author: By MATTHEWS, J.:

text:
    ALLEN, etc., Plaintiff-Appellee, v. STREITHORST, Defendant-Appellant.
    Ohio Appeals, First District, Hamilton County.
    No. 7177.
    Decided December 5, 1949.
    . Loyal S. Martin, Cincinnati, for plaintiff-appellee.
    Stewart S. Cooper, Cincinnati, for defendant-appellant.
   OPINION

By MATTHEWS, J.:

On February 13th, 1947, the defendant-appellant recovered a judgment for $6,657.30 against the plaintiff-appellee in the Court of Common Pleas of Hamilton County, Ohio, upon a cognovit note, without service of summons or notice of any kind upon him. An attorney, solicited by defendant-appellant, assuming to act under the authority contained in the note, entered the plaintiff-appellee’s appearance and confessed judgment in his name.

On June 30th, 1947, the plaintiff-appellee filed this action. He alleged that he had not been summoned or otherwise legally notified of the time and place of the taking of said judgment and that said cognovit note had been paid. He prayed that the judgment be vacated and set aside and for relief generally. The defendant-appellant answered admitting the procurement of the judgment in accordance with law and the rules of the court and then specially denied that any part of the debt had been paid prior to the entering of the judgment, but alleged that $1,521.72 had been collected on the judgment. Subject to these admissions, the defendant-appellant entered a general denial.

It is admitted that at the trial of this action, the defendant-appellant raised the question of the jurisdiction of the court and moved for a dismissal of the action on that ground and that the court overruled the motion. The defendant-appellant’s contention was that the plaintiff-appellee’s action was based on §11631 et seq GC, authorizing relief from judgments after term; and that such relief could not be obtained in an independent action, but that the remedy was by motion or petition in the action in which the judgment had been rendered. He pointed to §11635 GC, as so providing.

When the defendant-appellant raised the question of the jurisdiction of the court at the trial, the court, on plaintiffappellee’s motion, directed a consolidation of this case with the case in which the judgment had been rendered, but no order to that effect was journalized at the time. After this appeal was filed, the trial court entered upon the journal an order of consolidation as of the date of the trial and the plaintiff-appellee moved in this court for a diminution of the record by the inclusion of this nunc-pro-tunc entry. This Court having reached the conclusion that the law did not authorize or permit such a consolidation, and that the inclusion of such an order would encumber the record and serve no useful purpose, overruled the motion.

The trial court found that there was substantial evidence to support the plaintiff-appellee’s allegations and thereupon suspended execution upon the judgment in the prior case pending the trial of the issues in that case on the merits. It is from that judgment that this appeal was taken.

The defendant-appellant assigns as error that the judgment is manifestly against the weight of the evidence, but as we view the matter, the test in this sort of a case under §11631 et seq GC, is whether there is substantial evidence of a legal defense to the action thereby leaving the final determination of the issue to the trier of the facts at the new trial. We find substantial evidence to support the defense ■of payment and the finding of the court that no summons or notice had been served upon plaintiff-appellee in the prior action, and, therefore, find that this assignment of error is not well founded.

We assume, as did defendant-appellant’s counsel, that this is an action under favor of §11631 et seq GC, authorizing the Common Pleas Court to vacate or modify its judgment and grant new trials after term, under certain circumstances. By §11631 GC, it is provided that the Common Pleas Court may grant a new trial after term when a judgment is taken upon a warrant of attorney “for more than was due the plaintiff, when the defendant was not summoned or otherwise legally notified of the time and place of taking such .judgment.” And by §11635 GC, the procedure for obtaining a new trial under such circumstances is set forth as follows:

“The proceedings to vacate the judgment or order on the ■grounds mentioned in divisions four, five, six, seven, eight, nine and ten of the first section of this chapter (§11631 GC), shall be by petition, verified by affidavit, setting forth the judgment or order, the grounds to vacate or modify it, and, if the party applying was defendant, the defense to the action. On such petition a summons shall issue and be served as in the commencement of an action.”

