source: Caselaw Access Project

author: By MILLER, J: By THE COURT:

license: Public Domain

text:
    STATE, ex rel. BEIGEL and MAHRT, Relators-Appellees, v. BRUMBAUGH et, Respondents-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    No. 2145.
    Decided April 14, 1951.
    Henry L. Beigel, Louis R. Mahrt, Dayton, for relators-appellees.
    Mathias H. Heck, Pros. Atty., Albert J. Dwyer, Asst. Pros. Atty., Dayton, for respondents-appellants.
   OPINION

By MILLER, J:

This is an action in mandamus wherein the relators are seeking an order commanding the respondents, who are the duly elected Commissioners for Montgomery County, to fix the amount of the appeal bond in an attempted appeal from an improvement resolution adopted by the said Board. This resolution provided for the construction of a public water supply system in a district wherein the relators are property holders and therefore subject to certain assessments for the improvement.

The record reveals that on January 3, 1951, a peremptory writ was granted as prayed for in the petition. On January 5, 1951, the respondents filed an answer and also a motion to suspend the peremptory order and to fix the time for hearing on the merits. On February 19, 1951, the motion was overruled and the respondents were ordered to comply forthwith the peremptory writ previously issued. On February 20, 1951, motion for new trial was filed, which was overruled on February 21. Notice of appeal was filed on February 23, directed to the order overruling the motion on February 19, and also to the order overruling the motion for a new trial, which was filed on February 21.

The real question presented is whether the notice of appeal from the resolutions adopted by the Commissioners was timely filed. The provisions of the statute relating to this appeal are found in §6602-3e GC, which in part provides:

“* * * Any person * * * desiring to appeal from the final order or judgment of the county commissioners-upon any said questions, shall on or before the date of the passage of the improvement resolution give notice in writing of an intention to appeal, * *

It will be observed that this section requires the notice of appeal to be filed on or before the passage of the Improvement resolution which may only be adopted a certain period of time after a prior resolution has been adopted declaring the improvement to be a necessity. Secs. 6602-2, 6602-3 GC. The procedure in such a proceeding therefore consists of two distinct steps:

1. The resolution of necessity for the improvement; and

2. The resolution to make the improvement.

The petition alleges that the improvement resolution was adopted on September 26, 1950, and within ten days thereafter a notice of appeal was filed under the provisions of §6602-3b et seq, GC. The notice of appeal was therefore not filed “on or before the date of the passage of the improvement resolution” as required by §6602-3 GC, but on the contrary it was filed within ten days thereafter. This does not meet the statutory requirements and it must follow that no jurisdiction was conferred upon the Probate Court. In cases of appeal in civil actions it has been uniformly held that failure to file the notice of appeal within the prescribed time deprives the appellate court of jurisdiction. See State, ex rel. v. Brookes, et al., 142 Oh St 107. The relators urge, however, that under §6602-3b GC, the appeal was properly filed. This section provides:

“Any owner of property to be assessed * * * may appeal to the Probate Court from the action of the board of county commissioners * * *. Provided, however, that such appeal be effected within ten days after the passage of the resolution to proceed with the improvement * *

This section, it should be noted, makes no provision for the filing of a notice of appeal but merely provides for the time of effecting the appeal. The word “effected” means accomplished, completed, consummated. 28 C. J. S. 838. It therefore has reference to the time in which the appeal must be completed, that is by the giving of the appeal bond. Since the notice of appeal was not timely filed the appeal was never lawfully commenced and therefore there was no occasion for the giving of an appeal bond. The relators urge further that §6602-3g GC gives the Probate Court exclusive jurisdiction to pass on all preliminary matters and expressly provides that if “the appeal is not perfected according to law, he shall dismiss such appeal.” The mere fact that the Probate Judge may dismiss the appeal if not properly perfected is not inconsistent with the right of the respondents to refuse to fix the bond when the appeal is not properly filed. The Probate Judge has exclusive jurisdiction to pass upon all matters properly before his court. But the matter of his own jurisdiction may be examined in this proceeding. The judgment overruling the respondents’ motion to suspend the peremptory writ is one affecting a substantial right and is an appealable order.

It is our conclusion that the Court erred in the judgment, which is ordered reversed and cause remanded.

HORNBECK, PJ, WISEMAN, J, concur.

Decided April 28, 1951.

ON APPLICATION FOR REHEARING

No. 2145.

OPINION

By THE COURT:

This is an application for a rehearing in which we find nothing presented which was not previously considered. The statutory requirements for the perfecting of the appeal seem to be reasonably definite and certain and under such circumstances a different interpretation may not be given to them. If these requirements are not practicable, the change should be accomplished by appropriate legislation and not by judicial fiat.

Application denied.

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


author: By THOMPSON, J.:

text:
    SERVICE TRANSPORT CO., Plaintiff-Appellee, v. MATYAS, Admrx., Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22527.
    Decided June 16, 1952.

      Oscar J. Green, S. Neil Hosenball, Cleveland, for plaintiffappellee.
    J. Harmon Cohen, Cleveland, for defendant-appellant.
   OPINION

By THOMPSON, J.:

This was an action in replevin brought in the Common Pleas Court of Cuyahoga County by the Service Transport Company against the administratrix of the estate of Rudolph Matyas, deceased. The property sought to be replevied consisted of 25 new Dunlop truck tires and one new Pennsylvania truck tire (9.00 x 20, 10 ply) and fifty natural rubber tire tubes (size 9.00 x 20). The trial court heard the testimony of both parties, submitted the case to a jury under instructions and the jury returned a verdict, finding title to and right o'f possession of the property in the plaintiff, but assessing no damages. The court thereupon entered judgment on the verdict. A motion for new trial was filed by defendant and on March 24, 1952 this motion was overruled. An appeal was taken to this Court on questions of law by the defendant. The notice of appeal was filed on April 3, 1952 and on May 5, 1952, the forty-second day after the judgment overruling the motion for new trial, a bill of exceptions was filed by the defendant. Plaintiff appellee in this court subsequently filed a motion to strike the bill of exceptions, which this court granted because the bill of exceptions was not filed within the forty day period required by §11564 GC.

Six assignments of error were filed in this court by defendant appellant, but, in the absence of a bill of exceptions, this court is able to consider only such assignments of error as may be apparent on the face of the record. Assignments of error requiring examination of the bill of exceptions are to be disregarded. Garland v. Gilbert, 85 Oh Ap 55. On that basis, the second, third, fourth, fifth and sixth assignments of error involving errors complained of in the court’s general and special charges, and the alleged error of the court in overruling defendant appellant’s motion for a directed verdict at the conclusion of plaintiff’s case cannot be considered.

We are called upon in this appeal to pass upon the first assignment of error only, namely, the alleged error of the trial court in overruling defendant’s motion for a directed verdict prior to the introduction of evidence, involving, as this does, the question whether the pleadings set forth facts sufficient to constitute a cause of action.

The petition alleged that plaintiff was a corporation organized and existing under the laws of the state of Ohio and that the defendant was the administratrix of the estate of Rudolph Maty as, deceased; that at the commencement of the action and at all times therein mentioned, plaintiff was the owner of specified new truck tires and natural rubber tires, of the kind previously referred to, and that plaintiff was entitled to the immediate possession of the said property which defendant was wrongfully and unlawfully detaining. The petition asserted that plaintiff had suffered damages due to the alleged wrongful detention in the sum of $1,000.00. In the prayer of the petition, plaintiff asked judgment for recovery of the property described, for possession thereof, and for damages in the sum of $1,000.00 for the wrongful detention together with costs. An affidavit in replevin was filed at the time of filing the petition and an alias affidavit in replevin was filed a few weeks later, correcting the number of tires set forth in the original affidavit. The affidavits are routine, conforming to the requirements of the statute (§12052 GC), reciting that plaintiff is the owner of the property described and that “said property is wrongfully detained by the defendant.”

An answer was filed by defendant alleging that she was the administratrix of the estate of Matyas, deceased, appointed by the Probate Court of Cuyahoga County. The answer admitted plaintiff’s corporate capacity, but denied that plaintiff was the owner of the property described in the petition and denied that plaintiff was entitled to possession thereof. The answer further denied that plaintiff was the owner or entitled to possession of any property in the possession of the administratrix as personal representative of the deceased.

Defendant further averred that all of the property described in the petition belonged to the estate and that it was in possession of defendant as personal representative and that the estate was in the process of administration under orders of the probate court. Defendant further denied any wrongful detention and denied that plaintiff had suffered any damages. The transcript indicates that plaintiff subsequently gave bond as required by law, after an appraisal of the personal property listed in the petition, that the sheriff seized the chattels mentioned and that defendant thereupon furnished a re-delivery bond and was made keeper of the property pending the trial. Upon trial, the jury found for the plaintiff and the court rendered judgment in accordance with the finding.

The one question which concerns us, and which is disclosed by the transcript and pleadings, is whether replevin is an action which can be brought in the Common Pleas Court against an executor or administrator of an estate in course of administration in the Probate Court under the allegations of the petition. This requires an examination of the nature of replevin proceedings, as well as the responsibilities and duties in the Probate Court of the personal representative of an estate.

The Ohio statutes relating to replevin are set forth in Chapter VI of Procedure in Common Pleas Court, consisting of §§12051 and 12074 GC, inclusive. By Sec. 12051 GC, the possession of specific personal property may be recovered by action. By §12052 GC, the form of affidavit is specified, it being essential that plaintiff recite not only that he is the owner of the property or has an interest therein, but also “that the property is wrongfully detained by defendant.” We address ourselves to the question whether the mere allegations of the petition in this case that plaintiff is entitled to certain personal property as against an administratrix acting in her representative capacity, under orders of the Probate Court, states a good cause of action in replevin. This calls for a consideration of the nature of the administration of an estate in the probate court and the dual nature of the duties of an executor or administrator.

