author: By THE COURT. By MILLER, J. By THE COURT. By THE COURT. By THE COURT. By THE COURT. By THE COURT. By THE COURT. By THE COURT.

text:
    EAGLE et, Plaintiffs-Appellants, v. SCHAEFER, Recorder, Defendant-Appellee. VAUGHN et, Plaintiff-Appellants, v. SCHAEFER, Recorder, Defendant-Appellee. HICKS et, Plaintiffs-Appelants, v. SCHAEFER, Recorder, Defendant-Appellee.

      Ohio Appeals, Second District, Franklin County.
    No. 4813.
    Decided August 26, 1952.
    George B. Marshall, Columbus, for plaintiffs-appellants
    Paul M. Herbert, Thomas W. Applegate, Columbus, for defendantappellee, Ivan Latham.
   OPINION

By THE COURT.

This is a motion submitted by the defendant-appellee, Ivan Latham, in which the following orders are sought:

(1) That the supersedeas bond entered and approved by the Court of Common Pleas be set aside and held for naught, as the notice of appeal designates it as an appeal on questions of law and fact.

(3) That the order of the Court of Common Pleas staying the execution of its judgment be set aside and held for naught for the reason that the appeal of plaintiffs-appellants is on questions of law and fact.

Decided February 9, 1953.

(3) In the alternative, if this Court finds that this appeal is on questions of law, then defendant-appellee moves the Court for an order to require the plaintiffs-appellants to proceed under the provisions of §§11879, 11880 and 11882 GC.

The record reveals that the action was instituted under the provisions of §3531 et seq., GC, seeking an order restraining the County Recorder from making a record of the proceedings brought to incorporate the village of “Laneview,” and also from certifying the same to the Secretary of State as required by law.

The motion to dismiss the petition and that all proceedings had thereunder be quashed was sustained for the reason that an application by the petitioners to the Court of Common Pleas had not been made in conformity to the statute prior to the filing of the petition. Notice of appeal was duly filed and upon motion of the appellants the Court fixed the stay bond in the sum of $250.00. Although the notice of appeal designates the same as being on law and fact the appellants state in their brief that they have elected to treat their appeal as one on questions of law only. The appeal will therefore be so reduced with leave to perfect the same in accordance with Rule VII of this Court.

The appellants agree to the sustaining of branches 1 and 2 of the motion and it will be so ordered.

The third branch of the motion which seeks an order requiring the appellants to proceed under the provisions of §§11879, 11880 and 11882 GC, is not well taken and the same will be overruled. The appellee cites the case of Croll et al, v. Village of Franklin, 36 Oh St 316, which we think is not on all fours with the case at bar. In the cited case a temporary restraining order was sought in the reviewing court to enjoin any further action in the proceedings and which was the object of the original action to enjoin. The Court held that when such relief was sought the requirements of §5573 R. S. must be met. (The cited section is now §11879 GC.) But in our case appellants are not seeking any temporary relief but are standing upon that accorded to them under §3531 et seq, GC. This Court held in the case of Craft v. Schaefer, 34 Abs 548, that §3531 et seq, GC, establishes the procedure to be followed in such actions, which is the basis of the appellants’ cause of action.

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

EAGLE et, Plaintiffs-Appellants, v. SCHAEFER, Recorder, Defendant-Appellee.

No. 4813.

OPINION

By MILLER, J.

This is a law appeal from the judgment of the Common Pleas Court sustaining the defendant’s motion to dismiss the petition, strike the same from the files and to quash all proceedings previously had.

The record reveals that on February 15, 1952, all of the necessary documents, together with a certified transcript of the proceedings of the Township Trustees for the incorporation of certain territory in Clinton Township were filed with the defendant, Raymond E. Schaefer as Recorder for Franklin County; that on February 25, 1952, the plaintiffs, who are residents of and own property adjacent to the territory sought to be incorporated, filed their petition seeking to enjoin the Recorder from making a record of the proceedings and certifying the transcript thereof as provided by law. The bill of exceptions discloses that the petition was presented to Judge Joseph M. Harter on said date, who endorsed the following across the face of the same:

“Received this 25th day of February, 1952 at 1:55 P. M. Joseph M. Harter, Judge, Common Pleas Court, Franklin County, Ohio”;

that Judge Harter thereupon orally instructed his bailiff to take said petition to the office of the Clerk of Courts of Franklin County, and direct said Clerk to file and docket said petition in his office, which was accordingly done; that on the same date the plaintiffs caused to be delivered to Raymond E. Schaefer and the agents of the petitioners for the incorporation a notice of the filing of the said petition.

The question presented is whether the proper procedural steps were taken to confer jurisdiction upon the Common Pleas Court. The appellees are contending that the requirements of §3532 et seq, GC, were not fulfilled in that the Court did not journalize an entry ordering the Clerk to file the petition and therefore the Court acquired no jurdisdiction over the subject matter of the action. The case of Craft v. Schaefer, 34 Abs 548, is cited wherein it was held that in a similar proceeding the mere filing of a petition with the Clerk of the Court is not tantamount to making an application to the Court and therefore the statutory requirements were not fulfilled.

The first sentence of §3534 GC provides:

“The Court or judge shall cause the petition to be filed and docketed in the office of the Clerk of Courts and shall hear the petition at such time as he shall appoint, not less than twenty days from the filing thereof.”

In the case cited the Court says, page 550, that,

“We are in agreement that a trial judge would have some latitude under §3533 GC as to the order that the petition be filed because of the effect of such an order.”

From this statement it is urged that the Court must act judicially upon receipt of the petition, which act requires journalization before it may become effective. We are in accord with this conclusion, if the Court has authority to exercise judicial discretion in allowing the petition to be filed. But we do not think the “latitude” extended to the Judge amounts to an exercise of judicial power. It is more in the nature of a ministerial act which he is required to perform under certain conditions, to wit, upon the seasonable filing of a petition regular upon its face. If these requirements do not obtain, the law imposed no duty upon him, but if they do he must act as directed by §3534 GC.

In 50 Corpus Juris Secundum, p. 561, it is said:

“The distinction between ministerial, judicial, and other official acts, seems to be that, where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment, the act is ministerial; but, where the act to be done, involves the exercise of discretion or judgment in determining whether the duty exists, it is not to be deemed merely ministerial. That which is ministerial does not become judicial in nature because a necessity may exist for the ascertainment of facts or conditions, on the existence or fulfillment of which performance becomes a clear and specific duty. * * *
“When the word ‘judicial’ is used in the sense of pertaining to the judiciary or the administration of justice, a judicial act may also be ministerial, since judicial tribunals are frequently charged with the performance of ministerial functions; and in some cases courts have said that it by no means follows that a duty is judicial because it is to be performed by a judge, for if in its performance he does not exercise the powers that appropriately appertain to his judicial office it is ministerial, and not judicial, although its performance requires the exercise of his judgment.”

It is therefore our conclusion that Judge Harter was not acting judicially when he issued the order to the Clerk that the petition be filed; that in so doing he was performing a legal duty imposed upon him by statute.

The judgment will be reversed and cause remanded for further proceedings according to law.

WISEMAN, PJ, HORNBECK, J, concur.

No. 4816.

Decided July 24, 1952.

Jesse G. Dickinson, Columbus, for plaintiffs-appellants.

Paul M. Herbert, Thomas W. Applegate, Columbus, for defendantappellee.

OPINION

By THE COURT.

Submitted on motion of Ivan Latham seeking an order that he be made party defendant for the reason that he is a citizen and taxpayer in the County of Franklin, State of Ohio; that he is the owner of 136 acres of land within the boundaries of the proposed village of Laneview and therefore has an interest in the result of this litigation.

The record reveals that the action was instituted by certain residents of the proposed village to enjoin the County Recorder from making a record of the proceedings of the township trustees and certifying the same as provided by law.

A motion to dismiss the petition was sustained for the reason that the same was not brought within the time required by §3532 GC. It should be noted that Ivan Latham is not objecting to the incorporation of the proposed village, but favors the same and claiming that the delay in the incorporation is detrimental to his interests which are not protected by the appeal bond as he is not a party defendant. Since he is not seeking an injunction but rather the dismissal of the proceeding he is not limited by §3532 GC as to the time in which he may become a party. Being the owner of 136 acres of land within the boundaries of the proposed village, and it appearing that his interest is adverse to that of the plaintiffs, we are of the opinion that under §11255 GC he should be made a party defendant.

Decided August 26, 1952.

Decided September 22, 1952.

In the case of Rosenberg et al, v. Mehl et al, 37 Oh Ap 95, the Court held that in a landowner’s suit to have a zoning ordinance declared unconstitutional, the Court abused its discretion in overruling contiguous property owner’s motion to be made a party defendant. We have the same legal principle presented here only with different facts but which we think are parallel.

The appeal being on law and fact it is proper that new parties be added upon good cause being shown.

The motion will be sustained.

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

VAUGHN et, Plaintiff-Appellants, v. SCHAEFER, Recorder, Defendant-Appellee.

No. 4816.

OPINION

By THE COURT.

This is a companion case to that of Eagle et al, v. Schaefer et al, No. 4813, wherein the same questions are presented. The ruling here will be the same as in the companion case.

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

VAUGHN et, Plaintiff-Appellants, v. SCHAEFER, Recorder, Defendant-Appellee.

No. 4816.

OPINION

By THE COURT.

Upon further consideration of the motion of defendant-appellee, Ivan Latham, filed on August 2, 1952, the Court is of the opinion that branches one and two should be overruled. As to the third branch we are of the opinion that this is a statutory proceeding and therefore is appealable only on law. The law and fact appeal will therefore be dismissed, but the case will be retained for determination on questions of law only. The appellants will be granted leave to perfect said appeal in accordance with Supplement to Rule VII of this Court

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

Decided December 18, 1952.

Decided July 24, 1952.

Decided September 22, 1952.

