author: By HASTINGS, J.

text:
    PRIEST, Estate of, In re.
    Probate Court, Fairfield County.
    No. 27647.
    Decided July 28, 1958.

      Chas. H. Drinkle, George D. Martin, Lancaster, for Executrix of the Estate of John W. Priest, Deceased.
    Donald C. Miller, Lancaster, for Administrator of the Estate of Leota Priest, Deceased.
   OPINION

By HASTINGS, J.

This matter comes before the Court upon the motion of the Executrix to amend the Inventory and Appraisement herein before filed by striking therefrom the $2,500.00 set off in Schedule F and the $1,800.00 set off in Schedule G, exempt property and years support respectively, because said widow, Leota Priest, did not survive decedent by thirty days, and that decedent’s estate passes as though he had survived her by authority of §2105.21 R. C.

John W. Priest died March 6, 1958. His last Will and Testament was admitted to Probate March 14, 1958, and in it, after providing for payment of debts in Item I and a specific devise to a nephew in Item II, provided for his widow, Leota Priest, in Item III reading in part as follows:

“ITEM III. My wife, Leota Priest, is an invalid and is unable to attend to business affairs. For that reason, I give, bequeath, and devise all the rest of my property, real and personal, wheresoever situated, to our friend, Hazel L. Williamson, of Lancaster, Ohio, IN TRUST for my wife, Leota Priest, for and during her lifetime.” (Above followed by detailed instructions and powers to said Trustee.)
“The entire Trust Estate, including income and principal, shall be available to my wife, Leota Priest, and the Trustee shall have power and authority to pay to my said wife, from time to time, or to make purchases for her needs or for her pleasure from the Trust Estate, such sum or sums as said Trustee may deem necessary or proper to provide for my said wife support, maintenance, medical care, comfort and pleasure in a liberal manner.” (Further instructions to Trustee.)
“Upon the death of my wife, said Trustee shall make arrangements for a suitable burial for her out of my Estate.
“Any property or assets of any kind remaining in my Estate after the death of my wife, Leota Priest, shall be distributed as hereinafter provided.”

Items IV and V provide for distribution of the remainder over to certain nieces and nephews, and Item VI appoints an Administratrix and a Trustee.

Leota Priest died March 24, 1958, surviving her husband by eighteen days.

Following the reasoning and authority cited in Morrison v. Morrison, 159 Oh St 285, this Court finds it has jurisdiction of the subject matter, and while no petition has been filed asking for a declaratory judgment, the motion herein filed sets forth sufficient facts to call for a review of the questions involved and properly invokes the Court’s jurisdiction.

Sec. 2105.21 R. C., as amended effective October 16, 1953, reads:

“When there is no evidence of the order in which the death of two or more persons occurred, no one of such persons shall be presumed to have died first and the estate of each shall pass and descend as though he had survived the other. When the surviving spouse or other heir at law, legatee or devisee dies within thirty days after the death of the decedent, the estate of such first decedent shall pass and descend as though he had survived such surviving spouse, or other heir at law, legatee or devisee. A beneficiary of a testamentary trust shall not be deemed to be a legatee or devisee within the meaning of this section. This section shall prevail over the right of election of a surviving spouse.
“This section shall not apply in the case of wills wherein provision has been made for distribution of property different from the provisions of this section. In such case such provision of the will shall not prevail over the right of election of a surviving spouse.” The parts of said section applying to this case have been emphasized for convenience.

While the first sentence of said statute cannot apply here, Leota Priest, surviving her husband by less than thirty days, clearly comes within the conditions stipulated in the second sentence of said statute.

There were two exceptions added to this section when amended October 16, 1953, setting forth conditions whereby the law as outlined in the second sentence of statute doés not apply:

FIRST: directly following said second sentence and emphasized for convenience “A beneficiary of a testamentary trust shall not be deemed to be a legatee or devisee within the meaning of this section.” and SECOND: the next to the last sentence of said statute: “This section shall not apply in the case of wills wherein provision has been made for distribution of property different from the provisions of this section.” The following cases cited by Executrix: Gilger Estate, 49 O. O. 50; Estate of Thatcher, 30 N. P. N. S. 515; Harrison Adm. v. Hillegas, 13 O. O. 523; and Estate of Kessler, 85 Oh Ap 240; 40 O. O. 167, were all decided before said statute was amended to include said exceptions.

In further support of her motion Executrix cites: Barrick v. Fligle, 103 P. App 507; 4 O. O. 2d 15 and Weir v. Weir, 102 Oh Ap 231; 2 O. O. 2d 245, both decided in January 1957. In each case the Court held that since the Wills in each case did not contain a provision for distribution of property different from the provisions of this section, the beneficiaries involved did not fit into this exception (the second exception above mentioned) and the mandatory provisions outlined in the second sentence of this statute would govern. In neither of these cases did the Will set up a testamentary trust for the beneficiary involved and the Court was not required to rule thereupon with regard to said first exception.

It is quite clear that Leota Priest is the beneficiary of a testamentary trust set up for her in the Will of John W. Priest, and she therefore qualifies under the first exception to the application of §2105.21 R. C. But despite the fact that as a legatee she is excluded, it is contended she comes within the statute because the statute specifically mentions surviving spouse. This might be true if the statute read “surviving spouse, heir at law, legatee or devisee.” But it does not. It reads “surviving spouse or other heir at law,” etc., and the words “surviving spouse” followed by the words “or other heir at law” means the surviving spouse as an heir at law.

17 O. Jur. 2d, Page 346, Sec. 10. “Today the term ‘heir,’ ‘heirs’ or ‘heirs at law’ in its usual, legal, and strict and technical import signifies the person or persons appointed by law under the statute or statutes of descent and distribution to succeed to the estate in case of intestacy, — .”

Sec. 2105.06 R. C. Statutes of descent and distribution in sections A to F inclusive provide distribution of intestate property to “surviving spouse” or “spouse surviving” and child, lineal descendents, etc. all “other heirs at law.”

As used in §2105.21 R. C., the words “surviving spouse and other heirs at law” refer to those taking property by intestate succession and the words “legatee or devisee” refer to those taking property by testate succession, by the terms of a Will.

The exemption provided by §2115.13 R. C., and years support provided by §2117.20 R. C., are not intestate successions, despite the obiter dictum on Page 300 in Bauman v. Hogue, 160 Oh St 296, which was not necessary to the judgment and was not incorporated in the law of the syllabus. If the reasoning of this dictum were followed, the use of the mansion house by the widow, or money in lieu thereof, even perhaps fiduciary and appraisers fees, would be intestate successions, and of course they are not. The exemption and years support are debts and preferred claims, incident to the marriage, as was determined in Raleigh v. Raleigh, 153 Oh St 160; Stetson v. Hoyt, 139 Oh St 345; and Davidson v. M & M, S. & T., 129 Oh St 418.

17 O. Jur. 2d, 453, Sec. 122, Year’s Allowance; Property Exempt from Administration. “Such property or funds are received as payment of a debt, and not by descent.”

Sec. 2115.13 R. C., specifically provides the property selected are not assets in the estate and the money a lien on decedent’s property and §2117.21 R. C., provides the year’s allowance may bear interest until paid.

Sec. 5731.03 R. C., provides that value of support money in excess of Three Thousand Dollars shall be deemed a succession taxable under the inheritance tax law.

Sec. 5731.02 R. C., provides for the levy of a tax upon the succession to any property passing when the succession is by will or the intestate laws, and we can find no report of an Ohio Court wherein the 20% exemption or year’s support under Three Thousand Dollars have been held to be successions and subject to the inheritance tax levy.

Since, in the Will of testator, the clause setting up the trust for the benefit of Leota Priest is a residuary clause, and the exemption and year’s support are not intestate successions, Leota Priest will receive no intestate property from the estate of John W. Priest, and is therefore not a “surviving spouse” as an heir at law which would bring §2105.21 R. C., into effect. She, being the beneficiary of a testamentary trust, is such a legatee or devisee as is exempt from the application of said statute.

Sec. 2105.21 R. C., therefore does not apply to the estate, because it only becomes of force and effect when a person who dies within thirty days of decedent either succeeds to property by intestate succession or to testate property not in the form of a testamentary trust or in a bequest or devise different from the provisions of this section.

We can find no reported case concerning this part of §2105.21 R. C., or a similar law elsewhere. The only reported reference to this exception to the law was in a review of new legislation affecting Probate Law and Procedure, on page 368 of Volume 14, 1953, Ohio State Law Journal, wherein was expressed the same construction of §2105.21 R. C., after its amendment, as hereinabove given. The Estate of Metzger, 140 Oh St 50; 23 O. O. 257, has no application to this case because the widow in that case fell completely within the then terms of §10503-18 GC, and not within a specified amendment thereto, as is our case' under the amended law.

Executrix has emphasized the laudable purpose of this adjudication as pointed out in several of the cases cited construing the statute as originally enacted, in all of which this Court concurs. However, the legislature has seen fit, when this statute was amended, to exclude from the operation thereof of certain beneficiaries wherein the specified conditions bring these persons within the two exceptions. It is the duty of the Courts to apply the law as enacted and not to rewrite it, and it certainly was not the intention of the legislature that one who qualified under an exemption and thereby not excluded from inheriting should lose some other right by a superficial first glance construction of another part of the statute.

