author: By SKEEL, PJ.:

text:
    GREENWALD, Plaintiff-Appellant, v. KEARNS et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24193.
    Decided October 23, 1957.
    I. Greenwald, for plaintiff-appellant.
    Alex L. Kearns, Irwin Greene, Walter L. Greene, Martin N. Goulder, for defendants-appellees.
   OPINION.

By SKEEL, PJ.:

This appeal comes to this court on questions of law from a judgment entered for the defendants in the common pleas court of Cuyahoga County upon demurrer (considered by the court as motion for judgment to the pleadings and opening statements). The action is one in partition.

The plaintiff alleges that he is the owner of an undivided one-fourth interest in certain personal property (office furniture and equipment) located at 1101 Hippodrome Building, Cleveland, Ohio. The property is fully described in the petition. The petition alleges that the defendant. Martin N. Goulder, is also the owner of an undivided one-fourth share in such property and that the remaining defendants are owners of the undivided remaining interests. The plaintiff alleges that two of the items enumerated have been removed by the defendants and unless defendants are restrained from removing other items of the described personal property, he will suffer irreparable damage. The plaintiff then seeks his share of the property if it can be equally divided, if not, that the property be ordered sold and the proceeds distributed according to the interests of the parties.

The second cause of action alleges that the defendants, Kearns and Irwin and Walter Greene, are now using said property in the practice of their profession to the exclusion of the plaintiff and that the value of the use of his share thereof is reasonably worth $50.00 per month beginning November 1st, 1956, at which time the plaintiff vacated the said office.

The court advanced the case for trial so that the prayer for temporary injunctive relief was never passed on.

The answer of defendant Goulder admits the property described in plaintiff’s petition is located at 1101 Hippodrome Building in Cleveland; that he was a tenant in such office from January to November, 1956; that he has vacated the office and has a one-fourth interest in the described property and asks the court to protect his interests therein as they are made to appear.

The answer of the remaining defendants, in addition to a general denial, and a denial that plaintiff’s petition states a cause of action, alleges that the plaintiff and defendants Kearns and Irwin Greene entered into a written contract on November 22, 1952, which,’ in part, provided:

1. That a lease for the office at 1101 Hippodrome Building was entered into by defendants Kearns, Irwin Greene and Goulder, with the management of the building, for a three year period from January 1, 1953 to December 31, 1955.

2. That plaintiff Greenwald was desirous of sharing the benefits and obligations of the lease.

3. That the obligations assumed by the plaintiff were as follows:

“1. That I, Greenwald and Milton S. Grossman bind themselves severally and jointly to bear the obligations and to carry out the terms and conditions imposed upon the said Ac L. Kearns, Irwin Greene and Martin N. Goulder in said office lease and to share all profits and losses which may arise during said term or during any further occupancy of said suite by said parties upon the expiration of said, term, together with all other obligations set forth in this Agreement and required in the operation and management of said law offices. * * *”

“That if a party shall be evicted or shall voluntarily leave said offices, then any amounts contributed by him for equipment, etc., shall automatically be forfeited by him for the benefit of the remaining parties and he shall forfeit all interest in said equipment, etc.”

It is then alleged that plaintiff voluntarily vacated the suite November 1, 1956 and thereby surrendered all interests in the property set out in his petition to the defendants Kearns, Irwin Greene and Goulder.

To this affirmative defense, the plaintiff’s reply, after admitting the execution of the contract, alleges that the provisions and obligations thereof expired December 31, 1955 and that he thereafter occupied the office on a month to month basis and by agreement with the defendants, the plaintiff retained ownership of an undivided one-fourth interest in the property described and at the time he vacated the office, he was and still is the owner of an undivided one-fourth interest in said property.

The plaintiff in his opening statement reiterated the allegations of his petition. Whereupon the defendant asked judgment — first calling his request a demurrer and then a motion for judgment. In all events, by this procedure, all of the well plead allegations of the petition, reply and the admissions of the answer and relevant facts stated in the opening statement, must be considered as true in determining the right of the defendants for judgment.

The court granted the motion by the following entry as shown in the transcript:

“April 15, 1957 — To Court: A jury having been waived; the defendants demurrer is treated by the Court as a motion for judgment; therefore the defendants’ motion for judgment at the close of the plaintiff’s opening statement is granted and judgment is rendered in favor of the defendants on the issues joined and against the plaintiff for costs. No record: (Memo: Plaintiff has an adequate remedy at law. See 62 C. J. 528 and 531).”

The plaintiff seeks a reversal of the judgment on the ground that issues of fact are presentd by the pleadings which should have been determined after the presentation of evidence upon trial. The sole basis of the court’s judgment is that on the face of the record, it is clearly disclosed that the plaintiff has no lawful right to seek partition of personal property held in joint ownership or as tenants in common by the parties because the plaintiff has available to him an adequate remedy at law.

The issue of whether or not the property described in plaintiff’s petition is .in fact jointly owned by the parties is presented by the pleadings. The claim of defendants that plaintiff, by contract, waived all claim to an interest in the property is put in issue by the reply and the defendants have no right to a judgment without a trial of that issue.

The right to partition personal property, owned jointly or held by tenants in common in a proceeding in equity, has long been recognized at common law. 68 Corpus Juris Secundum, 57, para 39b, also page 39, Paragraph 24. In 47 C. J. 294, Sec. 66, para, 3, it is said:

“While a contrary view has been taken, the general rule is that personal property of every class may be subjected to compulsory partition, and, of course, this is so where such partition is expressly provided for by statute. The fact that the property is owned in unequal shares does not affect the right to partition. The right to partition has been enforced in respect of shares of stock in a corporation, a cashier’s check payable jointly to tenants in common, a joint bank account owned by husband and wife, promissory notes, royalty in oil brought to the surface, looms in a factory, stocks of merchandise, ships, and slaves.”

This right was well established before the statutes of Ohio dealt with the subject. It has been held that the fact that even if such an action is now governed by statute that fact does not change its nature as an action in equity. In the case of Wagner v. Armstrong, 93 Oh St 443, 113 N. E. 397 the court said:

“2. All partition cases were originally cognizable in courts of chancery only and must still be regarded as chancery cases and therefore appealable under such terms and procedure as may be provided by law.”

The statute dealing with the partition of real property did not change the character or scope of the action nor did the statute, because it failed to deal with all phases of partition, thereby and by implication, repeal the common law right to partition of personal property. There are many instances where parties, claiming to be joint owners of personal property as tenants in common, would be wholly without a legal remedy were it not for the chancery jurisdiction of the courts in partition, particularly where such property is not fungible in character and would be (as must be apparent beyond question) incapable (without agreement) of division into equal shares. The authority of the Wagner case, supra, has never been questioned.

In the case of Gornall v. Gornall, et al., 71 Abs 118, 129 N. E. 2d 876, in paragraph three of the headnotes, it is said:

“3. A co-tenant of personal property has a right to have the same partitioned, and the exercise of such right is not subject to the control of another tenant.”

and on page 119, the court said:

“At common law owners of personalty could not compel partition, and the entire absence of any remedy at law induced courts of chancery to take jurisdiction of actions for partition of personalty. Though there are decisions to the contrary, it is now the well settled general rule that a co-tenant of personal property has a right to have the same partitioned, and the exercise of this right is not subject to the control of another co-tenant.”

This statement of the law is found in almost the identical word form in Vol. 30, O. Jur., page 865, paragraph 32.

In the case of Black, et al v. Sylvania Producing Co., 105 Oh St 346, 137 N. E. 904, the court, in dealing with the right to partition property (here an oil and gas lease) held by joint owners or co-tenants of unsevered interests in the personal property, said, on page 349, quoting from 16 Cyc., 152:

“ ‘An estate in land is the degree, quantity, nature, or extent of interest which a person has in it. While in its primary and technical sense, the term ‘estate’ refers only to an interest in land, yet by common usage it has acquired a much wider import and application, being applied to personal property as well as realty, and in its most extreme sense, signifying every thing of which riches or fortune may consist.’ ”

The authorities are almost unanimous that the right to partition personal property held by joint owners in a proper case has long been recognized by the common law as well as the law of this state.

There remains only the consideration of whether under the facts in this case the defendants’ claim that there is an adequate remedy at law available to the plaintiff has merit.

The first suggestion is that he may replevin his property. On the facts pleaded, there is no such remedy available to the plaintiff. If the plaintiff, as part owner, had such a right, so would the defendants who are also part owners. Each could demand possession from the others ad infinitum. This contention is, therefore, without merit.