It is to be borne in mind that executors and administrators stand in a dual capacity because they personally represent the deceased in settling his affairs and distributing his estate and they also occupy a status as trustee for persons interested beneficially in the estate, including creditors, heirs and legatees. In Greer v. Ohio, 2 Oh St 575, it is pointed out that the personal representative of an estate becomes a trustee for creditors first, and then for distributees of all the personal assets of the estate. Referring to the personal assets in that case, the Supreme Court declared as follows:

“The law prescribed the course to be pursued for converting them into money, and when and how, the money should be paid over to those entitled to it, and the performance in good faith of these requirements constituted the legal duty of the administrators.”

In Lingler v. Wesco, 79 Oh St 225, the Supreme Court of Ohio defining the course of administration required by the personal representative of an estate, stated as follows:

“The ordinary course of administration is the means and the process provided by law, whereby creditors of a deceased debtor receive payment.”

This statement is cited with approval in 18 O. Jur., Executors and Administrators, Sec. 10, pg. 50.

Since the administrator or executor represents all claimants including heirs, legatees and creditors, it is to be assumed, in the absence of any averment to the contrary, that an administrator is caryying out his duties with respect to creditors and claimants in the Probate Court. The petition fails to show either that plaintiff presented his claim to the administrator and that it was rejected, or that, if such course were followed, such method would be unavailing.

Sec. 10501-53 GC provides that the probate court shall have jurisdiction to direct and control the conduct and settle the accounts of executors and administrators and to order distribution of assets. As to these and various other matters therein specified, the jurisdiction of that court, as stated in the section cited, is “exclusive in the probate court unless otherwise provided by law.” We may also note that, upon appointment by the probate court, an administrator is required to give bond conditioned to carry out thev duties enjoined upon him by the Ohio statutes. These conditions include the filing of a true inventory of all moneys, goods, chattels, rights and credits of the deceased, which are by law to be administered, which may come to his possession or knowledge and to administer and distribute according to law all of the said moneys, goods, chattels, rights and credits of the deceased. Sec. 10506-14 GC. The inventory of the administrator is required to be filed by the personal representative within one month of his appointment. Sec. 10509-41 GC. This inventory, under oath, is required to list the real estate of the deceased in Ohio and also, “the goods, chattels, moneys, rights and credits of the deceased, by law to be administered and which have come to his possession or knowledge.” Exceptions to the inventory are provided for by 10509-59 GC and the inventory itself is to be set down for hearing not later than one month after the day the inventory is filed.

Besides the opportunity to except to inventories, improperly listing as that of the estate property actually belonging to claimants, the Ohio statutes provide for presentation of claims directly to an executor or administrator within four months after his appointment. (Sec. 10509-112 GC.) Subsequent to that period of time, claims may be presented to the Probate Court by petition under §10509-134 GC. Important to note is §10509-138 GC, providing that no suit shall be brought against an executor or administrator by a creditor or by any other party interested in the estate until after nine months from the time of his appointment, except in five specified types of cases. The second category covers cases “for the enforcement of a lien against or involving title to specific property.” It may well be urged that the pending action in replevin on its face appears to involve title to specific property and that, for that reason, the nine-month period contained in §10509-138 GC is inapplicable to the present suit. Even though the time limitation preventing suit against an executor or administrator prior to nine months after his appointment may not apply under the circumstances before us, this fact by no means authorizes a suit in replevin.

Examination of the various methods open to claimants to pursue their claims with respect to property in the possession of an administrator of an estate raises the question whether the methods named are exclusive, or whether independent suits against executors or administrators can be filed in the Common Pleas Court without prior recourse to the remedies granted to claimants by the Probate Code. Our precise question is whether in the situation recited in the petition before us, a claimant may proceed directly by replevin in the Common Pleas Court against an administrator regardless of the prompt remedies available in the Probate Court.

Replevin constituted one of the earliest writs known to the common law. The original form of action persists under our present Ohio statute authorizing recovery of personal property wrongfully detained by the defendant. Yet, how can it be said that an administrator of an estate, whose responsibility is that of trustee for the true claimants, whether heirs, legatees or creditors, and whose right to administer property is granted through the Probate Court, is detaining property wrongfully while proceeding in the ordinary administration of an estate? This is the single issue raised by the petition.

We have examined the Ohio decisions and find no case passing on the question whether replevin may be maintained by an alleged owner in the Common Pleas Court against the personal representative of an estate. We do not have a case here of replevin sought against an administrator in his personal capacity for property wrongfully taken and detained by him. We are speaking of a 'situation where the wrongful detention, according to the allegations of the petition, is with respect to property of the decedent. Conceding that the decedent may have wrongfully converted the property covered by the present action and that the owner, in such circumstances, would have had an action against the decedent during his lifetime, does that fact make such right capable of assertion in the Common Pleas Court against the latter’s administrator, or do other presently existing statutory methods we have recited, and granted by the Probate Code, preclude plaintiff, at least until he has exhausted them?

Although no Ohio case has directly passed upon the right of an alleged owner to bring replevin in the Common Pleas Court against an administrator for an alleged unlawful detention of property by a decedent, an Ohio case has passed upon the right of a chattel mortgagee to bring replevin against an administrator. We refer to the decision of the Ohio Supreme Court in Lingler v. Wesco, 79 Oh St 225, declaring that such an action will not lie. This case is cited with approval in 46 Am. Juris. “Replevin,” Sec. 46. The reasoning of this case seems to us applicable to the present situation, in its opinion the court pointed out that the rights of the mortgagee were changed, though not impaired, by the death of the mortgagor. Upon this point the court declared:

“Death did not remove or impair the lien, but we think it did so change the relation of the parties that the remedy by replevin, which might have been enforced in the lifetime of the mortgagor, is not available when the mortgaged property passes into the custody of the administratrix. The new situation does not dissolve the contract relation or impair the contract, but cuts off one of the remedies that could have been pursued against the mortgagor. * * *
“* * ■* we think the chattel mortgage and Lingler’s rights under it must be expounded and determined with a proper recognition of the statutes regulating the settlement of estates of deceased persons, and that the mortgagee should not be allowed to supplant administration under the law, and take upon himself the administration on part of the estate.”

We believe that the holding of the Supreme Court of Ohio in Lingler v. Wesco is sound. The rights of an alleged owner are not necessarily changed by the death of an individual who may have property in his possession, but the method of assertion of those rights may well change. As a matter of fact, the claimant is granted numerous and prompt remedies in the Probate Court and the administrator who succeeds to the personal property in the possession of decedent is required to give bond to administer the estate for the benefit of claimants. The Probate Court is a court authorized to determine the validity of claims of all claimants to decedent’s property. Since the petition here states an ordinary action in replevin and fails to assert reasons why the Probate Court cannot grant the relief requested under the statutes vesting responsibility and authority in the administrator, we believe that the present action did not properly lie in the Common Pleas Court. We recognize that our decision is a procedural one, and suggest that opportunity is available to plaintiff to assert his claims in the appropriate forum. Finding the first assignment of error well taken, we are reversing the judgment of the trial court and are entering final judgment for defendant. Exceptions. O. S. J.

SKEEL, PJ, HURD, J, concur.


author: By THOMPSON, J:

text:
    SERVICE TRANSPORT CO., Plaintiff-Appellee, v. MATYAS, Admrx., Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22527.
    Decided July 7, 1952.
    Oscar J. Green, S. Neil Hosenball, Cleveland, for plaintiffappellee.
    J. Harmon Cohen, Cleveland, for defendant-appellant.
   OPINION

By THOMPSON, J:

A motion to certify on the ground of conflict was filed in this case by plaintiff appellee and submitted on briefs and oral argument. At the hearing we indicated that if we did not find grounds for granting a motion to certify on the ground of conflict, we would treat the application as one for rehearing.

At the outset, we should state that we did not hold in this case that an action in replevin may never be available on the part of a third party against an administrator in possession nor that any remedies on the part of plaintiff appellee in the Probate Court were exclusive. We merely held that under the pleadings in the instant case an action in replevin was not stated as against the administratrix in possession of personal property.

On the motion to certify, counsel for plaintiff appellee has stressed in particular the cases of Scott v. Mofford, 64 Oh Ap 457, Lorain County Savings & Trust Co. v. Haynes, 26 Oh Ap 552, Brown v. Southern Ohio Savings Bank, 22 Oh Ap 325, and Walkey, Admr. v. Loney, 13 Oh Ap 393. The first case was an action in the common pleas court to recover possession of real estate, brought by a daughter of decedent who was asserting title under a deed against the sole legatee under a will. It was not an action in replevin to recover personal property against the personal representative of the estate and the facts do not indicate that the executor was a party defendant.

The case merely holds that inclusion of the real estate in the inventory of the creditor’s estate to which no exceptions were filed and in which no actual hearing was held, was not res ad judicata and did not estop the grantee from asserting title to the real estate.

In Lorain County Savings & Trust Co. v. Haynes, 26 Oh Ap 552, the husband of decedent on Nov. 27, 1925, brought an action in replevin against the Lorain County Savings & Trust Company to obtain certain jewelry, the bank being a former administrator of the wife’s estate, removed prior to filing of the suit because of the discovery of a will and appointment of executors under the will on Nov. 18, 1925. Upon being sued, the bank, former administrator, interpleaded the executors who also claimed the personal property in question. The suit, therefore, was not one by a stranger against the personal representatives of an estate who had a prima facie right to possession of the personal property of decedent, but an action by a stranger against a former administrator and • executors out of possession. No question was therefore involved as to the respective rights of a claimant or creditor as against an administrator in possession of personal property.