Sec. 2105.21 R. C., itself an exception to the general law of inherit.ance, not applying, the Estate of John W. Priest passes and descends by the regular laws of inheritance, as if his widow, Leota Priest, had survived him, as she did. Leota Priest is therefore entitled to the statutory 20% exemption and year’s support as provided by law and executrix’s motion is not well taken and is overruled.


source: Caselaw Access Project

author: By MILLER, J.

license: Public Domain

text:
    SICKLER, Plaintiff-Appellant, v. NEIL HOUSE HOTEL COMPANY, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5725.
    Decided February 4, 1958.
    Buchanan, Peltier & Fuller, Otis C. Buchanan, Roland A. Fuller, Jr., of Counsel, Columbus, for plaintiff-appellant.
    Wright, Harlor, Purpus, Morris & Arnold, Rudolph Janata, Jr., Harry Wright III, of Counsel, Columbus, for defendant-appellee.
   OPINION

By MILLER, J.

This is a law appeal from a judgment of the Common Pleas Court rendered in favor of the defendant upon the verdict of the jury. The bill of exceptions contains only the instructions of the court to the jury; hence, our attention may be directed only to any alleged errors contained therein.

The pleadings disclose that the action was one for damages for an alleged assault upon the plaintiff by an employee of the Neil House Hotel Company who was acting within the scope of his employment.

The petition alleges further that the plaintiff was a guest of the hotel, which was being operated by the defendant; that by reason of the conduct of said employee he received certain personal injuries to his damage.

The answer admits the striking of the plaintiff by the said employee but avers that at the time of the injury the plaintiff was a trespasser upon the defendant’s premises. The answer denies generally all other allegations contained in the petition.

The plaintiff replied to the answer, and denied generally all new matters set forth therein.

The first assignment of error requires a full and complete bill of exceptions in order for us to determine whether or not the court properly withdrew from the jury the plaintiff’s claim for special damages.

Counsel for the appellant next urge that the court erred in charging the jury on the law applicable to invited guests and to trespassers. The status of the plaintiff on the defendant’s premises was definitely an issue and the court properly charged the jury as to the degree of care the defendant owed to the plaintiff in each instance.

The charge to the jury on self defense, it is urged, should not have been given, as the same was not affirmatively pleaded. The answer alleges that the blow was struck because of “great provocation on the part of the plaintiff including the use of a vile name.” We are not informed, because of the incompleteness of the record, as to what the alleged provocation consisted of, and therefore are not able to determine the correctness of this charge. If the evidence disclosed that it consisted of any degree of force, the employee was permitted to use such force as was necessary for his own protection. We do not think that the charge was erroneous, but even if it were it related to only one of the issues in the case and if the court properly charged on any one of the other issues it would not have been prejudicial under the “two-issue” rule, as the verdict was only general. The “two-issue” rule has been defined in 4 O. Jur. 2d, 26 Sec. 831 as follows:

“It is well settled that where the jury returns a general verdict in a case involving two or more issues, a finding upon any one of which in favor of the successful party would entitle him to judgment, if the record does not disclose affirmatively by answers to interrogatories or otherwise upon which issue such verdict was based, the judgment will not be reversed if no error appears as to any one or more of them although there may be error as to other issues. This is known in jurisprudence as the ‘two-issue’ rule and is a rule of policy designed to simplify the work of trial courts and to limit the range of proceedings on review.”

The fourth error assigned relates to the court’s charge on punitive damages, the jury being instructed that it may take into consideration the profane language used by the plaintiff in mitigation of exemplary damages. Counsel for appellant concedes that the charge as given was correct but urges that the court failed to state that the same could not be considered in awarding compensatory damages. Failure to so charge could only be an error of omission and not commission, as the charge was correct to the extent given, not misleading, and no request was made by counsel for appellant that such further instruction be given. See 4 O. Jur. 2d, 240, Sec. 983, and cases cited.

We find no prejudicial error in the record and the judgment will be affirmed.

PETREE, PJ, BRYANT, J, concur.


author: Per CURIAM.

text:
    AARON et, Petitioners, v. COOPER et. COOPER et, v. AARON et.
    United States Supreme Court.
    No. 1 Misc. and No. 1.
    August Special Term, 1958.
    Decided September 12, 1958.
   OPINION

Per CURIAM.

The Court, having fully deliberated upon the oral arguments had on August 28, 1958, as supplemented by the arguments presented on September 11, 1958, and all the briefs on file, is unanimously of the opinion that the judgment of the Court of Appeals for the Eighth Circuit of August 18, 1958, must be affirmed. In view of the imminent commencement of the new school year at the Central High School of Little Rock, Arkansas, we deem it important to make prompt announcement of our judgment affirming the Court of Appeals. The expression of the views supporting our judgment will be prepared and announced in due course.

It is accordingly ordered that the judgment of the Court of Appeals for the Eighth Circuit, dated August 18, 1958, reversing the judgment of the District Court for the Eastern District of Arkansas, dated June 20, 1958, be affirmed, and that the judgments of the District Court for the Eastern District of Arkansas, dated August 28, 1956, and September 3, 1957, enforcing the School Board’s plan for desegregation in compliance with the decision of this Court in Brown v. Board of Education, 347 U. S. 483; 349 U. S. 294, be reinstated. It follows that the order of the Court of Appeals dated August 21, 1958, staying its own mandate is of no further effect.

The judgment of this Court shall be effective immediately, and shall be communicated forthwith to the District Court for the Eastern District of Arkansas.


author: By MR. JUSTICE FRANKFURTER.

text:
    COOPER et, Petitioners, v. AARON et.
    United States Supreme Court.
    No. 1.
    August Special Term, 1958.
    Decided September 29, 1958.
    Opinion of the Court by THE CHIEF JUSTICE, MR. JUSTICE BLACK, MR. JUSTICE FRANKFURTER, MR. JUSTICE DOUGLAS, MR. JUSTICE BURTON, MR. JUSTICE CLARK, MR. JUSTICE HARLAN, MR. JUSTICE BRENNAN, and MR. JUSTICE WHITTAKER.
   OPINION

As this case reaches us it raises questions of the highest importance to the maintenance of our federal system of government. It necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court’s considered interpretation of the United States Constitution. Specifically it involves actions by the Governor and Legislature of Arkansas upon the premise that they are not bound by our holding in Brown v Board of Education, 347 U. S. 483. That holding was that the Fourteenth Amendment forbids States to use their governmental powers to bar children on racial grounds from attending schools where there is state participation through any arrangement, management, funds or property. We are urged to uphold a suspension of the Little Rock School Board’s plan to do away with ¡segregated public schools in Little Rock until state laws and efforts to upset and nullify our holding in Brown v. Board of Education have been further challenged and tested in the courts. We reject these contentions.

The case was argued before us on September 11, 1958. On the following day we unanimously affirmed the judgment of the Court of Appeals for the Eighth Circuit, — F. 2d —, which had reversed a judgment of the District Court for the Eastern District of Arkansas, 163 F. Supp. 13. The District Court had granted the application of the petitioners, the Little Rock School Board and School Superintendent, to suspend for two and one-half years the operation of the School Board’s court-approved desegregation program. In order that the School Board might know, without doubt, its duty in this regard before the opening of school, which had been set for the following Monday, September 15, 1958, we immediately issued the judgment, reserving the expression of our supporting views to a later date. This opinion of all of the members of the Court embodies those views.

The following are the facts and circumstances so far as necessary to show how the legal questions are presented.

On May 17, 1954, this Court decided that enforced racial segregation in the public schools of a State is a denial of the equal protection of the laws enjoined by the Fourteenth Amendment. Brown v. Board of Education, 347 U. S. 483. The Court postponed, pending further argument, formulation of a decree to effectuate this decision. That decree was rendered May 31, 1955. Brown v. Board of Education, 349 U. S. 294. In the formulation of that decree the Court recognized that good faith compliance with the principles declared in Brown might in some situations “call for elimination of a variety of obstacles in making the transition to school systems operated In accordance with the constitutional principles set forth in our May 17, 1954, decision.” The Court went on to state:

“Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.
“While giving weight of these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems.” 349 U. S., at 300-301.

Under such circumstances, the District Courts were directed to require “a prompt and reasonable start toward full compliance,” and to take such action as was necessary to bring about the end of racial segregation in the public schools “with all deliberate speed.” Ibid. Of course, in many locations, obedience to the duty of desegregation would require the immediate general admission of Negro children, otherwise qualified as students for their appropriate classes, at particular schools. On the other hand, a District Court, after analysis of • the relevant factors (which, of course, excludes hostility to racial desegregation), might conclude that justification existed for not requiring the present nonsegregated admission of all qualified Negro children. In such circumstances, however, the courts should scrutinize the program of the school authorities to make sure that they had developed arrangements pointed toward the earliest practicable completion of desegregation, and had taken appropriate steps to put their program into effective operation. It was made plain that delay in any guise in order to deny the constitutional rights of Negro children could not be countenanced, and that only a prompt start, diligently and earnestly pursued, to eliminate racial segregation from the public schools could constitute good faith compliance. State authorities were thus duty bound to devote every effort toward initiating desegregation and bringing about the elimination of racial discrimination in the public school system.