George B. Marshall, Columbus, for plaintiffs-appellants.

Paul M. Herbert, Thomas W. Applegate, Columbus, for defendantappellee.

VAUGHN et, Plaintiff-Appellants, v. SCHAEFER, Recorder, Defendant-Appellee.

No. 4816.

OPINION

By THE COURT.

Submitted on motion of the defendant-appellee, Ivan Latham, seeking an order dismissing the appeal for failure to file bill of exceptions, assignments of error and brief in accordance with Supplement to Rule VII of this Court.

The record supports the grounds set forth and the motion will be sustained.

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

EAGLE et, Plaintiffs-Appellants, v. SCHAEFER, Recorder, Defendant-Appellee.

No. 4813.

OPINION

By THE COURT.

This is a companion case to that of Vaughn et al, v. Schaefer, etc., No. 4816, in which the same relief is sought. The motion will be sustained for the reasons set forth in the above cited case.

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

EAGLE et, Plaintiffs-Appellants, v. SCHAEFER, Recorder, Defendant-Appellee.

No. 4813.

OPINION

By THE COURT.

Upon further consideration of the motion of defendant-appellee, Ivan Latham, filed on August 2, 1952, the Court is of the opinion that branches one and two should be overruled. As to the third branch we are of the opinion that this is a statutory proceeding and therefore is appealable only on law. The law and fact appeal will therefore be dismissed, but the case will be retained for determination on questions of law only. The appellants will be granted leave to perfect said appeal in accordance with Supplement to Rule VII of this Court.

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

No. 4869.

Decided February 9, 1953.

Paul A. Griffith, Harold G. Edwards, Columbus, for plaintiffs-appellants.

Paul M. Herbert, Thomas W. Applegate, Columbus, for defendantappellee, Ivan Latham.

OPINION

By THE COURT.

This is a companion case to that of Eagle et al, v. Schaefer, No. 4813, wherein the facts are identical, only the Court dismissed the petition for want of prosecution. It appears that the dismissal was ordered for the reason that the plaintiffs failed to comply with a court rule relating to the preparation of the entry journalizing the Court’s order to the Clerk to file the petition. Since we have held in the Eagle case, supra, that an entry was not necessary, there is nothing in the record to support the order of dismissal.

The judgment will be reversed and cause remanded for further proceedings according to law.

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


source: Caselaw Access Project

author: By JONES, J:

license: Public Domain

text:
    KLEIN, Plaintiff, v. YELLOW CAB COMPANY, Defendant.
    United States District Court, Northern District of Ohio, Eastern Division.
    No. 22328.
    Decided December 9, 1944.
    Edward E. Lurie, Cleveland, for plaintiff.
    Elmer E. McNulty, Cleveland, for defendant.
   OPINION

By JONES, J:

The motion for physical examination of the plaintiff is controlled by Civil Rule 35(a), which provides that the court may order plaintiff to submit to a physical examination, for good cause.shown. The plaintiff alleges this accident resulted in serious injury to his pelvis, groin, genital organs, and bladder, and involving permanent injury to the uretha, prostate gland, and sexual function. He objects to examination by the defendant’s surgeon, which would include cystoscopy, pyelograms, and so forth, as too painful, and as carrying with it the probability of serious or painful consequences. This is supported by the testimony of the defendant’s doctor given in an earlier state court hearing.

There is no doubt of the painful character of such an examination, even in normal circumstances, but it is difficult to see how the defendant can meet the issue as to the nature and extent of the injuries, unless it can have an examination, or be otherwise fully advised as to the plaintiff’s evidence in that respect. Before ruling finally on the motion, it is suggested that the plaintiff submit all reports of examinations by his doctors, hospital records, and statements of what his doctors will testify to in respect of these alleged injuries, based upon cystoscopic examinations and other related procedure; or, if the plaintiff prefers, to stipulate that no medical evidence will be introduced by him, obtained through cystoscopic examination.

The matter is recognized as one involving serious considerations, and before final action the court desires to have the results of, or reaction to, the above suggestion.

(Decided July 23, 1945.)

By JONES, J.

In consideration of the memorandum of the court filed December 9, 1944, and the affidavit filed by the plaintiff July 19, 1945, and after conference with counsel for the parties in chambers, at which time the question of ordering the plaintiff to submit to the suggested physical examination, including complete cystoscopic examination, was under consideration:

The court has reached the conclusion that the defendant is entitled to the benefit of Rule 35 of the Rules of Civil Procedure, for the reason, as it seems to the court, first, that from the statements of counsel, and the circumstances presented to the court in chambers, it is doubtful whether there is any legal defense to the action; second, the chief injuries to the plaintiff, as claimed and alleged by the plaintiff, and as stated by his counsel in chambers, are the injuries largely to tne genital organs and associated areas, such as the bladder, kidney, and prostate gland.

It is therefore ordered that the plaintiff submit to the examination moved by the defendant on July 25,1944, in the Buffalo General Memorial Hospital, or some other suitáble hospital in Buffalo, as the parties may agree upon, at such time as may be mutually agreeable between the parties; and that such examination shall be made by a physician or surgeon of acknowledged professional standing, skill and experience, on behalf of the defendant; and that there may be present the surgeon or physician of the choice of the plaintiff.

If the plaintiff shall refuse to submit to such examination, under the terms proposed, it would seem to the court that the plaintiff is not entitled to the benefit of this jurisdiction for the trial of his case, and the action will thereupon be dismissed.

The expense of the examination provided for shall be borne by the defendant.

All of this matter of examination is founded upon Rule 35, and its provisions shall be open for the benefit of both parties.


author: By CROSSLAND, J:

text:
    RUNKLE et, Plaintiffs, v. MUSKINGUM COAL COMPANY, An Ohio Corporation, Defendant.
    Common Pleas Court, Muskingum County.
    No. 39271.
    Decided December 6, 1955.

      Carrington T. Marshall, Columbus, Graham, Graham, Gottlieb & Johnston, Zanesville, for plaintiffs.
    Porter, Stanley, Treffinger & Platt, Edmund D. Doyle, Columbus, Joseph W. McNerney, Zanesville, for defendant.
   OPINION

By CROSSLAND, J:

The pleadings, consisting of a first cause of action of the petition and amendment thereto, answer in two defenses and cross-petition, reply to each defense and answer to cross-petition, wholly concern coal mined by defendant out of a certain 138.55 acres in the southeast quarter of section 14, township 14, range 13, Bearfield township, Perry County, Ohio, owned by plaintiffs, the dispute and controversy between the parties growing out of their respective views and claims concerning the application thereto of a paragraph of a written contract of March 20, 1944, which reads as follows:

“It is further agreed that if any other acreage is found to be owned by first party in any of the sections included in Schedule A of Perry County and Schedule B of Morgan County, first party desires to sell and second party agrees to purchase, the same and said acreage shall be added hereto and paid for at the rate of Forty Dollars ($40.00) per acre, payable in installments as aforesaid.”

Plaintiffs are successors in full interest of the former ownership of the coal in question by a former Ohio corporation, The Eastern Hocking Coal Company, which latter company was party with defendant to said March 20, 1944, contract.

The substance of plaintiffs’ claim is that defendant has owned and operated a coal mine on lands nearby and adjoining the disputed acres, that for some months before November 17, 1951, defendant wrongfully mined and removed at least forty acres of coal from said 138.55 acre tract, of approximately 200,000 tons, of the approximate value of $720,000, of which plaintiffs first learned about November 10, 1951, for which they pray judgment in the sum of $720,000.

Defendant’s answer claims that it “mined 23.40 acres of coal from the northerly end” of the described tracts of coal, refers to the written contract of March 20, 1944, for defendant’s purchase of 69 separate parcels of coal, of 5,478.24 acres, in Bearfield township, Perry and Morgan counties, constituting the Misco mine, quotes paragraph 8 thereof as above stated, claims that the twenty-second parcel of Schedule A of Perry County conveyed coal in said section 14 and that by virtue of said paragraph 8 plaintiffs’ predecessor in title agreed to sell defendant the disputed and controverted two parcels of coal of 138.55 acres, at $40 an acre, which Eastern Hocking refused to do; that its said refusal damaged defendant to the amount of any damages otherwise due plaintiffs and has further damaged defendant by consequent inaccessibility to other coal it bought under said contract, in the sum of $50,000, which it asks.

Plaintiffs’ reply claims that much more than 23.40 acres of coal was mined, that it did not agree to sell defendant said 138.55 acres of coal, that in an action by defendant in the Franklin County, Ohio, Courts, upon the same averments as in defendant’s second defense herein, by the judgment of the Franklin County Court of Appeals, affirmed by the Ohio Supreme Court, it was adjudged that defendant herein was not entitled to recover said 138.55 acres. Plaintiffs’ answer to defendant’s cross-petition claims that defendant did not intend to mine other coal through entries in said 138.55 acres but abandoned its mining operations therein because the long underground haul entailed a loss to it.

Interrogatories attached to plaintiffs’ petition were answered by defendant to the effect that (1) 23.40 acres of coal were mined and removed from said 138.55 acres; (2) access is not available to make a survey; (3) the thickness of the No. 6 coal vein where mined was 42 inches; (4) the beginning and end of such mining was November 1, 1950—September 11, 1951; (5) all coal was washed and processed before sale, making it impossible to state the price per ton at which defendant sold run of mine coal within above dates.

Plaintiffs’ witness placed the acres of coal mined by defendant at 24.21.

The case was carefully, well and thoroughly prepared and tried on both sides, and exhaustively briefed by counsel for both sides following trial. In addition, there were two pre-trial conferences, with pretrial briefs submitted by both sides between conferences, that were studied and considered by the Court, together with the Court’s independent research, examination and study of authorities, and all of which was discussed with counsel by the Court at the second pre-trial conference, at which tentative conclusions concerning pleadings, issues, and governing law were arrived at and announced by the Court for the convenience and helpfulness of counsel. In addition to a careful reading and study of post trial briefs, the Court has reread fully the transcript of all trial testimony and examined and re-examined the twenty-four exhibits offered and received in evidence and believes that it is thoroughly conversant with all the same.