The ground alleged for setting aside the judgment is that set forth in Division Nine of §11631 GC.

The defendant-appellant contends that this remedy must be pursued in the action in which the judgment was rendered and that the court of common pleas is without power or jurisdiction to entertain an independent action seeking such relief, and, we assume, he means that no act of waiver or consent of the parties could confer such jurisdiction — that such a judgment under all circumstances is utterly void. And he seems to be supported in this position by the opinion in the case of Shedenhelm v. Myers, 77 Oh Ap, 385, on which he principally relies. That court found that the action before it was in the nature of an application for a new trial under favor of §11631 et seq GC, and, therefore “wholly ineffective to invoke the jurisdiction of the court unless filed in the action, in which the judgment was rendered” and reversed the judgment “for want of jurisdiction of the trial court, of the proceeding, final judgment is rendered in favor of the defendant dismissing plaintiff’s petition at her costs.” The court then stated that as plaintiff had failed otherwise than upon the merits she would have the right to file a new petition within the time prescribed under such circumstances.

A reading of the opinion in that case causes us to concur with that court in the reversal of the judgment for the plaintiff, but we find ourselves in complete disagreement from it in the dismissal of the action because of lack of jurisdiction of the trial court to entertain it, and that disagreement is based on a difference in interpretation of the cases cited by that court to support its conclusion. All of them, at least impliedly, support the opposite conclusion.

The case principally relied on in Shedenhelm v. Myers, supra, is Taylor v. Fitch, 12 Oh St, 169. As a matter of fact, two cases were considered together in that opinion. The plaintiff in error had obtained a judgment by default at the February term, 1858, against defendant in error. In June, 1858, the defendant filed a petition to vacate the judgment, and for leave to defend under Section 536 of the Code of Civil Procedure, on the ground of alleged “Unavoidable casualty or misfortune, preventing the party from defending” as provided in Section 534 of the Code. The plaintiff in error answered, making up an issue of fact, the case came on for trial, and, as a result, the court made an order vacating the judgment and awarding a new trial. The plaintiff in error (defendant in that case) gave notice of his intention to appeal the case to the district court, amount of appeal bond fixed, bond given, and all steps were regularly taken to perfect an appeal as in ordinary appealable cases. Under the law at that time, the test of the appealability of a case effecting a trial de novo in the appellate court, as is done by an appeal on law and fact under our present procedure, was whether there was a civil action in which a jury was demandable in the trial court. And as the law then stood a jury could be demanded only in civil actions for the recovery of money only, or for the recovery of specific real or personal property. The defendant-appellee in that case moved the district court to dismiss the appeal for lack of jurisdiction of the district court to hear the appeal. The jurisdiction of the trial court was not involved or discussed. The district court sustained the motion on the ground that “there is no provision of law under which the case can be appealed.” It was the dismissal of the appeal that was under review by the Supreme Court in the first case considered in Taylor v. Fitch, supra. That court reviewed the law, analyzed the applicable statutes and the constitutional provision limiting the jurisdiction of the district court and concluded that the action provided for obtaining the setting aside of a judgment and for a new trial after term was a special proceeding and not a civil action, and affirmed the judgment of the district court dismissing the appeal which left in full force and effect the judgment of the common pleas court setting aside the judgment and awarding a new trial. There was not even a suggestion by the Supreme Court that the judgment of the common pleas court was void.

After the district court had dismissed the appeal, the plaintiff in error filed a petition in error in the district court to reverse the same judgment from which he had unsuccessfully attempted to appeal. The district court reserved that case for decision by the Supreme Court, and that was the second case considered in Taylor v. Fitch, supra. The Supreme Court affirmed the judgment of the Common Pleas Court entered in the independent action setting aside the judgment by default and reinstating the original action on the trial docket. It is manifest from this that the Supreme Court not only did not hold that the Common Pleas Court had no jurisdiction, but held that the judgment rendered in the independent action in that case was free from error.