On May 20, 1954, three days after the first Brown opinion, the Little Rock District School Board adopted, and on May 23, 1954, made public, a statement of policy entitled “Supreme Court Decision — Segregation in Public Schools.” In this statement the Board recognized that

“It is our responsibility to comply with Federal Constitutional Requirements and we intend to do so when the Supreme Court of the United States outlines the method to be followed.”

Thereafter the Board undertook studies of the administrative problems confronting the transition to a desegregated public school system at Little Rock. It instructed the Superintendent of Schools to prepare a plan for desegregation, and approved such a plan on May 24, 1955, seven days before the second Brown opinion. The plan provided for desegregation at the senior high school level (grades 10 through 12) as the first stage. Desegregation at the junior high and elementary levels was to follow. It was contemplated that desegregation at the high school level would commence in the fall of 1957, and the expectation was that complete desegregation of the school system would be accomplished by 1963. Following the adoption of this plan, the Superintendent of Schools discussed it with a large number of citizen groups in the city. As a result of these discussions, the Board reached the conclusion that “a large majority of the residents” of Little Rock were of “the belief . . . that the Plan, although objectionable in principle,” from the point of view of those supporting segregated schools, “was still the best for the interests of all pupils in the District.”

Upon challenge by a group of Negro plaintiffs desiring more rapid completion of the desegregation process, the District Court upheld the School Board’s plan, Aaron v. Cooper, 143 F. Supp. 855. The Court of Appeals affirmed. 243 F. 2d 361. Review of that judgment was not sought here.

While the School Board was thus going forward with its preparation for desegregating the Little Rock school system, other state authorities, in contrast, were actively pursuing a program designed to perpetuate in Arkansas the system of racial segregation which this Court had held violated the Fourteenth Amendment. First came, in November 1956, an amendment to the State Constitution flatly commanding the Arkansas General Assembly to oppose “in every Constitutional manner the Unconstitutional desegregation decisions of May 17, 1954 and May 31, 1955 of the United States Supreme Court,” Ark. Const. Amend. 44, and, through the initiative, a pupil assignment law, Ark. Stat. 80-1519 to 80-1524. Pursuant to this state constitutional command, a law relieving school children from compulsory attendance at racially mixed schools, Ark. Stat.' 80-1525, and a law establishing a State Sovereignty Commission, Ark. Stat. 6-801 to 6-824, were enacted by the General Assembly in February 1957.

The School Board and the Superintendent of Schools nevertheless continued with preparations to carry out the first stage of the desegregation program. Nine Negro children were scheduled for admission in September 1957 to Central High School, which has more than two thousand students. Various administrative measures, designed to assure the smooth- transition of this first stage of desegregation, were undertaken.

On September 2, 1957, the day before these Negro students were to enter Central High, the school authorities were met with drastic opposing action on the part of the Governor of Arkansas who dispatched units of the Arkansas National Guard to the Central .High School grounds, and placed the school “off-limits” to colored students. As found by the District Court in subsequent proceedings, the Governor’s action had not been requested by the school authorities, and was entirely unheralded. The findings were these:

“Up to this time [September 2], no crowds had gathered about Central High School and no acts of violence or threats of violence in connection with the carrying out of the plan had occurred. Nevertheless, out of an abundance of caution, the school authorities had frequently conferred with the Mayor and Chief of Police of Little Rock about taking appropriate steps by the Little Rock police to prevent any possible disturbances or acts of violence in connection with the attendance of the 9 colored students at Central High School. The Mayor considered that the Little Rock police force could adequately cope with any incidents which might arise at the opening of school. The Mayor, the Chief of Police, and the school authorities made no request to the Governor or any representative of his for State assistance in maintaining peace and order at Central High School. Neither the Governor nor any other official of the State government consulted with the Little Rock authorities about whether the Little Rock police were prepared to cope with any incidents which might arise at the school, about any need for State assistance in maintaining peace and order, or about stationing the Arkansas National Guard at Central High School.” Aaron v. Cooper, 156 F. Supp. 220, 225.

The Board’s petition for postponement in this proceeding states: “The effect of that action [of the Governor] was to harden the core of opposition to the Plan and cause many persons who theretofore had reluctantly accepted the Plan to believe that there was some power in the State of Arkansas which, when exerted, could nullify the Federal law and permit disobedience of the decree of this [District] Court, and from that date hostility to the Plan was increased and criticism of the officials of the [School] District has become more bitter and unrestrained.” The Governor’s action caused the School Board to request the Negro students on September 2 not to attend the high school “until the legal dilemma was solved.” The next day, September 3, 1957, the Board petitioned the District Court for instructions, and the court, after a hearing, found that the Board’s request of the Negro students to stay away from the high school had been made because of the stationing of the military guards by the state authorities. The court' determined that this was not a reason for departing from the approved plan, and ordered the School Board and Superintendent to proceed with it.

On the morning of the next day, September 4, 1957, the Negro children attempted to enter the high school but, as the District Court later found, units of the Arkansas National Guard “acting pursuant to the Governor’s order, stood shoulder to shoulder at the school grounds and thereby forcibly prevented the 9 Negro students . . . from entering,” as they continued to do every school day during the following three weeks. 156 F. Supp., at 225.

That same day, September 4, 1957, the United States Attorney for the Eastern District of Arkansas was requested by the District Court to begin an immediate investigation in order to fix responsibility for the interference with the orderly implementation of the District Court’s direction to carry out the desegregation program. Three days later, September 7, the District Court denied a petition of the School Board and the Superintendent of Schools for an order temporarily suspending continuance of the program.

Upon completion of the United States Attorney’s investigation, he and the Attorney General of the United States, at the District Court’s request, entered the proceedings and filed a petition on behalf of the United States, as amicus curiae, to enjoin the Governor of Arkansas and officers of the Arkansas National Guard from further attempts to prevent obedience to the court’s order. After hearings on the petition, the District Court found that the School Board’s plan had been obstructed by the Governor through the use of National Guard troops, and granted a preliminary injunction on September 20, 1957, enjoining the Governor and the officers of the Guard from preventing the attendance of Negro children at Central High School, and from otherwise obstructing or interfering with the orders of the court in connection with the plan. 156 F. Supp. 220, affirmed, Faubus v. United States, 254 F. 2d 797. The National Guard was then withdrawn from the school.

The next school day was Monday, September 23, 1957. The Negro children entered the high school that morning under the protection of the Little Rock Police Department and members of the Arkansas State Police. But the officers caused the children to be removed from the school during the morning because they had difficulty controlling a large and demonstrating crowd which had gathered at the high school. 163 F. Supp., at 16. On September 25, however, the President of the United States dispatched federal troops to Central High School and admission of the Negro students to the school was thereby effected. Regular army troops continued at the high school until November 27, 1957. They were then replaced by federalized National Guardsmen who remained throughout the balance of the school year. Eight of the Negro students remained in attendance at the school throughout the school year.

We come now to the aspect of the proceedings presently before us. On February 20, 1958, the School Board and the Superintendent of Schools filed á petition in the District Court seeking a postponement of their program for desegregation. Their position in essence was that because of extreme public hostility, which they stated had been engendered largely by the official attitudes and actions of the Governor and the Legislature, the maintenance of a sound educational program at Central High School, with the Negro students in attendance, would be impossible. The Board therefore proposed that the Negro students already admitted to the school be withdrawn and sent to segregated schools, and that all further steps to carry out the Board’s desegregation program be postponed for a period later suggested by the Board to be two and one-half years.

After a hearing the District Court granted the relief requested by the Board. Among other things the court found that the past year at Central High School had been attended by conditions of “chaos, bedlam, and turmoil”; that there were “repeated incidents of more or less serious violence directed against the Negro students and their property”; that there was “tension and unrest among the school administrators, the class-room teachers, the pupils, and the latters’ parents, which inevitably had an adverse effect upon the educational program”; that a school official was threatened with violence; ' that a “serious financial burden” had been cast on the School District; that the education of the students had suffered “and under existing conditions will continue to suffer”; that the Board would continue to need “military assistance or its equivalent”; that the local police department would not be able “to detail enough men to afford the necessary protection”; and that the situation was “intolerable.” 163 F. Supp., at 20-25.