In Brown v. Southern Ohio Savings Bank, 22 Oh Ap 325, it was held by the Court of Appeals for Huron County that the probate court had jurisdiction to determine ownership of stock inventoried as assets of the intestate’s estate and tnat the common pleas court had jurisdiction on appeal. It was also held that claimants to personal property inventoried as assets of the estate were not barred from questioning ownership by failure to file exceptions to the inventory within six months but could raise that question by direct proceedings in the probate court. The court also asserted that the claimants could by direct action raise the question in the common pleas court but no question of right to maintain a suit in replevin was indicated.

The case of Walkey, Admr. v. Loney, 13 Oh Ap 393, covered three controversies involving claims against the estates of Loney and his wife, two originating in the probate court and one seeking relief in common pleas court by way of money judgment and delivery or cancellation of certain notes executed by the decedent. No question of replevin was involved.

We have examined the other cases cited and find no decisions which 'would warrant us in certifying this case to the Supreme Court of Ohio on the ground of conflict. We again refer to Lingler v. Wesco, 79 Oh St 225, cited in our original opinion as the nearest analogy we have found. The case has been frequently cited, the most recent occasion being in the nisi prius case of Moreland v. Roberts, 40 Abs 272 (1943). The latter case covers the situation of a chattel mortgagee where power to take possession and' sell on default was expressly granted under the terms of the mortgage, a permission apparently not existent in Lingler v. Westco. It was none the less held that the right of possession upon the death of a mortgagor was transferred to the administrator of the mortgagor by virtue of his appointment and qualification as against the mortgagee. Although circumstances might warrant the maintenance of an action in replevin in the common pleas court against an administrator of an estate, a clearer case for such right must be stated than has been alleged in the petition presented.

The motion to certify is overruled, and the application for rehearing denied. Exceptions.

SKEEL, PJ, HURD, J, concur.


author: By MATTHEWS, J:

text:
    RENNER, Treas., etc., Plaintiff-Appellee, v. GORDON, d. b. a. GORDON FURNITURE COMPANY, Defendant-Appellant.
    Ohio Appeals, First District, Hamilton County.
    No. 7470.
    Decided November 19, 1951.

      C. Watson Hover, William J. Schmid, Francis X. Schwegmann, Cincinnati, for plaintiff-appellee.
    Cedric Vogel, Cincinnati, for defendant-appellant.
   OPINION

By MATTHEWS, J:

•The defendant-appellant failed to make a personal property tax return for the years, 1944, 1945, 1946 and 1947, and having ignored citations to make returns, the Tax Commissioner, acting under §5376 GC, authorizing him to make a return and assessment, proceeded to make such return for the taxpayer and placed an assessment of $1,503.26 against her upon the duplicate. The defendant-appellant, not having paid any part of this assessment or taken an appeal to the Board of Tax Appeals under §3394 GC, this action to recover the amount was filed on February 18th, 1949. The defendant-appellant answered, admitting that an unspecified part but not all of the amount was due and prayed that the plaintiff-appellee be required to furnish strict proof of the amount due. The trial court rendered judgment for the full amount of the assessment. This appeal is from that judgment.

The action was heard in the Common Pleas Court upon an agreed statement of facts and the testimony of two witnesses, an examiner from the Department of Taxation of the State of Ohio, and the defendant-appellant’s son.

The defendant-appellant now admits that she is liable for $1,032.22, but disputes liability for the residue. The disputed part consists of three items.

The first item relates to certain money received from certain insurance companies. These items are listed and taxed as productive investments. It is claimed that this income was non-taxable under §3323 GC, exempting “Contracts of insurance and dividends paid or applied thereunder from taxation.” ,These policies were upon the life of Nathan Gordon, the husband of the defendant-appellant. After his death, she left the proceeds of the policies with the insurance companies under an agreement by them to pay interest, and it was this interest that was taxed. This interest was derived from the proceeds of a matured policy, but it was no part of the proceeds. That fact distinguishes this case from the case of Bronson v. Glander, 149 Oh St, 57.

According to the testimony of defendant-appellant’s son, the beneficiary in one of the policies on the father’s life was his daughter, and that the daughter upon receipt of annual payments gave this amount to her mother the defendant-appellant. It does not appear whether these payments were interest or installments in liquidation of the principal amount due on the policy. The policy is not in the record. There is nothing in the record to show upon what basis the Tax Commissioner acted in listing this item. There is no evidence that the daughter listed these items for taxation. We assume there is an inference that the Tax Commissioner had discovered evidence justifying the listing of this item as a taxable item against the defendant-appellant. It may be that in all this the daughter was acting at all times as the defendant-appellant’s agent or trustee.

The next item is one of $200.00 listed as interest received from one Goodman. The defendant-appellant’s son testified that was not interest at all, but was a profit or capital gain from the sale of real estate. Of course, if that was the fact, it would not be taxable under the Intangible Tax Law of Ohio. The difficulty in giving effect to this conclusion (assuming the fact) is that we do not have before us the data upon which the Tax Commissioner acted.

The defendant-appellant’s dilemma results from the fact that she failed to pursue her administrative remedies. By §5610 et seq GC, a remedy was provided for an appeal to the Board of Tax Appeals, which was given full jurisdiction to correct any mistakes made by the Tax Commissioner. And, by §5611-2 GC provision is made for an appeal from the Board of Tax Appeals to the Supreme Court of Ohio. That was the course pursued in the case of Bronson v. Glander, supra, relied on by the defendant-appellant. At no place is an appeal to the Common Pleas Court authorized. It is true that by §12075 GC, provision is made for enjoining the assessment or collection of an illegal tax or assessment, but as a prerequisite to obtaining any such relief the administrative remedies must be exhausted, which was not done in this case. In Cuyahoga Falls v. Beck, 110 Oh St, 82, at 101, it is said:

“We do not here hold that a plaintiff cannot apply to a court of equity to enjoin an illegal assessment. We simply hold that the taxpayer first has to take the steps required by statute to secure relief, and that, unless he has taken those steps, a court of equity cannot assume jurisdiction on the ground that a remedy has been denied him. After the preliminary steps have been taken, and the plaintiff has exhausted his statutory remedy, he has full right to apply to a court of equity under §12075 GC, and, if he is entitled to relief, 'equity will grant it.”

See, also: 51 Am. Jur., 698 (Sec. 769) and Cincinnati v. Board of Education, 63 Oh Ap, 549.

The unchallenged duplicate became an incontestable liability.

When the Tax Commissioner listed this property for taxation, he added 50% for failure of the owner to list it voluntarily. No complaint is made against the imposition of this penalty, which, perhaps, was authorized by the General Assembly in a measure as compensation for the labor required to uncover the delinquency. Complaint is made, however, against the imposition of a 10% penalty under §2657 GC, for failure to pay perhaps authorized to cover the expense of enforcing payment. As these two penalties are imposed for two distinct, defaults, we find no valid objection to either.

For these reasons, the judgment is affirmed.

HILDEBRANT, PJ, MATTHEWS & ROSS, JJ, concur in syllabus, opinion & judgment.


author: By THE COURT.

text:
    PARTLOW, Plaintiff-Appellee, v. AARON et, Defendants-Appellants.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3438.
    Decided December 7, 1951.

      Zieger & Coope, Youngstown, for plaintiff-appellee.
    William E. Lewis, Youngstown, for defendants-appellants.
   OPINION

By THE COURT.

On March 25, 1946, plaintiff and defendant, Howard P. Aaron, entered into an agreement in writing by the terms of which defendant, Howard P. Aaron, granted plaintiff exclusive right for thirty days to sell real estate situated in Mahoning County, title to which resided in his wife, defendant, Helen E. Aaron.

Plaintiff claims that during the existence of that contract he contacted Karam Sheban, the subsequent purchaser of such real estate, for whom he had been trying to secure a home, but that he was unable upon request by plaintiff to go with him to view defendant, Helen E. Aaron’s real estate during the life of that contract.

About a year after the expiration of such written contract defendant, Helen E. Aaron, advertised the same real estate for sale in the Youngstown Vindicator, “I believe that was in 1947.” Subsequently Karam Sheban went to see such real estate and purchased it for $12,500 on May 10, 1947.

Defendant, Helen E. Aaron, refused to pay plaintiff a demanded commission of $625.00. Thereupon plaintiff sued defendants, Howard P. Aaron and Helen E. Aaron, in the court of common pleas to recover that amount of money, claiming that upon the expiration of such written contract with defendant, Howard P. Aaron, he entered into a verbal contract with defendant, Helen E. Aaron for the sale thereof; that Karam Sheban was his prospect; and that it was as the result of his efforts that Sheban purchased such property.

The jury returned a verdict for the plaintiff against defendants for $625.00, upon which the trial judge entered judgment. Defendants appealed from that judgment to this court on questions of law.

Witness Sheban testified: “Naturally, I thought back that Mr. Partlow had mentioned the home and maybe it is wise for me to go out and look at it.” “I asked her (defendant, Helen E. Aaron) point blank is this house, — does Mr. Partlow have anything to do with this place and she said definitely not and that was all there was to it; I didn’t argue with her any further.”

Defendant, Helen E. Aaron, testified: “Yes, I said, how do you know about my house, and he said, I saw it in the paper but Mr. Partlow has been trying to get me a house for a long time, and I says, I have nothing to do with Mr. Partlow, and he says, that is right but Partlow and I are good friends, and he said, that is between Mr. Partlow and myself, he says, I will fix him up (which he never did), and I say, Mr. Partlow don’t have nothing to do with me, and he says, well, Mrs. Aaron, don’t worry about it, Partlow and. I are good friends.”

Further reference to the evidence is unnecessary in order to understand the questions presented for our consideration and determination, except as noted hereafter, other than to say it is decidedly conflicting and contradictory on every issue arising between the parties, which presented questions for the determination of the jury, and which frees the trial judge of the charge of the commission of prejudicial error in overruling defendants’ motion for a verdict to be directed in their favor made at the close of plaintiff’s case, at the close of defendants’ case, and at the conclusion of all the evidence.