It is next claimed that the plaintiff could maintain an action in conversion. The court’s citation of authority upon which the judgment was entered is applicable to a wholly different state of facts from what is here presented. There, an actual act of conversion is said to have been committed by one of the co-tenants. In this case the property was accumulated for use in an office at 1101 Hippodrome Building, which by the allegations of the petition, is still at the place contemplated by the co-tenants and in use as intended. There is not the slightest suggestion of the defendants’ use of the property (except the ash stands) which could be said to support a claim of conversion. Could it be that the defendants, in continuing in possession, as they have a lawful right to do as owners in common or part owners, commit a trespass on the lawful rights of the plaintiff in the property? Unless there be a trespass, there cannot be an act of conversion which could be the subject of an action. This contention must be decided in favor of the plaintiff.

For the foregoing reasons, the judgment is reversed and cause remanded for further proceedings according to law.

Exceptions noted.

HURD and KOVACHY, JJ, concur.


source: Caselaw Access Project

author: By BRYANT, J.

license: Public Domain

text:
    STATE, Plaintiff-Appellee, v. PAYNE, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5619.
    Decided December 5, 1957.

      Samuel L. Devine, Pros. Atty., Fred L. Newsom, Jr., Asst. Pros. Atty., Columbus, for plaintiff-appellee.
    Robins, Metcalf & Fisher, Georve V. Fisher, of Counsel, Columbus, ' for defendant-appellant.
   OPINION

By BRYANT, J.

Clifford Payne and another defendant were found guilty by a jury in the court below of burglary and grand larceny. The indictment charged Payne and three other defendants with breaking into Presutti’s Villa, but only Payne’s case is before this court.

Payne’s first assignment of error is based upon the charge of the trial court with respect to the defense of alibi in which the trial court stated that such defense must be proven by the preponderance of the evidence.

The language of the charge objected to by the defendant is as follows (Bill of Exceptions pp. 169-170):

“THE COURT: My attention has been called to the question of alibi. The Defendant Payne has interposed a defense here of what we call an alibi, which means T was some place else at the time.’ To prove an alibi you must do so by a preponderance of the evidence, that is the greater weight of the evidence, and, of course, if he proves that and if he was some place else he could not have been guilty of the commission of this crime and you necessarily have to find him not guilty, but as I say he must prove that by preponderance of evidence but if he fails to prove it by preponderance of the evidence the burden is still upon the - State of Ohio to prove the Defendant’s guilt beyond a reasonable doubt. In other words, a failure to prove an alibi does not necessarily mean that the Defendant is guilty.”

Defendant places his chief reliance on the case of Walters v. State, 39 Oh St 215, decided in 1883. That case is distinguishable from the one now before this court because the trial court in Walters v. State, supra, told the jury it could not even consider the alibi evidence unless the alibi was proven by a preponderance of the evidence, thus denying the right of the jury even to consider such evidence unless that burden of proof had been met. The syllabus in Walters v. State, supra, is as follows:

“Where the evidence tends to prove the commission, by the defendant, of the crime charged in the indictment, at a particular time and place, and the defendant offers evidence tending to show that at such time he was at another place, it is error for the court to charge the jury that testimony tending to show such alibi was not to be considered, unless it established the fact by a preponderance of evidence. The burden of proof was not changed when the defendant undertook to prove an alibi, and if by reason of the evidence in relation to such alibi, the jury should entertain reasonable doubt as to the defendant’s guilt, he should be acquitted, although the jury might not be able to find that the alibi was fully proved.”

In the case now before this court, the trial court, while twice stating that the defense of alibi must be proven by a preponderance of the evidence, then stated that if so proven, the defendant must be acquitted. He then stated that if the defendant had failed to prove the alibi by a preponderance of the evidence, the burden was still on the State of Ohio to prove the defendant’s guilt beyond a reasonable doubt.

We do not approve of the charge given by the trial court and feel that where the issue of alibi is properly in the case, the court’s charge should conform to the holding in Walters v. State, supra.

But was the issue of the defense of alibi properly in this case at all? In the first place, a defendant who proposes to claim an alibi as a defense is required to file and serve on the prosecuting attorney written notice thereof. See. 2945.58 R. C. (§13444-20 GO, the so-called Alibi Law, in effect since 1929, is as follows:

“Whenever a defendant in a criminal cause proposes to offer in his defense, testimony to establish an alibi on his behalf, such defendant shall, not less than three days before the trial of such cause, file and serve upon the prosecuting attorney a notice in writing of his intention to claim such alibi. Notice shall include specific information as to the place at which the defendant claims to have been at the time of the alleged offense. If the defendant fails to file such written notice, the court may exclude evidence offered by the defendant for the purpose of proving such alibi.”

This statute is mandatory in its terms and although we have examined the transcript of docket and journal entries and the original papers in this case, we are unable to find any evidence that this section was complied with. As the transcript contains no mention of it and the statute uses the word, “file,” we are compelled to assume it was not filed.

The failure to comply casts a cloud over the right of a defendant to assert the claimed alibi.

The reasons for the enactment of The Alibi Law. supra, are explained in the opinion by Kinkade, J., in State v. Thayer, 124 Oh St 1, decided in 1931, at page four, as follows:

“This law pertains to a very important feature of the criminal law. It gives the state some protection against false and fraudulent claims of alibi often presented by the accused so near the close of the trial as to make it quite impossible for the state to ascertain any facts as to the credibility of the witnesses called by the accused, who may reside at some point far distant from the place of trial.”

In the case of State v. Nooks, 123 Oh St 190, decided in 1930, this statute was upheld in a case where the trial court had excluded alibi testimony because the defendant had failed to give the statutory notice. The syllabus in said case is as follows:

“Upon the trial of persons jointly indicted for grand larceny, a verdict of guilty will not be disturbed where no abuse of discretion appears in the trial court excluding testimony offered by the accused for the purpose of proving an alibi, no notice of which has been given the state as provided in §13444-20 GC, such proffered testimony being ‘for the purpose of showing the whereabouts of said defendant * * * and to disprove the testimony of * * * witness for the prosecution,’ it not appearing that such proffer went to any other subject than that of alibi.”

Alibi is defined in 3 Corpus Jur. Secundum 514, as follows:

“Elsewhere, in another place; the presence in another place than that described. As a defense in a criminal prosecution whereby the accused tends to show that he was at another place at the time the crime charged was committed. * * (Emphasis added.)

Webster’s International Dictionary contains this definition:

“1. Law. The plea of having been, at the alleged time of the commission of an act, elsewhere than at the alleged place of commission;

We note that the trial court defined “alibi” as meaning: “I was some place else at the time.”

In 15 O. Jur. 2d, 432, Criminal Law, Section 246, Alibi, it is said:

“It (the defense of alibi) is a term used merely to support the general issue of not guilty, and applies particularly to a claim that the defendant was elsewhere than where the crime was committed.” (Parenthetical material added.)

But apart from that, did the testimony either of Payne, his wife, his step-daughter or his sister-in-law, these being the only alibi witnesses, either establish or even tend to establish an alibi?

The defense of alibi means that the defendant claims he was at some place other than the scene of the crime at the time the crime was taking place, and hence could not have taken part.

The police came upon the get-away car at 3:30 A. M on December 22, 1955, containing three or four men and loaded down with nineteen cases of whiskey which it was agreed by both sides was the same whiskey which was taken in the burglary.

George Beltz, one of the four indicted for this burglary and larceny and who previously had pleaded guilty, testified for the State, and named Payne, Percy “Smokey” Johnson (who was tried with Payne), and Adam Morgan as the other burglars.

Morgan, who had also pleaded guilty, and who twice had told police that Payne and Johnson were two of the burglars, testified for the defense. He said he and Beltz and a third man known to him only as “Charles” were the culprits. He said he did not know the last name or the address of “Charles.”

It was the car owned by Morgan that the police came upon at 3:30 A. M., December 22, 1955 during the flight from the scene of the burglary. What did Payne or any of his alibi witnesses say about Payne’s whereabouts at either 3:00 A. M. or 3:30 A. M., on December 22, 1955?

The answer is they said absolutely nothing. Most of the questioning related to where Payne was between 6.00 P. M. and midnight on the evening before the burglary, Wednesday, December 21, 1955.

Payne after detailing his visits to various taverns, testified he came to his home, 275 North Monroe Avenue, Columbus, Ohio, shortly before 1:00 A. M., Thursday,- December 22, 1955, retiring about 1:30 A. M. and soon fell asleep until about 2:30 A. M. when he arose and went downstairs in response to a knock on his door to let his sister-in-law, Dolores Wade, enter.

