Lumber Company and The Connecticut General Life Insurance Company that the lien of said lumber company was superior to the chattel mortgages of The Connecticut General Life Insurance Company as to said unincorporated materials and that said chattels would be sold separate from the other chattels on the premises covered by the chattel mortgages. Thereafter a rehearing was requested by other parties to the suit on the question as to the priority of the chattel mortgages.

The mechanics’ lien recorded by the Harry Riemeier Lumber Company lists the material furnished by it and also describes the real estate and claims a lien “on said contiguous and adjacent lots of which the Birzer Building Company is the owner and described as follows: * * * also a lien on all constructions, excavations and improvements now or hereafter erected on said lots and all fixtures and articles of personal property of said Birzer Building Company now ón said premises and to ' be attached to or used in and about the building now or hereafter erected thereon.”

It will be noted that the lien is not claimed exclusively on the particular lumber furnished by the claimant, but upon all articles of personal property, etc. The respective mechanics’ liens of each of the other parties merely describe the real estate. The two chattel mortgages were executed by the Birzer Building Company to The Connecticut General Life Insurance Company and secured the same indebtedness as the two real estate mortgages. One of the chattel mortgages lists the material located on the site but unincorporated into the structure as of June 22, 1948 to the amount of $1,200 and was recorded July 23, 1948 in Chattel Mortgage Book Z-27979. The other chattel mortgage lists materials located on the site but not incorporated into the structure on June 22, 1948 in the amount of $6,100.88 and was recorded July 23, 1948 in Chattel Mortgage Book Z-27980. Said materials consisted of lumber, steel, etc.

The first question is — Who owns said unincorporated chattels? There is no evidence that the suppliers retained title by a conditional sale or otherwise. Immediately upon delivery title passed to the Birzer Building Company. The fact that the Birzer Building Company executed the chattel mortgages to The Connecticut General Life Insurance Company is necessarily based upon the assumption by both the mortgagor and mortgagee that the title to the chattels was in the Birzer Building Company. If so, the chattel mortgages were valid and subsisting liens, subject, however, to any superior lien thereon which may have attached by reason of the mechanics’ iiens or the real estate mortgages. Since all the parties who supplied any of said unincorporated materials have recorded mechanics’ liens covering the entire unpaid amounts due them respectively, they necessarily have waived any common law possessory lien which they may have had.

The next question is whether a mechanics’ lien can be asserted against such unincorporated material and if so by whom and by what manner of description. No specific authorities have been cited by counsel. The authorities in the various states are in conflict, the interpretation depending, to a large extent, upon the wording of the particular state’s statute under consideration. See 33 A. L. R. 320, Annotated. But it seems to be fairly well settled in Ohio by the following authorities that such unincorporated materials may be embraced within the mechanics’ lien although only the real estate for which they were furnished is described, providing such failure to incorporate was no fault of the suppliers:

Beckel v. Petticrew, 6 Oh St 247. A mechanics’ lien was taken on the real estate for which the material was furnished and it was held in Syllabus 2: “The lien authorized by the act * ? * will extend to all the materials in good faith furnished for the purpose of erecting or repairing a house in pursuance of an agreement with the owner, notwithstanding a portion of such materials may subsequently be otherwise appropriated without the consent of the party furnishing them.”

The Robert V. Clapp Company v. Fox, 124 Oh St 331, on page 337, 178 N. E. 586, on page 588. After pointing out that the word upon is used in connection with work and the word for is used in connection with materials and defining and distinguishing these terms, the Court stated: “If these definitions are adopted and applied, work and labor must be rendered upon the premises, while material need only be suitable to the purpose, requirement, and character of the building and necessary to it. Ordinarily, the materials must enter into the structure to permit a lien, but it may well happen that expensive fabrication of materials may be made without the materials being called for * * * or the failure to complete a building, and the lien would attach though [the materials] never entering into the structure. This will serve to illustrate the evident purpose of the Legislature in employing the word ‘for’ concerning materials, and the word ‘upon’ as applying to work and labor.”

