author: By HOY, J.:

text:
    SANDS, Plaintiff, v. SANDS, Defendant.
    Common Pleas Court, Hamilton County.
    No. A-153525.
    June 4, 1956.
    Harold Browne, for plaintiff.
   OPINION

By HOY, J.:

Plaintiff’s petition reads as follows:

“Comes now the Plaintiff and petitions this Honorable Court for an order providing for support in accordance with the Uniform Reciprocal Support Act and represents to the Court that he and Defendant were married at Oswego, Kansas, 2-20-47 and that one child Russel Guy Jr. has been born the issue of said marriage.
“Plaintiff further says that on 23rd July 1955 the Defendant against the Plaintiff’s wishes, left the State of Indiana with the child and their automobile and established a residence in Coffeeville Kansas.
“Plaintiff further says that shortly after Defendant left and deserted him at Madison Indiana on and about July 23rd 1955, he was unemployed and consequently unable to contribute to the support of said minor child but that he obtained employment about March 1956 and is now able to contribute to the support of said child.
“Plaintiff further says that Defendant has caused the authorities of Montgomery County, Kansas to issue a warrant for child desertion (Kansas Warrant No. 9-751) to the Sheriff of Hamilton County, Ohio for his arrest and for his detention on the grounds of child desertion. Plaintiff further says that he is under a one thousand ($1000.00) bond to the Hamilton County, to appear for hearing here, when summoned. Wherefore, Plaintiff prays for an order in accordance with the Uniform Reciprocal Enforcement of Support Act, now termed The Uniform Dependence Act (see §5311-4 GC), §§3115-01 to 3115-15 — see 3115-4 GC directed to said Defendant and for such other relief as the Law provides.”

There are no other pleadings in the case and no one is contesting plaintiff’s action. Nevertheless, the Court has raised, sua sponte, the question of whether it has jurisdiction to entertain the action.

The petition alleges that plaintiff’s wife and minor child reside in the State of Kansas and that criminal proceedings against him for child desertion have been instituted in that State and that the authorities of that State are seeking to extradite him to Kansas to answer such charge.

No civil support action such as is contemplated by §3115 et seq., R. C., has been instituted in the State of Kansas but plaintiff claims that by virtue of the provisions of §3115.04 R. C., he is entitled to bring the present action and, upon obtaining an order for support from this Court and abiding thereby, be exempt from extradition to the State of Kansas on the criminal charge.

Sec. 3115.04 R. C., reads as follows:

“The governor may demand from the governor of any other state the surrender of any person charged in this state with failure to provide for the support of a person in this state and may surrender on demand by the governor of any other state any person charged in such other state with the failure to provide for the support of a person in such other state. Secs. 2963.01 to 2963.29, inclusive, and §107.04 R. C., apply to the demand although the person whose surrender is demanded was not in the demanding state at the time of the commission of the crime and although he has not fled therefrom. Neither the demand, the oath, nor any proceedings for extradition, pursuant to this section, need state or show that the person demanded has fled from justice, or that he was, at the time of the commission of the crime, in the demanding or other state.
“Any obligor contemplated by this section, who submits to the jurisdiction of the court of such other state and complies with the court’s order of support, is relieved of extradition for desertion or nonsupport during the period of such compliance.”

I do not construe this section as giving this Court jurisdiction of plaintiff’s action. Obviously the primary purpose of the statute was to remove the two chief obstacles to extradition which formerly existed in failure to provide cases. Thus the statute was not only not intended to prevent extradition but was actually designed to facilitate it.

It is true that a casual reading of the last paragraph of the statute might lend some weight to plaintiff’s contention. However, in my opinion, this paragraph was merely designed to prevent an obligee or the authorities of an initiating State from extraditing an obligor who is complying with the order of the responding State court pursuant to the institution of the civil proceedings contemplated by the Act in the initiating State simply because such obligee or such authorities might not be satisfied with the amount of support fixed by the responding State court. In other words, once having elected to pursue the civil remedy, the obligee must be satisfied with the amount of support ordered to be paid by the responding State court.

This same conclusion was reached by the Supreme Court of California in the case of In re Floyd, 43 Cal. (2d) 379 (273 Pac. [2d] 820) in which the obligor sought to avoid extradition proceedings instituted in the State of Ohio by initiating a civil support action in the State of California under an identical statute. Syllabus 2 of that case is as follows:

“Uniform Reciprocal Enforcement of Support Act contemplates two distinct courses of action in enforcement of support duties: (1) extradition and (2) initiation of civil proceedings in demanding state, with opportunity thereafter given to obligor to submit to subsequently assumed jurisdiction of court in responding state; while either or both courses of action may be pursued, the election lies wholly with demanding state and obligee, and obligor may not independently institute action in responding state for purpose of defeating extradition process.”

The statute was similarly construed by the Attorney General of Ohio in Opinion No. 3009 rendered on August 31, 1953, the syllabus of which is as follows:

“A person for whom an extradition requisition has been received by the Governor of Ohio, from a state which has enacted the Uniform Dependents Act, asking for the person’s return to the demanding state for desertion or non-support, must be relieved of extradition under Section 6 of the Act, where such person submits to a court of record in this state and complies with the court’s order of support.
“Such court cannot, however, obtain jurisdiction to make such order of support otherwise than in the manner designated in §§8007-10 8007-11 and 8007-12 GC; and where there has been no compliance with the provisions of these sections an obligor may not be relieved of extradition by a mere offer to submit to the jurisdiction of the court of the responding state.”

The Uniform Support of Dependents Act contemplates the filing of a petition on behalf of the dependents in the initiating State. The Court in that State hears evidence concerning the financial condition of the dependents and, based upon such evidence, makes an order fixing the amount of support needed under the circumstances. It is true that this Court does not necessarily hear evidence of the obligor’s financial condition but its finding is not a final order for support. It is intended only for the guidance of the Court in the responding State. This latter Court does hear evidence as to the obligor’s financial ability and, after weighing such evidence against the needs of the dependents as determined by the Court of the initiating State, the responding State court should be able to make an order which is reasonable under all the circumstances. If the obligor were authorized to initiate the proceedings as claimed by the plaintiff in the instant case, this Court would be required to make a final order for support without any evidence whatever as to the needs of the dependents.

Furthermore, to construe the statute in accordance with plaintiff’s theory would be to permit an absconding obligor to flee to another State, secure a support order from the Courts of that State, often based entirely on his own testimony and, so long as he complied with the order, be protected from extradition for non-support or child desertion. This would, of course, be wholly contrary to the spirit as well as the letter of the law.

Accordingly, the Court finds that it is without jurisdiction to entertain plaintiff’s action and his petition will be dismissed at his costs.


source: Caselaw Access Project

author: By STEWART, Circuit Judge.

license: Public Domain

text:
    VALLEY VIEW VILLAGE, INC. et, Appellants, v. PROFFETT et, Appellees.
    Appeal from the United States District Court for the Northern District of Ohio, Eastern Division.
    No. 12179.
    Decided April 23, 1955.

      Before MARTIN, McALLISTER and STEWART, Circuit Judges.
   OPINION

By STEWART, Circuit Judge.

The question presented on this appeal is a novel one. Can a non-charter municipality in the State of Ohio validly adopt a zoning ordinance which puts the entire area of the municipality into a single use district? The trial court answered this question in the negative and enjoined the appellant municipality from enforcing such an ordinance so as to prohibit appellees’ sand and gravel operations.

Appellant Valley View, Ohio, is a sparsely settled residential and agricultural village, situated about eight miles southeast of Cleveland. Approximately six miles long and three miles wide, the village was inhabited by some five hundred people in 1930 and by about a thousand in 1950. It is without most of the customary urban services and conveniences, such as sewers, waterworks, and sidewalks.

In 1932 the village council adopted Zoning Ordinance No. 131, together with a zoning map incorporated as part of the ordinance. Reciting that the village planning commission had made plans and submitted recommendations to the council, the ordinance established five classes of use districts and three classes of area districts. The ordinance further provided: “Nothing herein contained, however, shall require the immediate designation of all of the above districts upon the zone map, it being the intention to provide for said districts and to permit from time to time the creation and designation of said districts as the needs of the community may require. Said districts, however, when established by proper legislation and designation upon the zoning map shall conform to all provisions with reference to said districts hereinafter described.”

The zoning map bore a marginal legend indicating that all areas shown in white constituted a “U-l” district. The legend showed various colors for the other four use districts, “U2,” “U-3,” “U-4” and “U-5,” but the entire area of the village was shown in white on the map, so that the entire village was in fact designated as a “U-l” district.

In the U-l district property was restricted to the use of single dwelling houses, churches, schools, and social, recreational and welfare uses. Permissible accessory uses included offices of professional persons, home occupations for gain, farms, truck gardens, and nurseries.

The ordinance permitted the continuation of existing nonconforming uses of property, and provided for the granting of permits and variances by the village building inspector, and its zoning board of appeals.