The District Court’s judgment was dated June 20, 1958. The Negro respondents appealed to the Court of Appeals for the Eighth Circuit and also sought there a stay of the District Court’s judgment. At the same time they filed a petition for certiorari in this Court asking us to review the District Court’s judgment without awaiting the disposition of their appeal to the Court of Appeals, or of their petition to that court for a stay. That we declined to do. 357 U. S. 566. The Court of Appeals did not act on the petition for a stay but on August 18, 1958, after convening in special session on August 4 and hearing the appeal, reversed the District Court, — F. 2d —. On August 21, 1958, the Court of Appeals stayed its mandate to permit the School Board to petition this Court for certiorari. Pending the filing of the School Board’s petition for certiorari, the Negro respondents, on August 23, 1958, applied to MR. JUSTICE WHITTAKER, as Circuit Justice for the Eighth Circuit, to stay the order of the Court of Appeals withholding its own mandate and also to stay the District Court’s judgment. In view of the nature of the motions, he referred them to the entire Court. Recognizing the vital importance of a decision of the issues in time to permit arrangements to be made for the 1958-1959 school year, see Aaron v. Cooper, 357 U. S. 566, 567, we convened in Special Term on August 28, 1958, and heard oral argument on the respondent’s motions, and also argument of the Solicitor General who, by invitation, appeared for the United States as amicus curiae, and asserted that the Court of Appeals’ judgment was clearly correct on the merits, and urged that we vacate its stay forthwith. Finding that respondents’ application necessarily involved consideration of the merits of the litigation, we entered an order which deferred decision upon the motions pending the disposition of the School Board’s petition for certiorari, and fixed September 8, 1958, as the day on or before which such petition might be filed, and September 11, 1958, for oral argument upon the petition. The petition for certiorari, duly filed, was granted in open Court on September 11, 1958, — U. S. —, and further arguments were had, the Solicitor General again urging the correctness of the judgment of the Court of Appeals. On September 12, 1958, as already mentioned, we unanimously affirmed the judgment of the Court of Appeals in the per curiam opinion set forth in the margin at the outset of this opinion.

In affirming the judgment of the Court of Appeals which reversed the District Court we have accepted without reservation the position of the School Board, the Superintendent of Schools, and their counsel that they displayed entire good faith in the conduct of these proceedings and in dealing with the unfortunate and distressing sequences of events which has been outlined. We likewise have accepted the findings of the District Court as to the conditions at Central High School during the 1957-1958 school year, and also the findings that the educational progress of all the students, white and colored, of that school has suffered and will continue to suffer if the conditions which prevailed last year are permitted to continue.

The significance of these findings, however, is to be considered in light of the fact, indisputably revealed by the record before us, that the conditions they depict are directly traceable to the actions of legislators and executive officials of the State of Arkansas, taken in their official capacities, which reflect their own determination to resist this Court’s decision in the Brown case and which have brought about violent resistance to that decision in Arkansas. In its petition for certiorari filed in this Court, the School Board itself describes the situation in this language: “The legislative, executive, and judicial departments of the state government opposed the desegrégation of Little Rock schools by enacting laws, calling out troops, making statements villifying federal law and federal courts, and failing to utilize state law enforcement agencies and judicial processes to maintain public peace.”

One may well sympathize with the position of the Board in the face of the frustrating conditions which have confronted it, but, regardless of the Board’s good faith, the actions of the other state agencies responsible for those conditions compel us to reject the Board’s legal position. Had Central High School been under the direct management of the State itself, it could hardly be suggested that those immediately in charge of the school should be heard to assert their own good faith as a legal excuse for delay in implementing the constitutional rights of these respondents, when vindication of those rights was rendered difficult or impossible by the actions of other state officials. The situation here is in no different posture because the members of the School Board and the Superintendent of Schools are local officials; from the point of view of the Fourteenth Amendment, they stand in this litigation as the agents of the State.

The constitutional rights of respondents are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and Legislature. As this Court said some 41 years ago in a unanimous opinion in a case involving another aspect of racial segregation: “It is urged that this proposed segrégation will promote the public peace by preventing race conflicts. Desirable as this is, and important as is the preservation of the public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the Federal Constitution.” Buchanan v. Warley, 245 U. S. 60, 81. Thus law and order are not here to be preserved by depriving the Negro children of their constitutional rights. The record before us clearly establishes that the growth of the Board’s difficulties to a magnitude beyond its unaided power to control is the product of state action. Those difficulties, as counsel for the Board forthrightly conceded on the oral argument in this Court, can also be brought under control by state action.

The controlling legal principles are plain. The command of the Fourteenth Amendment is that no “State” shall deny to any person within its jurisdiction the equal protection of the laws. “A State acts by its legislative, its executive, or its j-udicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government . . . denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State’s power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning.” Ex parte Virginia, 100 U. S. 339, 347. Thus the prohibitions of the Fourteenth Amendment extend to all action of the State denying equal protection of the laws; whatever the agency of the State taking the action, see Virginia v. Rives, 100 U. S. 313; Pennsylvania v. Board of Directors of City Trusts of Philadelphia, 353 U. S. 230; Shelley v. Kramer, 334 U. S. 1; or whatever the guise in which it is taken, see Derrington v. Plummer. 240 F. 2d 922; Department of Conservation and Development v. Tate, 231 F. 2d 615. In short, the constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation whether attempted “ingeniously or ingenuously.” Smith v. Texas, 311 U. S. 128, 132.

What has been said, in the light of the facts developed, is enough to dispose of the case. However, we should answer the premise of the actions of the Governor and Legislature that they are not bound by our holding in the Brown case. It is necessary only to recall some basic constitutional propositions which are settled doctrine.

Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, ¶3 “to support this Constitution.” Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers’ “anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State. . . .” Ableman v. Booth. 21 How. 506, 524.

No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . .” United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, “it is manifest that the flat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . .” Sterling v. Constantin, 287 U. S. 378, 397-398.

It is, of course, quite true that the responsibility for public education is primarily the concern of the States, but it is equally true that such responsibilities, like all other state activity, must be exercised consistently with federal constitutional requirements as they apply to state action. The Constitution created a government dedicated to equal justice under law. The Fourteenth Amendment embodied and emphasized that ideal. State support of segregated schools through any arrangement, management, funds, or property cannot be squared with the Amendment’s command that no State shall deny to any person within its jurisdiction the equal protection of the laws. The right of a student not to be segregated on racial grounds in schools so maintained is indeed so fundamental and pervasive that it is embraced in the concept of due process of law. Bolling v. Sharpe, 347 U. S. 497. The basic decision in Brown was unanimously reached by this Court only after the case had been briefed and twice argued and the issues had been given the most serious consideration. Since the first Brown opinion three new Justices have come to the Court. They are at one with the Justices still on the Court who participated in that basic decision as to its correctness, and that decision is now unanimously reaffirmed. The principles announced in that decision and the obedience of the States to them, according to the command of the Constitution, are indispensable for the protection of the freedoms guaranteed by our fundamental charter for all of us. Our constitutional ideal of equal justice under law is thus made a living truth.

Decided October 6, 1958.

COOPER et, Petitioners, v. AARON et.

United States Supreme Court.

No. 1. — August Special Term, 1958.

CONCURRING OPINION

By MR. JUSTICE FRANKFURTER.

While unreservedly participating with my brethren in our joint opinion, I deem it appropriate also to deal individually with the great issue here at stake.

By working together, by sharing in a common effort, men of different minds and tempers, even if they do not reach agreement, acquire understanding and thereby tolerance of their differences. This process was under way in Little Rock. The detailed plan formulated by the Little Rock School Board, in the light of local circumstances, had been approved by the United States District Court in Arkansas as satisfying the requirements of this Court’s decree in Brown v. Board of Education, 349 U. S. 294. The Little Rock School Board had embarked on an educational effort “to obtain public acceptance of its plan.” Thus the process of the community’s accommodation to new demands, of law upon it, the development of habits of acceptance of the right of colored children to the equal protection of the laws guaranteed by the Constitution, had peacefully and promisingly begun. The condition in Little Rock before this process was forcibly impeded by those in control of the government of Arkansas was thus described by the District Court, and these findings of fact have not been controverted:

“14. Up to this time, no crowds had gathered about Central High School and no acts of violence or threats of violence in connection with the carrying out of the plan had occurred. Nevertheless, out of an abundance of caution, the school authorities had frequently conferred with the Mayor and Chief of Police of Little Rock about taking appropriate steps by the Little Rock police to prevent any possible disturbances or acts of violence in connection with the attendance of the 9 colored students at Central High School. The Mayor considered that the Little Rock police force could adequately cope with any incidents which might arise at the opening of school. The Mayor, the Chief of Police, and the school authorities made no request to the Governor or any representative of his for State assistance in maintaining peace and order at Central High School. Neither the Governor nor any other official of the State government consulted with the Little Rock authorities about whether the Little Rock police were prepared to cope with any .incidents which might arise at the school, about any need for State assistance in maintaining peace and order, or about stationing the Arkansas National Guard at Central High School.” (156 F. Supp. 220, 225.)

All this was disrupted by the introduction of the state militia and by other obstructive measures taken by the State. The illegality of these interferences with the constitutional right of Negro children qualified to enter the Central High School is unaffected by whatever action or non-action the Federal Government had seen fit to take. Nor is it neutralized by the undoubted good faith of the Little Rock School Board in endeavoring to discharge its constitutional duty.

The use of force to further obedience to law is in any event a last resort and one not congenial to the spirit of our Nation. But the tragic aspect of this disruptive tactic was that the power of the State was used not to sustain -law but as an instrument for thwarting law. The State of Arkansas is thus responsible for disabling one of its subordinate agencies, the Little Rock School Board, from peacefully carrying out the Board’s and the State’s constitutional duty. Accordingly, while Arkansas is not a formal party in these proceedings and a decree cannot go against the State, it is legally and morally before the Court.