It is evident to the Court from the pleadings that plaintiffs rely upon their ownership of the coal in question in charging defendant with its wrongful taking and removal and further rely upon the final determination of previous Franklin County litigation between the parties as favorably concluding the premise of their within action.

It is equally evident that defendant not only defends upon a claim of right but also imports therefrom, in reliance thereon, good faith on its part in mining and removing the said coal.

The foregoing was the construction put upon the pleadings by the Court at the time of pre-trial conferences, at and during trial, and the known basis on which the cause was tried and submitted to the Court with agreed and express waiver of a jury.

It was this Court’s announced view before trial that the question of coal ownership was resolved in and by the Franklin County case and that view was not seriously questioned or challenged in or by the trial of the case; nor was the equal view of the Court that a question of good faith on the part of defendant was also before the Court in the trial of the case seriously questioned or challenged by plaintiffs.

It was the further announced view of this Court at that time that while defendant was entitled to consideration of a defense of good faith on its part to the charge of wrongful taking, it was barred from any affirmative claim for damages, pursuant to its cross-petition, on the principle of res judicata in the application of the results of the previous litigation between the parties concerning the same subject matter of contract rights with respect to the particular 138.55 acre tract from which the coal involved herein was extracted.

The cause was tried and submitted, in the Court’s contemplation, in accordance with its views of the issues as announced and outlined by it before trial and that is the way it stands before the Court at this time upon the evidence adduced and received at the trial of the case, and is the base from which the Court will proceed in its consideration and determination of the issues.

Without taking the time or space to detail the authorities leading to the Court’s view that the Franklin County case settled and disposed of any question at the time of trial of plaintiffs’ then existing unquestioned ownership of the particular 138.55 acre tract, reference will be made briefly to two Ohio cases of the Court’s own research on the matter.

“An action for specific performance is a bar to a subsequent action for damages alleged to have been sustained through failure of the defendant to carry out the contract which forms the basis of the first suit.” (Lee et al. v. Thoma, 1 Oh Ap 384.)

In the concluding paragraph of the opinion of the Court of Appeals for Hamilton county, the Court said:

“Plaintiffs elected in filing their first suit to compel specific performance, and having made their election, they must rely upon that and can not now abandon that suit or bring an action for damages for breach of the same contract.”

The above case was expressly affirmed, without opinion, by the Supreme Court of Ohio, in 91 Oh St 444.

The well reasoned, well written opinion of Judge Hart in the case of Norwood v. McDonald et al., 142 Oh St 299, decided December 8, 1943, with particular reference to the very informative and enlightening discussion on pages 305, 306, 309 and 311, and syllabi 1 and 4 of the court, quite clearly demonstrate and determine the view of law cognizable in this case on that particular proposition, said syllabi reading as follows:

“1. A final judgment or decree rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction is conclusive of rights, questions and facts in issue as to the parties and their privies, and is a complete bar to any subsequent action on the same claim or cause of action between the parties or those in privy with them.”
“4. To determine whether a second action is based upon the same cause of action as that litigated in a former action claimed to be a bar to the second action under the doctrine of res judicata, the primary tests are the identity of investitive facts creating the right of action in each case; the identity of the evidence necessary to sustain each action; and the accrual of the alleged rights of action at the same time.”

Thus, upon the evidence of the fact of plaintiffs’ established ownership of the coal mined by defendant and its removal by defendant from plaintiffs’ coal acreage owned by them in said 138.55 acre tract, a prima facie case is made and a presumption of wrongful taking on the part of defendant necessarily arises therefrom and continues unless and until successfully rebutted by persuasive evidence of defendant’s innocence and good faith. The latter is not a matter of profession, either as a statement of conclusion in defensive pleading or as testimony upon trial, but is an issue of ultimate fact as to whether or not there was a bona fide belief of right in the action taken and complained of, to be arrived at by the trier of the facts from all the relevant and material evidence adduced in the case. The latter concerns all the dealings, communications, actions and conduct of the defendant throughout the period from March 20, 1944, execution of the contract to the inception of boring by defendant in August, 1948 and extraction of coal between November l, 1950 and September 11, 1951.

In considering and weighing all the pertinent evidence and in undertaking therefrom to arrive at an ultimate finding of fact in this essential, important and decisive respect, the nub and crux of the whole case, it is helpful to take account of the legal premise of punitive damages, the predicate of plaintiffs’ claim of large damages, as a legal measurement of the kind of damages sought and then weigh the evidence upon the scales of law in order to see whether it over or under weighs the criterion of punitive damages as most recently fully enunciated by our Ohio Supreme Court.

The case of Saberton v. Greenwald, 146 Oh St 414, decided April 3, 1946, has been relied on by this Court as its authority in charging punitive damages, where that issue was before a jury for its finding and determination, prior to its deliberation upon the evidence, as its rule of law in definition and delineation of the term.

The substance of the holding in the above case and the essence of it is found in the use of the quotation by Judge Turner from volume 13, O. Jur. beginning near the bottom of page 437 of the opinion and continuing to the middle of page 428.

“In 13 O. Jur., 238, Section 139, it is said:

“ ‘By no means does every legal wrong entitle the injured party to recover exemplary damages; by far the larger portion of actionable wrongs form no basis whatever for the recovery of such damages. The Ohio rule allowing a recovery of punitive or exemplary damages is, as the statement of the rule implies, predicated upon the circumstance that the wrong complained of involves ingredients of fraud, malice or insult, or a wanton and reckless disregard of the plaintiff’s rights. Exemplary damages are a punishment, and should only attach to a wrongful intention, and it is frequently stated broadly that malice or insult is a necessary element in order to warrant a recovery thereof. That such damages are allowable only in cases of that kind is settled beyond dispute. As pointed out in an early case, the principle of permitting damages beyond naked compensation is for example, and the punishment of the guilty party for the wicked, corrupt and malignant motive and design which prompted him to the wrongful act.’ ”

This Court does not intend to discuss every detail of the evidence bearing on the question of whether or not defendant is shown to have entertained and acted upon a bona fide belief of right in mining and removing plaintiffs’ coal but shall relate in substance its view and findings in broad outline from all the evidence in that regard.

The controversial paragraph 8 of the original contract contains language that, in and of itself, is easily and entirely susceptible of the meaning contended for by defendant. Without other evidence it appears to support defendant’s contention as to his right of contract to purchase the 138.55 acre tract of coal. There is no express exception, either in said paragraph 8 or elsewhere, that denies or withholds said tract from the mutual covenant and undertaking of the first party’s desire to sell or the second party’s agreement to purchase “any other acreage” “found to be owned by first party in any of the sections included in Schedule A of Perry County.” In and of itself it would seem to this Court to have been an obligation imposed upon either party at the will of the other, upon the consideration which supported the original contract itself. While the decision of the Franklin County Court of Appeals is controlling in so far as concerns the law of the action by defendant for specific performance of contract in the Franklin County Common Pleas Court, it no more concludes the issue of a belief of right on the part of defendant than does the decision of Judge Harter in the Court of Common Pleas predicate it. This Court does not presume to try to pass judgment on the final outcome of that case. It was finally disposed of by the Supreme Court of Ohio on the ground of laches and the law of the case was finally settled by the Franklin County Court of Appeals and is not an issuable matter in this case. The fact, however, that the Common Pleas Court in that case decided, in accordance with the contention of defendant herein, that he was entitled to a conveyance of the 138.55 acre tract under the March 20, 1944, contract, does contribute to that extent in shedding some light on whether or not previously he may have been actuated in bona fidely believing that he had a contract right to the coal in said tract and was owed a duty on the part of plaintiffs’ predecessor in title to respond thereto. The judgment and decision of the Franklin County Common Pleas Court in the former case has the effect only of reflecting judicial concurrence with defendant’s contention of right, in now weighing the question of his belief of right at the time of his first boring and later extraction, and is only a commentary in this case as to the apparent meaning of the contract language upon which defendant relied. It does not prove or establish good faith by defendant in what he previously did any more than the decision of the Court of Appeals disproves or disestablishes it. Essentially, the proof itself lies within the time preceding defendant’s entry, mining and removal. That case finally decided that the defendant was not entitled to the coal. This case presents the further question as to whether or not the defendant bonafidely believed that he was entitled to the coal.

The Court views the evidence prospectively from the date of the March 20, 1944, contract and the successive events, communications and actions that ensued thereafter, to and including the removal and disposition of plaintiffs’ coal.

There is no doubt but that if defendant believed he was entitled by contract to the 138.55 acres of coal, it would have been additional to that already conveyed in escrow and would require payment of additional money in accordance with the contract terms for acreage actually conveyed by Eastern Hocking, and letters and telephone calls of and to its counsel would naturally pertain to a desire and effort on defendant’s part to purchase the same. In short, defendant’s efforts through counsel to acquire this coal by purchase were consistent with and not repugnant to any claim of right to do so, which he may have entertained or asserted.

It is equally clear to the Court that defendant sought and Eastern Hocking declined sale of the 138.55 acre tract. There was nothing covert or surreptitious about defendant seeking conveyance of that tract. It did not get it but it did want it, asked for it and claimed it—but not in time or not rightfully, according to respective views of counsel as how the action for specific performance of contract terminated. In the course of seeking acquisition of the disputed acres defendant -unquestionably called and consulted its counsel at that time, who advised its corporate officers that said acreage was covered and included under the terms of the contract. No legal action, by defendant was threatened or begun either then or shortly thereafter. However, effort was made to acquire said coal amicably, without consideration of resort to court, but with defendant believing and being advised by counsel that it was entitled to buy the coal, from the time the question apparently was first raised by defendant with its counsel in late 1945 or early 1946, preceding the mailing of said counsel’s letter of January 22, 1946, plaintiff’s exhibit No. 4. It was shortly after final consultation with and counsel’s favorable advise to defendant’s officers that the August, 1948, boring was made and at just about the latter time that said counsel’s letter of September 3, 1948, plaintiffs’ exhibit No. 6, was written, in which opening reference is made to

“140 Acres in Section 14 (which is south of the Misco entry and which Mr. Jones claims you contracted to sell to him)” and closing reference is made to:

“bearing in mind that our friend Jones still claims that you have contracted to sell him the 140 acres above referred to.”