Defendants waived their right to rely oh the claimed error that the trial judge erred to their prejudice in overruling their motion for a verdict to be directed in their favor when they accepted the ruling of the court and proceeded with their defense and introduced evidence in their own behalf. Halkias, Appellee, v. Wilkoff Co., Appellant, 141 Oh St 139.

In his general charge to the jury the trial judge said:—

“This is a suit on a contract; plaintiff claims he had a contract with these two defendants; if he did not have a contract with either defendant he cannot recover because the suit is on a contract; he must stand on a contract. As to defendant, Howard Aaron, the plaintiff had a contract in writing, which is known as Plaintiff’s Exhibit 1, signed by Howard P. Aaron and also signed by James P. Partlow. So as to the first issue, whether there was a contract as between the plaintiff and Howard Aaron, I instruct you as a matter of law that there was a contract in writing known as Plaintiff’s Exhibit 1, hence, no further proof is needed because that is the contract. The next issue as to the defendant Howard P. Aaron is whether or not the plaintiff, Mr. Partlow, was the procuring cause of the defendants securing a purchaser and making the sale. Was the plaintiff the procuring cause of the sale to Mr. Sheban? Because the sale to Mr. Sheban by the Aarons is admitted, there is no question about it; they did sell the property to Sheban. This second issue then is, was Mr. Partlow the procuring cause of the defendants securing Mr. Sheban as a purchaser and the making of the sale? If Partlow was the procuring cause, then your verdict is for the plaintiff against Howard Aaron for the amount which I have in the verdict. If Partlow was not the procuring cause, then your verdict is for the defendant Howard Aaron. As to Mrs. Aaron, I told you the first issue is whether there was a contract, so there is an issue of fact for the jury there. Was there a contract between Mr. Partlow and Mrs. Aaron? There was no contract in writing; there is no question about that; she did not sign this. Was there an oral contract between Partlow and Mrs. Aaron by the terms of which he was to use his efforts to secure a purchaser for her property and receive, in the event of a sale, the commission of five per cent? That is a question of fact under the evidence here; whether there was a verbal contract between them by which he was to use his efforts to sell her property and be paid the commission in the event of a sale. If you do not And there was a contract between them, then your verdict is for Mrs. Aaron. If, on the other hand, you And by the greater weight of the evidence that there was a verbal contract between them of the nature I have said, then the next question is the same question you had as to Mr. Aaron; was Partlow the procuring cause of the securing of Sheban as the purchaser and the making of the sale by Aarons? In the event that you And by the greater weight of the evidence that the plaintiff was the procuring cause of that sale to Sheban, then in that event your verdict is for the plaintiff against Mrs. Aaron; that is to say, if you And by the greater weight of the evidence that there was a verbal contract between them as claimed by the plaintiff and that plaintiff was the procuring cause of the sale, then your verdict is for the plaintiff against Mrs. Aaron.”

Defendants contend that the trial judge erred in so charging the jury, especially with reference to the existence of a verbal contract between plaintiff and defendant, Helen E. Aaron, and claims that they are entitled to a reversal of the judgment of the trial court and entrance by this court of Anal judgment in their favor for the reasons stated; or, if not entitled to Anal judgment, they claim they are entitled to a reversal because “the verdict of the jury and the judgment of the trial court is manifestly against the weight of the evidence,” and contrary to law.

In this case plaintiff brought suit against defendants, Howard P. Aaron and Helen E. Aaron on a contract praying judgment for a real estate commission of Ave percent alleged to be due in connection with the sale of the real estate owned by defendants. Separate answers were Aled by the defendants placing in issue the question whether there was any contract authorizing a judgment against defendant, Howard P. Aaron, for Ave percent of the sale price, and placing in issue the question whether there was any contract between plaintiff and defendant, Helen E. Aaron, authorizing a judgment against her for Ave percent of the sale price.

In charging the jury the court instructed it that there was a written contract between plaintiff and defendant, Howard P. Aaron, authorizing a commission of five percent. It is clear from the written contract itself, which is in evidence, that such contract ran only for thirty days. It is further clear from the express allegation of that written contract that if any sale was made to a purchaser introduced to defendant, Howard P. Aaron, by plaintiff within sixty days after the expiration of the thirty days therein named then the commission would be one-half of five percent of the sale price. There is no ambiguity in the written contract.

The sale was not made within sixty days after the original term named in the contract so that there was no compliance by plaintiff with that contract unless the purchaser was introduced within such sixty days. There could not possibly be a verdict against defendant, Howard P. Aaron, for more than one-half of the five percent commission, and then only if the purchaser was introduced by plaintiff within sixty days, the sale not having been made for more than a year after the expiration of the date named in the contract.

The court charged the jury as follows:—

“As to defendant Howard Aaron, the plaintiff had a contract in writing, which is known as Plaintiff’s Exhibit 1, signed by Howard P. Aaron and also signed by James P. Partlow. So as to the first issue, whether there was a contract as between the plaintiff and Howard Aaron, I instruct you as a matter of law that there was a contract in writing known as Plaintiff’s Exhibit 1, hence, no further proof is needed because that is the contract.”

The court did not charge the jury with reference to this clause in that contract:—

“If property is sold to anyone that broker has contacted within sixty days after expiration of this option, one half of the commission is to be paid to broker.”

The court did not charge the jury that the plaintiff must prove by a preponderance of the evidence that he had contacted within sixty days after expiration of the contract the purchaser, to whom the property was later sold. Under the court’s charge it seems clear that the jury could do nothing other than return a judgment for the full five percent of the sale price, provided the dealer at any time before the sale had contacted the purchaser to whom the property was sold.

The court also charged the jury:—

“Now, I have taken the issues in two parts: First, as applying to Mr. Aaron and, second, as applying to Mrs. Aaron because under the evidence in the case the jury may find, if it so decides under the evidence and the law, in favor of the plaintiff against Mr. Aaron or in favor of the plaintiff against both Mr. and Mrs. Aaron. You cannot find against Mrs. Aaron alone. Your verdict in the event it is for the plaintiff is either against Mr. Aaron or against both of the Aarons. In the event you do not find for the plaintiff against either of them, your verdict is then for both defendants.”

As stated above, under the terms of the written contract with defendant, Howard P. Aaron, plaintiff had no right of recovery against the latter except he established by the preponderance of the evidence that he had contacted the purchaser within sixty days from the expiration of the contract, and in that event his right of recovery would only be one-half of five percent commission named in the written contract. The sale was not made until much more than a year after the expiration of sixty days from the thirty day limit of the contract.

Since the court charged the jury that it could not find against defendant, Helen E. Aaron alone, and had erroneously charged that the jury could find in favor of defendant, Howard P. Aaron, for the full five percent of the sale price in the event the jury also found that plaintiff had secured the purchaser it. seems clear that the error in the charge with relation to the written contract prevented any judgment against defendant, Helen E. Aaron.

The jury returned a joint verdict against both defendants for the full five percent of the purchase price for which the property sold.

Under the charge and the evidence in this case it is manifest that there was error prejudicial to both defendants warranting a reversal either upon the weight of the evidence or because of errors in the charge of the court to the jury.

NICHOLS, GRIFFITH and PHILLIPS, JJ, concur.


text:
    SHAUCET, Plaintiff-Appellee, v. DAVIS, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4756.
    Decided April 2, 1952.
    Ray E. Hughes, Columbus, for plaintiff-appellee.
    Walter R. Hill, S. M. Huffman, James F. Little, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

Submitted on motion of the plaintiff-appellee to dismiss the appeal for the following reasons:

1. The notice of appeal is insufficient; and

2. That said notice of appeal was filed more than twenty (20) days after the filing of the entry constituting the final order and judgment of the Court of Common Pleas of Franklin County, Ohio, from which said appeal is attempted to be made.

The record reveals that the action arose in the Municipal Court of Columbus and that an appeal on questions of law was taken to the Common Pleas Court which entered its judgment on January 15, 1952; that a motion for a new trial was filed which was overruled on February 19, 1952; that the notice of appeal was filed on February 28, 1952. It is urged by the appellee that the judgment of January 15 was the final order and that the time for the filing of the notice of appeal began to run from that time, since the statute makes no provision for the filing of a motion for a new trial in an appellate court. Therefore, the filing of a motion for a new trial was of no consequence. This Court so held in the case of Kromer v. Rear, 86 Oh Ap 309.

The motion will be sustained. The appellant’s motion for a stay of execution is overruled.

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


author: By HUNSICKER, J.

text:
    IACOMINI'S RESTAURANT, Inc., v. HOTEL & RESTAURANT EMPLOYEES & BARTENDERS LOCAL NO. 118, et al.
    Ohio Appeals, Ninth District, Summit County.
    Decided November 23, 1949.
    Stephen J. Wozniak, Claude P. Herman, Akron, for appellee and cross-appellant.
    Don Isham, Akron, for appellants and cross-appellees.
   OPINION

By HUNSICKER, J.

This appeal on questions of law arises on the appeal filed by the defendants (appellants), Hotel and Restaurant Employees and Bartenders Local No. 118, et al., herein called Union, and the cross-appeal filed by the plaintiff (appellee), Iacomini’s Restaurant, Inc., herein called Restaurant.

The Restaurant employs a number of waitresses, bartenders and others in the operation of its business, none of whom are members of the Union. The Union, desiring to organize such employees, sought a contract with the Restaurant. The Restaurant refused to enter into such contract, whereupon the Union established a picket line in front of the business establishment of the Restaurant.