We are now asked to hold that the illegal, forcible interference by the State of Arkansas with the continuance of what the Constitution commands, and the consequences in disorder that it entrained, should be recognized as justification for undoing what the Board of Education had formulated, what the District Court in 1955 had directed to be carried out, and what was in process of obedience. No explanation that may be offered in support of such a request can obscure the inescapable meaning that law should bow to force. To yield to such a claim would be to enthrone official lawlessness and lawlessness if not checked is the precursor of anarchy. On the few tragic occasions in the history of the Nation, North and South, when law was forcibly resisted or systematically evaded, it has signalled the breakdown of .constitutional processes of government on which ultimately rest the liberties of all. Violent resistance to law cannot be made a legal reason for its suspension without loosening the fabric of our society. What could this mean but to acknowledge that disorder under the aegis of a State has moral superiority over the law of the Constitution. For those in authority thus to defy the law of the land is profoundly subversive not only of our constitutional system but of the presuppositions of a democratic society. The State “must . . . yield to an authority that is paramount to the State.” This language of command to a State is Mr. Justice Holmes’s, speaking for the Court that comprised Mr. Justice Van Devanter, Mr. Justice McReynolds, Mr. Justice Brandeis, Mr. Justice Sutherland, Mr. Justice Butler, Mr. Justice Stone. (Wisconsin v. Illinois, 281 U. S. 179, 197.)

When defiance of law, judicially pronounced, was last sought to be justified before this Court, views were expressed which are now especially relevant.

“The historic phrase ‘a government of laws and not of men’ epitomizes the distinguishing character of our political society. When John Adams put that phrase into the Massachusetts Declaration of Rights he was not indulging in a rhetorical flourish. He was expressing the aim of those who, with him, framed the Declaration of Independence and founded the Republic. ‘A government of laws and not of men’ was the rejection in positive terms of rule by fiat, whether by the fiat of governmental or private power. Every act of government may by challenged by an appeal to law, as finally pronounced by this Court. Even this Court has the last say only for a time. Being composed of fallible men, it may err. But revision of its errors must be by orderly process of law. The Court may be asked to reconsider its decisions, and this has been done successfuly again and again throughout our history. Or, what this Court has deemed its duty to decide may be changed by legislation, as it often has been, and, on occasion, by constitutional amendment.
“But from their own experience and their deep reading in history, the Founders knew that Law alone saves a society from being rent by internecine strife or ruled by mere brute power however disguised. ‘Civilization involves subjection of force to reason, and the agency of this subjection is law.’ (Pound, The Future of Law (1937) 47 Yale L. J. 1, 13.) The conception of a government by laws dominated the thoughts of those who founded this Nation and designed its Constitution, although they knew as well as the belittlers of the conception that laws have to be made, interpreted and enforced by men. To that end, they set apart a body of men, who were to be the depositories of law, who by their disciplined training and character and by withdrawal from the usual temptations of private interest may reasonably be expected to be ‘as free, impartial, and independent as the lot of humanity will admit.’ So strongly were the framers of the Constitution bent on securing a reign of law that they endowed the judicial office with extraordinary safeguards and prestige. No one, no matter how exalted his public office or how righteous his private motive, can be judge in his own case. That is what courts are for.” United States v. United Mine Workers, 330 U. S. 258, 307-309.

The duty to abstain from resistance to “the supreme Law of the Land,” U. S. Const., Art. VI, §2, as declared by the organ of our Government for ascertaining it, does not require immediate approval of it nor does it deny the right of dissent. Criticism need not be stilled. Active obstruction or defiance is barred. Our kind of society cannot endure if the controlling authority of the Law as derived from the Constitution is not to be the tribunal specially charged with the duty of ascertaining and declaring what is “the supreme Law of the Land.” (See President Andrew Jackson’s Message to Congress of January. 16, 1833, 2 Richardson, Messages and Papers of the Presidents, 610, 623.) Particularly is this so where the declaration of what “the supreme Law” commands on an underlying moral issue is not the dubious pronouncement of a gravely divided Court but is the unanimous conclusion of a long-matured deliberative process. The Constitution is not the formulation of the merely personal views of the members of this Court, nor can its authority be reduced to the claim that state officials are its controlling interpreters. Local customs, however hardened by time, are not decreed in heaven. Habits and feelings they engender may be counteracted and moderated. Experience attests that such local habits and feelings will wield, gradually though this be, to law and education. And educational influences are exerted not only by explicit teaching. They vigorously flow from the fruitful exercise of the responsibility of those charged with political official power and from the almost unconsciously transforming actualities of living under law.

The process of ending unconstitutional exclusion of pupils from the common school system — “common” meaning shared alike — solely because of color is no doubt not an easy, overnight task in a few States where a drastic alteration in the ways of communities is involved. Deep emotions have, no doubt, been stirred. They will not be calmed by letting violence loose — violence and defiance employed and encouraged by those upon whom the duty of law observance should have the strongest claim — nor by submitting to it under whatever guise employed. Only the constructive use of time will achieve what an advanced civilization demands and the Constitution confirms.

For carrying out the decision that color alone cannot bar a child from a public school, this Court has recognized the diversity of circumstances in local school situations. But is it a reasonable hope that the necessary endeavors for such adjustment will be furthered, that racial frictions will be ameliorated, by a reversal of the process and interrupting effective measures toward the necessary goal? The progress that has been made in respecting the constitutional rights of the Negro children, according to the graduated plan sanctioned by the two lower courts, would have to be retraced, perhaps with even greater difficulty because of deference to forcible resistance. It would have to be retraced against the seemingly vindicated feeling of those who actively sought to block that progress. Is there not the strongest reason for concluding that to accede to the Board’s request, on the basis of the circumstances that gave rise to it, for a suspension of the Board’s non-segregation plan, would be but the beginning of a series of delays calculated to nullify this Court’s adamant decisions in the Brown case that the Constitution precludes compulsory segregation based on color in state-supported schools?

That the responsibility of those who exercise power in a democratic government is not to reflect inflamed public feeling but to help form its understanding, is especially true when they are confronted with a problem like a racially discriminating public school system. This is the lesson to be drawn from the heartening experience in ending enforced racial segregation in the public schools in cities with a Negro population of large proportion. Compliance with decisions of this Court, as the constitutional organ of the supreme Law of the Land, has often, throughout our history, depended on active support by state and local authorities. It presupposes such support. To withhold it, and indeed to use political power to try to paralyze the supreme Law, precludes the maintenance of our federal system as we have known and cherished it for one hundred and seventy years.

Lincoln’s appeal to “the better angels of our nature” failed to avert a fratricidial war. But the compassionate wisdom of Lincoln’s First and Second Inaugurals bequeathed to the Union, cemented with blood, a moral heritage which, when drawn upon in times of stress and strife, is sure to find specific ways and means to surmount difficulties that may appear to be insurmountable.

      The following was the Court’s per curiam opinion:
      The Court, having fully deliberated upon the oral arguments had on August 28, 1958, as supplemented by the arguments presented on September 11, 1958, and all the briefs on file, is unanimously of the opinion that the judgment of the Court of Appeals for the Eighth Circuit of August 18, 1958, must be affirmed. In view of the imminent commencement of the new school year at the Central High School of Little Rock, Arkansas, we deem it important to make prompt announcement of our judgment affirming the Court of Appeals. The expression of the views supporting our judgment will be prepared and announced in due course.
      It is accordingly ordered that the judgment of the Court of Appeals for the Eighth Circuit, dated August 18, 1958, reversing the judgment of the District Court for the Eastern District of Arkansas, dated June 20, 1958, be affirmed, and that the judgments of the District Court for the Eastern District of Arkansas, dated August 28, 1956, and September 3, 1957, enforcing the School Board’s plan for desegregation in compliance with the decision of this Court in Brown v. Board of Education, 347 U. S. 483; 349 U. S. 294, be reinstated. It follows that the order of the Court of Appeals dated August 21, 1958, staying its own mandate is of no further effect.
      The judgment of this Court shall be effective immediately, and shall be communicated forthwith to the District Court for the Eastern District of Arkansas.


author: By THE COURT.

text:
    COLUMBUS (City), Plaintiff-Appellee, v. MOSCO REALTY COMPANY, Defendant-Appellee, and COLUMBUS (City), Trustee, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5707.
    Decided May 6, 1958.
    Russell Leach, City Atty., Columbus, for plaintiff-appellee.
    John J. Chester Jr., Robert P. Duncan, Columbus, for defendant-appellee, Mosco Realty Company.
    John W. E. Bowen, Alba L. Whiteside, Asst. City Attys., Columbus, for City of Columbus, et al., Trustee, defendant-appellant.
   OPINION

By THE COURT.

Submitted on motion of the Mosco Realty Company, defendant-appellee, seeking an order dismissing the appeal on law and fact for the alleged reason that it is not so appealable. The appeal is prosecuted under §719.15 R. C., which permits adverse claimants to a fund awarded in an appropriation proceeding to interplead and for the court to fully determine their rights in the same proceeding as that in which the appropriation and award were made. In the case of Columbus v. Huntington National Bank, etc., 75 Abs 214, this court held such an appeal may be had on law and fact under §2501.02 R. C.

For the reasons set forth in the above cited case the motion to dismiss will be overruled.

We note that appellant has filed an application for the appointment of a master commissioner to take testimony under the provisions of Rule V of this court since no transcript of the evidence taken before the Court of Common Pleas is available and counsel are unable to agree upon the evidence to be submitted.