In 1947 appellees Grace and Henry Proffett acquired a tract of land of about forty-four acres in Valley View. In 1950 the Proffetts entered into “a combination lease and contract” with appellee The Schmidt Bros. Sand & Supply Company, by the terms of which the latter was granted the right to extract sand and gravel from the Proffett property for a period of five years, with an option for a renewal for a like period, in consideration of payment of a royalty of ten cents per ton, with provision for a minimum payment of $2,000 annually. Later in the year the Proffetts were granted an oral permit by the village for a two-year period to remove sand and gravel from their property. Thereupon The Schmidt Bros. Sand & Supply Company began building a road into the property, and about a year later commenced the excavation and removal of sand and gravel.

Upon expiration of the two-year period, these operations were continued without a permit until the excavation was stopped in 1952 by the village officials. Subsequently, applications were made for another permit, but these were denied by the building inspector, and his action was upheld on appeal by the zoning board of appeals.

Thereupon the Proffetts brought the present action in the district court, seeking to enjoin the village and its building inspector from preventing the removal of sand and gravel from the Proffetts’ property, contending that the zoning ordinance was void, illegal, and violative of the Federal and Ohio Constitutions.

After certain preliminary proceedings, the district court granted a permanent injunction against the enforcement of the ordinance by the village or its officers, concluding “That the Village Ordinance No. 131 of October, 1932, having zoned the entire area of the Village into a single use district, thereby failed to comply with the requirements of the State Enabling Act (SS4366-7, 43S6-8, 4366-9 and 4386-10 GO, and therefore had no substantial relation to the public health, safety, convenience, comfort, prosperity or general welfare, and the said ordinance, together with all amendments thereto, is therefore null and void.” The court filed an opinion which it adopted as its findings of fact and conclusions of law.

The appellees also attacked the ordinance in the trial court upon the grounds that the subject of the ordinance had not been clearly expressed in its title and that it had not been published, as required by the law of Ohio. The trial court found these contentions without merit, and the appellees have renewed these attacks on this appeal. The record clearly supports the findings and conclusions of the district court on these questions, and we do not consider them further.

The appellees also argued to the district court that since the ordinance did not expressly prohibit the excavation of sand and gravel, these activities should be permitted even if the ordinance were held to be valid. This argument too is repeated upon this appeal. The trial court’s conclusion was that “It would seem that notwithstanding the absence of an express prohibition against removal of sand and gravel, the exclusion of such use from those specifically authorized would, if the ordinance were otherwise valid, be effective to prevent the plaintiff from using his property for this purpose.” We agree with that conclusion. Town of Lexington v. Menotomy Trust Company, 304 Mass. 283, 23 N. E (2d) 559 (1939); Town of Seekonk v. John J. McHale & Sons, Inc., 325 Mass. 271. 90 N. E. (2d) 325 (1950).

This brings us to the central question on this appeal, stated at the outset of this opinion. The trial court held that the ordinance was void because the village council, in failing to divide the village into more than one use district, had thereby failed to comply with the requirements of the Ohio enabling statutes. At the time of the enactment of Ordinance No. 131 the statutory provisions covering the zoning powers of Ohio municipalities were contained in §§4366-7 to 4366-10 GC.

For the purpose of the question in issue we need consider only the first two of these four sections. Sec. 4366-7 GC empowered a village to create a planning commission and empowered such a planning commission “to frame and adopt a plan or plans for dividing the municipality or any portion thereof into zones or districts, representing the recommendations of the commission, in the interest of the public health, safety, convenience, comfort, prosperity or general welfare, for the limitations and regulation of . . . the uses of buildings and other structures and of premises in such zones or districts.” Sec. 4366-8 GC provided, “Whenever . . . the planning commission of any village appointed under the provisions of §4366-7 GC, certifies to the council or other legislative body of the municipality any such plan for the districting or zoning of the municipality according to the uses of buildings and other structures and of premises, then said council or other legislative body, in the interest of the promotion of the public health, safety, convenience, comfort, prosperity or general welfare, may regulate and restrict the location of buildings and other structures and of premises to be used for trade, industry, residence or other specified uses, and for said purposes divide the municipality into districts of such number, shape and area as may be deemed best suited to carry out the purposes of this section.”

The District court interpreted this language as requiring the village council to establish more than one zone in order validly to exercise its power to regulate the use of property within its boundaries. We do not so read the statutory language. Although any plan adopted by the planning commission under §4366-7 GC, must apparently provide for the division of the municipality into more than one zone or district, there is no obligation upon the village council under §4366-8 GC to adopt the plan as submitted. Upon certification of a plan to the council by the planning commission §4366-8 GC gives the council power, in the interest of the promotion of the public health, safety, convenience, comfort, prosperity or general welfare to “regulate and restrict the location of buildings and other structures and of premises to be used for trade, industry, residence or other specified uses. . . .” It further gives the council power to “divide the municipality into districts” in order to accomplish said purposes. Sec. 4368-8 GC is permissive. The municipality may regulate and restrict the use of property to carry out the purposes specified in the statute, and, for those purposes, it may divide its area into more than one zone or district. There is no requirement that in order to regulate and restrict it must divide the municipality into more than one district. That is the literal meaning conveyed by the statutory phraseology as we read it.

Any doubt as to the meaning of the Ohio enabling statutes would have to yield to the meaning we have ascribed to them in any event, we think, because of the home rule provision of the Ohio Constitution. Sec. 4366-12 GC, provided in part: “Nothing contained in the foregoing §§4366-7 to 4366-11 GC, inclusive, shall be deemed . . to impair or restrict the power of any municipality under Article XVIII of the Constitution of Ohio.” Article XVIII, Section 3, of the Ohio Constitution is the so-called home rule amendment, adopted in 1912. It provides: “Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

In a case decided soon after the adoption of this amendment the Ohio Supreme Court held that in order to avail itself of home rule power, a municipality must adopt a charter, as permitted by Section 7 of Article XVIII of the state Constitution. State, ex rel. City of Toledo v. Lynch, 88 Oh St 71, 102 N. E. 670 (1913). That view did not long prevail. In Perrysburg v. Ridgeway, 108 Oh St 245, 140 N. E. 595 (1923), the state Supreme Court expressly overruled the Lynch case doctrine and held that the home rule amendment was “self-executing” and that a municipal charter was accordingly not a prerequisite to the full exercise by a municipality of home rule powers.

The effect of the home rule amendment was stated succinctly in the court’s opinion in the Perrysburg case, as follows: “Prior to 1912, all municipal power had been held by our courts to be by grant of the General Assembly. It was made in sections or segments by virtue of many statutes, the meaning and scope of them ofttimes being more or less uncertain and difficult. But in 1912 a new order was established with relation to municipal powers, by which the sovereign people of Ohio, through constitutional provisions (Section 3, Article XVIII), made a broad blanket grant of ‘all powers of local self-government’ to all municipalities.” 108 Oh St 250, 140 N. E., at 596.

That the regulation by a municipality of the use of property within its borders is within its powers of local self-government, and specifically within its police powers, is now too well-established to be questioned. The landmark Ohio case establishing this proposition was Pritz v. Messer, 112 Oh St 628, 149 N. E. 30 (1925), preceding by a year the decision of the Supreme Court of the United States in Village of Euclid v. Ambler Realty Company, 272 U. S. 365 (1926).

Judge Allen’s opinion in Pritz v. Messer states: “. . . a majority of the court are of opinion that under the home rule provision of the Constitution (Article XVIII, Section 3) the regulation of the bulk, area, and use of buildings is a function of local self-government and that therefore the municipality is doubly empowered to enact legislation upon this subject, having been given such authority both by the Legislature and by the Constitution.” 112 Oh St 637, 149 N. E. at 33.

There is certainly nothing in the home rule amendment itself which requires a village council to divide the village area into more than one district in order to regulate the use of property therein. The Legislature expressly provided that the enabling statutes should not be deemed “to impair or restrict the power of any municipality under Article XVIII of the Constitution of Ohio.” See. 43S6-12 GC. We therefore conclude that the village of Valley View had power, under the statutes of Ohio and Article XVIII, Section 3, of the Ohio Constitution, to incorporate the entire area of the village into a single use district.

It is argued by appellees, however, that even though the village might have theoretical power to put all of its area into a single use district, an ordinance which attempts to do so must be held invalid because it is per se arbitrary and unreasonable. In considering that question we must recognize the presumption in favor of municipal legislation in a matter of exclusively local concern. Unless there is a clear and palpable abuse of power, a court will not substitute its judgment for legislative discretion. Allion v. City of Toledo, 99 Oh St 416, 124 N. E. 237 (1919).