The Restaurant then filed an action in the Common Pleas Court of Summit County, Ohio, seeking to enjoin the Union from continuing such picket line, claiming violence, threats and coercion against its employees, patrons and suppliers of merchandise on the part of the pickets. The Restaurant claimed also that no bona fide labor dispute existed between it and its employees which would justify the Union in maintaining pickets in front of its place of business.

The Union claimed a valid dispute did exist, and that no violence, threats or coercion had been engaged in by any of its pickets.

No bill of exceptions has been filed in this action and we therefore must assume that the trial court had before it sufficient evidence to justify its findings.

The trial court found: that the Union pickets had made some threats against patrons and employees of the Restaurant; that no “extreme violence to an extent to warrant an injunction against all picketing” occurred; that such violence as did occur would not take place if peaceful picketing were permitted; that picketing by the Union to secure its demands was lawful; and that a labor dispute sufficient to justify peaceful picketing did exist.

The trial court then ordered the type and nature of the picketing, and enjoined any conduct by the pickets that would threaten, coerce or interfere with the patrons, employees and persons doing business with the Restaurant.

The trial court further found that §6241-1 GC, “is null and void as being contrary to the provisions of the Constitution of the United States.”

It is from such judgment and decree of the trial court that this appeal and cross-appeal are taken.

The subject of what constitutes a labor dispute and the attendant rights of the parties to such a dispute has engaged the attention of the courts of the United States and of the several states for many years. All courts have attempted to keep pace with the changes which have been made by legislative enactments in laws concerning organized labor.

A great development of the common law on this subject is found in the reports of cases from the United States Supreme Court during the last fifteen years. It is to these reports that we must look for the rights of the parties in the instant case.

This court, in the unreported Lorain County case (No. 1034) of Smith and Gerhart, Inc., v. Retail Clerks’ International Protective Assn., Local No. 500, et al„ decided December 21, 1942, said:

“The most recent pronouncements governing the right of the defendant union to picket plaintiff’s place of business are contained in the following cases:
“Crosby v. Rath, et al., 136 O[hio] S[t.] 352 [25 N. E. 2d 934],
“Milk Wagon Drivers, etc., v. Meadowmoor Dairies, Inc., 312 U. S. 287 [61 S. Ct. 552, 85 L. Ed. 836],
“A. F. of L. v. Swing, 312 U. S. 321 [61 S. Ct. 568, 85 L. Ed. 855].”

This unreported case from this court adhered to the rule as laid down in the Meadowmoor Dairies case, supra, and the Swing case, supra. An injunction was ordered in that case, since the picketing engaged in was not “peaceful picketing” within the purview of the United -States Supreme Court cases above cited.

The syllabus of the case of A. F. of L. v. Swing, 312 U. S. 321, 61 S. Ct. 568, 85 L. Ed. 855, says:

“The constitutional guaranty of freedom of discussion is infringed by a judicial policy of a state to forbid resort to peaceful persuasion through picketing where there is no immediate employer-employee dispute, as in the case of attempted unionization of a business employing non-members of the union.”

Counsel for the Restaurant insist that the later pronouncements of the United States Supreme Court in the following cases modify the rule in the Meadowmoor Dairies case, supra, and the Swing case, supra, above cited: Lincoln Federal Labor Union, etc., v. Northwestern Iron & Metal Co., and Whitaker v. State of North Carolina, 335 U. S. 525, 69 S. Ct. 251, 93 L. Ed. 212. Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 69 S. Ct. 684, 93 L. Ed. 834.

It is urged upon us that these above-cited more recent decisions of the Supreme Court of the United States, when read in conjunction with §6241-1 GC, required the trial court to enjoin all picketing in the case now before us.

With this view, we do not agree. These cases have no application to the specific problem that is before this court.

In the consideration of §6241-1 GC, it was not necessary for the ferial court to consider its application under the decisions in the Lincoln Federal case, supra, or the later Giboney case, supra. Sec. 6241-1 GC, is a statute designed and enacted for the purpose of outlawing the so-called “yellow dog” contracts, and, as such, is not relevant to the instant case, nor is it the type of legislation discussed and approved in these more recent federal court cases cited above.

The trial court specifically found that §6241-1 GC, was “null and void as being contrary to the provisions of the Constitution of the United States.”

We do not believe that it was necessary to consider such statute in coming to the conclusion that peaceful picketing was permissible, and hence we are not called upon to determine the constitutionality of such legislation, as did the trial court. We do not believe the statute applicable to the factual situation herein presented.

We therefore determine that, as to that part of the judgment which permits picketing as outlined by the trial court, the judgment is affirmed.

Judgment affirmed.

STEVENS, PJ, DOYLE, J, concur.


text:
    SCIOTO-SANDUSKY CONSERVANCY DISTRICT, In re.
    Ohio Appeals, Second District, Franklin County.
    No. 4690.
    Decided April 1, 1952.

      Allen I. Pretzman, E. W. Dillon, Columbus, for appellee, Scioto-Sandusky Conservancy District.
    Luther L. Liggett, Pros. Atty., Marysville, and Clyde E. Lewis, Pros. Atty., Delaware, for objectors-appellants.

      (METCALF, J, of the Fourth District, sitting by designation in the Second District.)
   OPINION

By THE COURT.

The Scioto-Sandusky Conservancy District is one created by virtue of the Conservancy Act (§6828-1 GC ef seq.), and is made up of seventeen counties touching upon the Scioto and Sandusky Rivers or the watersheds thereof extending from the Ohio River to Lake Erie.

Under date of January 12, 1951, the Conservancy District, by its directors, adopted an Official Plan for the district. Pursuant to §6828-12 GC, certain persons, public corporations, and other organizations filed, within the time specified, objections to the Official Plan and as provided by this Section a hearing was had before the Conservancy Court, which Court consists of one judge each from the seventeen counties making up the district. The law provides that the Conservancy Court upon hearing the objections may, by a majority of the entire Court, approve, reject or refer back the Official Plan to the Board of Directors of the district. The hearing consumed nine days, starting in February, 1951. On July 20, 1951, the Conservancy Court, after having referred the Official Plan to the directors to include, in certain respects, an estimate of the cost for the construction of certain reservoirs and a direction to change, in certain respects, the project known as the Columbus Local Improvements, and having received back from the Board of Directors of the Conservancy District the amendments requested, approved and adopted the Official Plan as so amended.

From this order and decree by the Conservancy Court the objectors, as appellants, appeal to this Court on questions of law.

There are fourteen separate assignments of error, each of which this Court has considered but a separate discussion of all of them is not necessary to a proper disposition of this appeal.

At the time of the hearing before this Court appellants filed a motion, supported by affidavits, which amounts to a motion for diminution of the record although we are in substance asked to accept the three affidavits proffered for the purpose of considering the record of attendance of the judges of the Conservancy Court on the hearing of the objections. Assignments 1, 5 and 6 also go to the same question.

An examination of the record discloses that a like motion was filed before the Conservancy Court on the day that Court rendered its decision and was by it overruled. There is no showing that there is any omission in the bill of exceptions occurring through accident or error which necessitates a correction. Nowhere in the record did counsel for the appellants object to going forward with the testimony because of the absenteeism of any of the seventeen judges making up the Conservancy Court. In lieu of this counsel saw fit to wait until the day of the decision before raising the question before that Court and that Court, at that late date, correctly overruled the motion. So there is nothing before this court to challenge the record in the Court below or in any way make applicable §11572-a GC. Further, the journal entry of July 20, ¿951, journalizing the judgment and decree of approval of the Official Plan by the Conservancy Court states specifically that its action is predicated upon “the evidence, briefs and statements of counsel with respect thereto, and on consideration thereof, the Court finds” as thereinafter set forth.

Under such circumstances we must assume the Court and each member thereof voting was fully advised in the premises and reached its collective judgment by reason of the record. The motion filed before us and the assignments of error relative to the absenteeism of any member of the nine judges making up the majority of the Court in its decision, must be denied.

Complaint is made that the procedure adopted by the Court for the hearing of the objections to the Official Plan was erroneous. In the opinion of this Court, it was the duty of those objecting to the Official Plan to substantiate their objections. The Conservancy Court followed the procedure adopted in Lebold, et al. v. Muskingum Watershed Conservance District, 50 Oh Ap 476, 198 N. E. 583, 4 O. O. 190, and in this it was correct. Further objection is made that the Official Plan was not prepared or completed in accordance with the Conservancy Act but an examination of the record and the Official Plan refutes this charge.

Several of the assignments of error, such as attacking the constitutionality of the Conservancy Act, the taking of property without due process of law, and in fact, most of the testimony offered by the objectors in substantiation of their objections arise out of the inclusion in the Official Plan of the proposed Mill Creek Dam and reservoir. This reservoir is to be located in Delaware and Union Counties and it is from those two counties both by the officials and those people and organizations affected that the objections largely arise.

This comes about in the main by reason of the explanation given and the manner and mode to be followed by the Board of Directors of the district in reference to the Mill Creek Dam project. On this subject the plan discloses the following statement:

“The Board of the District has attempted to consider this project from every angle and finally decided to include it in the Official Plan on the condition that the Corps of Engineers recommend that it be included in the Comprehensive Plan for Flood Control and Other Purposes in the Ohio River Basin and that the project be authorized by Congress and be built and maintained at Federal expense.”

It is urged by the objectors, and with a great deal of merit, that during the interim between the approval of the Official Plan and the action taken by the Federal Government there will be a long period of uncertainty on the part of the people and organizations affected. That this will place a cloud upon the title to the property involved in that its salability will be retarded and consequently when and if ever the reservoir is constructed the reasonable value, at that time, may be much less than at the present. This may or may not be true but it is purely conjecture. Owing to the purposes of the Conservancy Act, that of securing the public health, safety, convenience, and welfare, and for the prevention of great loss of life and of public and private property from floods and uncontrolled waters, it is necessary that the act be liberally construed to effect such control, conservation and drainage of the waters of the state. See 8 O. Jur., 22, Paragraph 4.