There are certain expressions in the opinion in that case, which wrested from their context and considered abstractly, can be said to be of doubtful meaning, but when considered in their setting and in the light of the conclusions of the court, the doubt disappears. There is nothing in the opinion inconsistent with the conclusion reached.

In Shedenhelm v. Myers, supra, it is said that Taylor v. Fitch, supra, has never been overruled. That is true, and, as we construe Taylor v. Fitch, there is no reason for overruling it. In Shedenhelm v. Myers, it is said that Taylor v. Fitch has been followed in numerous cases, and Coates v. Chillicothe Branch of State Bank of Ohio, 23 Oh St, 415, and Braden v. Hoffman, 46 Oh St, 639, are cited as .typical of the cases approving Taylor v. Fitch. In neither of the two cases cited as typical was any question raised of the jurisdiction of the trial court. In the first case, what plaintiff, by independent action, sought was not a new trial of the issues in a prior action in which a judgment had been rendered. As is pointed out at page 433 of 23 Oh St, all the relief sought was to be awarded in that case, and it consisted not of granting a new trial of a prior case, but an injunction against new parties, not parties to the prior action. The Court accordingly held that it was appealable to the district court, or, as we would say under our present legislative nomenclature, it was appealable on law and fact. In the second typical case likewise the question was whether the appellate court had jurisdiction — not whether the trial court had jurisdiction. The jurisdiction of the appellate court was invoked by petition in error, which we would now call an appeal on law only. The appellate jurisdiction depended on whether an order vacating a judgment rendered at a prior term could be reviewed on error. The court held it was an order affecting a substantial right, made upon a summary application after judgment, and, therefore, the circuit court had jurisdiction to review it on error.

We have been cited to no case holding that a trial court has no jurisdiction to hear an independent action for relief under §11631 et seq GC. We have found no such case. In Beaver v. Beardmore, 40 Oh St, 70, the Supreme Court reversed a judgment of the district court dismissing such an action and remanded the cause for further proceedings. If the Supreme Court had concluded that the trial court had no jurisdiction of such a case, it would hardly have remanded the cause.

In Folliette v. Brett, 16 C. C. (N. S.) 452, the court held directly that “A petition to vacate a judgment after term may be filed as an independent action.”

We find no error in the record, and the judgment is affirmed. As our conclusion is in conflict with the judgment of Shedenhelm v. Myers, 77 Oh Ap, 385, and Terry v. Claypool, 76 Oh Ap, 77, both decided by the Court of Appeals of the Third District, tljis case will be certified to the Supreme Court for decision because of such conflict.

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


source: Caselaw Access Project

author: By WISEMAN, J.

license: Public Domain

text:
    KINCAID, Admr., Plaintiff-Appellee, v. DAWSON et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4308.
    Decided January 30, 1950.
    McGhee, Rowe & Evans, Arthur L. Rowe, of Counsel, Columbus, for W. H. Sandusky, appellee.
    B. N. Murray, Columbus, for B. N. Murray, appellant.
    J. Weller Igo, Columbus, for D. R. Kincaid, administrator - appellee.
    J. Roger McClurg, Columbus, for J. R. McClurg, administrator-appellee.
   OPINION

By WISEMAN, J.

This is an appeal on law from the judgment of the Probate Court of Franklin County, Ohio, refusing to set aside a land sale proceeding in the estate of Benjamin F. Dawson, deceased. On the representation that decedent died intestate the Probate Court appointed an administrator for said estate, who brought an action to sell the real estate to pay debts. The record shows that after the sale of the real estate was consummated and the proceeds of the sale distributed, a will of the decedent was presented and duly probated, whereupon the appointment of the administrator was vacated and an administrator de bonis non with the will annexed was appointed, who instituted a proceeding to set aside the land sale proceeding.

When an executor or an administrator ascertains that the personal property is insufficient to pay the debts against the deceased together with the allowance to the widow it is his duty to bring an action to sell the real estate. Sec. 10510-2 GC; Yates v. Yates, 27 Abs 633. The allowance to the widow for a year’s support was a debt against the estate. Davidson v. Savings & Trust Co., 129 Oh St 418, 195 N. E. 845. Likewise, the claim of the Division of Aid for the Aged of the State of Ohio was a debt against the estate of the decedent. Sec. 1359-7 GC.