“It must be remembered that the question to this court is not one of municipal policy. It is simply one of municipal power. The wisdom or unwisdom of the policy is for the municipality’s determination.” Village of Perrysburg v. Ridgeway, 108 Oh St 245, at 259, 140 N. E. 595, at 599 (1923). “The courts in such cases have no right to determine whether the measures questioned are wise or the best that might have been adopted. The courts cannot hold such laws invalid upon the mere ground of inexpediency. In other words, the question of the reasonableness of this ordinance is one, in the first instance, for the determination of the council which enacted it.” Pritz v. Messer, 112 Oh St 628, at 639, 149 N. E. 30, at 33, 34 (1925).

It is true that the traditional method by which a municipality exercises its power to regulate the use of the property within its borders is by the division of its area into several use districts. Yet we find in the cases to which we have been referred no express requirement of a division into districts in order to support the regulation and restriction of property. It was the power to regulate and restrict, not the power to divide, which was in issue in the early landmark cases. Cf. Village of Euclid v. Ambler Realty Company; Pritz v. Messer, both cited above. Not the number of districts provided, but substantial relationship to the public health, safety, morals or general welfare is the test.

Traditional concepts of zoning envision a municipality as a self-contained community with its own residential, business and industrial areas. It is obvious that Valley View, Ohio, on the periphery of a large metropolitan center, is not such a self-contained community, but only an adventitious fragment of the economic and social whole. We cannot conclude as a matter of law that an ordinance which places all of the area of such a village into a residential district is per se arbitrary and unreasonable, with no substantial relation to the public health, safety, morals or general welfare. It would appear contrary to the very purposes of municipal planning to require a village such as Valley View to designate some of its area for business or industrial purposes without regard to the public need for business or industrial uses. The council of such a village should not be required to shut its eyes to the pattern of community life beyond the borders of the village itself. We think that it is not clearly arbitrary and unreasonable for a residential village to pass an ordinance preserving its residential character, so long as the business and industrial needs of its inhabitants are supplied by other accessible areas in the community at large.

Situations in which the legislative body of a municipality would even desire to put its entire area into but one use district are no doubt rare. Situations in which such an ordinance would withstand constitutional attack with respect to the impact upon particular property within the municipality are perhaps even rarer. We conclude only that, if otherwise permitted by the Constitution and statutes of the state, a one-use ordinance is not necessarily so arbitrary and unreasonable as in every case to be invalid.

A zoning ordinance may be generally valid, however, and at the same time be so arbitrary and unreasonable in its concrete application to particular premises as to be invalid as applied to them. Village of Euclid v. Ambler Realty Company, 272 U. S. 365, at 395. Because it concluded that the ordinance was not permissible under Ohio law, the district court expressly refrained from deciding whether or not its effect upon appellees’ property was so arbitrary and unreasonable as to constitute a deprivation of their property in violation of the State and Federal constitutions.

The judgment is accordingly reversed and the case is remanded to the district court for decision of that question.

       The ordinance was subsequently amended in certain respects not material to this case. In 1953 it was repealed upon the enactment of an entirely new zoning ordinance. The trial court held, however, and it is agreed by all parties on this appeal, that the appellants’ rights are “controlled and governed by Ordinance No. 131.”'

       These provisions were substantially re-enacted in Sections 713.06 to 713.09 of the Ohio Revised Code.

       We find nothing to the contrary in the recent decision of the Ohio Supreme Court in Morris v. Roseman, 162 Ohio State, 447, 123 N. E. (2d), 419 (1954). That case held that a noncharter municipality in Ohio, in the enactment of a zoning ordinance, must comply with statutory enactments with respect to the procedure to be followed in the passage of the ordinance. The specific statutory requirement there involved was the holding of a public hearing on the ordinance preceded by a thirty-day notice of the time and place of such hearing. In the present case the district court correctly concluded that the statutory procedure was followed, expressly finding that the subject of the ordinance was clearly expressed in its title and that the ordinance was published, as required by the statutes.


author: By THE COURT:

text:
    SMITH et, Plaintiffs-Appellees, v. WOOLERY et, Defendants-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    No. 2355.
    Decided November 15, 1955.
    Gus W. Byttner, Kenneth J. Arkenberg, Dayton, for plaintiffs-appellees.
    Herbert M. Eikenbary, William I. Shaman, Dayton, for defendants-appellants.
    (COLLIER, J, of the Fourth District, sitting by designation, in the Second District.)
   OPINION

By THE COURT:

This is an appeal on questions of law and fact from a judgment of the Common Pleas Court of Montgomery County granting a permanent injunction to the plaintiff-appellee, Lillian Mahone Smith, against the defendant-appellant, John T. Woolery, restraining the defendant-appellant from operating a used car business on three certain lots, Nos. 54615, 54616 and 54,617, situated at or near the intersection of Wayne Avenue and Smithville Road in the City of Dayton, Ohio.

The evidence presented in this Court is in narrative form, giving a summary of the testimony of the witnesses who appeared in the hearing of the case in the lower court.

In the determination of the issues in this case we find it necessary to consider only the following undisputed facts: That the defendant-appellant occupies said (three) lots as a lessee of one Jacob C. Hansen, who is the owner of said lots and who was named as a defendant in the lower court; that on February 16, 1949, in Case No. 96402 in the Common Pleas Court of Montgomery County, Ohio, a judgment was entered against the said Jacob C. Hansen, enjoining him from using said premises in whole or in part for storage or selling either new or used cars, by reason of certain restrictions contained in the deed by which he acquired title thereto; that said judgment is still in full force and effect.

The defendant, Woolery, as lessee of Hansen, may not acquire any greater rights in this property than Hansen himself holds, and the judgment of the Common Pleas Court is as binding on Woolery as .lessee as it is on Hansen, the owner and lessor of said premises.

It follows from a consideration of this fact alone that the trial court was correct in granting an injunction, and therefore a permanent injunction may be prepared and submitted in this Court.

Judgment accordingly.

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


author: By STAHL, J.

text:
    UNAUTHORIZED PRACTICE OF LAW IN LUCAS COUNTY, In re.
    Common Pleas Court, Lucas County.
    No. 177813-A.
   OPINION

By STAHL, J.

of Ottawa County, sitting by designation in Lucas County.

This proceeding is brought by and on behalf of the Committee on the Unauthorized Practice of the Law of the Toledo Bar Association.

The Committee, which was appointed by the Court, filed an Application for an Order of the Court restraining and enjoining Nelson S. Bailey, his agents and employees, from engaging in the Practice of Law, and for a further order to show cause why he should not be punished for contempt.

This proceeding was heard on the Application for the Restraining Order and Citation for Contempt of Court, the Answer of the Respondent, Nelson S. Bailey, and the Reply of the Committee.

The Application states that Nelson S. Bailey is the owner and operator of a business known as “Nelson S. Bailey, Industrial Actuaries,” and through employees and/or agents, contracts to and does render certain services for others for a fee. That Nelson S. Bailey is not an attorney. That Nelson S. Bailey, notwithstanding the fact that he is not an attorney-at-law and not admitted to the practice of law in the State of Ohio, individually and by employees and agents, and by attorneys hired by him for that purpose, on divers occasions and for several years last past, has engaged in the practice of law, and will continue to engage in the practice of law, in the following particulars, to-wit:

(a) In holding himself out as being legally qualified and competent to render counsel and advice, and in rendering counsel and advice, to individuals, firms and corporations, concerning the legal effect of provisions of laws proposed to be passed and which have been passed by the legislature of the State of Ohio, and rules and regulations adopted and promulgated by the Administrator and Board of Review under the provisions of the “Unemployment Compensation Law.”

(b) In preparing, filing, prosecuting and taking part in appeals, including the examination and cross-examination of witnesses during the preparation of the record used in the Court of this County, for and on behalf of certain individuals, firms and corporations who appeal from decisions made by the “Administrator” under the provisions of the Unemployment Compensation Law of the State of Ohio.

(c) In advising said individuals, firms and corporations as to their legal rights and obligations arising out of the statutes of Ohio and such rules and regulations pertaining to unemployment compensation.

(d) In furnishing, suggesting, or acting as an intermediary in the employment of, legal counsel to prosecute appeals from decisions of Referees and/or the Board of Review of the Bureau of Unemployment Compensation of the State of Ohio to the Court of Common Pleas of this County.

(e) In filing, or causing to be filed, as agent for individuals, firms and/or corporations, petitions on appeal from decisions of the aforementioned Referees and/or Board of Review of the Bureau of Unemployment Compensation to the Court of Common Pleas of Lucas County, Ohio.

(f) In counseling, advising and otherwise performing services for others, including individuals, firms and corporations, in connection with the rights of said others under the provisions of the statutes and laws of Ohio, including rules and regulations adopted by the “Administrator” and the “Board of Review” relating to unemployment compensation.

The respondent admits in his answer that the Committee Members are Attorneys-at-Law and that they are members of the committee appointed by the Court. That Nelson S. Bailey is engaged in the business of an industrial actuary under his own name and that he does furnish personal services in connection with industrial actuarial matters for which he charges fees, and that he admits that he is not an attorney-at-law.