He says he told his wife that Dolores had arrived, but no where makes any statement as to his whereabouts between that time and 6:00 A. M. or 6:30 A. M. the next (Thursday, December 22) morning.

He nowhere denied the direct accusation of his alleged accomplice, George Beltz, that they and two others were a few miles away burglarizing Presutti’s Villa, 1692 West Fifth Avenue, Columbus, Ohio.

Payne said he was absolutely sure it was this Thursday morning, December 22, that Dolores Wade came to their house because the afternoon immediately prior thereto (Wednesday, December 21), he (Payne) had taken Dolores downtown to get her paycheck from the Deshler Hilton where she was an elevator operator.

When they got there, he testified, they found that the paycheck was tied up by a garnishee from Columbus Municipal Court, and the two of them went to said court where Dolores got a written release. Armed with that she returned to the said hotel and got part of her weekly pay from the hotel.

That this paycheck was delivered to Dolores on Tuesday, December 20, and the partial release from the Municipal Court also on.Tuesday, December 20, was shown beyond any doubt when both the said check and the said court release were produced in court, thereby fixing the arrival of Dolores Wade not on Thursday, but on Wednesday morning.

As a result there is no testimony of any kind or character in the record as to the whereabouts of Payne during the period between 1:00 A. M. and 6:30 A. M., Thursday, December 22, 1955, as Payne, Lois Payne, his wife and Dolores Wade all placed her early morning visit as coming on the morning immediately following the paycheck incident, shown conclusively to have happened on Tuesday, December 20. The testimony of Colleen Payne, the step-daughter, has no bearing as to any events after 1:00 A. M., Thursday, when she was sent to bed by the defendant.

Unless there is some evidence, perhaps even a scintilla establishing or tending to establish an alibi, there is no duty on the part of the court to charge on the question.

Charges as to the law in criminal cases tried to a jury must state "all matters of law necessary for the information of the jury in giving its verdict.” Sec. 2945.11 R. C., provides in part as follows:

"In charging the jury, the court must state to it all matters of law necessary for the information of the jury in giving its verdict. * * (Emphasis added.)

Fred Presutti testified that his restaurant was open until 1:00 A. M„ that about an hour and a half were used in checking registers, locking up and preparing to leave, that he left between 2:00 A. M. and 2:30 A. M. on the day of the burglary. The police had located and by 3:35 A. M. were in possession of the automobile and the nineteen cases of stolen whiskey.

The time of the crime it would appear was probably around 3:00 A. M. or at least after 2:30 A. M. and prior to 3:35 A. M. on Thursday. The mode of transportation claimed to have been used was an automobile.

Payne testified in detail as to the drinking spots he visited on the day previous. He had heard the testimony of the State’s witnesses twice for this was his second trial, so surprise is no longer possible.

Even the simple statement that he stayed at home the balance of the night, or that he didn’t leave the house or some other statement of similar import would have put the question of alibi in the case.

Here there simply is no testimony on the question of Payne’s whereabouts at the time the crime was committed.

As a result, the charge need not have been given at all, and could not be said to have misled the jury for the reason that there was no evidence on the subject. Hence, we conclude that the error was not prejudicial.

We have not been favored with either brief or argument on behalf of the plaintiff, the State of Ohio. Payne took the stand but was asked not a single question with respect to the burglary or larceny.

The fact is, however, that the trial court did give a charge on the subject which as we have above indicated, in our opinion, was not necessary in view of the absence of evidence on the subject of alibi. What is the effect of the language used by the trial court when it was not necessary to have any instruction on the law of alibi and when the court gave the charge in the form above set forth? In 39 O. Jur. 952, at page 953, Trial, Section 267, there appears the following:

“Clearly, however, the court should not charge th'e jury on issues which are not presented in the pleadings or by the evidence, although if counsel requests the court to charge specifically on an issue, he will not be heard to complain afterwards that that issue is not in the case.”

Cited in support thereof is Varner v. Eppley, 125 Oh St 526. See also State v. Langman, 61 Abs 517.

The record does not disclose specifically who made the request for the charge on the law as to alibi but defendant in his brief, page six, states that he brought this matter to the court’s attention and asked for the charge.

For the reasons above set forth, the first assignment of error is not well taken and must be overruled.

The second assignment of error is that the verdict is not supported by evidence establishing guilt beyond a reasonable doubt. With this we can not agree. George Beltz, although an accomplice, told a convincing story which, if believed, was sufficient basis for a conviction.

Payne testified on his own behalf that he had previously been convicted of robbery, a felony, and while such conviction was no evidence whatever as to his guilt or innocence of the burglary and larceny, yet the jury was entitled to consider it in determining the question of his credibility. The jury had the advantage of seeing all of the witnesses as they testified and, better than any reviewing court, was in a position to tell the credibility to be attached to the testimony of each witness.

We can not say as a matter of law that the evidence is insufficient to support the verdict and, therefore, the second assignment of error must be overruled.

In light of the aforesaid, both assignments of error are overruled and the judgment of the court below is affirmed.

PETREE, PJ, MILLER, J, concur.


author: By DEEDS, J.

text:
    CENTERVILLE (Village), Plaintiff-Appellee, v. SCHLAFMAN et, Defendants-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    No. 2289.
    Decided May 9, 1956
    James T. Lynn, Jr., Dayton, Solicitor for the Village of Centerville, for plaintiff-appellee.
    Merritt E. Schlafman, of Schlafman & Elliott, Fairborn, for defendants-appellants.
    (CONN and DEEDS, JJ, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By DEEDS, J.

This is an appeal on questions of law and fact from a judgment of the Court of Common Pleas of Montgomery County in which a permanent injunction was granted against defendants-appellants from obstructing the use by the Village appellee of a certain right-of-way consisting of a road over the farm property of the appellants.

The cause is before this Court and has been submitted for review following oral argument of counsel, briefs and a stipulation by counsel representing the parties respectively as follows:

“1. To adopt and use all the pleadings and original papers heretofore filed in this cause in the Common Pleas Court of Montgomery County, Ohio, as the pleadings to be used in this cause before this court; including the written opinion rendered by the trial court.

“2. To adopt and use as the evidence in this cause all the testimony and exhibits admitted as evidence on the trial of this cause in the Common Pleas Court of Montgomery County, Ohio.

“3. Evidence, testimony, and exhibits excluded by the lower court on motion at any stage of the proceedings shall be considered as proffered in this court.

"4. This court shall pass upon the relevancy and materiality of all evidence admitted over objection in the lower court.”

In the transcript of the record of the testimony introduced on the trial in the Court of Common Pleas a stipulation appears in reference to the acquisition by the plaintiff-appellee of certain property involved in this action by deed of conveyance and lease as follows:

'“MR. JEFFREY: It is stipulated by and between counsel for the plaintiff and the defendants that the plaintiff is a duly incorporated Village under the laws of the State of Ohio, and is located in Montgomery County, Ohio.

“It is stipulated, further, that the Village of Centerville by-laws recorded in Volume 33, page 479 of the lease records of Montgomery County, Ohio, acquired the right to use and take for purposes hereinafter described, all or any part of the water in, and under, certain real estate.

“It is agreed that the description of said real estate shall be furnished and made a part of this record by copy of said lease.

“It is further stipulated that the plaintiff, the Village of Center-ville, acquired the fee estate title by deed recorded in Volume 834, page 58 of the Deed Records of Montgomery County, Ohio, to a certain tract of land, the description of which will be furnished to the Court by copy of said deed, and that this deed was dated November 19, 1937, and was filed for record on December 13, 1937, and runs from Wendell W. Lawson to The Village of Centerville, its successors and assigns.

“It is further stipulated that the deed contains the following language;

“‘Subject to the right-of-way of a 33 foot road adjoining and parallel to the East line of said tract.’ ”

The facts pertinent to a determination of this appeal are that the defendants-appellants, hereinafter referred to as defendant, are the owners of certain farm land, consisting of approximately 75 acres situated near the Village of Centerville, Montgomery County, which property defendants acquired by deed executed by Elgar Weaver and Elizabeth Z. Weaver, his wife, subject to a certain lease and conveyance by -deed referred to in the last stipulation as quoted herein above.

It is undisputed, therefore, that by the terms of a 99-year lease, renewable forever, the Village appellee acquired control and ownership rights and the authority to pump water from a portion of the farm land of the defendants, consisting of a stone quarry comprising approximately 24 acres of the original acreage of the defendants, and being situated in the northerly portion of and being a part of the 75-acre tract referred to above.

It is also undisputed that the appellee Village of Centerville, by duly executed deed, acquired title to .37 acre from the predecessors in title of the defendants, and that said fraction of an acre is occupied by a pumping station located adjacent to the said quarry and that the said pumping station is owned and operated by the appellee Village for the purpose of pumping water from such quarry for use by the residents of the village, and also a part of the adjacent community.