Harriman Nat. Bank v. North Shaker Boulevard Company, 25 Ohio N. P., N. S., 263. The motion to certify overruled, 23 Ohio Law Rep. 213. There was a large amount of stone cut and a large amount of stone uncut which had been supplied for the building.

“The theory of the mechanics’ lien law is that those who do labor and furnish material going into the erection of a building, thereby enhance the value of the land on which it is erected, and are entitled to a lien on the completed structure. Under strict interpretation, if the material was not used in the building there would be no added value to the land.

“This rule, of course, is relaxed if the material was furnished to go into the building, but was prevented by some act of the owner. It is apparent that a mechanics’ lien rests solely on the proposition of ownership and the right of possession having passed from the lien claimant to the owner. To claim a mechanics’ lien and a possessory lien, or common law lien, are fundamentally contradictory.”

The theory of the conclusions reached in the above quotations seems to be that materials adapted to and supplied for the purposes of the structure are constructively incorporated into the structure as soon as they are delivered upon the premises and title thereto has passed, although actual incorporation has been prevented by some fault of the owner and without fault on the part of the supplier. Such a conclusion is necessary in order to afford the supplier of materials the full protection intended by the mechanics’ lien law. The court finds nothing in the express provisions or the purpose of said law which inhibits such a conclusion. On the contrary it seems to be warranted by the language of §8310 GC, which reads in part as follows: “Every person who * * * furnishes * * * material * * * for erecting, * * * a house * * * by virtue of a contract * * * with the owner, * * * of any interest in real estate, or the authorized agent of the owner, * * * of any interest in real estate, * * * shall have a lien to secure the payment thereof upon such * * * house * * * and upon the * * * material so furnished, and upon the interest * * * of the owner * * * in the lot or land upon which they may stand, or to which they may be removed * * *.”

It will be noted that a single lien may secure the entire amount due and may comprehend three things, enumerated conjunctively, namely, the building, the materials so furnished and the land upon which they may stand or to which they may be removed. If it had been intended that the lien should embrace only materials which were incorporated into the building, the words “material so furnished” are superfluous since the word “building” necessarily includes all the materials which have been integrated into the building. To exclude from the coverage of the lien materials unless and until they were incorporated into the building would require the supplier of the materials to retain constant supervision over their disposition until such incorporation or run the risk of losing the benefit of the law.

But it is contended that if the lien covers unincorporated materials, it covers only the particular materials furnished by the particular lien-holder and only to the extent that such materials have been specifically described in the affidavit. The fallacy of this contention is illustrated by the situation in this case. The Harry Riemeier Lumber Company described the land and the chattels; the others described only the land. If the argument were sound the Harry Riemeier Lumber Company would have the exclusive right to the proceeds of the sale of the unincorporated chattels furnished and described by it and yet would share pro rata with the others, whether they furnished labor or materials, in the proceeds of the building and land which said company also described in its affidavit. But §8321 GC emphatically provides: “If several liens be obtained by several persons upon the same job, * * * they shall have no priority among themselves, * * Sec. 8314 GC provides: “an affidavit showing the amount due * * * a description of the property to be charged with the lien.” Ordinarily a description of the real estate includes all structures which are considered in law fixtures or a part of the real estate and under the mechanics’ lien law, according to the cases hereinbefore cited, all the material adapted to and furnished for the building, whether integrated therein or not, would be a part of the building.

The court holds that the mechanics’ liens have priority over the chattel mortgages and attach to the land described in the various affidavits and all structures thereon and all materials located on the land and furnished for said structures, whether incorporated therein or not.