Further answering the respondent admits that he files completed forms with the Bureau of Unemployment Compensation and the Board of Review thereof, and appears before these administrative bodies, but denies that such actions constitute the practice of law, and denies that he does now or at any time has engaged in the practice of law, and then specifically denies that he has engaged in the practice of law in connection with any phase of Unemployment Compensation matters under the Unemployment Compensation Law of the State of Ohio. And then, he specifically denies all claims and allegations not admitted to be true.

Further answering he alleges that all the actions he may have taken have been fully authorized by the parties, where he represents them, and by the Bureau of Unemployment Compensation and by the Board of Review thereof, and that in so granting him the authority the Board has done so under their regulations, which permit any party to appear before either of those bodies by “authorized representatives” who are not required to be attorneys-at-law.

Further answering, he says that such practice has been permitted since the Adoption of the Act, and that although attorneys have heretofore attempted to have the practice stopped, the Bureau, and Board of Review, have refused to stop such practice.

In the Reply of the Committee, they deny that such actions were ever authorized.

The evidence was taken at different times before this Court and these were protracted hearings, and each party was well represented by able counsel.

The issue to be determined, therefore, is whether or not all or any of the actions of Nelson S. Bailey constitute the unauthorized practice of law, since Nelson S. Bailey admittedly is not an Attorney-at-Law.

FINDINGS OF FACT

After consideration of all of the evidence in this case, the Court herewith makes the following findings of fact:

That under the provisions of Exhibit 114-A, and similar agreements with other persons, firms and corporations, Nelson S. Bailey agreed to perform and did perform the following services for such persons, firms and corporations:

1. He notified his client when a claim for compensation was filed.

2. He filed protests against the alowance of claims for compensation on behalf of his client.

3. He attended hearings before the Referees and examined and cross-examined the claimants and the witnesses.

4. He advised his clients of the nature of the evidence introduced at such hearings.

5. He made an analysis of the evidence introduced at such hearings for his clients.

6. He rendered opinions to his clients as to whether the claim will be approved or rejected upon the evidence, the law, and the rules and regulations of the Bureau.

7. He interpreted the law and the Rules and Regulations of the Bureau for his Clients.

8. He prepared and filed appeals and notices of appeals on behalf of his clients.

9. He participated in all proceedings before the Board from the time a claim is filed until the claim is ultimately appealed to the Common Pleas Court for decision, his actions during such proceedings, including examination of the original claim when it is filed, the preparation and filing of a protest, appearance at the hearing and participation in the hearing by the examination and cross-examination of the claimant and witnesses, rendered an opinion as to whether adverse rulings should be appealed and then prepared the necessary notices of appeal.

10. It is the further finding of the Court that the Bureau has not promulgated any Rule or Regulation which requires that either the employee or the employer must be represented by an attorney-at-law in proceedings before the Bureau.

11. That the proceedings before a Referee or the Board are very informal in nature and that it is not required that there be a strict adherence to the Rules of Evidence in the same manner as if the case were being tried in a Court of Law.

12. That the Referees and the Board, in rendering their decisions, however, attempt to base their decisions only on competent evidence.

13. The Court further finds that §4141.28 R. C., contains the following pertinent provisions:

“Any interested party may - - - appeal from the decision of the Board---or of a Referee if an appeal has been disallowed by the Board, to the Court of Common Pleas---
“The Board---shall---file with the Clerk a certified transcript of the record of the proceedings pertaining to the decision complained of, and the evidence considered by the Board, or the Referee, or both, in making such decisions, and the appeal shall be heard upon such trans-script and the evidence certified by the Board.”

14. That the Court of Common Pleas is confined to the transcript of the record of the proceedings and the evidence before the Board or Referee, or both, when reaching its decision on appeal, as to whether to affirm, reverse, vacate or modify the decision of the Referee or Board

15. The Court further finds that the allegation that Nelson S. Bailey secured or hired attorneys for his clients is not sustained by the evidence in this case.

16. That the Court cannot decide whether the action of Nelson S. Bailey in securing adjustment of rates for his clients constitutes the practice of law, because the issue was not sufficiently developed in the evidence to warrant the Court in making a decision on that issue.

CONCLUSIONS OF LAW

The Court has carefully reviewed the evidence and the briefs of counsel and has made its own examination of the law.

It is the finding and judgment of the Court that it is not within the power of a Bureau or of the Legislature to say and define what actions and conduct constitute the practice of law in Ohio.

That it is solely within the power of the Courts to say what actions and conduct constitute the practice of law in Ohio.

It is the finding and judgment of the Court that all of the actions and conduct of Nelson S. Bailey as set forth in the foregoing Findings of Fact, except the notification of his clients when a claim for compensation was filed and the filing of the original protest on behalf of his client against the allowance of such claim, constituted the practice of law and he is hereby enjoined from all such actions and conduct except the notification of the filing of a claim and the filing of the original protest.

Counsel for Committee to prepare Journal Entry, submit it to counsel for defendant. Exceptions saved to both parties.


text:
    UNAUTHORIZED PRACTICE OF LAW IN LUCAS COUNTY, In re: BAILEY, Appellant.
    Ohio Appeals, Sixth District, Lucas County.
    No. 4862.
    Decided January 30, 1956.
    Morton Neipp, Robert B. Gosline, John R. Eastman, Robert F. Ebinger, for appellant.
    A. R. Simmons, Harry Hood, Benjamin B. Durfee, Jr., Merritt W. Green, for committee.
   OPINION

By THE COURT:

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Lucas County, enjoining the appellant, Nelson S. Bailey, from performing certain acts and services as the representative of certain persons or firms as employers, on the ground that such acts and services constituted the unauthorized practice of law.

The case is before this court for a review upon a transcript of the record and proceedings in the Court of Common Pleas, a bill of exceptions, briefs and oral argument of counsel for the parties respectively.

The proceeding was instituted in the Court of Common Pleas following the appointment by that court of a committee, consisting of a number of attorneys, as officers of the court for the purpose of making inquiry into the unauthorized practice of law in Lucas County, Ohio.

Following their appointment, the committee entered upon an extensive investigation in reference to the acts and services performed by the appellant, as the representative of certain persons and firms in proceedings involving claims being made by persons for state unemployment compensation, before a referee and other acts and services by appellant in connection with such claims before the Ohio Bureau of Unemployment Compensation and Board of Review, as a result of which a very voluminous amount of testimony and evidence is presented in the bill of exceptions, now before the court.

It appears in the record that at the conclusion of the hearing in the Court of Common Pleas, the trial judge made a finding as conclusions of fact separately from conclusions of law and found and determined that appellant should be enjoined from the performance of those acts and services as found and stated by the court, for the reason that same constituted the unauthorized practice of law, and appellant was therefore enjoined permanently from performing such acts and services, as the representative of persons or firms, from which judgment the appeal now before this court was taken.

This court finds that the conclusions of fact as found by the trial court are fully supported by competent evidence contained in the record and that the acts and services as found constituted the unauthorized practice of law, and therefore hold that the judgment of the Court of Common Pleas should be affirmed.

Counsel for the appellant have directed the attention of this court and contended in effect that the law of the State governing proceedings by claimants before the Bureau of Unemployment Compensation has been amended in such a way so that the acts and services performed by the appellant do not now constitute the unauthorized practice of law as defined by the Supreme Court of this State.

We find that §4141.28 R. C., which provides for and governs the procedure for the presenting and making of claims for-unemployment compensation was amended during the pendency of these proceedings and that certain changes were made respecting the manner in which the claim shall be heard and the record shall be prepared for hearing upon appeal, and it is also noted that no provision is made in the law as amended that same shall have a retroactive effect or that it shall in any wise control the determination of pending cases. We therefore hold, in accord with §1.20 R. C. (§26 GO, governing the retroactive effect of legislation, that this court is without jurisdiction and we do not undertake to make an application of the law as amended to the evidence contained in the record now before this court, in a determination of this appeal.

Therefore, as indicated above, the judgment of the Court of Common Pleas is affirmed and the cause is remanded to that court for further proceedings according to law.

CONN, DEEDS and FESS, JJ, concur.


author: By HORNBECK, J.:

text:
    STATE, Plaintiff-Appellee, v. BROWN, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2341.
    Decided November 22, 1955.

      Mathias H. Heck, Pros. Atty., Dayton, by Walter A. Porter, Asst. Pros. Atty., for plaintiff-appellee.
    Stewart & Cromer, Dayton, by Clarence J. Stewart, of Counsel, for defendant-appellant.
    (COLLIER, J, of the Fourth District, sitting by designation in the Second District.)
   OPINION

By HORNBECK, J.:

This is an appeal on questions of law from a sentence of defendant on a finding of guilt of a charge of abortion.

Four errors are assigned: (1) The verdict and judgment are against the manifest weight of the evidence; (2) error in admission of testimony of an alleged subsequent offense; (3) error in the general charge, and (4) the court abused its discretion in holding the jury in deliberation until about midnight of the day of the submission of the cause to the jury.