It appears further from the evidence that the pumping station being owned and operated by the Village is located and situate at a place about 1100 feet distant, in a northerly direction, from a public highway known as Centerville Station Road, which highway extends in an easterly and westerly direction adjacent to and upon which the farm acreage owned by the defendant and involved in this action borders at its southerly side or limits.

It is undisputed further that for about 40 years prior to 1932, when it discontinued operation, a stone quarry was operated in that part of the property involved, consisting of 24 acres thereof and that in connection with the operation of said quarry, a number of families lived in houses located upon said property occupied by such quarry and other facilities, including a blacksmith shop, were also maintained, all of which operations made necessary a great amount of hauling and travel by vehicles from the said quarry to and between same and the public highway referred to and known as Centerville Station Road.

The record contains testimony by a number of witnesses and therefore substantial evidence of a trustworthy character, clear and of preponderating weight, that a road way and place of travel or right of way extending from the quarry and the facilities connected with same, including the parcel of land and pumping station owned by the appellee Village, had been used openly, extensively and continuously over and upon the land of the defendants, to said Centerville Station Road, for a period of more than 30 years.

It is the contention of counsel for the Village that a right of way by prescription has been established by clear and uncontradicted testimony and evidence; also that there was an implied grant of the right of way consisting and comprising a parcel or part of the defendants’ land, 33 feet in width at and including the east line of defendants’ tract and. extending from the pumping station and parcel of land consisting of .37 acre to the Centerville Station Road or highway.

It is conceded by the defendants that the Village is unquestionably entitled to a means of egress and ingress to and from the public highway and its pumping station, but they insist that it is by necessity only that the Village is entitled to such right of way and that therefore the defendants are justified and wholly within the law in barricading, blocking and obstructing' the use by the Village of the easterly 33 feet of defendants’ land as a road and right of way, and admittedly the defendants have heretofore barricaded the Village from the use of the said' 33 feet as a right-of-way.

We have reached the conclusion, after a careful consideration of the testimony and evidence contained in the record now before us, and hold that the Village has established a clear right to the use of 33 feet of the easterly part of defendants’ land extending from and adjacent to the parcel of land and pumping station to the public highway known as Centerville Station Road, both by reason- of prescriptive right, established clearly by the evidence, and also by virtue of grant to be implied from the conditions and circumstances shown to exist and the inferences which we consider we are required to make on account of those clearly proven conditions referred to herein.

We are impressed that a pertinent statement applicable to the record before us appears in the opinion of' the Court in Freiden v. Western Bank & Trust Co., 72 Oh Ap at pp. 475 and 476, as follows:

“For many years and in many cases Ohio has held to the doctrine that where an owner of land makes an apparent, permanent, and necessary use of one part of his land in favor of another part, and transfers either or both parts, the grant or reservation of an easement to continue such existing use will be implied.

“In National Exchange Bank v. Cunningham, 46 Oh St 575, at page 587, 22 N. E., 924, it is stated:

“ ‘It is a well settled doctrine of the law of easements, that where there are no restrictive words in the grant, the conveyance of the land, will pass to the grantee, all those apparent and continuous easements which have been used, and are at the time of the grant used by the owner of the entirety for the benefit of the parcel granted; and also, all that appear to belong to it, as between it, and the property which the vendor retains; * * *.’

* * * * *

“In 15 O. Jur.. 42, it is stated:

“ ‘Even though the use is not apparent, and there is no notice thereof whatsoever, it has been suggested that an easement may be implied if the use is strictly necessary and the common owner has intended the use to become an easement appurtenant to the property benefited thereby.’ Citing, Keyler v. Eustis, 13 N. P., (N. S.) 601, 24 O. S. (N. P.), 555.

“The requisites for applying the doctriné of implied easements have been set forth by the Supreme Court of Ohio in Ciski v. Wentworth, 122 Oh St 487, 172 N. E., 276. The first paragraph of the syllabus is:

“ ‘While implied grants of easements are not favored, being in derogation of the rule that written instruments shall speak for themselves, the same may arise when the following elements appear: (1) A severance of the unity of ownership in an estate; (2) that before the separation takes place, the use which gives rise to the easement shall have been so long continued and obvious or manifest as to show that it was meant to be permanent; (3) that the easement shall be reasonably necessary to the beneficial enjoyment of the land granted or retained; (4) that the servitude shall be continuous as distinguished from a temporary or occasional use only.’ ”

Also we call attention to the case of Benninghoff v. Skinner, 63 Oh Ap 184, and quote an applicable statement by the Court in the opinion which is supported by the citation of persuasive authority, at p. 191:

apparen|; that jf a public road or street should be established by proper public authority, plaintiffs and the defendant are required to dedicate for public highway purposes a strip of land at least forty feet in width in accordance with the provision in their respective deeds; but until such public highway is established, it is the finding and decree of this court that the plaintiffs have a right of way or easement appurtenant to their respective lands over the forty-foot strip for ingress and egress to their respective properties; and that neither the plaintiffs nor the defendant, nor their successors in title, have any right to obstruct the free use of this strip for the purposes mentioned.

“For our authority we cite the following: National Exchange Bank v. Cunningham, 46 Oh St 575, 587, 22 N. E., 924; Baker v. Rice, 56 Oh St 463, 47 N. E., 653; Frate v. Rimenik, 115 Oh St 11, 152 N. E., 14; Ciski v. Wentworth, 122 Oh St 487, 172 N. E., 276; 15 O. Jur., 46, 49, Section 34; 17 American Jurisprudence, page 944, Sections 32, 33, 34, 41, 128, 130, 131, under the title ‘Easements.’

“As particularly applicable to the facts shown by the evidence in this case we quote the second paragraph of the syllabus of the case of Frate v. Rimenik, supra:

“ ‘2. Easements and servitudes created by a common owner of lands, which are plainly visible and from the character of which it may be fairly presumed that he intended their preservation as necessary to the proper, convenient, and reasonable enjoyment of the property, become, when the lands are divided and pass into other hands, permanent appurtenances thereto, and neither the owner of the dominant or of the servient portions of the land has power to adversely interfere with their proper use and enjoyment.’ ”

We also deem it appropriate to quote further from the opinion of the Supreme Court in the case of Frate v. Rimenik, et al, supra, relative to the question concerning the circumstances and conditions which are required to be established and from which an inference of implied grant is justified, pp. 22, 23, 24, 115 Oh St:

“The Court of Appeals took the view that under such circumstances the driveway was an appurtenance to each of the properties, for the equal benefit of both parties, for Fazio and for Rimenik and Mendluwitz, as well. The case falls within the principle announced in National Exchange Bank v. Cunningham, 46 Oh St 575, 22 N. E., 924, the judge saying in the opinion, at page 587 (22 N. E., 929):

“ ‘It is a well-settled doctrine of the law of easements that, where there are no restrictive words in the grant, the conveyance of the land will pass to the grantee all those apparent and continuous easements which have been used, and are at the time of the grant used by the owner of the entirety for the benefit of the parcel granted, and also all that appear to belong to it, as between it and the property which the vendor retains; and\ hence, when the owner of an entire estate makes one part of it visibly dependent for the means of access upon another, and creates a way for its benefit over the other, and then grants the dependent part, the other part becomes subservient thereto, and the way constitutes an easement appurtenant to the estate granted, and passes to the grantee, as accessorial to the beneficial use and enjoyment of the land.’

“Also in Baker v. Rice, 56 Oh St 463, the court saying, at page 475, 47 N. E., 635, 655: ‘We think the law well settled in this state, whatever the decisions may be in some of the others, and they are far from being-in harmony, that, where an estate is divided as was this one, each takes his part, subject to or benefited by such burdens as were openly and plainly attached to or imposed on it by the common owner in his use and enjoyment' of the land at the time of the severance, and which on a severance would properly be termed easements or servitudes.’

“It was held in Scott v. Moore, 98 Va., 668, 37 S. E., 342, 81 Am. St. Rep., 749: ‘If the owner of two adjacent lots sells both lots at the same time to different purchasers, each grant carries all the apparent and continuous easements which are necessary for the reasonable use of the property granted, and which have been or are at the time of the grant used by the grantor for the benefit of such property. * * * A purchaser is presumed to have contracted with reference to the condition of the property at the time of the purchase. If the condition of the premises shows plainly and unmistakably that an alley-way over the premises purchased has been used, was in use, and was intended for the use of the owner or occupant of an adjacent lot, the purchaser will take, subject to the rights of the adjacent owner or occupant.’