This Court heard defendant’s counsel testify that he advised defendant that it was entitled to the 138.55 acre tract under the terms of its contract and heard defendant’s president testify that it had received and acted upon and pursuant to such advice, and is convinced of the truth and fact as so testified by each of said witnesses.

There is no question of the legal impropriety of defendant proceeding to mine and remove plaintiffs’ coal without first obtaining a legal conveyance but there is also no question of doubt in the Court’s mind of defendant’s belief that Eastern Hocking was legally obligated to sell and good reason, tenable ground and sound legal advice for so believing and reasonable anticipation that a deed therefor would come later by either the persuasion or procurement of counsel. While defendant was mistaken, under all the facts and circumstances in evidence the Court is persuaded that it was honestly mistaken and that it was not seeking and did not obtain the coal by stealth or under pretense of any kind, but in a bona fide belief of right and in reliance upon subsequent legal conveyance pursuant to existing contract.

The vast difference in this kind of case between the calculation of punitive and compensatory damages is arresting and provocative of one’s utterly innermost self-questioning, to the end that the evidence be fully and faithfully understood and considered, correctly interpreted, properly evaluated and impartially and unreservedly stated, and a review in higher courts is assumed and welcomed. In many respects it is much easier to submit a case of two extreme positions that are irreconcilable to a jury than to constitute one’s self as a trier and finder of facts as well as a determinant of the applicable and governing law. The Court has given its very best, though limited, talent to the task at hand, and has striven as best it can to find the facts and determine and apply the law, but makes no claim of infallibility as to either..

Adverting to the rule for punitive damages in Ohio, as stated in Saberton v. Greenwald, supra, of wrong involving ingredients of fraud, malice, or insult, or a wanton and reckless disregard of rights, punishment for a wrongful intention, or for wicked, corrupt, and malignant motive and design prompting the commission of a wrongful act, -the Court fails to find any evidence of a wrongful intention on the part of the defendant or of wicked, corrupt or malignant motivation or design on its part, or that it acted in wanton or reckless disregard of plaintiffs’ rights. On the contrary, the Court affirmatively finds that the defendant was relying explicitly and expressly upon contract and a belief of right predicated thereon and that although subsequently shown mistaken as to its rights by later court pronouncement, it was meantime genuinely seeking only to assert its own and not to disregard Eastern Hocking’s rights.

Specifically, the Court further finds that the presumption of wrongful taking from the fact of plaintiffs’ ownership alone is fully and effectively rebutted and clearly and convincingly overcome by other evidence, so that as a conclusion of law plaintiffs, while entitled to full compensation for all the coal mined and removed by defendant mistakenly in legal respect, are not entitled to exact unconscionable punishment therefor.

Both law and good conscience prompt the Court to repudiate the paucity and inadequacy of any possible inference from which it is sought to draw an implication of malicious, malevolent, or malignant purpose, with the effect of unjustly rewarding and enriching successful litigants in an earlier action in grotesque distortion of any possible right of plaintiffs of which the evidence herein is reasonably susceptible. That would be injustice of the grossest kind, compounded to the nth degree, and there is no conceivable premise from the evidence in this case for exploiting fancifully or fantastically claims of solely compensatory value.

Neither will the Court seriously indulge patently absurd and manifestly ridiculous testimony of astronomical compensatory values offered by each of the plaintiffs personally. The most that was claimed by plaintiffs in their verified petition of June 29, 1954, regarding fair market value of all their immediately adjoining 2000 acres of coal was that it was worth $100 an acre, not as allegedly damaged but before the deprivation of full use of the 138.55 acre tract, which latter is claimed to have reduced former value by one-half or from $100 to $50 an acre, as set forth in plaintiffs’ dismissed second cause of action.

The Court agrees with plaintiffs’ contention that an amount of damages no more than the going-market price of coal intentionally and willingly sold is, in a sense, penalizing the owners who did not choose to sell. A difference here, of course, is that the contract transaction between the parties, giving rise to a dispute and controversy concerning it and affecting the coal in question, directly accounted for the mining and removal and was also incidental to the consummation and execution of a quarter million dollar sale by Eastern Hocking to defendant.

The only other answer the Court can provide, responsive to the evidence, is that when defendant entered the 138.55 acre tract, it thereby constructively took possession of all the coal therein and that while all but 24.21 acres of coal was neither mined nor removed, nevertheless, inasmuch as defendant is liable only for the value of the coal in place, when it exercised its asserted right to enter upon the area embracing the coal in place, of which it. mined and removed a part, it thereby constructively took possession of all that it desired to mine of the coal in said tract just as fully as if it had previously obtained and received a deed of conveyance therefor, which it had sought and asked for and presumably was willing and expecting to pay for. The only difference is that it abandoned the rest of the coal not mined and removed and must pay the price which the 138.55 acres of coal was fairly and reasonably worth at the time it began to mine and remove some of same on November 1, 1950, which this Court finds did not then exceed $50 an acre, the usual and customary unit of computation in that vicinity for many years.

Accordingly, judgment is given plaintiffs for $6,927.50, with legal interest thereon of 6% per annum from November 1, 1950, a total to date of $9,047.32. Defendant to pay costs.

Exceptions will be noted in behalf of both parties and Journal Entry may be prepared by defendant’s counsel, containing therein findings of fact and conclusions of law as herein set forth, submitted to plaintiffs’ counsel for approval, and then to the Court for its approval for filing.


author: By KINDER, J.

text:
    AUGENSTEIN, Estate of, In re.
    Probate Court, Cuyahoga County.
    No. 398168.
    Decided March 9, 1956.
    James Metzenbaum, for exceptor, Sanford S. Arnoff, Asst. A±ty. Geni., Cleveland.
   OPINION

By KINDER, J.

On September 3, 1953, Catherine Boyd, administratrix of the estate of Elizabeth S. Augenstein, deceased, filed her application for determination of inheritance tax, and on September 22, 1953, said tax was determined. Notice of the determination of tax was given and the Department of Taxation filed its waiver on September 23, 1953. No waivers were filed by any of the successors directly or on their behalf by counsel representing them, and therefore the journal entry determining the tax could not be certified to the Auditor for payment within trie sixty day period provided by law. (Sec. 5731.39 R. C.) Such determination could have been certified after sixty days following said determination but for the fact that prior to the expiration of said sixty day period, exceptions to the determination of tax were filed on November 20 1953, by Catherine Boyd, administratrix of the decedent’s estate. Such action precluded the Court from certifying the determination of tax in order that payment of the same could be made to the Treasurer. (Sec. 5731.38 R. C.) Under no circumstances does the law contemplate payment of inheritance tax to the Probate Court.

Although the date of death of the decedent is ordinarily regarded as the date of accrual, the facts in this case present the question of whether or not another date should be used as the date of accrual. Said date of accrual determines the time from which interest is to be computed and added to the tax. In this connection §5731.17 R. C. and §5731.19 R. C. are pertinent. Sec. 5731.17 R. C. provides in part as follows:

“Taxes levied under this subdivision of this chapter shall be due and payable at the time of the succession, except as herein otherwise provided, but in no case prior to the death of the decedent. Taxes upon the succession to any estate or property, or interest therein limited, dependent or determinable upon the happening of any contingency or future event, and not vested at the death of the decedent, by reason of which the actual market value thereof cannot be ascertained at the time of such death, as provided in this subdivision of this chapter, shall accrue and become due and payable when the persons or corporations then beneficially entitled thereto shall come into actual possession or enjoyment thereof.”

The following background material set forth in the Brief in Opposition to the Exceptions to Determination of Inheritance Tax is pertinent in connection with the question of the date of accrual:

“1. On February 9, 1922, Jacob Augenstein, father of Edmund Augenstein, and father-in-law of Elizabeth Augenstein, died testate. This estate is known as Henry County Probate Court Case No. 2934. Among Jacob’s assets were four (4) parcels of real property located in Henry County. An item in Jacob’s will gave Sarah, his widow, the right to sell these four (4) parcels. However, she was to divide the proceeds among Jacob’s six children, of which Edmund was one.
“2. Sarah disposed of the four parcels as follows:
“a. On March 9, 1923, the first parcel was sold for Ten Thousand Dollars ($10,000.00).
“b. On May 8, 1923, the second parcel was sold for Sixteen Thousand Two Hundred Fifty Dollars ($16,250.00).
“c. On August 31, 1926, the third parcel was sold for Five Thousand Dollars ($5,000.00).
“d. On September 21, 1926, Sarah conveyed the fourth parcel without consideration.
“Sarah deposited the proceeds of the aforementioned sales in various banks in Napoleon. She ultimately transferred approximately Eighteen Thousand Dollars ($18,000.00) of the funds to the Community Bank as a credit to the estate of Jacob Augenstein, deceased. Sarah died on March 24, 1947, without having distributed any of the proceeds to Edmund or to Edmund’s estate.
“3. On January 12, 1924, Edmund Augenstein, husband of Elizabeth Augenstein died, leaving Elizabeth as sole heir. This case is known as Court of Common Pleas Case No. 135104.
“4. On December 15, 1947, Elizabeth Augenstein, decedent herein, was presumed deceased.
“5. On April 12, 1948, Lillyan Taylor, administratrix de bonis non of the estate of Benjamin Franklin Augenstein, filed a petition naming herself plaintiff and naming herself, as an individual, one of the defendants. Among other defendants she named Marguerite Mathers, administratrix of the estate of Edmund Augenstein. This case, known as Taylor v. Taylor, et al., Henry County Common Pleas Court No. 14870, was an action for partition and distribution of the proceeds of the sales of the four parcels mentioned in item two above. The following language appears in said petition:
“Edmund Augenstein died intestate, a resident of Cuyahoga County, Ohio, on January 12, 1924, survived by Elizabeth Augenstein, who was his widow and only heir at law.”
“It was also stated that Edmund’s estate was entitled to a distributive share of the proceeds of the sales of the aforementioned four parcels.
“This matter was finally decided by the Court of Appeals for the Third District in May of 1952.”