We consider the second and third assignments together because they involve the same question, viz.: The admissibility of the testimony of Ava Nell McBee respecting an abortion claimed to have been performed on her by the defendant at a time subsequent to the act alleged in the indictment in the instant case.

The court admitted this testimony, and in the general charge said to the jury:

“Any fact which tends to establish identity has probative value and is competent, even though proof of such fact may incidentally involve proof of the commission of another offense. Testimony of other offenses of like character allegedly committed by the same person in the same locality within a period of time reasonably near to the offense on trial, involving the same plan and method, is relevant to the issue of identity and may be considered by the jury only insofar as such evidence relates to, bears upon, and may tend to establish the identity of the person committing the offense charged.”

The specific objection to the admission of this testimony, and the charge, is that it was accepted as bearing upon the essential proof of identity of defendant in the commission of the offense alleged. If competent, it was pertinent to a material issue inasmuch as the defendant interposed the defense of alibi. The statute which generally is invoked respecting testimony like that which is under consideration is §2845.59 R. which provides:

“In any criminal case in which the defendant’s motive or intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.”

It is properly asserted that this section of the Code does not in terms authorize the admission of testimony as to other like offenses as it may relate to the issue of the identity of the defendant.

The courts in considering this question have said that at common law such testimony was admissible for the purpose to which the court restricted it. Here it could have been of no probative effect on the intent with which the act under consideration was committed, if committed by the defendant, because the purpose of the commission of the act was clear, viz.; to produce a miscarriage.

There was a showing of a common plan or scheme or method in the commission of the two acts, the one upon the prosecuting witness and the other upon Mrs. McBee. The manner in which both communicated with defendant, the similarity in phone number and prefix thereto, the identification of the person answering the phone as Mr. Brown, the carrying of a small leather bag, which was similarly described by both witnesses, the carrying of the instrument with which the operations were performed in a little paper bag, the manner in which preparation was made for the operations, and the position that the women were required to assume in the beds, the placing of the pillows, the general demeanor of the defendant, all were sufficient to bring the factual development within the definition of a common plan or method of operation. In the situation thus developed the observations in the per curiam opinion (Marshall, Chief Justice), in Clyne v. State, 123 Oh St 236, become pertinent. After quoting the section, former §13444-19 GC, the Chief Justice said:

“It is contended by the state that the section is only declaratory of the common law. We are unable to see in what particular the rule declared in the statute differs from the well-settled common-law rule making admissible evidence of other like acts, where intent, guilty knowledge, identity, or scheme is material to be shown, except that the statute does not expressly limit the jury’s consideration of the evidence of other like acts to their bearing on the question of such intent, knowledge, identity, or scheme.” (Emphasis ours.)

The specific question is answered in the third syllabus of State v. Ross, 92 Oh Ap 29, wherein it is held that such testimony as is under consideration here is admissible to show the identity of the person charged with the commission of the crime for which he is on trial.

In many cases the intent with which the alleged abortion is committed becomes material because the defendants are practicing physicians who assert either that there was no intent to produce a miscarriage because the result accomplished was not purposed, or that it was necessary to save the lives of the mothers. As we have said, that question was not in this case and the testimony, if probative at all, related only to identity, which in any event must appear to give application to the statute. §2945.59 R. C.

Manifestly, the testimony of Mrs. McBee, if true, was corroborative that the defendant was the individual who performed the operation on her.

We are satisfied that the court did not err in admitting the testimony, nor in the general charge to the jury on the subject.

The fourth assignment is directed to the action of the trial judge in holding the jury until about midnight, resulting in undue pressure upon the members to return a verdict.

The jury reported about eleven-forty P. M., and the trial judge was ready to discharge it, whereupon it developed that a verdict had been reached. There is no showing whatever that any member of the jury expressed any displeasure or anxiety because he or she was held in session. The court specifically instructed them not to be hurried in their deliberations. They had recessed for dinner. Counsel for defendant-made no objection at any time to the failure to excuse the jury until the next morning, and no exception was taken to the action of the court.

No prejudicial error is shown upon the fourth assignment.

On the claim that the verdict and judgment are against the manifest weight of the evidence we must apply the ordinary test, that the determination of the facts is for the trier of the facts which is the jury. The alibi asserted by the defendant was strong. A jury could well have accepted it. The witnesses who testified in behalf of the defendant appeared to be truthful. There was one discrepancy in their testimony, respecting the date when it was claimed defendant’s mother was to visit her dentist. This discrepancy did not change the fact, if it were a fact, that the defendant was with the party at his mother’s during the hour when it was claimed that he was committing the abortion on the prosecuting witness, but it did have weight as to the accuracy of the memory of the witnesses, if the statement of the dentist, at variance therewith, was true.

Both the prosecuting witness and Mrs. McBee were definite and specific in their identification of the defendant. It was well within the province of the jury to accept "this testimony as the truth.

We cannot hold that the verdict and judgment were manifestly against the weight of the evidence.

Finding no error assigned well made, the judgment will be affirmed.

MILLER, PJ, COLLIER, J, concur.


author: Per CURIAM.

text:
    STATE, ex rel. HAWKE, v. BROWN, Secretary of State of Ohio.
    United States District Court S. D. Ohio, E. D.
    No. 3903.
    Decided February 2, 1954.
    George S. Hawke, Cincinnati, for plaintiff.
    Joseph S. Gill, Asst. Atty. Geni., Columbus, for defendants.
    Before ALLEN, Circuit Judge, UNDERWOOD, Chief Judge and CECIL, District Judge.
   OPINION

Per CURIAM.

This is an action brought by the relator as a citizen of the United States and as a duly qualified independent voter of the state of Ohio, for himself and on behalf of other independent voters of the state of Ohio similarly situated, against Ted W. Brown as Secretary of State of Ohio and as chief election officer of the state of Ohio.

The complaint alleges that §§4785-91 and 4785-107 GC (§§3513.27 and 3505.10 R. C.), are unconstitutional in that said statutes allegedly deny relator and others who are not members of either the Republican or the Democratic political parties a right to vote for Ohio presidential electors. It is also alleged that §4785-91 GC (§3513.27 R. C.), has as its purpose the elimination of independent candidates for state offices other than those of presidential electors, in that the necessary percentage of nominating signatures on a petition has been raised to 7 per cent of the total governors vote from a former 1 per cent of said vote. The relator seeks declaratory judgment that the above mentioned statutes are unconstitutional and an injunction against the respondent from enforcing said statutes. The respondent filed a motion to dismiss upon the ground (1) that the court lacks jurisdiction over the subject matter and (2) that the complaint fails to state a claim against respondent upon which relief can be granted.

The cause came on to be heard before the honorable Florence E. Allen, Judge of the United States Court of Appeals for the Sixth Circuit, the Honorable Mell G. Underwood and the Honorable Lester L. Cecil, Judges of the United States District Court for the Southern District of Ohio, and the court, having heard the arguments of counsel and being fully advised in the premises, makes the following findings of fact and conclusions of law:

There is no evidence before this court of any action taken by the relator or others, including the respondent, relative to the nomination and election of independent candidates for the office of presidential electors or other state offices under the statutes in question.

There is no actual controversy appropriate for judicial determination involved in this case.

This court, in the absence of an actual controversy, has no power to grant the relief requested in relator’s complaint.

The motion of the respondent to dismiss should be sustained.


text:
    JONES, Plaintiff-Appellant, v. KLINE, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2351.
    Decided November 22, 1955.
    Mason Douglass, John F. Edwards, Dayton, for plaintiff-appellant.
    Harshman, Young, Colvin & Alexander, Dayton, By Robert C. Alexander, of Counsel, for defendant-appellee.
    COLLIER, J, of the Fourth District, sitting by designation in the Second District.)
   OPINION

By HORNBECK, J.:

This is an appeal on questions of law from a judgment entered on a verdict of a jury for defendant in an action for damages for personal injuries suffered by plaintiff by reason of being struck by bricks from a falling wall.

Seven errors are assigned. Admission of evidence in behalf of defendant; giving of special charge before argument requested by defendant; error in the general charge; in the overruling of the motion for new trial; that the verdict was contrary to and against the manifest weight of the evidence and contrary to law; and other errors in the general charge relating to proximate cause.

Without reciting the facts at length, we conclude that the evidence admitted in behalf of the defendant, over the objections of plaintiff, was properly received. The question propounded as to the instructions of defendant’s driver respecting the handling of the truck and the chute in connection therewith was relevant and competent and therefore admissible. Cincinnati Street Railway Co. v. Altemeier, Admr., 60 Oh St 10. There was no motion made to strike any part of the answer.

The special charge to which objection is directed relates to the obligation of plaintiff to exercise ordinary care in the situation with which he was confronted at and about the time that he was injured. It could have application only to his contributory negligence, as to which the court also instructed the jury in its general charge.