“See, also, 9 Ruling Case Law, Section 60, p. 804; 8 Ruling Case Law, Section 125, p. 1070; 1 Thompson on Real Property, p. 379, Section 297.”

We deem it unnecessary to extend this opinion further in an analysis and interpretation of the decisions and announcements of the courts with regard to the law applicable and controlling in a consideration of the evidence in the record now before us relevant to the issue of a right by prescription, but are persuaded that the principles determinative of this appeal respecting that question are stated clearly in cases decided by the Supreme and Appellate Courts in this State: Pavey v. Vance, 56 Oh St 162; Sting v. Rothacker, 82 Oh Ap 107; Glander v. Mendenhall, 39 Abs 104; Campbell v. Anderson, 125 Oh St 241; 1 O. Jur. 2nd, Sec. 124, et seq.

We determine, therefore, that the Village of Centerville is entitled to a permanent injunction enjoining and restraining the defendants from barricading or obstructing the right of way consisting of the parcel of land 33 feet in width of the easterly limits of the land of the defendants and extending from the pumping station and the .37 acre of land as described and owned by the Village appellee and the public highway known as Centerville Station Road.

Permanent injunction ordered, and cause remanded for costs.

HORNBECK, PJ, CONN, J, concur.


author: By McBRIDE, J.:

text:
    DAYTON (City), Plaintiff, v. HORSTMAN et, Defendants.
    Common Pleas Court, Montgomery County.
    No. 112068.
    Decided July 22, 1957.

      Herbert S. Beane, City Atty., by Morris Gilbert, for the City of Dayton.
    Mathias H. Heck, Pros., by Edmund Shea, for the Board of Elections.
   OPINION

By McBRIDE, J.:

This action is one in mandamus to command the officers of the Board of Elections to hold a municipal primary for the selection of six candidates for the City Commission according to the Charter of the City of Dayton. An alternative writ of mandamus was allowed returnable at 2:00 P. M. on July 22nd, 1957 requiring the defendants to proceed or show cause why they have not done so.

Subsequently a demurrer was filed. The demurrer tests the sufficiency of the petition and submits the legal question as to whether a municipal primary is required under the circumstances set forth in the petition.

The petition alleges that the terms of three members of the City Commission will expire at the close of the calendar year 1957, and that petitions have been filed pursuant to Section 7 of the Charter on behalf of six persons as candidates for membership on said Commission. At the hearing it was stipulated, and ordered journalized, that the Board of Elections had approved the nominating petitions of all six candidates on whose behalf petitions had been filed. The applicable provisions of the Charter are set forth in the petition.

Section 7 provides that candidates for commissioners shall be nominated by a primary election and that the name of any elector of the city shall be printed on the primary ballot when a petition is properly filed. Sub-sections (b) through (e) relate to the petition, its form and acceptance by the candidate.

Section 8 in effect provides that the only names that shall appear on the ballot shall be “the names of persons who are candidates for nomination;” and otherwise the form of the ballot shall be “substantially” as pictured in the sample ballot in Section 9. Section 8 further provides:

“Primary, Regular and Special Election Ballots provided under authority of this charter for the nomination or election of commissioners shall not bear the name of any person or persons or any issue other than those candidates for nomination or election to the office of commissioners.”

Section 9 furnishes the form of the ballot for a primary election, listing five names since at least five were required to be nominated in 1913. No blank spaces are provided for write-in votes in the sample form of primary ballot prescribed by the Charter. Beneath the form appears the following paragraph relating to primaries:

“The candidates for nomination to the office of commissioner, who shall have received the greatest vote in such primary election shall be placed on the ballot at the next regular municipal election, in number not to exceed double the number of vacancies in the commission to be filled.”

The following paragraph provides that ballots for the regular election shall be similar in form to those of primary ballots, except as to the caption and deletion of the words “nomination to the office of.”

Section 10 provides for rotation of names on the ballot.

Section 11 provides that “At any regular municipal election held under the provision of this charter the candidates for the office of commissioner in number equal to the vacancies to be filled, who shall have received the greatest number of votes cast, shall be declared elected.”

Section 12 provides for the time of regular and special elections and proceeds as follows:

“All elections shall be conducted and the results canvassed and announced by the election authorities prescribed by general election laws, and, except as otherwise provided herein, the general election laws shall control in all such elections.”

Sec. 3513.14 R. C., provides for the form of a primary ballot. It expressly requires:

“. . . there shall be provided on each primary election ballot as many blank spaces as, but not more than, the number of nominations to be made for such office, in which the voter may write the names of persons for whose nomination he desires to vote, . . .”

Two sample forms are set forth in this statute demonstrating the number of blank spaces to be provided. Special provision is made by statute for dispensing with a primary for certain offices, however such provisions have not been found with respect to non-partisan municipal primaries in cities over two thousand in population. 19 O. Jur. 2d 194; §§3513.01, 3513.02, 3515.22 R. C.

The only issue in this case is whether or not the Board of Elections shall be ordered to conduct a municipal primary under the Charter under the circumstances existing in this case.

It is unfortunate at this late date that it is necessary to repeat the law on the significance of the adoption of a city charter under the “home rule” amendment of the constitution. The Supreme Court has consistently upheld local “home rule” and has consistently sustained the unimpaired freedom of the people in any municipality to adopt and to follow the procedures set up in their charters. State, ex rel. Sherrill v. Brown, 155 Oh St 607; State, ex rel. Gamble v. Duffy, 164 Oh St 231. Under the Ohio constitution, the rule that each elector is entitled to vote for every officer whose place is to be filled, is no longer the law of this state as regards elections held under city charters. Reutener v. Cleveland, 107 Oh St 117. In other words, insofar as the local community is concerned, the charter it adopts is the supreme law of the community insofar as it relates to the subject matter authorized by the “home rule” amendment. To that extent the general law of Ohio is not applicable in such community. Since the charter contains the fundamental law, equivalent in rank to that of the constitution, it is entitled to a liberal construction to effect its purpose and it is not subject to strict interpretation nor may its provisions suffer by comparison or conflict with existing statutes that are applicable elsewhere in the State.

At the outset we are confronted with the argument that every voter is entitled to write in on the ballot any person of his choice and that accordingly the Board must hold an election for that purpose. Sec. 3513.14 R. C. It is argued that a failure to do so would be unconstitutional. The only direct authority on the local question is an opinion of the Prosecutor issued in 1955, in which he finds that Section 12 of the Charter incorporates general statutes and that §3513.14 R. C., requiring blank spaces, is applicable to a municipal primary. This opinion was followed. The comment from the Attorney General’s office was contained in a letter in which Joseph S. Gill, First Assistant, wrote that he believed the question was not one of conflict between the charter and state statutes but of a question of a basic right of suffrage. “I believe,” he wrote, “that you followed the proper course . . . and thereby avoided any serious question of constitutionality of the coming election.” In other words this opinion avoids rather than decides the constitutional issue as to whether the Charter may prohibit write-ins.

The General Assembly has adopted some regulations prohibiting write-ins and dispensing with primaries and the constitutionality of such provisions have not been questioned. Article V, Section 2, Ohio Constitution provides:

“All elections shall be by ballot.”

The form of the ballot, so long as it is a ballot, is left to the sound discretion of the legislature. State v. Bode, 55 Oh St 224. The people of any municipality may acquire the same right and discretion under “home rule.”

The right to vote, which cannot be abridged, must be distinguished from the privilege of holding office which is not an inherent right. In the exercise of police power the General Assembly and municipalities, by Charter, may adopt provisions for the nomination of candidates for public office. Reasonable restrictions may be imposed upon the right to appear on the ballot. 19 O. Jur. 2d 66. A requirement for qualification by petition and prohibiting write-in voting is reasonable, lawful, and constitutional under the “home rule” amendment. Other more difficult and less reasonable provisions have heretofore been sustained by the Supreme Court. Consequently we reach the conclusion that a prohibition against write-in voting is constitutional; further, that if there be any doubt on this question such doubt is removed if such prohibition exists in a city charter.

Section 7 of the Charter provides that “the name of any elector shall be printed on the primary ballot when a petition is properly filed.” Section 8 provides that the names of “candidates for nomination” who have filed petitions as required shall appear on the ballot. The Charter is stronger when it states:

“Primary . . . ballots ... for nomination ... of commissioners shall not bear the name of any person or persons . . . other than those candidates for nomination ... to the office of commissioner.”