Thus it would seem that as of the presumptive date of death of Elizabeth S. Augenstein, deceased, her estate consisted of the property which the said Elizabeth S. Augenstein, if living, would .have been entitled to receive from the estate of her deceased husband Edmund. The right to such assets existed at the time of the death of Elizabeth S. Augenstein, who by presumptive death proceedings was determined to have died on January 3, 1937. A personal representative of said presumed decedent’s estate could have been appointed in 1937. Under ordinary circumstances distribution of a decedent’s estate may be made within nine months after the appointment of a personal representative. (Sec. 2113.25 E. C.) This nine month period constitutes the basis for computing interest on certain bequests. In re Estate of Shanafelt, 164 Oh St 258. If the affected parties had asserted their rights and acted seasonably an administrator of the estate of Elizabeth S. Augenstein, deceased, could have been appointed within six months following January 3, 1937, the date of the presumptive death of said decedent. It would have been the duty of said personal representative to ascertain the kind, type and valuation of the assets of said decedent’s estate, and it is reasonable to assume that an investigation for such purpose would have disclosed what, if any, was then due the estate of said decedent from the estate of her deceased husband Edmund. It is also reasonable to assume that such investigation would have revealed that Sarah Augenstein, mother of Edmund and mother-in-law of Elizabeth, had deposited in various banks in Napoleon, Ohio, the proceeds from the sale of certain real estate in which the estate of Edmund Augenstein had a possible interest, and that the estate of Elizabeth had a possible interest by virtue of the fact that Elizabeth was the sole heir of Edmund.

Relatives of Elizabeth S. Augenstein, deceased, took no steps to have her declared legally dead or to ascertain what, if any, assets comprised her estate. On July 31, 1947, the Attorney General of the State of Ohio instituted the presumed decedent proceeding in this Court relative to Elizabeth S. Augenstein, and on September 15, 1947, this Court entered a decree finding that said decedent was presumed to. have died January 3, 1937, said decree of presumptive death having been made absolute on January 6, 1948. On July 16, 1952, Catherine Boyd was granted letters of administration in respect of said decedent’s estate. The proceedings known as the case of Taylor v. Taylor was instituted on April 12, 1948. This was a Common Pleas Court case in Henry County, Ohio, Case No. 14870, said action being one in partition and for disposition of the proceeds of the sale of four parcels of real estate hereinabove referred to as originally in the estate of Jacob Augenstein, deceased. Said cause was finally decided by the Court of Appeals of the Third District on June 14, 1952. Said decree settled the question as to the portion of the proceeds constituting the estate of Edmund Augenstein.

In order to determine the question of the date of accrual in the estate of Elizabeth S. Augenstein, deceased, the following dates should be kept in mind:

January 12,1924, which was the date of death of Edmund Augenstein.

January 3, 1937, which was the date of the presumptive death of Elizabeth S. Augenstein, deceased.

September 15, 1947, which was the date of the Court’s finding as to the presumptive death of Elizabeth S. Augenstein, deceased.

January 6, 1948, the date when said decree of presumptive death was made absolute.

June 14, 1952, which was the date of the decision of the Court of Appeals, determining the interest of the estate of Edmund Augenstein, deceased.

A strict interpretation of §5731.17 R. C. might well result in a conclusion that although the interest of the parties were not finally determined until June 14, 1952, nevertheless it might be considered that a “vesting” of the interest of Elizabeth S. Augenstein had occurred on the date of her presumptive death, namely, January 3, 1937. There is less reason in logic to fix the accrual date as January 6, 1948, because although that was the date that the decree of presumptive death was made absolute, nevertheless it was determined that her presumptive death occurred on January 3, 1937.

It is true that either on January 3, 1937, or January 6, 1948, the amount due the estate of Elizabeth S. Augenstein was not ascertainable, due at least in part to the fact that steps were not taken seasonably to have the rights of the parties determined.

The rights of Edmund were finally determined on June 14, 1952, which was the earliest date that a valuation could be placed upon the interest of the said Elizabeth S. Augenstein.

A reasonable construction of §5731.17 R. C. would fix the accrual date of the successions from the estate of Elizabeth S. Augenstein, deceased, at June 14, 1952, and it is so concluded.

Exceptor prays that no interest be found due or charged on the successions from Elizabeth IS. Augenstein, deceased.

Sec. 5731.171 R. C. effective October 13, 1953, pertaining to interest, is not applicable due to the fact that litigation respecting the determination and collection of inheritance tax was pending at the expiration of ten years after the date of the death of the decedent. The applicable interest section was §5731.19 R. C., formerly §5338 GC. The penalty section is §5731.37 R. C., formerly §5345-5 GC.

In the case of Evatt v. Semonin, 143 Oh St 480, the Court said (Page 486):

“The rate of interest fixed with the respect to inheritance taxes, payable under a temporary order, is within the range fixed by statute with the respect to the payment of ordinary interest. Eight per cent per annum is the maximum that can be set by contract, and five per cent per annum is below the amount (six per cent per annum) that may lawfully be collected as damages for the withholding of money due and payable. So the implication arises that the legislative intent was that the percentages fixed were in fact interest.
“There are, however, other factors which bear upon the meaning of the word ‘interest’ as used in the statute and which will assist in arriving at a conclusion.
“The inheritance tax provisions of the statutes are in pari materia and must be construed together. In these kindred statutes the General Assembly has made a distinction between interest and penalty. In the sections quoted above the word ‘interest’ is used without mention of the word ‘penalty’ but in §5345-5 GC the term ‘penalty’ is used. That section authorizes the imposition of a penalty of fifteen per cent for failure to give notice as required or failure to file application for determination of inheritance tax within the prescribed time, and a penalty of twenty-five per cent for filing a false or fraudulent notice or application. This use of the terms ‘interest’ and ‘penalty’ in contradistinction to each other discloses an intent on the part of the Legislature to use each of them in its ordinary and generally accepted meaning.”

At Page 489 of said opinion the Court held:

“Moreover, after the inheritance tax at the highest rate, with interest, is paid into the public treasury, interest is to be held and treated as part of the tax. Accordingly, for the purpose of determining the refund to be made, the ‘amount so paid’ may well and properly include the interest as well as the original tax collected under the temporary order.” (Emphasis added.)

The exceptions are sustained in part and overruled in part. The accrual date on the successions is fixed at June 14, 1952, and because of the unavoidable delay and necessary litigation, the interest rate is reduced from 8% to 5%, said interest being payable from and after June 14, 1953, until paid.

An order may be entered accordingly, with exceptions to any party deeming themselves aggrieved thereby.


author: By SKEEL, J:

text:
    EUCLID (City), Plaintiff-Appellee, v. LAKESHORE COMPANY et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23610.
    Decided March 22, 1956.

      Paul Torbet, Director of Law, Euclid, Perry L. Graham, for plaintiffappellee.
    Thompson, Hine & Plory, Charles W. Sellers & David C. Prugh, of Counsel, Ford, Reece, Howland & Wegman, John Howland, of Counsel, for defendants-appellants.
   OPINION

By SKEEL, J:

This appeal comes to this Court on questions of law from judgments entered on separate verdicts of a jury in separate proceedings of the trial to determine the value of five parcels of land appropriated for park purposes by the City of Euclid. As the proceedings were initiated by the City, seven parcels, all contiguous, with a total frontage of about nine hundred feet on the north side of Lake Shore Boulevard just east of East 226th Street and extending northerly to Lake Erie, a distance of about seventeen hundred feet, were included in the resolution. The City, by its Council, passed a resolution on November 17, 1952, as authorized by §719.04 R. C., declaring its intention to appropriate the property described, the purpose for which the property was to be taken, the persons to be notified and the interest to be appropriated. Thereafter on March 15, 1954, after all procedural requirements as prescribed by §719.05 R. C., to perfect the appropriation of the property for park purposes, had been complied with, the City Council of Euclid passed Ordinance 10299 as provided by §719.06 R. C., authorizing the Law Director to file this action to appropriate a part of the property described in the original resolution. The land to be taken was a contiguous tract of about twenty-five acres described in four parcels according to ownership as shown by the public records. Parcel No. 1, recorded in the name of the defendant, The Lakeshore Company, by deed dated December 21, 1951, from the defendant, Eugene E. Vogelin, has a frontage of about four hundred feet on the northside of Lake Shore Boulevard and is directly east of the front part of Parcel No. 2, recorded at the time the petition was filed in the name of the defendants, Benjamin and Lillian Zevin. Parcel No. 2 (subsequently divided) recorded in the names of defendants Zevin has a frontage of about two hundred ninety nine feet on Lake Shore Boulevard and extends about seventeen hundred feet to the shore of Lake Erie. This parcel was divided into Parcels Nos. 2A and 2B, the front part (Parcel No! 2A) (which was transferred from the defendants Zevin to The Lakeshore Company on the registered title records of Cuyahoga County after the filing of this case) is located on Lake Shore Boulevard as above described and has an average depth of about eight hundred feet. Parcel No. 2B is the northerly part of the Zevin property with a frontage on Lake Erie of about three hundred twenty five feet and is about nine hundred feet deep. Parcel No. 3, in the name of Robert J. and Irma Bradley, is seventy-five feet wide on its southerly boundary and is seven hundred thirty three feet deep, its north boundary fronting on Lake Erie, and, before being deeded to the Bradleys, was the northeast corner of the property of the defendants Eugene E. Vogelin and his wife. Parcel No. 4 is that of the defendants, Eugene E. Vogelin and his wife, which is bounded on the south by Parcel No. 1, which these defendants sold to The Lakeshore Company, on the west by Parcels Nos. 2A and 2B, originally all in the name of the Zevins, on the north by Lake Erie and on the east in part by Parcel No. 3. Parcels Nos. 1, 2A, 2B, 3 and 4, together comprise a contiguous tract of land of about twenty-five acres with a frontage of about seven hundred feet on the north side of Lake Shore Boulevard, being about seventeen hundred feet deep and having a somewhat wider frontage on Lake Erie. The Bradley’s deed provided for an easement over the Vogelin’s property for ingress and egress and utility services to Lake Shore Boulevard. The Vogelins retained like privileges for themselves and the Bradleys over Parcel No. 1 when it was deeded to The Lakeshore Company. The Zevins retained an easement for ingress and egress and for utility services to Lake Shore Boulevard for Parcel No. 2B, over Parcel No. 2A when Parcel 2A was deeded by them to The Lakeshore Company.