Therefore, in the opinion of this Court, under such a construction the Conservancy District has a right to provide for this reservoir in its Official Plan even though the construction thereof depends upon further action by the Congress of the United States in order to carry out the intent and purpose of the Legislature in the enactment of the Act.

The constitutionality of the Conservancy Act has been established. See Miami, et al. v. City of Dayton, 92 Oh St 215, 110 N. E. 726.

When the Official Plan is put in operation due compensation or damage will and must be paid to those entitled thereto. No property will be taken without due process of law. And even though this Court may sympathize and appreciate the claim of the objectors that they are left in a state of uncertainty, that much of their community will be uprooted and changed, that their schools, churches and other organizations will be adversely affected, yet the reading of the entire record, an examination of the plan and the exhibits, the testimony of qualified engineers as to the broad overall plan for flood control of the Scioto Valley, the people, towns and property affected, the results sought to be obtained, all force this Court to the conclusion that the judgment of the Conservancy Court is substantiated by sufficient and creditable evidence and that the same is not manifestly against the weight of the evidence.

Such a conclusion, of course, presents a situation where a' few must be greatly inconvenienced in order that a governmental agency may operate for the benefit of the many. Any relief from the operation of the Conservancy Act in this regard must of necessity come from the legislative rather than the judicial branch of our government.

The claim of appellants that the Conservancy District should be dissolved because its purpose has not been accomplished is without merit for the reason that it cannot be determined, at this time, whether the Official Plan as outlined will or will not be consummated.

The record presents no prejudicial error, none of the assignments is well made, and the judgment of the Conservancy Court must be affirmed.

Judgment affirmed.

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


author: By MATTHEWS, J.

text:
    DEXTER, f. k. a. TAYLOR, Plaintiff-Appellee, v. TAYLOR et, Defendants and FAULK, Appellant.
    Ohio Appeals, First District, Butler County.
    No. 984.
    Decided May 5, 1951.

      Clem F. Imfeld and Clem F. Imfeld, Jr., Hamilton, for plaintiff-appellee.
    Edw. Everett Rice, Hamilton, for appellant.
   OPINION

By MATTHEWS, J.

The plaintiff-appellee obtained a judgment quieting her title to an undivided interest in certain real estate awarded to her in an action for divorce and alimony against a cloud created by the assertion of an alleged defect in the service upon the defendant in that case.

We find in the file of this case what purports to be the original papers and journal entries in the case in which the judgment was rendered upon which the plaintiff bases her claim of title to this real estate. However, in the bill of exceptions, to which is attached the certificate of the trial judge that it contained all the evidence, no mention is made of these documents having been offered in evidence, and neither the original nor copies are attached to it as exhibits. Nevertheless, the parties have presented this appeal as though all these papers were before the court. In this, they are probably in error. Counsel have furnished us with a copy of the opinion of Judge Boli, who presided at the trial of this case, and it appears from it that he had the entire record in the divorce and alimony action before him. The limited record before us makes our problem more difficult. For instance, it appears that the petition in the divorce action contained a description of the real estate by metes and bounds, which is an important fact, even though not necessarily determinative.

In 31 C. J. S., 623, it is stated as a general rule that: “Courts ordinarily do not in one case take judicial notice of their own records in other cases.” This seems to be the rule in Ohio. 17 O. Jur., 66, et seq. Apparently, there are many limitations and exceptions to the rule, and the courts of the various states are not in agreement as to the limits of the rule and the exceptions. However, we are of the opinion that when the issue in a later ease turns on the precise basis for the courts action in an earlier case in the same court, and an appellate court is asked to review the judgment in the later case, the appellate court should not be required to rely on unauthenticated papers of the earlier case commingled with the original papers of the case on appeal.

We believe, however, sufficient is disclosed in the pleadings and docket and journal entries in this case to enable us to pass upon the questions presented, without determining the exact limits of the rule.

The original parties to this action were the plaintiff and the defendants, Charles E. Taylor and Beatrice Taylor. Later, Viva Faulk was made a party on her application and she has filed an intervening petition. In her intervening petition she alleged that she had become the grantee of the title of Charles E. Taylor and Beatrice Taylor to the property, the title to which the plaintiff was seeking to have quieted against the claim of which she had become the transferee. She alleged false representations by Taylor, but it is manifest that such are entirely immaterial in this controversy between the plaintiff and her as successor to the claim or title of the defendant Charles E. Taylor.

Neither Charles E. Taylor nor Beatrice Taylor filed any pleading of any sort. The only pleadings are the plaintiff’s petition and the intervening petition of Viva Faulk. There is no express denial in the intervening petition of any allegation of the petition and no inconsistent allegation of fact in the two pleadings. Each pleader, however, claims title, taut the facts are undisputed. They disagree as to the conclusion of law only. There is nothing in the bill of exceptions that enlarges upon the undisputed allegations of the pleadings.

On this state of the record the only question presented is whether the plaintiff’s petition states a cause of action. Reverting then to the petition, we find allegations that the plaintiff and defendant Charles E. Taylor were husband and wife that they were joint owners of Lot 15 of a designated addition in the city of Hamilton, Butler county, Ohio; that on January 8, 1946 she filed an action for divorce and alimony against him in the court of common pleas of Butler county, Ohio; that the whereabouts of said Charles E. Taylor at the time were unknown to the plaintiff and service was had upon him by publication, and that the newspaper notice did not contain a description of the real estate owned jointly by the parties, that on March 15, 1946, a trial was had on the petition and the evidence and the court found for the plaintiff awarding her a decree of divorce and that the plaintiff was entitled to the defendant’s undivided one-half of said real estate as and for her permanent alimony, and the title thereto transferred to her by the decree. This was followed by an allegation that the absence of a description of the real estate in the publication of notice had created a cloud upon the plaintiff’s title, which the plaintiff prayed the court to remove by quieting her title against it.

As already mentioned, there was no denial of any of these allegations.

In the intervening petition, the intervenor alleged that on October 28, 1949, she purchased for a valuable consideration the one-half interest of Charles E. Taylor and Beatrice Taylor, his wife, in the real estate described in the plaintiff’s petition, that she mailed the deed to the county recorder for recording and enclosed $5.00 to pay therefor, and that the recorder refused to record the deed, for the reason that in the divorce decree the title had been awarded to the plaintiff. This was followed by allegations that Charles E. Taylor had represented to her that he was the owner of the free and unencumbered title to the one-half interest, excepting a mortgage against the entire title, and that the property would be a good investment for her. The intervenor prayed that she be decreed to be the owner of the undivided one-half of said property and that the recorder be directed to record her deed, and that her title be quieted against the claim of the plaintiff.

It will be noted that not a single allegation of the petition is put in issue by this intervening petition.

On this record, can this court declare that the trial court erred in finding that the plaintiff was the owner of the undivided one-half of the real estate decreed to her as alimony, and that the claim of the intervenor was a cloud upon her title? We think not.

It is true that the intervenor-appellant asserts a title under a deed from Charles E. Taylor, which is inconsistent with and adverse to the title asserted by the plaintiff under the divorce decree, but at no point does she deny that the plaintiff was adjudged to have the title in the action for divorce and alimony. That is not a denial of the jurisdiction of the court to award the title to the plaintiff. Rather, it is a tacit admission or assumption that the court had jurisdiction.

Of course, the court was justified in taking judicial notice that an Ohio court of common pleas is a court of general jurisdiction, without any pleading or proof. It is a matter of law of the forum which need never be pleaded or proven. Had the action been predicated upon a foreign judgment, it would have been necessary to plead the general jurisdiction of the court rendering the judgment, but when the general jurisdiction is established by pleading or by judicial notice, it is not necessary to affirmatively allege the facts of the jurisdiction of the subject matter or the parties. It- is set forth in bold type in 50 C. J. S., 457, that: “In an action on a judgment of a court of another state, in which the declaration, petition, or complaint shows that such court is a court of general jurisdiction usually it is not necessary to allege in terms that the court had jurisdiction of the parties or of the subject-matter or to set out the facts conferring jurisdiction.”

See, also: Cole v. Cole, 201 Pac (2d) 98, at 103 and 104; and 31 Am. Jur., 352.

The question that remains is whether the admission contained in the plaintiff’s petition that the publication of notice did not contain a description of this real estate discloses that the court did not have jurisdiction. In other words is the inclusion of a description of the real estate in the publication a condition to jurisdiction to award the real estate as alimony in an action for divorce and alimony against a nonresident defendant or a defendant whose residence is unknown? In answering this question in the negative, Judge Boli relied on Reed v. Reed, 121 Oh St, 188, for the proposition that an action for' divorce and alimony is in substance an action in rem and the court has jurisdiction on constructive service to subject real estate, described in the petition, to the claim for alimony. The Supreme Court in Reed v. Reed, in effect, reaffirmed its decision in Benner v. Benner. 63 Oh St, 220. And in support of his conclusion that it was not necessary that the real estate should be described in the notice of the filing of the action, Judge Boli relied on many cases from other jurisdictions, and perhaps chiefly, the case of Closson v. Closson (— Wyo. —, 215 Pac. 485), 29 A. L. R.. 1371, in which it was held as stated in the first paragraph of the syllabus, that:

“Failure of the published notice in a divorce proceeding to state that a disposition of the property would be asked for does not render void a decree making such disposition although the statute requires the notice to contain a statement of the object and prayer of the petition, where the statutes governing divorce authorize the courts to settle all questions concerning the property and children of the parties.”