Here is an express, unqualified prohibition against the use of any name other than “those candidates” who are otherwise entitled to have their names printed on the ballot. Just what was intended by the city fathers by the prohibition against all names except “those candidates for nomination?” The term is repeatedly used and originally defined as individuals on whose behalf petitions are circulated, filed, and approved. True, this sentence requires a separate, independent ballot however it excepts from its prohibition by a demonstrative word a specific group which the Charter frequently refers to and in the context of the instrument means those candidates on whose behalf petitions have been filed. In legal parlance the provision must be construed in pari materia. The requirements that a person on whose behalf a petition has been circulated shall indicate his acceptance as a candidate for nomination fits into the charter pattern. No write-in candidate could provide this advance assurance of willingness to serve for an insignificant compensation.

If, after this prohibition, any doubt remains it is resolved by the graphic form in which the sample primary ballot is incorporated in the Charter. This sample ballot, adopted as a part of the Charter, and expressly required to be substantially followed, contains spaces for “those candidates” who have filed petitions and provides no blank spaces for write-ins. The framers of the Charter, by illustration and written words, clearly expressed their intention as to the form of the primary ballot and thus preempted this subject thereby prohibiting any incorporation of general election laws by reference under Section 12 of the Charter. A comparison of the Charter sample form with the statutory sample form in §3513.14 R. C., reveals a difference in form and in substance and dispels any remaining doubt, especially since the framers of the city charter were among the first to graphically provide in laws the sample form of ballots. Presentation of ballot requirements by sample in §3513.14 R. C., was not adopted by the assembly until years later.

The conclusion of the Court, by simple interpretation and not by construction, is that the Charter of the City of Dayton expressly prohibits any names, other than those regular candidates, from appearing on the ballot and it graphically requires a form which does not contain blank spaces for write-in votes for Commissioners.

There is a common misconception of the provisions of the Charter respecting the number to be nominated at the primary. It is generally accepted that there must be at least six persons nominated. The charter merely limits the maximum number to “not to exceed double the number of vacancies . . . .” The framers of the Charter not only prohibited write-ins but they also anticipated situations in which less than double the number would be nominated. Therefore, insofar as the rights of voters who approved this Charter are concerned, it is immaterial whether or not the maximum number is nominated at the primary.

In the instant case it is alleged and accepted as true for the purpose of the demurrer that six persons have filed petitions under Section 7 and, as stipulated, six persons have been qualified by the Board of Elections as candidates for nomination under the Charter. Since three vacancies will arise it is obvious that these six candidates are entitled to have their names on the ballot at the next regular or general municipal election and, since the primary ballots “shall not bear the name of any person or persons . . . other than those candidates for nomination,” no other person may have his or her name placed on the ballot at the primary or at the general election.

Under these circumstances it appears that “those candidates for nomination” within the appropriate number have been determined as candidates for election to those offices and no practical purpose would be served and no right of any voter of Dayton would be affected by the failure of the Board of Elections to conduct a municipal primary at this time.

The Charter does not dispense with the necessity of a primary and, relying upon the reference incorporated in Section 12 of the Charter, we fail to find any state statute which dispenses with a non-partisan primary for municipal officers. Several other different situations are thus provided for. It appears that the General Assembly is not and by the very nature of “home rule” cannot be concerned with the varied and in some instances unique methods and problems existing under each city charter. Amendments, if necessary or desired, lie within the power of the people of the municipality and they are expected to take full advantage of the opportunity and simplicity of regulating the governing provisions of their own local charter. This opportunity has been exercised but sparingly in Dayton. Locally the Charter is considered more with respect for the past than as an opportunity in governing the present and future generations.

In the absence of authority in either the Charter or the general statutes dispensing with the current primary and in the absence of the existence of any practical purpose or personal rights, must the Court by a preemptory writ require the Board of Elections to perform a vain and useless act? This Court thinks not for two reasons, one of which has already been partially explained.

The word “shall” as used in the Charter with reference to a primary must be construed to effect the purpose involved of selecting and electing City Commissioners pursuant to the method adopted. Where that purpose and method is followed and the results accomplished the Charter purpose is completely satisfied. The word “shall” is construed by courts in connection with the subject matter, the rights involved, and the purpose to be accomplished. Where the public or individuals have a de jure claim that the power be exercised, or where something is directed to be done for the sake of justice, or for the public good “shall” is construed as being mandatory. As applied to the primary situation, the Charter purpose has been accomplished and no individual has a de jure personal right at this time to become a candidate or to select any other candidate. Therefore the expression “shall” is not mandatory.

Secondly, the writ sought is an extraordinary one which eliminates the usual procedure and requires a clear right to definite relief for some justiciable purpose. Nothing could be less clear or more uncertain than a right to relief where the issue is resolved or becomes moot. Nothing would tend more to encourage disrespect for the law and the exercise of the right to vote than to conduct a primary when the candidates are determined. “The policy of the legislature is, and has been, to dispense with unnecessary primaries wherever this condition presents itself. Courts have always refused to require the performance of a useless and unnecessary act.”

Accordingly, and without considering any issue other than required for the purposes of the demurrer, the Court sustains the demurrer and denies the writ. Because of the emergency nature of the action and the necessity for an early decision the Court has not included herein the customary citations. The Court will cooperate to expedite an appeal in event any party so desires.


author: By PETREE, PJ.

text:
    STATE, Plaintiff-Appellee, v. SPARKS, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5710.
    Decided December 20, 1957.
    Russell Leach, City Atty., Bernard T. Chupka, City Pros., Paul A. Scott, Asst. Pros., Columbus, for plaintiff-appellee.
    Lynch & Rosenberry, Edward F. Lynch, of Counsel, Columbus, for defendant-appellant.
   OPINION

By PETREE, PJ.

This is a law appeal from the Municipal Court of Columbus, Ohio, in which the defendant, appellant herein, sets forth the following six assignments of error:

1. The Court erred in usurping the legislative authority of prescribing the conditions under which the privilege of operating an automobile may be exercised.

2. The Court erred in attempting to usurp the duty of the Registrar by placing restrictions or conditions on the back of an operator’s license.

3. The Court erred in holding that the Court on August 15, 1956, suspended the license of defendant.

4. The Court erred on August 15, 1956, in finding the defendant guilty and suspending his license after amending the affidavit without proper subsequent verification.

5. The Court erred in finding defendant guilty of operating his automobile after his license was suspended.

6. The judgment of the Court was against the weight of the evidence and contrary to law.

The appellant was sentenced to two days in City Prison and fined $50.00 and costs by Judge Duffy of the Municipal Court of the City of Columbus on May 17, 1957, in Case No. 8741, State v. Sparks, upon a charge of violating the state auto law, §4507.38 R. C., which reads as follows:

“No person whose operator’s or chauffeur’s license has been suspended or revoked, under §§4507.01 to 4507.39 inclusive, R. C., shall drive any motor vehicle upon the highways of this state while such license is suspended or revoked.”

The narrative bill of exceptions contains the following stipulation: “The defendant-appellant herein was on April 13, 1957, arrested by police officers in the City of Columbus for an improper left turn. Upon checking the driver’s license of said defendant-appellant, the following notations were found on the back thereof written in ink:

“ T/19/55 Col. Mun O. M. V. I.

“ T/19/55 Col. Mun A. C. D. A.

“ ‘8/15/56 Col Mun O M V I

“ ‘8/15/56 Col Mun A C D A’

“Immediately under the above inked notations was typed the following statement:

“ ‘8/15/56 When F. R. A. Is Complied with Deft. May operate in course of employment only up to and including November 15, 1957 Columbus Mun. Ct.

Judge Strausbaugh’

“The police officers on seeing the above statement arrested the defendant-appellant and charged him further with driving after his license was revoked. The defendant came to trial on April 18, 1957, at which time the Court, Judge John C. Duffy presiding, found the defendant-appellant not guilty of making an.illegal left turn and dismissed the charge. It was stipulated on this charge that the defendant-appellant was driving a private automobile, having driven his mother to a drugstore 'in order to obtain medicines for her. The attorney for the defendant-appellant moved for a dismissal of the charge of driving after license was revoked upon the ground that a notation on the back of a license as hereinbefore noted above was illegal, indefinite and ridiculous, and that no criminal charge could be based thereon. The Court then sent for the original docket book in which the entries of August 15, 1956, were entered in order to ascertain what the notation on the back of the license meant. In said docket it was ascertained that on August 15, 1956, the defendant was convicted of operating a motor vehicle while under the influence of alcohol as shown by the following statement in the docket:

“ TO days City Prison $150.00 and costs

‘N. G.