The zoning restrictions of the City of Euclid, dealing with this property at the time of trial and for many years-prior thereto (1927), provided for U-3 use (multi-family dwellings) for the frontage of the property on Lake Shore Boulevard to a depth of one hundred fifty feet and for U-l use (single family dwellings) for the balance of property north of the one hundred fifty foot strip to the shore of Lake Erie.

The property on the south side, or across Lake Shore Boulevard from the property taken by the City in this action, from East 218th Street to East 232nd Street, is zoned for and has for a number of years past been used for retail business as are a few properties on the north side of Lake Shore Boulevard between East 218th Street to East 224th Street, the last mentioned business properties being two blocks west of the property here being taken. With this exception and two or three others of long standing, the property on the north side of Lake Shore Boulevard from the east border to the west border of the City is used as zoned for single family dwellings north of the one hundred fifty foot strip fronting on Lake Shore Boulevard. This strip was zoned for multi-family dwellings until the amendment of 1955 when most of the frontage was changed to U-2 use (two-family houses). There is no evidence in the record that would indicate that there is the slightest probability that the city authorities will lessen the use restrictions of its zoning ordinances in the neighborhood in whch the property here appropriated is located. The property of the defendants is lakefront property originally used as country estates and surrounded by single family dwellings and apartments, some of the garden-type, and two-family houses fronting on the Boulevard. The zoning ordinances of the City of Euclid have maintained the standard of this territory as a residential area and there is not the slightest evidence that within the foreseeable future any lessening of use restrictions will occur.

Upon trial, the jury by its separate verdicts, found the value of each of the several parcels as follows:

Parcel No. 1 —The Lakeshore Company $60,000

Parcel No. 2A—The Lakeshore Company 47,500

Parcel No. 2B—Benjamin D. and Lillian C. Zevin 55,000

Parcel No. 3 —Robert J. and Irma Bradley 23,000

Parcel No. 4 —Eugene E. and Marian Vogelin 37,500

In each instance the jury’s verdict was for the highest value given by the city’s expert witnesses, there being no other testimony on the subject of value, the defendants’ experts not being asked to testify as to their opinion of the value of the various parcels when considered for the highest and best use for which the property was zoned.

The claims of error presented on the appeal of The Lakeshore Company are:

“1. The Trial Court erred in ruling that the Court had jurisdiction to hear the appropriation proceedings despite failure of the City of Euclid to comply with the statutory requirements prescribed for municipal appropriation proceedings.”
“2. The Trial Court erred in refusing to permit Defendant-Appellant to introduce testimony as to the fair market value of the property to be appropriated unless such testimony was limited to the value of the property for uses permitted under current zoning restrictions.”
“3. The Trial Court erred in refusing to instruct the Jury in accordance with defendant-appellant’s requested instructions I to XI, Inclusive, XIII, XIV, and XVII.”

Each of the appellants assign the same errors.

The first assignment of error deals with the jurisdiction of the court to determine the value of the property taken for the alleged failure to comply literally with §§719.04, 719.05 and 719.06 R. C. These sections provide:

“Sec. 719.04 R. C.
“The legislative authority of a municipal corporation shall, whenever it is deemed necessary to appropriate property, pass a resolution declaring such intent, defining the purpose of the appropriation, and setting forth a pertinent description of the land and the estate or interest therein desired to be appropriated.”
“Sec. 719.05 R. C.
“The mayor of a municipal corporation shall, immediately upon the passage of a resolution under §719.04 R. C., declaring an intent to appropriate property, for which but one reading is necessary, cause written notice to be given to the owner of, person in possession of, or person having an interest of record in, every piece of property sought to be appropriated, or to his authorized agent. Such notice shall be served by a person designated for the purpose and return made in the manner provided for the service and return of summons in civil actions. If such owner, person, or agent cannot be found, notice shall be given by publication once a week for three consecutive weeks in a newspaper of general circulation in the municipal corporation, and the legislative authority may thereupon pass an ordinance by a two-thirds vote of all members elected thereto, directing such appropriation to proceed.”
“Sec. 719.06 R. C.
“The solicitor of a municipal corporation shall, upon the passage of an appropriation ordinance under §719.05 R. C., make application to the court of common pleas or to a judge in vacation, or to the probate court in the county in which the land sought to be taken is located, which application shall describe, as correctly as possible, the land to be appropriated, the interest or estate therein to be taken, the object proposed, and the name of the owner of each lot or parcel thereof.”

No complaint is made as to the resolution adopted by the Council on October 25, 1952, as the initial step in taking a fee simple interest in the property described for park purposes.

There is no question but that notice was given as required by §719.05 R. C., supra, and that subsequently the City Council passed the appropriation ordinance authorizing the Law Director to file application in the Common Pleas Court as directed by §719.05 R. C., supra, to take four of the seven parcels described in the resolution, setting forth in the ordinance a description of the land by parcels, the interest to be taken as to the entire tract, naming the owner of each parcel at the time the ordinance was passed.

The complaint of each appellant is that the easements recorded in the owners of Parcels Nos. 2B, 3, and 4, over or in Parcels Nos. 1, 2A, 3, and 4, were not set forth in either the resolution passed in October 1952, or the ordinance authorizing the filing of the application to appropriate the land. It is, therefore, claimed that the right to take a valuable interest (the easements) not being included in the legislation required to authorize the appropriation proceedings in this case, the court was without jurisdiction to proceed to fix the value of the property taken.

Both the statute providing for the passage of the resolution declaring the intent to appropriate property and the statute authorizing the filing of the petition to appropriate the property and to determine the value of the property taken provide that a pertinent description of the land and the interest to be taken shall be set forth. This means the interest (in this case, a fee simple interest) to be appropriated, not the interest to be taken from any particular owner. All that is required as to the several owners, if there be more than one, is that notice in writing be given to persons having an interest of record in the manner of service and return of summons in civil actions. The character of the interest in a particular parcel need not be set forth.

The object of the proceeding in appropriation is to determine the value of the property taken. If a fee simple interest in all the property is to be taken, then the full and complete value of each parcel must be found by the jury. In the case of Emery v. City of Toledo, 121 Oh St 257, the second paragraph of the syllabus provides:

“In such appropriation proceedings the only issue relates to the value of the property.”

In the case of Sowers, Supt. v. Schaeffer, 155 Oh St 454, the court said in the first paragraph of the syllabus:

“A land appropriation proceeding is essentially one in rem; it is not the taking of the rights of persons in the ordinary sense but an appropriation of physical property. In the event there are several interests or estates in the parcel of real estate appropriated, the proper method of fixing the value of each interest or estate is to determine the value of the property as a whole, with a later apportionment of the amount awarded among the several owners according to their respective interests, rather than to take each interest or estate as a unit and fix the value thereof separately. The separate interests or estates as between the condemner and the owners are regarded as one estate.”

Likewise in the case of Sowers, Supt. v. Schaeffer, 152 Oh St 65, the Supreme Court said in the second paragraph of the syllabus:

“A proceeding to appropriate property for a public use is essentially in rem, and where property is sought in which separate interests or estates are owned by several persons as between the condemner and the owners it is regarded as one estate and one offer or award as compensation for the entire land and the interests connected therewith is made, which sum takes the place of the property appropriated as the equivalent thereof. The division and distribution of the sum offered and accepted or of the award made among the owners of separate interests or estates rests wholly with them, and the condemner has no concern therewith.”

and on page 69, Judge Zimmerman said:

“An appropriation proceeding is essentially one in rem; it is not the taking of the rights of persons in the ordinary sense but an appropriation of physical properties. In the event there are several interests or estates in the parcel of real estate appropriated, the proper method of fixing the value of each interest or estate is to determine the value of the property as a whole, with a later apportionment of the amount awarded among the several owners according to their respective estates, rather than to take each interest or estate as a unit and fix the value thereof separately. Hence, separate interests or estates, as between the condemner and the owners, are regarded as one estate. One award constitutes compensation for the entire value of the land and it stands in the place of the property appropriated as the equivalent thereof. The division and distribution of the award among the owners of separate interests or estates rests wholly with them, and the' condemner is not concerned therewith. Bogart v. United States (C. C. A. 10), 169 F. (2d), 210; City of St. Louis v. Rossi, 333 Mo., 1092, 64 S. W. (2d), 600; 69 A. L. R., 1263, annotation; 166 A. L. R., 1211, annotation; 29 Corpus Juris Secundum, 1102, Eminent Domain, Section 197. Compare Martin v. City of Columbus, 101 Oh St 1, 127 N. E., 411.”

and on page 70, Judge Hart, in a concurring opinion, says:

“* * * Thus in a single action a single award may be made to the holders of the fee, lienholders, lessees, easement holders or holders of any equitable title or interest in the tract or parcel of land. 29 Corpus Juris Secundum, 1102, 1103.” (Emphasis added.)