The application will be allowed and Armstrong & Okey, Official Court Reporters, will be appointed for the purpose of taking such oral testimony and file the same with this court.

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


author: By LEIS, J.:

text:
    AMERICAN STATES INS. CO., a Corporation, Plaintiff, v. OK TRUCKING COMPANY, and ATOMIC DISTRIBUTING COMPANY, Defendants. SAVAGE, Plaintiff, v. OK TRUCKING COMPANY, and ATOMIC DISTRIBUTING COMPANY, Defendants. RICE, Plaintiff, v. OK TRUCKING COMPANY, and ATOMIC DISTRIBUTING COMPANY, Defendants.
    Common Pleas Court, Hamilton County.
    Nos. A-161210, A-161211, A-161212, A-161213.
    Decided January 28, 1958.

      Lindhorst & Dreidame, for plaintiffs.
    Rendigs, Fry & Kiely, By William H. Hutcherson, Jr., for Atomic Distributing Company.
   OPINION

By LEIS, J.:

These four cases are before the Court on an identical question of law, and arise out of the same alleged motor vehicle collision which occurred near the intersection of Ohio Route 247 and U. S. Route 52 in Adams County, Ohio.

The common defendants are alleged to be joint and concurrent tortfeasors through the negligence of their agents and servants in the operation of their tractor-trailers on the highway.

Plaintiffs are respectively the driver of a 1955 Ford automobile (A-161213), the wife of the driver and passenger in the automobile (A-161212), a rider in the automobile (A-161211), and the Insurance Company which has been subrogated to the driver’s claim for damage to the automobile (A-161210).

Defendant, The OK Trucking Company, is an Ohio corporation, having an agent in Cincinnati, Hamilton County, Ohio; the co-defendant, Atomic Distributing Company, is a West Virginia corporation.

The actions were brought in Hamilton County where service of process was upon defendant, OK Trucking Company, by leaving copies of the summons at the corporation’s usual place of business and in the hands of John R. Nordmeyer, Secretary of the corporation.

Summons was issued to the sheriff of Franklin County, Ohio, for service upon the Secretary of State, as agent for the defendant, Atomic Distributing Company (§2703.20 R. C.). A study of the papers of the four cases reveals that a copy of this summons was received by registered mail on November 2, 1957, by the Atomic Distributing Company through one Bill Elder.

Defendant, Atomic Distributing Company seeks to quash this service of summons on the ground that the Court has no jurisdiction over the defendant, there being improper venue.

Defendant’s motion goes directly to the heart of the Court’s jurisdiction; for if no jurisdiction in these in personam actions has attached, the Court is without authority to proceed. It is elementary that any judgments rendered by a court without the authority to hear and dispose of the case, and give proper relief,-are absolutely void. The issue before the Court, therefore, is, does a motion to quash service of. summons lie; that is, does this court have authority to hear and determine these causes as they pertain to defendant, Atomic Distributing Company.

The Court will first dispose of defendant’s contention that the only proper venue in these cases against Atomic Distributing Company is in Adams County, the county where the collision occurred. The provisions of §2307.38 and §2307.39 R. C., have no force where a specific statute authorizes commencement of an action in a certain county under certain conditions.

As will be seen below, an action may be commenced against one defendant, and be effective to obtain jurisdiction over a co-defendant in another county if the action is rightly brought as to that first defendant.

Attention is also invited to §4515.01 R. C., which states that “actions for injury * * * caused by negligence * * * of * * * operator of a motor vehicle, may be brought * * * in the county in which such injury occurred.” The word “may” is permissive and does not impose a mandatory obligation upon a plaintiff to bring his action in the county where the injury occurred. (Emphasis added.)

The Court feels that an analysis of the pertinent statutes reveals the standing of the motion to quash. It should be borne in mind that the words “venue” and “service” have different meaning; however, before jurisdiction of the court attaches both venue and service must be proper.

“Venue” is simply the geographic division where a cause shall be tried, the forum of trial; “service” means the serving of the summons on the defendant, and is either personal or constructive. These being in personam actions, personal service is required.

The first statute the Court will discuss is §2703.04 R. C., which is both a venue and a service statute. Sec. 2703.04 R. C., states that:

“When the action is rightly brought in any county, according to §§2307.32 to §2307.40, inclusive, R. C., a summons may be issued to any other county against one or more of the defendants at the plaintiff’s request * * (Emphasis added.) *

From this statute it must therefore be determined whether the action was rightly brought according to §§2307.32-2307.40 R. C.

To obtain the answer to this question, we turn to those sections; more specifically, §2307.36 R. C., Venue in Actions Against Corporations:

“An action * * * against a corporation created under the laws of this state, may be brought in the county in which such corporation is situated; or has or had its principal office or place of business, or in which such corporation has an office or agent, or in any county in which a summons may be served upon the president, chairman, or president of the board of directors or trustees or other chief officer * * *.”

As indicated in the fifth paragraph of this Opinion, service of summons was served on the Secretary of the defendant corporation, OK Trucking Company, m Hamilton County. The Court concludes, therefore, that the action was rightly brought in Hamilton County by virtue of plaintiffs’ compliance with the requirements of §2307.36 R. C.

Having fence rightly brought this action, the plaintiffs, under §2703.04 R. C., may cause to be issued summons to any other county against the co-defendant, Atomic Distributing Company. This, plaintiffs did in these cases. Summons was issued to the sheriff of Franklin County. The Atomic Distributing Company is not in Franklin County, but, by virtue of §2703.20. R. C., it has an agent there for the service of process in such a case arising out of a collision involving a motor vehicle within this state. The pertinent statute is §2703.20 R. C., “Service of process upon non-resident owners or operators of motor vehicles”:

“Any nonresident of this state, being the operator or owner of any motor vehicle, who accepts the privilege extended by the laws of this state to nonresident operators and owners of operating a motor vehicle or of having the same operated, within this state, or any resident of this state, being the licensed operator or owner of any motor vehicle under the laws of this state, who subsequently becomes a nonresident or conceals his whereabouts, by such acceptance or licensure and by the operation of such motor vehicle within this state makes the secretary of state of the state of Ohio his agent for the service of process in any civil suit or proceeding instituted in the courts of this state against such operator or owner of such motor vehicle, arising out of, or by reason of, any accident or collision occurring within this state in which such motor vehicle is involved.
“Such process shall be served by the officer to whom the same is directed, or by the sheriff of Franklin County, who may be deputized for such purposes by the officer to whom the service is directed, upon the secretary of state by leaving at the office of the secretary of state, at least fifteen days before the return day of such process, a true and attested copy thereof, and by sending to the defendant by registered mail, postage prepaid, a like true and attested copy, with an indorsement thereon of the service upon said secretary of state, addressed to such defendant at his last known address. The registered mail return of such defendant shall be attached to and made a part of the return of service of such process.” «

The effect of §2703.20 R. C., is that any nonresident who accepts the privileges of the state highways automatically appoints the Secretary of State his agent for the service of process in any civil action in this state arising out of a collision involving motor vehicles. Such statutes are now common throughout the states. While personal service in personam actions is required, the Supreme Court of the United States has held that this creation of an agency fiction is sufficient to support a valid in personam judgment and does not violate the constitutional requirement of due process of law.

The Supreme Court of the United States in Hess v. Pawloski, 274 U. S. 352, 47 S. Ct. 632, cited the character of the motor vehicle and the dangers attendant thereto. Hess v. Pawloski was the first constitutional test of this type statute, and involved a Massachusetts statute similar to that of Ohio’s. In upholding the validity of this statute, the Supreme Court of the United States did not disturb the doctrine of Pennoyer v. Neff, 95 U. S. 714, that notice sent outside the state to a non-resident is unavailing to give jurisdiction in an action against him personally for money recovery; however, the Court, considering the use of the automobile, had this to say:

“In the public interest the state may make and enforce regulations reasonably calculated to promote care on the part of all residents and nonresidents alike, who use its highways. The measure in question operates to require a nonresident to answer for his conduct in the state where arise causes of action alleged against him, as well as to provide for a claimant a convenient method by which he may sue to enforce his rights. * * % It makes no hostile discrimination against nonresidents, but tends to put them on the same footing as residents. * * * The state’s power to regulate the use of its highways extends to their use by nonresidents as well as by residents.

The validity of such statutes is now unquestioned. The Atomic Distributing Company is within the orbit of this statute, as a corporation is a nonresident under this statute. See 125 A. L. R. 451, citing Jones v. Pebler, 371 Ill. 309, 20 N. E. (2d) 592:

“2. The word ‘nonresident’ as used in a statute providing that the use and operation by a nonresident of a motor vehicle within the state shall be deemed an appointment by him of the secretary of state as his attorney to receive service of process is not limited to natural persons, but includes every nonresident, individual or corporate, owner or nonowner, using and operating a motor vehicle within the state.”

A corporation, being an artificial entity, can act only through its agents. v

The trend since the advent of the automobile has been to make nonresidents amenable to service of. process within the state where the injury occurred. Defendant, Atomic Distributing Company, through its agents, used the Ohio highways and the Court believes that the legislature intended §2703.20 R. C., to cover this situation. It might be stated that in adopting §2703.20 R. C., the Ohio Legislature in effect said: “He who would use our highways, must abide by our conditions for the use of these highways.”