“ ‘Amend affidavit to 1st offense — susp. D. R. rts. 15 mos. absolutely with stip. that if FRA complied with can drive truck within scope of employment only — bal. FRA’

“At that time, to-wit: August 15, 1956 the defendant-appellant immediately served his ten days in City Prison and paid his fine and costs and his license was taken away from him; apparently the notation stated before was placed on the back of his driver’s license at that time, and the license was forwarded to the Registrar of Motor Vehicles. Defendant-appellant did not drive a car until the latter part of March, 1957, when, upon being induced by an insurance agency to take out Financial Responsibility insurance and upon their statement that his license would thereafter be reinstated, he took out the insurance; a few days thereafter he received in the mail back from the Bureau of Motor Vehicles his operator’s license; he then bought a car and proceeded to operate the same. The Court took the present case under advisement and gave the City until May 2, 1957, to file a brief, and on May 10, 1957, rendered a decision finding the defendant guilty of operating a motor vehicle after his license was suspended and ordered the defendant to serve two days in the City Prison and fined him $50.00.

“On May 15 1957, the defendant-appellant filed a notice of intention to appear and the Court suspended the execution of the sentence and the fine pending the appeal and placed the defendant-appellant under a bond of $50.00 pending the appeal.

“Notice of appeal was duly filed on May 15, 1957.”

This bill of exceptions was approved by the trial court and by attorneys for both appellant and appellee.

From the above it may be seen that there is some inaccuracy with reference to the day the court pronounced sentence, but from the narrative bill of exceptions it is clear that an affidavit was filed on April 13, 1957, in Case No. 8741, upon the following charge, to wit:

“This man drivers lie revoked in Ohio except for employment only Back and forth to work — Stoped this man at 8:35 P M had been to drug store, contrary to statute in such cases made and provided, and against the peace and dignity of the State of Ohio, and further deponent says not.”

Judge Duffy sentenced the defendant in the instant case, which was Case No. 8741 in the Municipal Court, for an April 13, 1957, violation based upon the defendant’s driving a private automobile on that date in violation of the state law for driving after revocation when it was ascertained that Judge Strausbaugh, of the Columbus Municipal Court, had found appellant guilty of operating a motor vehicle while under the influence of alcohol in Case No. 27127, had sentenced the defendant to ten days in the City Prison, fined him $150.00 in costs, and then added:

“* * * the court further ordered that the defendant’s driving rights be suspended for a period of 15 months absolutely with stipulation that if Financiancial Responsibility Act is complied with he can drive truck within scope of Employment only balance subject to Financial Responsibility Act of the State of Ohio.”

There is no question but that Judge Strausbaugh, on August 16, 1956, in Case No. 27127, had authority -under §4507.16 R. C. to suspend for any period of time not to exceed three years the appellant’s driver’s license. This he could have done by forbidding appellant to drive any vchFF for three years or for any period less than three years, or he could have suspended his license to drive for said three-year period subject to appellant’s right to get his driver’s license back by furnishing financial responsibility and keeping said financial responsibility in force until August 15, 1959. The judge chose to take the appellant’s license for fifteen months, or until November 15, 1957, as far as general driving of private vehicles was concerned, but to permit the appellant to drive a truck within the scope of his employment only.

The judge further stipulated in his sentence that after November 15, 1957, and for the balance of the period until August 15, 1959, appellant could have his license for all purposes, for private driving as well as truck driving within the scope of his employment, on condition only that he furnish financial responsibility during the period after November 15, 1957.

Thus, it may be seen that the court was more liberal with the defendant than was necessary. He could have taken away, during the fifteen months or up to three years, the right of the defendant to drive a truck in his employment. We fail to see how the appellant can be prejudiced by the court being more lenient upon him. The court’s order was plain for him to see that he could only drive a truck within the course of his employment.

In 3. O. Jur. 2d 683, at Page 633, we find the following:

“Under the well-established principle that no one can complain of error unless he is prejudiced thereby, a party cannot avail himself of error which is favorable to himself, or prejudicial only to the adverse party.”

Sec. 2947.13 R. C., reads as follows:

“Any court sentencing a person for misdemeanor may, at the time of sentence, omit or suspend such sentence in whole or in part, upon such terms as the court may impose.”

This is in line with the general authority that a court has inherent power to suspend a sentence or any part thereof when conditions justify the same, especially when such sentence or such suspension is at the time of sentence. It seems to us a sound rule of law that would make it possible for a trial court to take a person off the roads for pleasure driving and week-end periods when such person is not employed, for the protection of the general public, and at the same time to permit this person to drive in the course of his employment and thus enable him to support his family and not become a public charge. It must be borne in mind, that the full authority of the trial court to suspend was there in the first place, and it seems rather strange that the appellant should be complaining that he was accorded more generous treatment than was necessary.

We find, therefore, that there was no error prejudicial to the rights of this defendant in the action of judge Strausbaugh in permitting him to drive and that the judge who sentenced him in May of 1957 for having driven in violation of a final judgment rendered against him in August, 1956, did not err as complained of in assignment of error No. 5.

We further find that assignments of error Nos. 1, 2, and 3 are not well taken. As authority for this, we refer to §2945.83 (E) R. C.

In view of these conclusions and in consideration of the narrative bill of exceptions heretofore set forth, we conclude that assignment of error No. 6 is not well taken and that the judgment of the trial court was not against the manifest weight of the evidence.

Assignment of error No. 4, raised for the first time in Case No. 8741, is not well taken. There was no appeal from the August 15, 1956, decision in Case No. 27127, and that judgment cannot be collaterally attacked for claimed errors in the case which arose on April 13, 1957. The questions raised concerning the amending of the affidavit would not, in any event, render that judgment void; and that being true, a subsequent charge based upon that judgment can be sustained.

The judgment of the trial court will, therefore, be affirmed, and the case will be remanded to the Municipal Court for execution of sentence.

Judgment affirmed.

BRYANT and MILLER, JJ, concur.


author: By WEICK, J.

text:
    MIDLAND PROPERTIES COMPANY, Plaintiff, v. UNION PROPERTIES, INC., Defendant.
    United States District Court.
    No. 31108.
    Decided January 17, 1957.
    Elbrecht & Roberts, Lockwood Thompson, Harry J. Dworkin, Cleveland, for plaintiff.
    L. C. Wykoff, Edwin A. Howe, Cleveland, for defendant.
   OPINION

By WEICK, J.

This is an action for damages for the alleged breach of a written contract for the sale of certain judgments and decrees rendered in a number of cases then pending in the Court of Common Pleas of Cuyahoga County which involved the foreclosure of mortgages on real estate.

Jurisdiction of the court was based on diversity of citizenship.

The defendant denied the existence of a binding contract of sale and pleaded in bar the 15-year Statute of Limitations. Sec. 2395.06 R. C.

The evidence disclosed that on July 21, 1938 a letter was written by Messrs. Squire, Sanders & Dempsey, attorneys representing the defendant, to one Perry L. Graham, who was acting in behalf of an undisclosed principal, outlining the terms on which their client was willing to sell said judgments and decrees.

The terms of the offer were payment of $54,000 in cash and the execution and delivery to defendant of releases executed by Robert W. Halliday, individually and as administrator of the estate of Janet Halliday, deceased. Approval by the Probate Court was required of the administrator’s release.

The letter specifically stated:

“Time is of the essence in connection with this proposition of Union Properties, Inc. since the Sheriff’s sales are set for August 8, 1938 and the proposition is therefore open for acceptance by deposit of the funds and releases in escrow on or before August 5, 1938.” (Emphasis added.)

On August 1, 1938 these attorneys wrote another letter to Graham stating that defendant, for a consideration which was paid, “is willing to allow its offer to remain open for acceptance by your undisclosed principal or by Robert W. Halliday, Administrator of the Estate of Janet W. Halliday, deceased, on the same terms and conditions until October 1, 1938 * * (Emphasis added.)

The letter again stated that time was of the essence and that the offer would expire by its terms on October 1, 1938.

It is undisputed that neither the stipulated cash in the amount of $54,000 or releases were deposited by an undisclosed principal or by the administrator in escrow prior to October 1, 1938 or at any other time and no tender thereof has ever been made.

Instead various letters were written to defendant by persons on behalf of the so-called undisclosed principal containing other offers to purchase, none of which were ever accepted by defendant.

The last of such offers was rejected by defendant on September 13, 1939.

The complaint was not filed in this case until June 2, 1954.

It is clear to the court that no contract was ever entered into in this case.

At most, the letter of July 21, 1933 constituted an option which provided the manner of exercise, namely, “by deposit of the funds and releases in escrow on or before August 5, 1938.”

The letter of August 1, 1938 continued the acceptance date until October 1, 1938.