The appellants cite the case of Rockwell v. Turnpike Comm., 98 Oh Ap 199, as authority that an easement must be separately taken in an appropriation case. In that case a drainage easement was needed on property outside the turnpike right of way. There was also a claim for damage to the residue owned by the defendant, the residue being the same land through which drainage pipes were to be constructed. These facts are totally different from those in the case before us where the land taken includes all the lands subjected to the easements and also all lands benefited by such easements.

One other fact is claimed by the appellants as destructive of the court’s jurisdiction to proceed with the trial of this case. After this action was commenced, the defendant, The Lakeshore Company, claimed to be the owner of Parcel No. 2A, although the Torrens Title was still in the Zevins. The Lakeshore Company brought an action to enjoin further proceedings because it was claimed by said defendant that it was then the owner of both parcels Nos. l and 2A (contiguous parcels), having a total frontage of seven hundred feet on Lake Shore Boulevard, and that for some purposes the land when considered as one parcel was of greater value than the sum total of its component parts considered separately.

Upon trial of the injunction case, the court granted á conditional restraining order preventing the appropriation case from proceeding unless an amended petition was filed showing title to Parcel No. 2A transferred from the Zevins to The Lakeshore Company. The plaintiff then amended its petition as directed by the court and the injunction was dissolved. Error is now prosecuted to this Court from the order dissolving the restraining order by separate appeal which will be separately considered.

We hold here that amending the application or petition before the case was set for trial which came about because of the demands of the defendant, The Lakeshore Company, in no way divested the trial court of jurisdiction to proceed to determine the value of the properties taken. This conclusion is bottomed on the facts of the case. The Zevins’ property was torrenized. The fact that some information had come to the city that it was the intention of the Zevins to transfer title to Parcel No. 2A to The Lakeshore Company does not change the fact that when the legislation was passed and the application was made to the court seeking to appropriate this property, the registered title was in Benjamin D. Zevin and his wife. They were, therefore, necessary parties to the action involving Parcel No. 2. Where registered titles are taken, only the registered owner is a necessary party. Sec. 5309.28 E. C. It might also be here stated that the easement created over Parcel No. 2A for ingress and egress and utility services for Parcel No. 2B was not created until after this action was brought, such right being created in the deed from the Zevins to the syndicate and by them to The Lake-shore Company. Without here deciding the question of whether The Lakeshore Company had any legal right to enjoin the prosecution of a pending proceeding to determine the value of property being taken by appropriation for the reason that after the action had been begun, it became the holder of the legal title to an additional parcel which parcel was already included and described in the enabling legislation and petition, claiming that the value of both, when held together by one owner, is greater than the total value of each parcel valued separately, we hold that the amendment, requested by the defendant, when made showing the change of ownership in the properties to be taken from persons already defendants in the action, did not divest common pleas court of jurisdiction to proceed to fix the value of the property.

The defendants rely strongly on the case of Grant v. Village of Hyde Park, 67 Oh St 166. The facts of this case are clearly distinguishable. The statute by which municipal corporations exercised the right of eminent domain at the time of the Hyde Park case provided for the passage of but a single ordinance by which private property could be appropriated for public use. The passage of such an ordinance constituted the “taking.” As said on page 173 of the opinion:

“* * * It (the ordinance) seeks to acquire that precise property, or, putting it in different form, it has already appropriated the property described for the proceeding in court is one simply for ascertainment of the amount of compensation to be paid the landowners.”

After the ordinance had been passed and the case filed to fix the value of the property taken and damage to the residue and the case was on trial, some evidence was offered tending to show that the City Council passed an ordinance authorizing the city solicitor to stipulate that the City, in constructing the street over the property appropriated, would not establish the grade of the new street that would require taking a deeper cut in the land taken of more than five feet. This was done because the evidence tended to show that there would be no damage to the residue unless the grade of the street required a deeper cut than five feet. Any such stipulation would change or lessen the rights of the village by its resolution to take the property in question. Such resolution, when passed, contained no limitations or qualifications. The Supreme Court said in paragraphs two and three of the syllabus:

“2. The question of what is to be appropriated is determined by the resolution of the council and the application filed in court in conformity therewith. And where the application makes a general demand for an appropriation for street purposes, and prays that a jury be impaneled to make inquiry into and assess the compensation to be paid the landowners, and the inquiry proceeds on such application without amendment, the effect of the judgment of condemnation is to give to the municipality the right to use the land taken for all street purposes, including the right to establish a reasonable and proper grade. Hence, the question of probable future grade of the street is a proper subject of inquiry in the ascertainment of damages to the residue of the land.
“3. The council of such municipality has not power, by an ordinance passed while the condemnation suit is being tried, to change the terms of its resolution and of its application so as to ask to appropriate more or less than is therein demanded.”

The defendants stress the claim that because Parcels Nos. 1, 2A, and 4 are subject to easements for ingress and egress and public utility services for the benefit of parcels 3, 4, and 2B, that in the event the City should take only Parcels Nos. 1 and 2A, the easement rights of the owners of Parcels Nos. 3, 4, and 2B over Parcels Nos. 1 and 2A. would be cut off to their irreparable damage. Such assumption is without legal foundation. The physical facts as to the location of the parcels indicates that when the defendants, Vogelin, deeded Parcel No. 3 to the Bradleys, the only means of ingress and egress was over the land of the grantor and at the time of filing the deed, an established roadway was in use and utility connections in place. These same facts are true as to Parcel No. 1 when deeded by the Vogelins to The Lakeshore Company and as to Parcel No. 2A when deeded to The Lakeshore Company by the Zevins. True, all necessary easements were provided for by the respective deeds but this does not mean that all three lakefront owners would otherwise be barred from the right to reach a public highway over the servient estate of the respective grantees. In the case of Jones v. Bethel, 20 Oh Ap 442, in considering this question, the Court said in paragraphs 2, 3, and 4 of the syllabus:

“2. Where private way was constructed on one part of single tract, and was open, apparent, and in use at time of division of tract, and reasonably necessary to enjoyment of part not covered by way and materially adding to its value, a grant of way in favor of such part arises by implication.
“3. Situation of parties at time single tract is divided determines grant by implication of private way in favor of part of tract not covered by way.
“4. In determining whether grant of private way may be implied in favor of land owned by plaintiff which was part of single tract with defendant’s land containing way, it is immaterial whether plaintiff may get to part of tract touched by way through other land owned by him.”

Also, in the first and second paragraphs of the syllabus of the case of Mosher v. Hibbs, 1 C. C. N. S. 49, the court said:

“1. Where the owner of a body of land, during his occupancy of it, constructs a private way over one part of it to another, as a means of egress and ingress to the latter from the public highway, which way is apparent, continually used and reasonably necessary to the use and enjoyment of the land to which the way is constructed, and also adds materially to its value, and afterwards sells and conveys by deed the part with the way to it, and retains the part with the way over it, his grantee takes his part, to be enjoyed with reference to the way as the same existed at the time of the conveyance, with an implied grant of the way to it over that retained by the grantor, as an easement therein.
“2. Such private way is an appurtenance to the tract conveyed, and the right thereto passes without being expressed in the deed.”

The rights of way provided for by the respective deeds would have come into being as a right of necessity by law, an appurtenance of the dominant estate in each case and as a legal obligation of the servient estate; and the taking of the servient estate does not destroy the easement of necessity even though the contract right is taken in the appropriation of the fee simple interest. Public policy will not permit the cutting off of an easement of necessity.

In the case of State, ex rel. McNutt v. Orcutt, 211 Ind. 523, 199 N. E. 595, the court said:

“8. In condemnation proceedings by the state to take a portion of a fruit and berry farm, over which a way of necessity as means of egress and ingress to the remainder was in use, the fact that the way had been closed by gates or bars except during the fruit and berry season when the way was open for the public would not restrict the right of the owner of the dominant estate to keep the way open if such was necessary for a fair enjoyment of the remainder for the purposes for which it was used.
“9. Where a reservation of a way of necessity over land appropriated by the state is implied for the use and enjoyment of the remainder of the land, the character of the way will not be controlled by any temporary or provisional arrangement or use, but will be established by the necessity for the use to which the land has been accustomed.”

The verdict of the jury as to each parcel taken, having given consideration to the value of the parcels as affected by the respective easements, this claim of error must be overruled.

We come now to consider the defendants’ second claim of error. The court, over the objection of the defendants, limited the evidence of the value of the properties taken to the highest and best uses for which it was available within the zoning restrictions. It is the contention of the defendants that the expert witnesses should have been permitted to take into consideration both the present uses to which the property could be legally devoted and its most valuable use or highest and best use when considered in the light of reasonable and probable zoning changes at some indefinite but closely related time in the future. The defendants bottomed their contention on the claim that the zoning ordinances of the City of Euclid are antiquated, that the neighborhood is experiencing a rapid and continuing growth far beyond that of other parts of the county, that there is need for further retail development in the area and that this property is situated similarly to other property in the neighborhood (across the Boulevard) now zoned for retail business, the change to retail business classification of such other property being of recent-date. It is claimed that the expanding population of the neighborhood requires multi-family units and that this property is one of a very few large plots left in the area which could be accommodated to such development. The defendants’ expert witnesses testified that the “best use” for Parcels Nos. 1 and 2A was for retail business and the balance of the property for multi-family dwellings.