There is a lengthy annotation of this subject to the case of Closson v. Closson, examination of which discloses that many states have statutes similar to the statutes of Ohio (§11,990, et seq., GO conferring jurisdiction upon courts to hear actions for divorce and alimony. An examination will disclose that the cases in such states are uniform, or almost so, to the effect that real estate, situated within the territorial jurisdiction of the court, of a non-resident defendant, may be subjected to the claim for alimony upon service by publication without describing or specifically mentioning it in either the petition or the publication. We are of the opinion that the law of Ohio is in harmony with the prevailing rule elsewhere.

We are of the opinion that it makes no difference whether we consider the papers in the divorce and alimony action on this appeal or decide the case on the uncontroverted averments of the petition. In the absence of a denial of the allegations of the petition that Taylor owned an undivided one-half interest in the real estate at the time the divorce and alimony action was filed and the allegation that the cloud on plaintiff’s title resulted from the failure to include a description of the real estate in the publication, and the further fact that uncontroverted, that the court awarded to her the real estate as alimony, we are justified in assuming that the real estate was described in the petition, if such inclusion were necessary to validate the decree. Of course if we are privileged to utilize the papers in the prior action, we find that a description w^§ included and recourse to assumption would be unnecessary. In either event, the conclusion is the same, and that is, that no error is shown on this record in the action of the trial court.

For these reasons, the judgment is affirmed.

HILDEBRANT, PJ, MATTHEWS, J, concur in syllabus, opinion and judgment.

ROSS, J, not participating.


author: By MILLER, J. By THE COURT.

text:
    OUZTS, d. b. a. SPARTAN FOOD COMPANY, Plaintiff-Appellant, v. MALONEY, d. b. a. WORLD PRODUCTS COMPANY, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4568.
    Decided September 25, 1951.
    Frederick L. Orum, Columbus, for plaintiff-appellant.
    Isaac & Postlewaite, Columbus, for defendant-appellee.
   OPINION

By MILLER, J.

This is a law appeal from the judgment of the Common Pleas Court rendered upon the verdict of a jury finding for the defendant on the plaintiff’s petition and also finding for the defendant on its cross-petition. The action was one for damages, breach of warranty in the sale of a product known as “So-EZY Pudding and Pie Mix,” to which the defendant filed a cross-petition for the balance due upon the account for the purchase price of the same.

The record reveals that prior to June, 1945, the plaintiff-appellant was engaged in jobbing and distributing various products, particularly hosiery, throughout the southern and mid-Atlantic states and doing business under the name of “Spartan Hosiery Company”; that the defendant-appellee was engaged in jobbing and distributing novelties, food products, etc., throughout the eastern part of the United States, carrying on its business under the name of “World Products Company Branch.” The first transaction between these parties took place in the early part of 1945 when defendant-appellee began purchasing hosiery from the plaintiff-appellant for resale. Apparently each party was looking for a new product to sell or for outlets of the products each had for sale and each sent price lists to the other. In June, 1945, the defendant-appellee recommended to the plaintiff-appellant “So-EZY Pudding and Pie Mix” as an item with good sales possibilities. Pursuant to plaintiff-appellant’s request a dozen packages of the product were sent to him for approval. Upon tests being made of the product the same was found to be satisfactory, and feeling that the product was a good one the plaintiff-appellant undertook to sell it to retailers and wholesalers throughout a certain territory. In the course of the next eighteen months the plaintiff-appellant purchased between $65,000.00 and $100,000.00 worth of the product. In nearly all cases shipments were made directly to customers to whom the plaintiff-appellant had made sales.

The record reveals further that this product was manufactured by a Mr. Mark Russell of Columbus, Ohio, who was operating under several trade names and selling all of this product through the defendant-appellee. Mr. Russell also manufactured the same product and sold it under the name of “Zip” to other wholesalers. Mr. Russell was the sole author of the formula used in the manufacture of “So-EZY Pudding and Pie Mix,” the sole designer of the box in which it was packaged and sold and the person solely responsible for selecting the name “So-EZY.”

In late 1945 the plaintiff-appellant suggested that the manufacturer put out a smaller package which would be a two-pie package instead of six. This was done, the package carrying the same label, although the manufacturer suggested that the name “Zip” be used, which name did not meet with the appellant’s approval. On December 9, 1946, a shipment of “So-EZY Pudding and Pie Mix” was seized by the United States Food and Drug Administration for a violation of Title 21, United States Code, regarding misbranding of foods in interstate commerce and thereafter the Federal Court ordered the destruction of the seized merchandise. After this seizure Mr. Russell offered to pay the freight both ways on such of the product as plaintiff-appellant might have on hand and to repackage it so as to meet the objections of the Food and Drug Administration. This offer was refused. The same offer was refused about six months later after the claim was made that the term “So-EZY” was a registered trade-mark owned by another firm and that its use was a violation of the owner’s rights.

The record also reveals that as of the time prior to the seizure the plaintiff-appellant had in his warehouse merchandise to the value of $2989.52, and after the notice of the alleged trade-mark violation this merchandise had no value at all.

At the close of all the evidence the defendant-appellee moved to dismiss the plaintiff’s petition and direct a verdict for the defendant-appellee. The court refused to dismiss the petition, but did sustain the motion for a direction and directed the jury to return a verdict in favor of the defendant-appellee.

It is' contended by the plaintiff-appellant that the court erred in its instruction to the jury when it said,

“The law is that a person who sells products such as this whether he be the seller or grower or manufacturer or whatnot, the law provides that there is an implied warranty that the goods shall be of merchantable quality and I have taken the position that this merchandise was, this food product was of a merchantable quality. The quality of the food product was merchantable, usable and vendable, that is, salable and it was sold and used without any trouble until the Government comes along and says ‘Why you haven’t got the right kind of a package and you havn’t got the label sufficiently displayed upon the front so that people perhaps know exactly what they are buying, you can’t sell it that way.’ All they had to do was re-package and re-label, which the seller or manufacturer promised to do or agreed to do at no cost to the plaintiff. That being the case, the court holds that there has been no breach of implied warranty, that is that the goods were of merchantable quality.”

Whether or not the court erred in its instruction to the jury is not material if the judgment is correct, as the same would not be prejudicial.

The question here presented, we think, is whether or not under the Ohio law merchandise that was so packaged as to violate the United States laws and bore a trade name which the seller had no right to use makes the merchandise unmerchantable within the purview of the Uniform Sales Act, when the sale is made to a broker for the purpose of a resale, the same being shipped direct from the manufacturer to the purchaser without being handled by the seller. The defendantappellee is urging that in the sale of this product there was no implied warranty as defined in §8395 GC. Citing the case of McMurray v. Vaughn’s Seed Store, 117 Oh St 236. This case deals with the sale by a dealer who is not the manufacturer of an article in its original package. The 4th syllabus here provides:

“Where a dealer sells an article of merchandise in the original package as it comes from the manufacturer, and the customer buys it knowing there has been no inspection by the dealer, there is no implied warranty, and, in the absence of an express warranty or representation, such dealer is not liable to the purchaser for damages caused by any deleterious substance iir such merchandise the presence of which he had no knowledge.”

This ease has never been overruled, but was distinguished by the Supreme Court in the case of Sickard v. Distributing Company, 133 Oh St 291, where the plaintiff was permitted to recover damages from the distributor for personal injuries which she received as the result of using hair dye which she purchased from a retailer in an original package. The court distinguished the McMurray case, supra, on two grounds. The court say:

“The instant case is readily distinguishable from that case. There the product sold by the dealer was shipped direct to the buyer by the .manufacturer, the dealer not having any opportunity for inspection. Moreover the article sold in bags was shredded cattle manure, a product not inherently dangerous as in the instant case. The defendant here was not a mere retailer who sold the hair dye to the plaintiff in package form.”

In the case at bar all of the merchandise was shipped by the manufacturer and not by the defendant-appellee and the article was not inherently dangerous. It is obvious that both of the distinctions made in Sickard v. Distributing Company, supra, are applicable to the case at bar. The appellant cites the case of Dow Drug Company v. Nieman, 57 Oh Ap 190, and Goljatowska v. Albrecht, 17 Abs 294, but in each of these cases the purchaser was the ultimate consumer and in each he was injured personally by the article he purchased. The cases involving the sale of food in the original package by a retail dealer to a purchaser who was injured thereby, constitute an exception to the general rule that where the opportunities of inspection are equal there are no implied warranties as to the characteristics of the chattel.

In Williston on Sales, Section 242 (1948 Ed.) the author makes the statement in regard to warranties in the sale of food.

Decided November 14, 1951.

“But where one dealer buys from another, each having supposedly equal skill and knowledge, no warranty is implied.” Citing Baker v. Kamantowsky, 188 Mich. 569, 155 N. W. 430, and Zillinski v. Potter, 195 Mich. 90, 161 N. W. 851. The same principle is set forth in 22 Amer. Jur. Section 109, p. 895, where the following statement appears:

“It is generally held that where the sale of provisions is by one merchant to another for the purpose of resale, there arises no implied warranty of soundness or wholesomeness. In selling provisions as articles of merchandise which the buyer does not intend to consume, but to sell again, the doctrine of caveat emptor applies. There is a very plain distinction between selling provisions for domestic use and selling them as articles of merchandise which the buyer does not intend to consume, but to sell again. Sales of provisions as articles of merchandise for i'esale are usually made in large quantities and with less opportunity to know the actual condition of the goods than when they are sold by retail. When provisions are not sold for immediate consumption, there is no more reason for implying a warranty of soundness than there is in relation to sales of other articles of merchandise. Thus, in the case of the sale of beef packed in barrels for exportation or resale, and not for immediate consumption, no warranty of soundness is to be implied.”

It is therefore our conclusion that there was no implied warranty in the sale of this product and the court’s instruction to the jury that there had been no breach of the implied warranty was correct.

The judgment will be affirmed.

HORNBECK, PJ, WISEMAN, J, concur.