The option could only be exercised in the manner provided for therein by depositing the cash and releases .in escrow on or before the time specified therein. Sause v. Ward, 7 Oh Ap 446; Wadsworth v. Edwards, 21 Ohio Cir Ct. R., N. S., 401.

Since the cash and releases were not deposited in escrow, the option was never exercised. There never was an acceptance of the offer. There never was any contract. There cquld be no exercise of the option by plaintiff after the option had expired. Longworth v. Mitchell, 26 Oh St 334; Franck v. Seavey Mfg. Co., 21 Oh Ap 369, 153 N. E., 209.

No contract was entered into after October 1, 1938 because all of the subsequent offers were rejected by defendant.

The plaintiff did not come into existence until it was incorporated under the laws of Delaware on April 18, 1940. This was nearly a year and one-half after the option had expired. It was too late then to exercise the option or accept the offer.

The organization of the plaintiff company and its coming into existence did not revitalize the option which had expired. It was too late then to exercise it.

Plaintiff cannot recover here because it failed to prove the existence of a binding contract.

Sec. 2305.06 R. C., required the action to be commenced within 15 years after the cause of action arose.

The option expired on October 1, 1938. More than 15 years has elapsed before the filing of the complaint in the present action.

The fact that a later offer was made by or in behalf of the undisclosed principal and rejected by defendant in 1939 did not toll the Statute of Limitations.

This memorandum is adopted as findings of fact and conclusions of law. An order may be entered rendering judgment in favor of defendant and dismissing the complaint.


author: By BETTMAN, J.

text:
    REESE et, Plaintiffs, v. WALKER, Jr., Defendant.
    Cincinnati Municipal Court, Hamilton County.
    No. 659304.
    Decided March 12, 1958.

      Loyal S. Martin, for plaintiffs.
    Aubrey M. Foiles, for defendant.
   OPINION

By BETTMAN, J.

Plaintiffs in the instant case were prospective buyers who made a written offer to purchase a certain parcel of real estate known as 815 Mann Place, Cincinnati, Ohio.

They brought suit against the real estate agent, Walker, for the return of their $1,000. earnest money deposit on the contract. Walker filed an interpleader, paid the $1,000. into Court, and was dismissed as party defendant.

The owner of the house, Posey, was made a new party defendant and filed an answer and cross petition, alleging damages for plaintiffs" failure to carry out their contract of purchase.

The contract, which was admitted in evidence, is a standard form real estate contract properly executed. The disposition of the case turns on the words “Contingent upon securing necessary financing,” which were part of the typed portion of the contract.-

The evidence showed that the offer which became the contract was procured by the agent, Walker, from plaintiffs. Walker delivered the offer to defendant Posey’s real estate agent, McLeod. (Posey will be hereinafter referred to simply as defendant.) Defendant accepted the offer and executed the contract. Plaintiffs and defendant never saw each other nor did their agents ever discuss the meaning of the criticai words “Contingent upon securing necessary financing.”

Walker testified that as plaintiffs’ agent he had gone to six or seven Building and Loan Associations in an attempt to borrow the funds necessary for plaintiffs to consummate the transaction; that plaintiffs wanted a fiften year loan and were able to put 25% of the purchase price down; that plaintiffs wanted a “3/4%” loan and could not pay a “1%” loan.

A Mr. Berkemeyer, Secretary of the Home Federal Savings and Loan Association testified that plaintiffs had made application to his Association for a loan of $10,800. with interest at 6%, repayable over a fifteen year period; that two weeks later he had informed plaintiffs that the Association would make a loan to them for the amount requested at 6.6% interest, repayable over a twelve year period and that plaintiffs had informed him that “they couldn’t handle that type of loan.”

The facts, then, are quite undisputed: that plaintiffs energetically attempted to secure a loan; that they were able to secure a commitment for the amount they felt they needed but not on terms they felt they could repay. There was no evidence that plaintiffs had changed their minds about the purchase nor that anything had prevented the closing of the transaction except that they were not able to secure a loan on terms they felt they could meet.

The first question that the Court must determine is whether the words in question render the contract so indefinite as to be void. For reasons which will hereinafter appear, the Court concludes that the contract can be interpreted to be a binding and enforceable obligation. The Court, in reaching this conclusion, bears in mind the legal presumption that the parties to a written contract intend that it should be an enforceable obligation.

Counsel agree that the words “Contingent upon securing necessary financing” constitute a condition precedent to proceeding under the terms of the contract. If the condition were met defendant would be entitled to damages for plaintiffs’ refusal to proceed. If not, there would be a failure of condition and plaintiffs would be entitled to the return of their earnest money.

What, therefore, do the words “necessary financing” mean?

A search through West’s Words & Phrases shows that the word “necessary” is used in many different situations. For example in statutes permitting public officials to expend funds “necessary” for public improvement; parental responsibility for a “necessary” furnished his child; “necessary” to carry out its objects, in a corporate charter; and in private contracts. The conclusion which one reaches after a reading of a number of these cases is that “necessary” is not a word with a clear-cut fixed meaning but one which varies in meaning, depending upon the situation in which it is used. As stated in Kay County Excise Board v. Atcheson, T. & S. F. Ry. Co., 185 Okla. 327, 91 Pac. 2d 1087:

. “The word ‘necessary’ has no fixed meaning or character peculiar to itself. It is flexible and relative. It is an adjective expressing degrees, and may express mere convenience or that which is indispensable or an absolute physical necessity. It may mean something which in the accomplishment of a given object cannot be dispensed with, or. it may mean something reasonably useful and proper, and of greater or lesser benefit or convenience, and its force and meaning must be determined with relation to the particular object sought, and is a relative and comparative term, depending upon its application to the object sought, the character of and reasons for the convenience as public or private * *

No case has been cited by counsel where the words “necessary financing” are used. Several have been found however using the word “necessary” as an adjective in private contracts.

In Carter v. Meyers, et al, Tex. Civ. App., 149 S. W. (2d) 248, plaintiff agreed to drill a well to a specified depth with eight-inch casing, “unless excess water is encountered, making it necessary to set extra string of casing other than eight inch,” in which event defendant was to bear the expense of additional casing. Defendant contended that, as a matter of law, smaller casing was not necessary since plaintiff driller could have dispensed with smaller casing by using an, underreaming process. The Court held that, in view of the words of their contract, the parties must have contemplated a contingency requiring a smaller casing and that hence the necessity for- a smaller casing was properly submitted to the jury. The Court said:

«* * * Bu£ we must aiso consider that the parties must have intended that the provision for casing other than the eight inch meant something. They must have contemplated some contingency which would require the smaller casing. * * *

“It is our duty to give effect to every provision of the contract ■ if such can reasonaby be done.”

In Scott et ux, v. Walden, 140 Tex. 31, 165 S. W. (2d) 449, the Court construed a grant of easement which provided: “* * * and it is agreed that the easement thus granted shall continue so long as the same may be necessary and required for ingress and egress to and from the garages and outbuildings.”

The Court said:

“The language of the grant above clearly manifests that the parties intended that the easement should not be perpetual, but that upon the happening of some future contingency same should terminate. That language is not sufficiently specific to enable the court to determine, as a matter of law, by a construction thereof what future contingency was in the minds of the parties. Neither is it so meaningless as that it should be disregarded altogether.”

One concludes, then, that the words “necessary financing,” in the contract here in issue are to be interpreted by the application of the usual rules of contract construction. First, what were these words intended to mean by the parties — that is, what would one reasonably be lead to believe was intended by the words of the contract. Secondly, under the circumstances here before us what do the words mean in their plain, ordinary and popular sense?

In the Court’s judgment the phrase “contingent upon securing necessary financing” would mean to a layman “If we can borrow the money we need to finance the purchase on terms we can repay.” Defendant argues that plaintiffs were able to borrow the amount they needed and therefore did get “necessary financing.” But “financing” in its ordinary meaning connotes more than simply the face amount of a loan. It includes the interest rate, the term, the rate of repayment and other terms and conditions. It means a loan on terms that the borrower can repay. Under the contract as executed only the buyers can determine what financing they need. Having signed the contract without specifying what financing was “necessary financing,” the seller is in no position to complain if the buyers state they needed a loan with payments at a certain rate.

Of course, buyers must show good faith. They cannot defeat the contract by their own fault. They must honestly determine what kind of a loan they need and must make a bona fide effort to obtain it. This, the evidence shows, is what plaintiffs did in the case now before us.

The condition precedent to consummation of the contract having been impossible of fulfillment, the contract is terminated and plaintiffs are entitled to a return of their earnest money deposit as prayed for. Entry may be presented accordingly.