Upon the testimony of plaintiff supported by two witnesses there was no suggestion of his negligence; indeed he was not near the truck and did not see the chute strike the wall causing the bricks to fall upon him. But, in the case made by the defendant, plaintiff was shown to be cognizant of the position and movement of the truck and the chute in relation to the unsupported wall and had impliedly indicated a purpose to raise the chute so that it would not strike the wall. This development, in our opinion, supports the action of the trial judge in giving the instructions.

If it be assumed that the court should not have charged on contributory negligence, there was an issue as to the negligence of defendant upon the testimony developed by the defendant. The jury might properly have determined that defendant’s driver exercised ordinary care under all the facts appearing. Likewise, it clearly could have found the defendant was negligent, proximately causing plaintiff’s injuries. Thus, there was a clear issue on the negligence of the defendant which was properly submitted to the jury. The jury returned a general verdict without interrogatories and nothing developing to establish upon which issue it found for the defendant, the two issue rule becomes applicable. The general verdict imports a finding for the defendant on both issues. Sites v. Haverstick, 23 Oh St 626.

Upon the assignment that the verdict and judgment are not supported by the evidence and are contrary to law we may not, because of the contrariety of testimony on the disputed and determinative issues, hold with the claim of appellant.

We find no assignment of error well made. The judgment will be affirmed.

MILLER, PJ, COLLIER, J, concur.


author: By BARTLETT, J.

text:
    PETTIBONE, Plaintiff, v. V. N. HOLDERMAN & SONS, INC., Defendants.
    Common Pleas Court, Franklin County.
    No. 187377.
    Decided September 29, 1954.
    Carl G. Nappi, for plaintiff.
    Knepper, White, Richards, Miller & Roberts, for defendant.
   OPINION

By BARTLETT, J.

MOTION TO STRIKE FROM THE PETITION AND THE EXHIBIT ATTACHED THERETO, IS OVERRULED AS TO BOTH BRANCHES.

The petition in this case sets forth sufficient facts to constitute a cause of action.

The distinction between setting forth copies of the certain instrument as prescribed in §2309.32 R. C., and attaching copies to a pleading in conformity with §2309.31 R. C., is obvious and important. In the former case they become incorporated in the petition by an express reference: in the latter they are attached and filed, not as a part of any statement in the petition, but as evidence. 31 O. Jur. Pleading, Sec. 92, p. 647.

There is some controversy as to what is “a written instrument as evidence of indebtedness” within the meaning of §2309.31 R. C., requiring such instrument to be attached to and filed with a pleading, * * *. The provisions of §2309.32 R. C. are limited * * *; §2309.31 R. C., however, includes all these and such other instruments of writing as show them to be mere evidence of indebtedness. Some courts have deemed §2309.31 R. C., to include all instruments on which an action for pecuniary relief is founded or which contain a promise, conditional or unconditional, to pay a fixed sum. Ibid. Sec. 93, p. 647.

The object of §2309.31 R. C., is to furnish the opposite party with a copy of the evidence of indebtedness sued upon, for inspection, to enable him to determine its nature and character and prepare his defense. Rouse v. Groninger, 2 O. Dec. Rep. 277.

In complying with §2309.31 R. C., requiring copies of instruments to be filed with the petition in certain actions, the proper way is to attach the contract to the pleading as an exhibit, and not attempt to make it a part of the petition. 31 O. Jur. Pleading, Sec. 94, p. 649. This is the better practice. Turner v. DeWitt, 4 C. C. (N. S.) 434. This method has been followed in the instant case.

What prejudice can there be to the defendant in attaching a copy of the contract but not making it a part thereof? The trial court will be absolutely free to handle it as the court deems proper; and it is no imposition upon the court to examine this brief four page contract.

Consequently the motion to strike certain words from the petition and the exhibit attached thereto is overruled. Entry accordingly with exceptions of counsel for defendant.


author: By THE COURT.

text:
    WEISER, Plaintiff-Appellant, v. INDUSTRIAL COMMISSION, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4894.
    Decided October 9, 1953.

      Roscoe G. Walcutt, Alfred J. Henney, Columbus, for plaintiff-appellant.
    Hon. C. William O’Neill, Atty. Geni., Chalmers P. Wylie, James F. DeLeone, Asst. Attys. Geni., Columbus, for defendant-appellee.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court rendered upon the verdict of a jury. The action was one for personal injuries alleged to have been suffered by the plaintiff-appellant on September 29, 1943, at about 4:00 P. M. while engaged in the regular course of her employment by the Ohio Bureau of Motor Vehicles. A verdict was returned in favor of the defendant. The only error assigned concerns the admissibility of State’s Exhibit No. 3, which is an attendance record kept by the Bureau. For the purpose of identifying this exhibit Harriet Paterson was called as a witness. She testified that during the period in question she was employed by the Bureau as secretary in the office of the personnel director; that one of her duties was to keep attendance records, leaves of absence and pay roll reports; that the exhibit submitted was in her handwriting and was a daily attendance card of the plaintiff and was kept by the months, days and half days; that it was made by her from records sent down by the heads of the departments; that it was a permanent record which was filed away by the year. This record disclosed that the plaintiff was not employed on the day of the alleged injury. The appellant urges that this record did not meet the requirements of §12102-23 GC in the following respects:

(1) It is a copy of another record and therefore not authentic.

(2) It does not appear that it was made in the regular course of employment.

(3) There is no evidence that the record was made “at or near the time” of the plaintiff’s alleged absence.

This section of the General Code provides:

“A record of an act, condition or event, shall, in so far as relevant, be competent evidence if the custodian or the person who made such record or under whose supervision such record was made testifies to its identity and the mode of its preparation; and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.”

It will be noted that the trial court is required to exercise a discretion in determining whether or not “the sources of information, method and time of preparation were such as to justify its admission.” Our examination of the record reflects that it is such as will support the Court’s ruling. It appears to be authentic because it is a permanent record clearly kept in the regular course of the employer’s business. The fact that it was made up from reports made daily by the department heads does not destroy its authenticity.

In Taylor Sons & Co. v. Burton, 46 Oh Ap 398, at page 402 the Court quotes with approval from 3 Wigmore on Evidence (2d Ed.), Section 1558, as to what constitutes an original record:

“ ‘The general rule requiring the production of the original of a writing, here as elsewhere, must be satisfied; i. e- the entry offered must be an original * * *. A ledger, though otherwise not objectionable, will usually not be the first book entered up; nevertheless, if the first book be in fact kept in ledger form, it will be none the less admissible. Furthermore, the record admissible is one consisting of a regular series; hence, the first regular and collected record is the original one. and it is immaterial that it was made up from casual or scattered memoranda preceding it.’ ”

It is our conclusion that the defendant’s Exhibit No. 3 met all the requirements necessary to constitute it an original record. Although the evidence is not specific as to the time it was made, the inference therefrom indicates most strongly that the memo was sent each day to the witness who thereupon made the permanent record.

The judgment will be affirmed.

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


author: By QTJATMAN, PJ.

text:
    BICKNELL, Estate of, In re.
    Ohio Appeals, Third District, Hancock County.
    No. 571.
    Decided March 19, 1956.

      Schuck & Schuck, Findlay, Squire, Sanders & Dempsey, Cleveland, for appellant.
    Ralph D. Cole, Jr., Findlay, Morley, Stickle, Keeley & Murphy, Cleveland, for appellees.
   OPINION

By QTJATMAN, PJ.

Appellant, The Bank of New York, filed this appeal from an order of the Common Pleas Court of Hancock County, Ohio, dismissing an earlier appeal in this same matter from the Probate Court of Hancock County, Ohio, for want of jurisdiction.

The facts and the law of the case were ably argued and are also clearly set out in the briefs. While there quite naturally is a difference in opinion as to the law, the parties are not at variance with regard to the facts.

It appears that the decedent, Helen Bicknell, died testate on May 29, 1955, leaving an estate of some three million dollars. The bulk of the estate was devised to the appellant, the Bank of New York, in trust, primarily for the benefit of - the Hospital for Special Surgery, New York, N. Y.

The will was admitted to probate in the Probate Court of Hancock County, Ohio, on June 21, 1955. Thereafter, as shown by the record of that court, on September 16th an application was filed on behalf of the Bank of New York to be appointed trustee. The application sets forth that the bank was not at present qualified to do a trust business within the State of Ohio, but that it was prepared to meet all the requirements of this state in order to qualify and intended doing so at an early date. On that same date, an application was filed on behalf of The Cleveland Trust Company and Thomas A. Orndorif, appellees, to be appointed co-trustees.

The former was appointed executor of the will and the latter is a practicing attorney in Findlay, Ohio. The only other matter contained in the docket with regard to the appointment of a trustee was an instrument filed by The Cleveland Trust Company on August 11, 1955, requesting that a trustee be appointed at an early date, and setting forth certain urgencies.