Counsel have raised no question as to whether the liens of the real estate mortgages attach to the materials furnished for the job but not integrated into the building. But since the evidence produced in the case indicates that the title to all such material passed to the owner of the land when delivered on the premises, a complete determination of the rights of the parties in the proceeds of the sale of the land and materials requires that such question be answered. It must be admitted that an ordinary real estate mortgage would not cover such materials. But the court in its opinion of April 27th decided that the two real estate mortgages were construction mortgages under §8321-1 GC and therefore were liens prior to the mechanics’ liens to the extent that payments had been made in compliance with the provisions of said section. No Ohio case has been found which furnishes the answer to this question. The question being novel, the conclusion reached must be based upon a careful consideration of the peculiar nature and purpose of a construction mortgage and its relation to the mechanics’ liens. The theory of the mechanics’ lien law is that all who furnish materials for and perform work upon the job which enhances the value of the real estate are engaged in a common enterprise and may acquire a property interest, superior to that of the owner, in the common fund in proportion to their unpaid contribution. To the extent that the construction mortgagee makes payments in the manner prescribed by the statute he preserves the value of the common fund and the statute gives the real estate mortgage priority over the mechanics’ liens. If said mechanics’ liens comprehend the unincorporated materials the construction real estate mortgages should also comprehend the unincorporated materials, otherwise said real estate mortgages will not have full priority. For the reasons heretofore stated, under the mechanics’ lien law all the materials adapted to and furnished for the job are constructively a part of the building and therefore a part of the real estate for all purposes of the law, including the construction mortgage which is peculiar to the mechanics’ lien law and by it designed for certain purposes and endowed with certain characteristics which differentiate it from the ordinary real estate mortgage.

The court is of the opinion that the construction real estate mortgages also comprehend the unincorporated materials adapted to and furnished for the job.

This supplementary opinion confirms the priorities and order of distribution outlined in the opinion of April 27th. The only modification of that opinion in the holding of the court herein that the chattels adapted to and furnished and delivered on the land for the purpose of the job contracted for are constructively a part of the building, although not acutally integrated therein, and are embraced in the mechanics’ liens describing only the real estate and also in the liens of the two construction mortgages and that the proceeds of the sale of said materials and the proceeds of the sale of the real estate and structures thereon should be treated as a common fund to be distributed as outlined in the opinion of April 27th.


author: Per CURIAM:

text:
    TRAMTE, Plaintiff-Appellant, v. TRAMTE, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21619.
    Decided February 13, 1950.
    H. J. Blum, Cleveland, for plaintiff-appellant.
    F. V. Opaskar, Cleveland-, for defendant-appellee.
    (GUERNSEY, PJ, of Third District; HUNSICKER and DOYLE, JJ, of the Ninth District sitting by designation in Eighth District.)
   OPINION

Per CURIAM:

The order requiring the plaintiff to pay the defendant $450.00 in addition to the weekly payments theretofore ordered for the support of the children, may, on the record for review, be properly considered and treated as an order operating prospectively and not retroactively, predicated upon a change in condition of the children occasioned by their extraordinary illnesses requiring extraordinary care and medical attention, and a change in the condition of the defendant mother occasioned by the depletion of her resources in providing such medical care and attention and in caring for said children not contemplated by the parties or the court at the time the order for weekly payments for the support of the children was made. So considered and treated, the order, is a valid order.

The order for payment of attorney fees incurred by defendant is also a valid order as the services of an attorney were necessary and effective to protect and preserve the orders theretofore made in the cause for the benefit of the defendant.

The finding of facts and conclusions of law by the court was filed upon the same date as the order overruling the motion of plaintiff for a new trial of the motion to vacate the first above mentioned order and the order adjudging the plaintiff guilty of contempt for his failure to comply with said order. This filing was in conformity with the legal requirement, as the plaintiff was thereby afforded the opportunity, of which he availed himself, of using the finding of facts and conclusions of law in lieu of a bill of exceptions to exemplify the existence of the errors assigned by him on this appeal.

The record for review in every respect sustains the orders from which this appeal is taken.

For the reasons mentioned the orders appealed from are affirmed. Exceptions noted. Order see journal.

GUERNSEY, PJ, HUNSICKER, J, DOYLE, J, concur.


author: By WISEMAN, J.

text:
    WHITE et, Plaintiff-Appellant, v. PAGE et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4425.
    Decided October 2, 1950.

      Isadore Margulis, Columbus, for plaintiff-appellant.
    Power, McConnaughey & Griffith, Columbus, for defendantsappellees.
   OPINION

By WISEMAN, J.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Franklin County, dismissing the plaintiff’s action.