The Court believes that it was the intent of the Legislature to include “corporations” in the term “nonresident.” (37 O. Jur. 480.)

In summary, the Court concludes that:

1. The action against OK Trucking Company was rightly brought in Hamilton County. (Secs. 2703.04, 2307.36 R. C.)

2. Summons was properly issued to the sheriff of Franklin County for service on the co-defendant, Atomic Distributing Company, as Atomic Distributing Company had an agent in Franklin County for the purpose of service of summons. (Secs. 2703.04, 2703.20 R. C.)

3. The sheriff of Franklin County properly served the Secretary of State who is the agent for Atomic Distributing Company. (Sec. 2703.20 R. C.)

4. Service on the agent, coupled with forwarding of the summons by registered mail to the nonresident is valid personal service. (274 U. S. 352.)

5. A foreign corporation is within the scope of the term “nonresident” as used in §2703.20 R. C.

Defendant, Atomic Distributing Company’s motion to quash is therefore overruled.

Please present your entry accordingly.


text:
    DeVICTOR, Plaintiff-Appellant, v. PREFERRED INSURANCE COMPANY, Grand Rapids, Michigan, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5875.
    Decided May 6, 1958.
    Buchanan, Peltier & Fuller, Otis C. Buchanan, of Counsel, Columbus, for plaintiff-appellant.
    Wiles, Doucher, Tressler & Koons, Arthur W. Wiles, of Counsel, Columbus, for defendant-appellee.
   OPINION

By MILLER, J.

This is a law appeal from a judgment of the Common Pleas Court rendered upon the verdict of a jury returned at the close of defendant’s case, upon the sustaining of defendant’s motion for an instructed verdict.

The record reveals that the plaintiff, Herman DeVictor, was the owner of a 1947 Buick automobile which was or had been insured under the provisions of a certain policy issued by the Preferred Insurance Company, the defendant herein. The coverage clause contained the following provision:

“DEFENSE OF SUIT. To defend in the name and on behalf of the assured, but with its attorneys, any suit brought against such assured to enforce a claim arising from the ownership or operation of the vehicle described herein, whether groundless or not and whether or not covered by this policy.”

The exclusion clause under which the defendant claimed no liability to defend, provided:

“CONCEALMENT, FRAUD. This entire policy shall be void if, whether before or after a loss, the assured has wilfully concealed or misrepresented any material fact or circumstance concerning this insurance, or the subject thereof, or if the assured or his agent shall defraud or make any attempt to defraud the insurer, * * * or if possession and control of the insured vehicle shall be delivered to any person by gift, sale or under a contract or agreement to sell.”

The record reveals further that DeVictor was sued for damages arising out of a collision in which the said Buick automobile was involved. A request was made for the insurance company to defend him under' the terms of the policy, which request was denied. Thereupon the plaintiff was required to employ counsel to conduct his defense, and the plaintiff is now attempting to recover the money he was required to expend in defending the action, as well as for damages to the Buick incurred in the collision.

The trial court found, and we think properly so, that prior to the time of the collision the plaintiff had delivered possession and control of the Buick automobile to one Jerry L. Nace by sale and/or under an agreement to sell, and who was in possession and control of the same at the time of the collision. It is undenied that the title to the Buick was still in the plaintiff who therefore was the owner of the same. Brewer v. DeCant, 167 Oh St 411. The question, therefore, presented is whether the policy became void under the exclusion clause because of the plaintiff’s surrender of possession and control of the said automobile under the agreement to sell. The plaintiff urges that under the terms of the coverage clause cited the defendant was required to defend the suit, whether groundless or not, and whether or not covered by the policy. Clearly, the plaintiff is right in its contention unless the policy was cancelled under the provisions of the exclusion clause, to wit, “This entire policy shall be void * * * if possession and control of the insured vehicle shall be delivered to any person * * * under a contract or agreement to sell.” (Emphasis ours.)

In the absence of legislation, the law seems to be well established that the terms of the policy shall govern as to its cancellation or termination. In Gibbons v. Kelly, 156 Oh S.t 163, paragraph 2 of the syllabus provides:

“In the absence of legislation the rights of the parties on cancellation of an insurance policy pursuant to its terms are as fixed by the contraer as set forth in the policy.”

H is our conclusion that under the above cited provisions of the policy the same became null and void upon the plaintiff’s severance of possession and control of the automobile under the terms of the agreement to sell to Jerry Mace. The evidence relating to the agreement to sell, which was adverse to the plaintiff, was such that reasonable minds could come to but one conclusion, and therefore no jury question was presented and it became one of law only. Hamden Lodge v. The Ohio Fuel Gas Company, 127 Oh St 469.

We find no prejudicial error in the record and the judgment will be affirmed.

PETREE, PJ, BRYANT, J, concur.


author: By THE COURT:

text:
    FRANCIS, Guardianship, In re.
    Ohio Appeals, Second District, Montgomery County.
    No. 2349.
    Decided November 30, 1956.
    Dow, Lohnes & Albertson, Washington, D. C., Curtner, Brenton & O’Hara, Dayton, By Clifford R. Curtner, of Counsel, for appellant.
    W. L. Metzger, Chief Atty., D. F. Liebman, Atty., Veterans’ Administration, Cincinnati, for appellee.
   OPINION

By THE COURT:

After the appeal on the merits had been briefed, and while the oral presentation of counsel of the parties was in progress, it was suggested that a motion of appellee filed in the case had not been brought to our attention. The motion is to dismiss the appeal and must first be considered. It is based on the claim that, as the appeal is prosecuted by the guardian in her representative capacity and is from a judgment favorable to the estate of the minor whom she represents, the estate has not been aggrieved and the appeal should not be entertained in this Court.

Appellant concedes that the party appealing must present a cause which, if established, affects a substantial right of the appellant but insists that, as the costs in the purported appeal in the common pleas court were assessed against the appellant, a different holding in this Court will compel the appellee to pay them. This is true, but' the costs are minor as compared to the pecuniary loss to the estate of the minor if the guardian sustains her contention here. The several other arguments advanced by the appellant do not, in our opinion, overcome the strength of appellee’s position on the motion. The over-all effect of the appeal, if the claim of appellants is maintained in this Court, will result in substantial reduction in the assets of the estate of the minor and could not be favorable, in effect, to the appellant.

The appeal is based on the right of her counsel to be paid fees for representing the estate and is for their personal benefit. They have substantial equities upon the facts developed and whether or not they may recover for services concededly rendered the estate is, indeed, an interesting question if it could be reached on this appeal.

We have no choice but to sustain the motion. It will be so ordered.

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


author: By BOPE, J.

text:
    STATE, Plaintiff, v. REID, Defendant.
    Municipal Court, Findlay.
    No. 4303.
    Decided April 8, 1958.

      R. J. Rinebolt, Asst. Solicitor, for the state.
    Robert E. Fuller, for defendant.
   OPINION

By BOPE, J.

The Defendant, who is the Fire Chief of the Village of Arcadia, Ohio, appeared in answer to a complaint filed by Patrolman F. M. Smith, Ohio State Highway Patrol, charging him with violating the Traffic Code on February 1st, 1958 at 2:40 P. M., while operating an emergency vehicle, a fire truck, on Hancock County Road No. 236, by failing to yield the right of way to another vehicle in obedience to a stop sign erected on said road at its intersection with U. S. Highway No. 224.

The facts are not in dispute. The location described is in Marion Township of this county and within the territory of this court. The defendant was on his way to a fire in response to an alarm, and actually in sight of the burning building. Although he was outside the limits of his municipality, his village had a contractual obligation to furnish fire protection in this territory and the defendant was in the performance of his duty. The two roads involved are straight and level at this point and intersect at right angles, and each is substantially within the view of motorists on the other for a distance of several hundred feet from the intersection. The defendant was driving south on the county road at about 45 m. p. h. with flashing red lights turned on, and his helper, Gardner, turned on the siren about a quarter mile from the intersection. Both saw another car coming from the east on Route 224 and they reduced speed, then observing the other car reduce its speed also, they thought it was going to stop, and the defendant continued on at about 25 m. p. h. The other car did not stop, and the vehicles collided in the intersection.

Complainant cites Section 3 of the Traffic Code (§4511.03 R. C.), which reads as follows:

“The driver of any emergency vehicle, when responding to an emergency call, upon approaching a red or stop signal or any stop sign shall slow down as necessary for safety to traffic, but may proceed cautiously past such red or stop sign or signal with due regard for the safety of all persons using the street or highway.”

It will be noted that this section does not define any offense but states an exception to §4511.43 R. C., which requires all other vehicles to stop in obedience to a stop sign at an intersection and to yield the right of way to vehicles which are not obliged to stop. It may be queried whether the defendant violated the conditions of this exception in the instant case and thereby lost his privilege. It is a sufficient answer that the affidavit does not charge him with failure to slow down or with failure to proceed cautiously and with due regard for the safety of other persons; and in truth the complainant had only circumstantial evidence in this case to support either of such charges, had they been made.