On the same date as the two applications, to-wit, September .16, a journal entry was signed and entered on the docket denying the application of the Bank of New York to be appointed testamentary trustee for the reason that:

“The court finds, however, that the Bank of New York is not a resident of the State of Ohio and, solely on the ground of such non-residency, finds that the administration of said Trust Estate would be better served by the appointment of a trustee resident of the State of Ohio.”

The same journal entry finds The Cleveland Trust Company and Thomas A. Orndorff to be suitable persons to be appointed testamentary co-trustees and does so appoint them.

There is nothing in the record of these proceedings to indicate that any testimony was heard by the court with regard to the two applications.

While it does not appear on the transcript of the docket, there is contained within the file two notices signed by the court and dated August 11, 1955, addressed to the interested parties advising that the application of the Cleveland Trust Company urging an early appointment of a trustee would be for hearing on August 22, 1955. The record is silent as to the results of this hearing, or even if a hearing was had.

It was from the order of the probate court denying the application of the Bank of New York that an appeal was taken to the common pleas court. The appellees, The Cleveland Trust Company and Thomas A. Orndorff, filed a motion in the common pleas court to dismiss the appeal for the reason that the said court was without jurisdiction. At a hearing had before the common pleas court on November 5, 1955, the motion of the appellees was sustained and the appeal dismissed. The appellant, the Bank of New York, thereupon brings its appeal to this court, and sets forth the following assignments of error:

1. The trial court erred as a matter of law, on the evidence before nim, in granting the motion of The Cleveland Trust Company and Thomas A. Orndorff to dismiss the appeal of the Bank of New York.

2. The court of common pleas erred in refusing to consider the proffered testimony disclosing that evidence had actually been before the probate court on the application of the Bank of New York

It is quite apparent that this court is not concerned with whether or not the probate court operated within its discretion or authority in denying the application of the Bank of New York to be appointed testamentary trustee. The only question for this court to decide is whether or not the common pleas court can accept an appeal on questions of law and fact from the probate court where the order appealed from was one denying an application to be appointed testamentary trustee. An answer to this question must necessarily proceed from an examination of the facts and the law having regard to appeals from a probate court to the common pleas court.

Sec. 2101.42 R. C., governs appeals from the probate court and provides for an appeal from that court to the common pleas court in certain Instances, to-wit:

“* * * If a record has not been taken at the hearing of any matter before the probate court so that a bill of exceptions may be prepared as provided by §§2321.02 to 2321.16, inclusive, E. C., then an appeal on questions of law and fact may be taken to the court of common pleas from any order, decision, or judgment of the probate court, by a person against whom it is made or whom it affects, in the manner provided for the prosecution of such appeal from the court of common pleas to the court of appeals. The court of common pleas shall advance said matter for hearing.”

In examining this same section as formerly contained in §10501-56 GC, it will be observed that the words “If for any reason a record has not been taken,” etc., have been deleted in the revised edition. This is mentioned for the reason that the wording “for any reason” seemed to impress the court in the case of Estate of Campbell (1943), 39 Abs 513, Second District. The factual situation in that case is similar to that in the instant case. The appellate court upheld the judgment of the common pleas court in dismissing the appeal. However, it is difficult to determine the exact reason. The opinion appears to dismiss the fact counsel for both appellant and appellee stipulate in the common pleas court and the court of appeals that no testimony was taken or offered in the probate court as unimportant.

Appellant in the instant case asserts the rule of that case as being that an appeal on law and fact to the common pleas court lies where no evidence was offered in the probate court.

It is our opinion that the case is authority for the proposition, whether right or wrong, that where the journal entry of the probate court recites that the judgment of the court was based upon “the evidence adduced” the entry may not be impeached by stipulations of counsel that no evidence was before the court other than the application nor may it be asserted that no record was taken. The court states that the entry should have been corrected either by motion or mandamus so as to reflect the true facts, before appeal would lie to the common pleas court.

In considering §2101.42 E. C., as contained in former §10501-56 GC (supra), the court in the case of In re Estate of Schneider. 81 Oh Ap 233, at page 237 stated:

“There is nothing ambiguous about the provision. All that is necessary in construing the section is to give to the words used by the Legislature their plain and ordinary meaning. The language of the statute is plain and simple. We see no reason for any strained or tortuous interpretation and no reason to read into the statute words that are not there.”

Again, in the case of In re Estate of Bates, 142 Oh St 622, at page 627, Matthias, J., had the following to say:

“Sec. 10501-56 GC, provides in very plain and simple language that when no record is made in the probate court ‘an appeal on questions of law and fact may be taken to the Court of Common Pleas by a person against whom it is made, or whom it affects.’ ”

The Schneider case, supra, involved the question of the jurisdiction of the common pleas court on an appeal on law and fact from an order of the probate court denying an application of appellant to be appointed administrator. The entry in that case reads as follows;

“November 20, 1944. To court: On this 20th day of November, 1944, this case came on to be heard on the application of Frank P. Schneider to be appointed administrator de bonis non of the estate of Anna Schneider, deceased, late of the city of Cleveland in this county. Whereupon, the court having considered the said application and being fully advised in the premises, orders that the application of the said Frank P. Schneider be and it is hereby refused.” (Page 235.)

The entry differs from that in the instant case in that the latter states that the judgment of the court is based “solely on the ground” that the Bank of New York is a non-resident of Ohio.

While the opinion in the Schneider case (supra) does not affirmatively set forth that evidence or testimony was heard by the court and upon which the judgment was based, the entry, as well as the opinion, imply that testimony and evidence was taken. The implication arises from the contention of the appellee in that case, that under former §10501-56 GC, an appeal lies to the common pleas court only where a bill of exceptions cannot be prepared, or, secondly, if a complete record cannot be prepared. An analysis of that proposition can only conclude that there was testimony or other evidence before the probate court upon which a bill of exceptions could be prepared, ergo, no appeal will lie to the common pleas court.

This reasoning is further strengthened by the statement of the court, and upon which it based its decision that an appeal did lie. On page 238, the court states that:

“It is the fact that a record was not taken which gives right to the person aggrieved, rather than what could have been done. Therefore, §10501-56 GC, does not require a party to prepare a narrative bill of exceptions, as contended by the appellees.”

Stress is laid upon this point by this court in order that the law of that case (Schneider, supra), may not be extended to favor factual situations not contemplated by it. It is our opinion that the finding of the court in the Schneider case (supra) would have been different had it been affirmatively shown, as in the instant case, that no evidence was presented or testimony introduced in the probate court.

The entry of the court, as well as the testimony of the Probate Judge, as contained in the bill of exceptions before this court, clearly shows that no evidence or testimony was introduced or attempted to be introduced before the court on September 16th with regard to this matter.

It is recognized in the Schneider case (supra), that the reason for the enactment of §2101.42 R. C. (formerly §10501-56 GC) (supra), is that hearings before the probate court are frequently of an informal nature and less formal than those of common pleas or higher courts. Proceedings and hearings in the probate court are far more multitudinous than those of other courts of record, necessitated by the great variety of matters that arise in the administration of trusts, guardianships, estates, and other matters of like nature of which that court has original jurisdiction. Hearings normally are of short duration and most often no record is taken, not only in the interest of expediting the hearing, but also to conserve cost. Recognizing that situations might arise wherein an aggrieved party might lose his appeal by reason of no record being taken and no bill of exceptions could be had, the legislature enacted §2101.42 R. C. (§10501-56 GC), to provide for a rehearing of the matter by trial de novo in the common pleas court where a record of the evidence and testimony would be taken and available for appeal to a higher court.

It is the opinion of this court that §2101.42 R. C., does not nor was it intended to permit appeals from the probate court to the common pleas court where the judgment was rendered upon averments contained in the pleadings and no evidence of any nature was presented or even attempted to be presented to the court. See Steward v. Belt, 152 Oh St 399.

We And no merit in appellant’s second assignment of error for the reason that it is apparent from the record that the application of appellant was not Aled until September 16th and would therefore be highly irregular and improper, if not prejudicial, for the court to have considered in the rendering of its judgment, alleged evidence or testimony submitted at a prior date and at a time when other interested parties had no opportunity to rebut, object to or cross-examine. The judgment of the common pleas court is afñrmed.

MIDDLETON and YOUNGER, JJ, concur.


author: By HORNBECK, J:

text:
    STATE, ex rel. SIMONS, Plaintiff-Appellant, v. KISER, Defendant-Appellee.
    Ohio Appeals, Second District, Darke County.
    No. 731.
    Decided December 2, 1955.

      Spidel, Staley & Hole, Greenville, for plaintiff-appellant.
    John E. Engelken, Greenville, for defendant-appellee.
    (CONN, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By HORNBECK, J:

This is an appeal from an order overruling a motion of plaintiff for judgment upon the evidence after verdict, and the one error assigned is the failure to sustain the motion. Defendant-appellee moves to dismiss the appeal on three grounds:

1. That the orders complained of by the appellant occurred following the first trial, to the jury in this case, and the plaintiff-appellant participated in the second trial before a jury without any objections being raised at that time, and that this Court has previously ruled “the trial court cannot consider any favorable legal position accruing to appellant in the first hearing.”