Plaintiff, a minor, seven years of age, by his mother and next friend, sued the defendants,- the parents of Roger Page, a minor, eleven years of age, for damages for personal injuries suffered by the plaintiff when Roger Page shot an arrow from a bow, striking the plaintiff, while the two children were playing in the home of the defendants.

To the petition the defendants filed a motion to make definite and certain, and a motion to strike certain allegations therefrom. The motions were sustained in part, and overruled in part. Plaintiff was given leave to file an amended petition, which was immediately filed. To the amended petition the defendants filed a general demurrer, which was sustained. The plaintiff electing not to plead further the action was dismissed. From the order of dismissal this appeal was taken.

The plaintiff contends that the trial court committed error in sustaining the demurrer to the amended petition. The question for determination is the sufficiency of the allegations in the amended petition. The pertinent allegations on which the plaintiff’s cause of action must rest are:

“the defendants gave to and permitted their minor son, Roger Page, age eleven years, to have in his possession a bow and arrow,”

“the defendants permitted their minor child Roger Page, to have in his possession and play with a bow and arrow,” and

“that the said Roger Page, then and there shot the arrow from the bow at the plaintiff, that said blunt end of the arrow struck the right eyeball of the plaintiff.”

The parent is not liable for the tort of a child by reason of the relationship of parent and child. Elms v. Flick, 100 Oh St 186, 126 N. E. 66; Ringhaver v. Schlueter, 23 Oh Ap 355, 156 N. E. 242. But the plaintiff contends that the bow and arrow was a dangerous instrumentality. We find no reported case in Ohio supporting this contention. The bow and arrow is not described in the amended petition. In Harris v. Cameron, 81 Wis. 239, it was held that a B B gun in the hands of an eleven year old boy, and in Craddock v. Plummer, 88 Mich. 225, it was held that an air gun in the possession of a nine year old child, were not dangerous instrumentalities. We are of the opinion that a bow and arrow used by a child eleven years of age cannot be classed as a dangerous instrumentality. If the bow and arrow cannot be said to be a dangerous instrumentality, as a matter of law, other essential allegations are required to show a liability on the part of the parents. It is apparent that the amended petition does not contain certain essential allegations showing a good cause of action. For a statement as to such essential allegations reference is made to Vol. 30, O. Jur., page 626 to 629; Vol. 39 Am. Jur., page 690.

The plaintiff-appellant contends that this Court should reverse the judgment of the trial court on the ground that the trial court erroneously sustained certain grounds of defendants’ motion to strike proper allegations from the plaintiff’s original petition. The claim of the appellant is not that the order on the motion was an appealable order, but that the order constituted reversible error. Conceding, without deciding, that the trial court should have overruled certain branches of the motion which were sustained, can the plaintiff urge the commission of such claimed error as a ground of reversal? We do not think so. No prejudicial error resulted. The plaintiff did not elect to stand on his petition, which he could have done. Vol. 2, O. Jur., page 184, Section 97. Instead, the plaintiff filed an amended petition, and in doing so the plaintiff abandoned his first petition. Any error committed by an erroneous ruling on the motion is cured by filing an amended petition. Bower v. Travelers Ins. Co., 21 Abs 49. He is now required to stand on his amended petition. It is obvious that if the amended petition fails to state a good cause of action a reversal and a remand cannot be ordered. The plaintiff cannot proceed when he fails to state a good cause of action. Consequently, no prejudicial error can be shown.

The original petition, even though it stated a good cause of action, cannot be reinstated; neither can the court look to the original petition in passing on the demurrer to the amended petition. The original petition is considered abandoned and will be wholly disregarded. City of Ironton v. Wiehle, 78 Oh St 41, 84 N. E. 425; Raymond v. Toledo St. L. & K. C. R. R. Co., 57 Oh St 271, 48 N. E. 1003; 31 O. Jur., page 671.

Finding no error in the record prejudicial to the rights of the plaintiff, the judgment is affirmed.

MILLER, PJ, HORNBECK, J, concur.