On the other hand the defendant cites in his brief §4511.45 R. C., reading as follows:

“Upon the approach of an emergency vehicle, equipped with at least one flashing red light visible under normal atmospheric conditions from a distance of five hundred feet to the front of such vehicle and the driver is giving audible signal by siren, exhaust whistle, or bell, the driver of every other vehicle shall yield the right of way, immediately drive to a position parallel to, and as close as possible to, the edge or curb of the highway clear of any intersection, and stop and remain in such position until the emergency vehicle has passed, except when otherwise directed by a police officer.
* * * * *
“This section does not relieve the driver of an emergency vehicle from the duty to drive with due regard for the safety of all persons and property upon the highway.”

It should be observed that the vehicles which collided in this case approached one another not head-on but at right angles, the defendant’s fire truck from the other driver’s right. In these circumstances the defendant contends "that the duty to yield the right of way was not upon the fire truck but upon the other driver, who violated it. The other driver was not charged with a violation, and technically speaking the court is not required to pass upon this contention, except as it amounts to a confession and avoidance of the principal charge. As such it becomes important, for §4511.45 R. C., spells out the conditions under which the drivers of emergency vehicles may exercise the privilege conferred by §4511.03 R. C. These conditions have been discussed in two recent cases reported from other Municipal Courts: City of Dayton v. Brennan (1952), 64 Abs 525, and Butler and Insurance Company v. Ramsey (1954), 67 Abs 484 (Middletown Municipal Court). As pointed out in these decisions, the vehicle claiming the privilege (1) must qualify as an emergency vehicle as defined in §4511.01 (D) R. C., (2) it must be equipped with a flashing red light or lights as described in the statute, and with a siren, exhaust whistle or bell, (3) both signals must be in operation, light flashing and audible signal working, and (4) the driver must be. proceeding with due regard for the safety of other persons and property upon the roadway. The last requirement is generally interpreted to mean ordinary care.

In a criminal case the burden of proof, beyond a reasonable doubt, is upon the State. The defendant is presumed to be innocent until proven guilty. One of the methods of proof is by admissions against interest: here the defendant admitted he drove past the stop sign and did not yield the right of way. His defense is that he was privileged to do so, under the statute discussed above. This is an affirmative defense, the burden of proving which is on him, by a preponderance of the evidence. As trier of the facts, I am satisfied that he has done so. The only point which gives me any trouble is whether or not his signals were working at the time of and immediately before the collision. He testified that his lights were flashing, and his siren turned on about a quarter mile back. There was no evidence that they were turned off. 1 think it is a reasonable inference that they were still operating.

Case dismissed and defendant discharged, at the costs of the State.


text:
    STATE, ex rel. MASTERSON et, Plaintiffs-Appellants, v. OHIO STATE RACING COMMISSION et, Defendants-Appellees.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5866.
    Decided May 6, 1958.
    George J. McMonagle, Michael T. Gavin, Cleveland, for plaintiffs-appellants.
    William Saxbe, Atty. Genl., Hugh A. Sherer, Chief Counsel, Chester Hummell, Asst. Atty. Genl., Columbus, for defendants-appellees.
   OPINION

By MILLER, J.

This is a motion submitted by the defendants-appellees seeking an order dismissing the appeal for the reason that the notice of appeal was not filed within the time prescribed by law. A review of the record reveals that on January 27, 1956, a petition for injunction was filed on the relation of Charles P. Masterson, Sophie Borek, Georgeann Borek, Gerald Borek and Patrick Borek, minors of tender years, by Sophie Borek, their mother and next friend, all as citizens of the State of Ohio, against the Ohio State Racing Commission of the State of Ohio and the members thereof. The broad purpose of the petition was to prevent the respondents permitting horse racing for a stake, purse or award at which pari-mutuel or certificate type of wagering ■ was authorized or permitted, upon the claim that the operation of such pari-mutuel system of betting was a lottery within contemplation of Article XV, Section 6, Ohio Constitution, and prohibited thereby.

The eighth paragraph of the petition avers that all of the plaintiffs are citizens of the State of Ohio and will suffer irreparable damage for which they have no adequate remedy at law by being exposed to the continuaj open and notorious operation of lotteries, under the supervision and licensing by the defendants: that the relator, Sophie Borek, is the former wife of John Eugene Borek, and Georgeann Borek, Gerald Borek and Patrick Borek are minor children of said John Eugene Borek, and Sophie Borek; that because of the loss by said John Eugene Borek, in wagering at horse race tracks to which the respondent commission has heretofore issued permits and supervised horse racing for a stake, purse or award, with pari-mutuel type of wagering, of his wages and earnings needed for the support and maintenance' of his family, they became destitute, in need and the said children were placed under the control of the Juvenile Court of Cuyahoga County, Ohio, and it is to eliminate the possibility of like occurrences in the Borek family and other families of Ohio citizens that the within action is filed.

Thus, it will be noted that status of the Boreks was different from that of Masterson in the particulars set out.

On February 16, 1956, a demurrer was filed to the petition “for the reason that it appears on the face of the petition that plaintiffs have not legal capacity to sue.” On February 27, 1956, a judge of the Common Pleas Court filed a written decision, the first paragraph of which reads:

“Defendants’ demurrer to the petition of plaintiffs is sustained because of a misjoinder of parties plaintiff.”

Thereafter the Court discusses in a general way the underlying purpose of plaintiff, Masterson, in filing three suits against the defendants in this case. No specific discussion is had with respect to any of these cases. The last paragraph of this opinion reads:

“The reasoning and rulings of the former cases will be adhered to in holding that the plaintiff Masterson, either as a taxpayer or a citizen has failed to show that he is a proper plaintiff to appeal to this court for the purpose indicated.”

Pursuant to this decision an entry was prepared and journalized of date March 9, 1956. In the meantime, and before this entry was spread upon the record, plaintiffs indicated the purpose to reject the journal entry for two reasons, one, there is now pending before the court a motion for reconsideration of said demurrer; two, if the motion of the plaintiffs is not granted, plaintiffs will elect to plead further in this matter.

The entry sustaining the demurrer reads:

“This cause being heard on the demurrer to petition, the court, on consideration thereof, sustains the same because of a misjoinder of parties plaintiff. Plaintiffs are given leave to file an amended petition within this rule.
“To this order and ruling of the court plaintiffs except.”

This entry was signed by the trial judge and all of counsel for the parties. In all probability, it was prepared by counsel for the defendants.

Thereafter, on March 17, 1956, pursuant to the ruling on the demurrer, Charles P. Masterson, only, as a citizen, filed his amended petition for injunction and relief. The averments thereof were substantially the same as in the first petition except the omission of the names and status of the other parties-plaintiffs in the first petition. On this amended petition, summons and process were issued and served. Thereafter, on March 29, 1956, defendants moved the court for an order “striking the amended petition from the files for the reason that the same is not responsive to the prior order of the court in sustaining the special demurrer to the petition.” While this motion was pending the court by nunc pro tunc entry, filed October 11, 1957, corrected the journal entry of March 9, 1956, to read as follows:

“This cause came on for reconsideration by the Court upon application by the defendants, and it appearing to the court that it was evident upon the face of plaintiffs’ original petition that the plaintiffs, and specifically Plaintiff Masterson, do not have the legal capacity to sue, the court finds from its own recollection that the defendants’ demurrer to the plaintiffs’ original petition was sustained upon this ground as well as upon the resulting ground that there was a misjoinder of parties plaintiff, and the journal entry carrying into effect the order of the court with respect thereto should have so stated.
“For the purpose of correcting such clerical omission from the entry of March 9, 1956, in order that the same may recite accurately the action of this court, and for the purpose of reciting the action of this court with respect to the demurrer to the amended petition of plaintiff Master-son, and after notice to counsel for plaintiffs.
“It is ORDERED, ADJUDGED AND DECREED that the demurrer of defendants to plaintiffs’ petition be and the same hereby is sustained, nunc pro tunc, effective March 9, 1956, for the reasons that plaintiffs have not the legal capacity to sue and that there is a misjoinder of parties plaintiff.
“To the foregoing finding and order the plaintiffs except.
“Plaintiffs are given leave to file an amended petition on or before October 26. 1957.”

No appeal was filed from this judgment entry and on December 3, 1957, the court sustained a motion of the defendants to strike the amended petition from the files for the reason that the same was not responsive to the prior order sustaining the special demurrer to the petition. The notice of appeal is directed to this order of December 3d. The question, therefore, presented is whether the nunc pro tunc entry determining that Charles P. Masterson did not have the legal capacity to sue constituted a final order. If it was such, then the pending amended petition became a nullity, since the sole plaintiff therein had been found to have no capacity to sue. The lower court’s order of December 3d merely restated that which had already been adjudicated by the nunc pro tunc entry of October 11th, to wit, no legal capacity to maintain the action. This being true, any right to amend could be of no avail; hence, under the rule of law pronounced in the second paragraph of the syllabus in Schindler v. The Standard Oil Co., 165 Oh St 76, the order of October 11th was a final appealable order and from which no appeal has been taken. The syllabus in the cited case provides:

“Where, upon the sustaining of a general demurrer to a petition, the judgment sought is not prevented because of the right to amend the petition, there is no final appealable order, but, where the order sustaining the demurrer absolutely prevents the judgment, and the right to amend would be of no avail, there is a final appealable order.”

The motion to dismiss the appeal will be sustained.

PETREE, PJ, BRYANT, J, concur.