In support of the court’s ruling limiting evidence of value to uses within the zoning restrictions, the City cites the history of its zoning laws in maintaining almost without change its residence districts, and that the property involved here is lakefront property. The evidence shows that all of the lakefront property from the southern shore of Lake Erie to Lake Shore Boulevard is zoned for single family dwellings except the property fronting on the Boulevard in most instances to a depth of one hundred fifty feet which is zoned for multi-family units. This depth has been extended one or two hundred feet in one or two instances for a garden-type multi-family development. The only retail business now allowed on the north side of Lake Shore Boulevard, near the property taken as shown by the evidence, is between 218th Street and 224th Street. As was stated above, there is no evidence in this record that would indicate any purpose on the part of the public authorities or the slightest probability that the City will within the foreseeable future lessen the use restrictions of its zoning ordinance dealing with its lakefront property nor does any trend of development in the neighborhood where this property is located indicate that in the foreseeable future a plan of city development of single homes will in the interests of city planning require changes causing greater congestion and increased traffic hazards on its public thoroughfares. It could be argued that the rapid growth of this city of homes came into being because of the zoning protection of the householder. In all events a city is not required to lessen its zoning standards because of increased demands for home sites in the community and such demands cannot be the foundation for a claim that reasonable administration of the zoning laws would require a reduction of zoning classifications to make way for a greater concentration of the population. Only where zoning restrictions fall into disuse can such claims be made.

The determination and fixing of zoning classifications of the territory of a city is within the sound discretion of its legislative authority in the exercise of its police power to protect the public health, morals, safety and the general welfare of the people. Cleveland Trust Co. v. Village of Brooklyn, 92 Oh Ap 351. To speculate on what may be the legislative policy of a municipal council of a city or village in the future in changing a particular zoning classification when considered for the purpose of fixing the value of land taken for public purposes is of such a speculative character that a court should not permit such evidence of value of the property to be presented in the trial of a condemnation proceeding. The question has not been dealt with as yet by the reviewing courts of this state but at the last session of the. Legislature, §719.09 R. C., was amended to read:

“The assessment of compensation by a jury as provided in §719.08 R. C„ shall be in writing signed by the jury and shall be so made that the amount payable to the owners of each lot or parcel of land be ascertained.
“In arriving at such assessment of compensation for such lot or parcel, any use or occupancy which is in violation of any statute or ordinance be excluded from consideration in determining fair market value.”

Certainly the legislative policy of the state has been clearly fixed by this statute although such statute is not directly applicable in this trial.

The evidence shows that the defendants gave no consideration to possible zoning changes in dealing with Parcels Nos. 1 and 2A as shown by revenue stamps on the respective deeds introduced by them as evidence in the case. As to Parcel No. 2A, the revenue stamps were in the amount of $64.35, indicating a value of a little under $60,000. The jury’s verdict as to the value of this parcel was $47,800. The value as shown by defendant, The Lakeshore Company’s expert witnesses, as tendered into the record, was about $280,000, as shown on page 11 of this defendant’s brief. The transfer of title took place just before the trial.

There being no evidence to support the contention that within the reasonable foreseeable future and in the reasonable administration of the zoning laws of the City of Euclid, a reduction of the zoning classification of the property taken in these proceedings will be likely to occur and likewise, by reason of the legislative policy of this state in declaring such evidence inadmissible in an appropriation case, we affirm the trial court in limiting the expert evidence as to the value of the several parcels taken to the highest and best use when considered for the uses permitted within the zoning ordinance applicable to such property as of the date of the trial of the case.

Coming to this conclusion, the third claim of error must be likewise overruled.

For the foregoing reasons, the judgments fixing the value of the several parcels are affirmed.

Exceptions. Order see journal.

KOVACHY, PJ, HURD, J, concur.


author: By THE COURT:

text:
    SCHWARTZ, Plaintiff-Appellee, v. SCHWARTZ, Defendant-Appellant.
    Ohio Appeals, Second District, Fayette County.
    No. 285.
    Decided March 8, 1956.
    John S. Bath, Pros. Atty., Washington C. H., for plaintifi-appellee.
    Reed M. Winegardner, Washington C. H., for defendant-appellant.
   OPINION

By THE COURT:

Submitted on motion of appellee to dismiss appellant’s appeal on questions of law and fact.

The appeal is from a decree of divorce and an award of alimony to appellee. The ruling on the question is controlled by §2501.02 R. C. as enacted at the last session of the Legislature, Amended Senate Bill No. 71, signed by the Governor and filed with the Secretary of State, July 5, 1955. The plaintiff’s petition in this action was filed July 7, 1955, so that the new statute controls the procedure.

- The foregoing section sets out the classes of action judgments in which are appealable on law and fact. There are ten such actions but divorce or alimony is not one of them. Divorce decrees were not, prior to the enactment of §2501.02 R. C., appealable on questions of law and fact because they were not suits cognizable by the courts of chancery. Such was the test.

The fact that the weight of evidence might be urged on appeal against the validity of the judgment from which the appeal was taken does not change the nature of the appeal. Such factual development on an appeal on questions of law is tested as upon review in which the right to weigh the testimony and determine the credibility of witnesses is, in the first instance, accorded to the trial judge. In appeal on questions of law and fact, the case is in all particulars heard de novo.

The motion will be sustained. We find that the appellant may not be permitted to re-try the facts (§2505.23 R. C.), and the appeal will proceed as an appeal on questions of law. Appellant will be given 30 days after the journalizing of this opinion in which to have a Bill of Exceptions settled and allowed in the trial court and filed in this Court, 10 days thereafter for brief, plaintiff 10 days for answer brief and defendant 5 days thereafter for reply brief.

MILLER, PJ, HORNBECK, J, concur.

WISEMAN, J, not participating.


text:
    O’BRIEN, Guardianship, In re.
    Ohio Appeals, Second District, Darke County.
    No. 738.
    Decided November 17, 1955.
    Paul W. Younker, Greenville, Robert C. Alexander, of Harshman, Young, Colvin and Alexander, Dayton, for appellant David A. Wion.
    Edward A. Goubeaux, Jr., Greenville, for appellee Jerome H. Goubeaux, successor guardian of Florence E. Snyder O’Brien.
    (CONN, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By THE COURT:

This is a law appeal from a judgment of the Probate Court for Darke County, sustaining certain exceptions to the first, second and second supplemental accounts filed by the appellant, David A. Wion, as Guardian and former Guardian of Florence E. Snyder O’Brien, a mentally incompetent person.

Four errors are assigned:

(1) The court erred in admitting evidence offered by appellee, to which evidence objection was then and there made.

(2) The court erred in refusing to admit evidence offered by appellant which was not cumulative in its nature.

(3) The judgment of the court is against the weight of the evidence.

(4) The court erred in overruling the motion for a new trial.

Although the first two assignments are not discussed in the appellant’s brief, we have examined the entire record with reference to them and are of the opinion that they are not well taken.

Considering the next assignment, relating to the weight of the evidence, the record reveals that eight exceptions were filed to the accounts, six of which were found to be well taken, in whole or in part. The items in all of them, with the exceptions of those in 1, 6 and 7, involved numerous small items and the discussion of the evidence concerning them would be of no value. Suffice it to say, we find the court’s ruling as to them was in accordance with the evidence, and the assignments are not well taken.

In considering the remaining three, we find that the first alleges that the accounts filed by the guardian are not true and correct, and do not constitute a proper accounting of the estate in the following particulars, to-wit: That the said David A. Wion improperly credits himself with numerous items of automobile expense which were not incurred for the benefit of his ward. The items involved in this exception all relate to charges made against the estate for repairs, depreciation, insurance, licenses and other incidental expenses incurred on the ward’s 1941 Chrysler Imperial sedan automobile. The court allowed such charges for the first two years of the guardianship during which period of time the ward was able to make some use of the same, but disallowed all after that time and charged the guardian for the depreciation on the said automobile for the reason that the ward had become an invalid and it had become apparent that she would be unable to make any further use of the same. The court therefore concluded that it was not to the best interest of the estate to keep the said automobile. This ruling of the court depends entirely upon the factual situation presented and our examination of the record discloses it was not against the manifest weight of the evidence as urged by counsel for appellant. There is substantial evidence to the effect that the guardian had made personal use of the automobile for the last four years of his administration, which was in violation of §2109.43 R. C.

The sixth exception related to the guardian’s failure to charge himself with certain annuity payments and life insurance company payments made as renewal commissions due to her late husband, amounting to the sum of $2095.68. The proof as to the correctness of this amount due the estate consisted of cancelled checks, which bore the endorsement of the guardian and it became only a mathematical problem as to the amount with which the estate should be charged. The court properly allowed the exception in the amount previously stated, which was in accordance with the evidence.

The seventh exception was grounded upon the premise that the appellant was not entitled to fees for his services in the amount of $2725.91, which he had charged and collected from the estate of his ward. The court found from the evidence that the guardian had received $2925.00, to which he was not entitled for the following reasons: (1) That he failed to account for certain moneys received in behalf of the estate; (2) that he failed to promptly file his second account, after being notified to do so; and also, that he had mismanaged the estate in general. We find substantial evidence in the record supporting the findings of the court with relation to the failure to account for certain moneys received, and also with reference to the mismanagement of the estate in general. Sec. 2109.31 R. C., provides that a guardian who fails to file his account within thirty days after he has been served with a citation to file the same is not entitled to compensation if the court finds that the delay is unreasonable, but this section has application only after a citation has been served upon the guardian, which was not done in this case; hence, we are of the opinion that compensation may not be denied him for the reason that he failed to file an account upon the verbal request of the court. The Judge stated in his written decision that the second account was not filed until after he had been repeatedly notified that it was overdue and an action had been filed to remove him as such guardian. Therefore, this neglect does not sustain that part of the second finding relating thereto. However, the finding that he failed to account for certain moneys received and that the estate was mismanaged are sufficient to support the judgment, such a determination resting solely in the discretion of the trial court. Unless there has been an abuse of discretion a reviewing court may not interfere with such an order. Mismanagement alone has been held as a sufficient ground for the denial of compensation. to a guardian. 20 O. Jur. 366, Sec. 196; In re Oliver, 9 O. N. P., 178; In re Chambers, 16 O. O. 519, 136 Oh St 202.

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

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