2. For the reason that the opinion of the Court of Appeals, which is the real basis of the appellant’s appeal, was rendered at the time that the Court of Appeals had no jurisdiction in this cause, as determined by the Supreme Court of the State of Ohio.

3. For the reason that the basis of the original action of the Court of Common Pleas, in sustaining motion for new trial, is still an open question in the State of Ohio, as determined by the Supreme Court, in the case of State of Ohio, ex rel. Gill v. Volz, decided July 5, 1951, and found in 156 Oh St 60.

This case has had a protracted and somewhat unusual judicial history, which it may be of some advantage to set out to appreciate the background.

The original charge against defendant was bastardy, in the court of the Justice of the Peace of Darke County. Defendant was bound to appear at the next term of the Court of Common Pleas. This init.in.i proceeding occurred in 1948. The cause was tried in Common Pleas Court, and on February 24, 1950, a verdict of guilty was returned; February 28, 1950, motion for new trial was filed, which was sustained on April 13, 1950, for the reason that the defendant had been required to be cross-examined over the objection of his counsel. This order sustaining the motion for new trial was appealed to this Court.

Defendant moved to dismiss the appeal on the ground that the order granting the motion for new trial was not a final order. On August 22, 1950, 58 Abs 257, this Court overruled this motion and handed down an opinion in support of its action.

Thereafter, 59 Abs 113, this Court reversed the action of the trial judge and instructed him to overrule the motion for new trial. This opinion was released November 24, 1950. Before the opinion was journalized, the Supreme Court decided the case of Green v. Acacia Life Insurance Company, 156 Oh St 1, in which, in the fourth syllabus, it was held:

“An order granting a new trial upon motion made in accordance with §11578 GC, is not a final determination of the rights of the parties and does not constitute a judgment or final order, the General Assembly has no power or authority to provide for an appeal from such order, and §12223-2 GC, providing that ‘an order vacating or setting aside a judgment and ordering a new trial, is a final order’ is in conflict with Section 6, Article EV of the Ohio Constitution.”

So much of this syllabus as declared §12223-2 GC unconstitutional was not effective because three judges dissented to the pronouncement, Zimmerman, J., and Hart, J., writing separate dissents, and Matthias, J., concurring in this last opinion.

Defendant moved to dismiss the appeal for want of jurisdiction, and on September 14, 1951, 66 Abs 343, 117 N. E. (2d) 203, this Court dismissed the appeal upon the authority of Green v. Acacia Life Insurance Co., supra. From this order no appeal was prosecuted.

Thereafter, in 1952, the exact date of which we do not have, the cause was again tried to a jury which returned a verdict of “not guilty.” We have no record of the proceedings incident to the second trial, and no information whether or not plaintiff interposed any objection to proceeding. Plaintiff then moved for a judgment notwithstanding the verdict, which motion was overruled and appeal prosecuted to this Court and on March 27, 1953, 95 Oh Ap 343, this Court affirmed the order of the trial court. Appellant based her cause for relief on this appeal upon the result of the verdict in the first case, and the original opinion of this Court in reversing the order of the trial court granting defendant’s motion for a new trial. Motion for a new trial in the second case was filed and overruled.

Thereafter, in 1954, plaintiff filed a motion for judgment upon the evidence, which in February, 1955, was overruled. From this action of the trial court this appeal is prosecuted.

Counsel for plaintiff in this Court, as they did in the motion for judgment notwithstanding the verdict, rely upon the proceedings in the first trial, our reversal of the order sustaining the motion for a new trial, and particularly on the case of Gray v. Youngstown Municipal Ry. Co., 160 Oh St 511, and statement of Judge Middleton in his concurring opinion in this case.

In the case of Mele v. Mason, 156 Oh St 118, decided in July, 1951, succeeding the decision in the Green case in June, 1951, the court reversed the Court of Appeals for assuming jurisdiction to pass upon an order of the trial court sustaining a motion for a new trial, and again held, upon the authority of Green v. Acacia Life Insurance Company, supra, that the sustaining of a motion for a new trial was not a final order. Following this judgment of reversal, Zimmerman, J., Matthias, J., and Hart, J., who had dissented in the Green case, said:

“Although adhering to their views as announced in the Green case, supra, that §12223-2 GO, is not in conflict with Section 6 of Article IV of the state Constitution, accord the decision and judgment of this court therein due recognition, and, therefore, only to avoid the chaotic condition which would result from a situation, created by the provisions of Section 2 of Article IV of the state Constitution, that a law would be valid in some appellate districts but invalid in other appellate districts, and for the sole purpose of assuring uniformity of procedure in our courts, concur in the reversal of the judgment of the Court of Appeals.”

And later, in Lawrence v. Moore, 156 Oh St 375, the court again held that the appellate court was without jurisdiction to consider an order granting a new trial, where abuse of discretion did not appear because it was not a final order. All members of the court concurred in a per curiam opinion in this case.

We grant that the opinion and holding of the court in Gray v. Youngstown Municipal Ry. Co., supra, is somewhat disconcerting, as it reflects upon the finality of a judgment after a motion for a new trial has been filed. However, Judge Zimmerman, writing the opinion in this case, said at page 516:

“It should be apparent that the question presented in the Green case and the one now before the court are quite different in character.”

There is no doubt that Judge Middleton in his concurring opinion, as stated in appellant’s brief, confessed that he was wrong in the Green case. He said: “It is my opinion that the granting of the motion for a new trial was a final and appealable order, notwithstanding the Green case. This statement is made with full consciousness that I concurred in the Green case, but I no longer approve of the reasoning or judgment therein.”

Without respect to the law of the Gray case, it did not and could not affect the opinion and order of this Court in sustaining the motion to dismiss plaintiff’s appeal in the first case for want of jurisdiction. At that time, the Green case was the law, and in following it we were correct. Whether or not our order dismissing the appeal was sound, it was not tested by any further proceedings and stands unreversed and unmodified.

The effect of this order was to leave the action of the trial judge sustaining the motion for new trial in the first case in full force and effect. The third syllabus in the Green case is:

“Where the trial court grants a motion for a new trial, the judgment entered upon a verdict is set aside and is no longer in existence.”

In passing on the appeal from the order of the trial judge overruling plaintiff’s motion for judgment notwithstanding the verdict we said, in ruling on that motion, the trial court cannot consider any favorable legal position accruing to appellant in the first hearing. The granting of a new trial eliminates from further consideration all such matters.

Counsel rely upon and quote from the Gray case, wherein §11601 GC, is quoted, at page 514:

“When, upon the statements in the pleadings or upon the evidence received upon the trial, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, although a verdict has been found against such party.”

Manifestly this language is directed to evidence received during the trial in which the proceedings are under review and cannot refer to a prior trial in which the judgment, and in our opinion, the verdict, had been nullified. In the second syllabus of the Gray case it is said:

“Where during the trial of an action a party moves for a directed verdict at appropriate stages, which motions are overruled, and secures a verdict and judgment in his favor and the court thereafter grants a new trial, such party may then under §11601 GC, forthwith move for judgment in his favor ‘upon the evidence received upon the trial,’ such motion will in effect renew the motions for a directed verdict and the overruling of such motion will constitute a final appealable order.” (Emphasis ours.)

Thus, if by any reasoning the foregoing be given the most favorable interpretation for the plaintiff here, it is obvious that the delay in filing the motion would be sufficient basis for denial of the motion for judgment.

The only possible theory upon which plaintiff could secure the relief which she seeks would be to reinstate, as a judgment, the opinion of this Court on the first appeal, set aside the order sustaining the motion for new trial, and enter judgment on the first verdict. This, in effect, is the result that would have been obtained if our first judgment had not been nullified. The weakness in the position of plaintiff is that this Court, by its order dismissing the first appeal for want of jurisdiction, which order is unreversed, removed all basis for such a judgment as now sought. The case when remanded to the Common Pleas Court was in the status before the first appeal, verdict for plaintiff set aside. A motion for a judgment on the evidence in the trial court where it was filed could not have been sustained because the record included testimony, by the ruling of the trial judge improperly received and, therefore, could not be resolved in favor of the plaintiff, as a matter of law

We are not unsympathetic with the position of the plaintiff in this case, and realize that by a series of adjudications she has been denied relief to which she may at all times have been entitled. However, we are satisfied that when the first appeal was properly dismissed, under the Green case, the judgment and verdict were without any force inasmuch as a motion for a new trial had been sustained.

The trial judge was correct in overruling plaintiff’s motion for judgment upon the evidence after verdict. The judgment will be affirmed,

MILLER, PJ, CONN, J, concur.