ON MOTION TO CERTIFY RECORD

No. 4568.

OPINION

By THE COURT.

This is a motion to certify the record to the Supreme Court for the alleged reason that it is in conflict with the case of Dow Drug Company v. Nieman, 57 Oh Ap 190, and Goljatowska v. Albrecht, 17 Abs 294. These two cases were discussed in the opinion and distinguished from the facts in the case at bar. The motion will be overruled.

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


author: Per CURIAM:

text:
    VOORHEES, Plaintiff-Appellant, v. HUTCHISON, Defendant-Appellee.
    Ohio Appeals, Seventh District, Trumbull County.
    No. 1233.
    Decided April 12, 1951.

      Harrington, Huxley & Smith, Youngstown, for plaintiff-appellant.
    Thomas H. Madden, Warren, for defendant-appellee.
    (SKE'EL, PJ, HURD, J, of the 8th District, sitting by designation in the 7th District with PHILLIPS, J.)
   OPINION

Per CURIAM:

On June 23, 1947, the Common Pleas Court of Trumbull County, decreed a divorce between Lorine Hutchison Voorhees and Robert Hutchison, for the aggression of the wife, and confided the care, custody and control of the two minor children then aged six and nine respectively, to the husband. On the 29th day of September, 1949, an application for modification was filed by the wife, grounded upon the claim that there had been such a change of conditions since the entry of the original decree as to require a change of custody for the welfare of the children.

Upon hearing, the Common Pleas Court overruled the motion of the plaintiff-appellant to modify the original decree and the matter is now before us for review, appeal having been perfected to this court.

Three grounds of error are assigned as follows:

1. Error in overruling appellant’s motion for a new trial and entering judgment in favor of the appellee.

2. Error in the admission of evidence offered on behalf of the appellee and to which appellant objected at the time.

3. Error on the part of the trial court in ordering an investigation by the Child Welfare Department after the conclusion of the trial.

The evidence shows that both parties have since remarried. Following the divorce the plaintiff married one Norman Voorhees her present husband, and has been living with him in Youngstown, Ohio, ever since her marriage.

In July, 1948, the defendant remarried and the two children have been living with him and his second wife at Howland Corners, Ohio, since that time.

Up until the time of the hearing in the trial court, the plaintiff, mother of the children, has had custody of the children each week-end; that is, one week-end from 9 A. M. on Saturday until 7 P. M. on Sunday, and the next week-end from the time school is out on Friday afternoon until 9:30 A. M. Sunday. The periods during which the mother has custody of the children were greatly reduced by order of the court, as appears by the journal entry denying the motion of plaintiff-appellant for an order modifying the previous decree.

In respect to the first ground of error above set forth, it is claimed that the judgment of the trial court is contrary to the manifest weight of the evidence. A review of the evidence shows testimony adduced in support of the claims of the respective parties sufficient, in our opinion, to indicate that despite what may have occurred in the past, the mother and father are presently both fit persons to have or assume the care, control and custody of their children. However, that proposition standing alone is not sufficient upon this hearing to require an order changing the custody, because the burden of proof is on the moving party herein to satisfy the court that conditions have so changed as to justify the modification and to require the court, in the exercise of sound discretion, to grant the motion for a change of custody.

There was conflicting evidence in the case, the trial court holding in substance that the plaintiff had failed to sustain the burden of proof assumed by her. We do not find that the trial court abused its discretion and in the absence of such a showing this court is not justified in reversing on the ground that the judgment is contrary to the manifest weight of the evidence.

The second ground of error assigned, namely, that the court erred in admission of evidence offered on behalf of defendantappellee, to which plaintiff-appellant objected, has to do with the admission of evidence concerning the conduct of plaintiff at or about the time the divorce was decreed and custody awarded to the defendant.

It appears to us that the trial court allowed a very wide latitude in the cross-examination of the witnesses of plaintiff, even to the extent of permitting hypothetical questions to lay witnesses assuming certain facts relating to plaintiff’s conduct prior to her divorce, concerning which they disclaimed any knowledge. We think that lay witnesses testifying to reputation and character under the circumstances of this case should not have been required or permitted to answer hypothetical questions upon such subjects. While it was error on the part of the trial court to permit cross-examination in such a manner, we cannot find that such error was prejudicial, inasmuch as the answers given by plaintiff’s witnesses were favorable to plaintiff’s case and she was not prejudiced thereby.

A more difficult question is presented concerning admission of direct evidence of alleged acts of misconduct of plaintiff at and prior to the time of the divorce proceeding. So far as our examination discloses, there are no cases directly in point in Ohio.

The case of Rauth v. Rauth, 73 Oh Ap 564, in which it was held that evidence tending to show the unfitness of the custodian of the child at or before the time the award of custody was made, must be distinguished from the instant case because in the Rauth case an issue was raised as to the fitness of the one to whom custody was awarded, the court stating in substance that to rule otherwise would permit a rehearing of the issues in the original case upon a motion to modify. This, the court said, would be contrary to the holding in Graviess v. Graviess, 7 C. C. (n. s.) 135, the first and second paragraphs of the syllabus thereof being as follows:

“1. The continuing jurisdiction which is vested in the court of common pleas with reference to the custody of children for the purpose of modifying orders in divorce proceedings does not authorize a re-hearing of a matter theretofore submitted and determined, but is only to be called into exercise when a substantial change in the condition of the parties requires a modification of the former order.
“2. The discretion vested in a trial court with reference to the custody of children will not be inquired into by a reviewing court, except on a charge of abuse of discretion, or that a grave mistake has been made.”

See also: 14 O. Jur., Section 143, Page 548, where it is stated:

“* * i= judgment of the trial court as to the custody and control of children rendered in a divorce proceeding will not be disturbed on review unless there has been a serious error or an abuse of discretion * * *.”

The Rauth case must further be distinguished because in that case the child being fourteen years of age elected to live with the mother under the provisions of §8033 GC, an election by which the court was bound in the absence of a showing of moral depravity, habitual drunkenness or incapacity. Therefore, because of the factual differences, we think that the Rauth case is not applicable here.

Many cases arising in other jurisdictions are cited by counsel for appellee in support of the contention that evidence of prior acts of misconduct on the part of the moving party is admissible upon an application for change of custody, such as is here presented.

We have reached the conclusion that this question should be left largely to the trial court who should be able properly to evaluate such evidence in the light of all the circumstances of the case, having in view, above all else, the welfare of the child. We think, however, that where, within sound discretion, the court admits such evidence it should be confined within reasonable and proper limits and considered only so far as it may have a direct bearing upon the issue. of the present fitness, because in our opinion the question as to whether the parent is a fit or proper person to have the custody of the minor child refers to the fitness of the parent at the time of the hearing.

The case of Prouty v. Prouty, decided by the Supreme Court of California, 16 Cal. Rep. (2nd Series) 190, which appears to us to be a well reasoned case, although the facts are somewhat different from those here presented, sets forth in the third syllabus thereof the following:

“3. Fitness for custody — time—evidence: The question as to whether a parent is a fit and proper person to have the custody of a minor child refers to his or her fitness at the time of the hearing, and is not necessarily controlled by conduct many years prior thereto, although evidence of prior acts of misconduct may be admissible if it can be said to have a direct bearing upon the issue of present fitness, but such evidence should be limited to this issue alone.”

For a review of other cases on this subject, see Padgett v. Padgett, 22 So. (2d) 205; Pennington v. Pennington, 195 S. W. (2d) 677; Wall v. Wall, 31 N. W. (2d) 527, 252 Wis. 339; Drew v. Drew, 186 S. W. (2d) 858; Meredith v. Krauthkoff, 191 Mo. App. 149.

In view of our conclusion we hold that the second ground of error assigned should not be sustained.

Coming now to a consideration of the third ground of error, namely, that the trial court erred in ordering an investigation by the Child Welfare Department, after the conclusion of the trial, we are of the opinion that error was committed in this respect in that the report of the investigator was not made or filed before the commencement of the trial as provided by §11979-4 GC. However, upon a review of the entire record we conclude that this error was not prejudicial on the question of change of custody, because the evidence received in open court was sufficient to sustain the order and finding of the trial court that there had been no substantial change in conditions such as would require the court, in the exercise of sound discretion, to grant appellant’s motion to modify.

We are of the opinion that the trial court’s order reducing the periods during which the plaintiff-appellant should have custody of the children followed a recommendation contained in the report of the investigator. We do not find evidence in the record which would justify a change in the hours of visitation as had theretofore existed when the application for change of custody was made. In this respect it appears that the court erroneously followed the recommendation of the investigator. We conclude, therefore, that while the judgment denying a change of custody of the minor children should be affirmed, the order in respect to visitatiQn should be modified in such a manner that the times and places of visitation in effect prior to the application for change of custody should be restored, until further order of the court upon hearing pursuant to application therefor duly made according to law. In all other respects the judgment will be affirmed. A journal entry may be drawn accordingly, allowing exceptions according to law.

PHILLIPS, PJ, SKEEL, J, HURD, J, concur.


author: By THE COURT:

text:
    APPLEGATE, Plaintiff-Appellee, v. GREENVILLE-DAYTON TRANSPORTATION CO., Defendant-Appellant
    Ohio Appeals, Second District, Darke County.
    No. 703.
    Decided April 24, 1952.
    Spidel, Staley & Hole, Greenville, for plaintiff-appellee, for the motion.
    Goubeaux & Goubeaux, Greenville, Pickrel, Schaeffer & Ebeling, Dayton, for defendant-appellant, contra the motion.
   OPINION

By THE COURT:

Submitted on motion of appellee to dismiss the appeal for failure to observe Rule 7 of this Court.

The appeal was filed on February 11, 1952 and at the time of filing the motion, April 7, 1952, no briefs or assignments of error had been filed.

The motion will be sustained.

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