There was no personal property. Consequently, it was the duty of the administrator to sell the real estate to pay the allowance to the widow and the claim of the Division of Aid for the Aged. Whether the decedent died testate or intestate the widow under the facts in this case was entitled to a year’s allowance. The land sale proceeding is not invalidated by reason of the fact that the appraised value of the reál estate was less than the total amount due the widow as an exemption and year’s allowance.

The real estate owned' by the decedent descended to his heirs under the intestate laws of the State or passed to them under the provisions of his will, subject to the right of the fiduciary to bring the land sale proceeding for the purpose of the payment of the debts of the estate. The land sale proceeding divested the interest of the heirs in said property. Carr, Gdn. v. Hull, 63 Oh St 394, 62 N. E. 439.

Under the provisions of §10509-24 GC, the land sale proceeding brought by the administrator is considered to be valid and binding on the administrator de bonis non with the will annexed. We approve the judgment of the trial court in finding that there was no showing of good cause for setting aside the land sale proceeding.

Judgment affirmed.

MILLER, PJ, and HORNBECK, J, concur.


author: By GESSAMAN, J.

text:
    TENNEBAUM v. PENDERGAST.
    Common Pleas Court, Franklin County.
    No. 171026.
    Decided February 11, 1947.
    Abraham Gertner, Samuel L. Zuravsky, Addison E. Dewey,. Columbus, for plaintiff.
    Collis Gundy Lane, Columbus, for defendant.
   OPINION

By GESSAMAN, J.

Heard on motion of defendant to strike the two specifieations of negligence contained in the second cause of action of the petition.

The plaintiff alleges that she was injured by broken glass as the result of an explosion of a bottle of Royal Crown Cola. The two specifications of negligence are that,

“1. The defendant used a defective bottle not strong enough to withstand the gas pressure which the defendant put into said bottle in bottling said product.

“2. The defendant placed an amount of gas pressure into the said glass bottle which was too great for the strength of the glass.”

Counsel for defendant contends that neither of these allege an act of negligence. Counsel for plaintiff have argued to the Court upon the general question of pleading, but the question is not merely one of pleading but of determining whether any act or acts of defendant have been alleged that constitute negligence.

Judge Williams in the case of White Sewing Machine Co. v. Feisel, 28 Oh Ap 152, 162 N. E. 633, points out that, “It is a general rule of law that a manufacturer or seller is not liable to third persons, with whom he has no contractual relations, for negligence in the manufacture or sale of an article.” 28 Oh Ap at page 155, 162 N. E. at page 634.

But further says that, 28 Oh Ap at page 155-156, 162 N. E. at page 634: “The manufacturer of an appliance, which, if defective in construction, will become inherently or imminently dangerous when used for the purpose for which it was intended, owes a duty to the public, irrespective of contractual relations, and it has been held in many cases that he will be liable to third persons for an injury directly caused by negligence in failing to make reasonable inspection of such defective appliance, where the injury was sustained while the appliance was being used for the purpose intended, and where the danger might reasonably have been foreseen by the manufacturer.”

He then follows with the observation that, 28 Oh Ap at page 156, 162 N. E. at page 634: “* * * while the rule was originally applied where the article of sale was ‘inherently’ or ‘imminently’ dangerous, it is now commonly invoked in cases where the dangerous character of the thing is made imminent by defective construction, which is the result of negligence, or would be discoverable upon exercise of ordinary care in making a reasonable inspection.”

The defective instrument in the Feisel case was a plug on the end of an electric cord or wire. Judge Williams further holds that, 28 Oh Ap at page 159, 162 N. E. at page 635: “The mere fact that it (defendant) purchased the plugs from a reputable manufacturer would not relieve it from the duty to make reasonable tests and inspection.”

To the same effect is Gilbride, Admx. v. James Leffel & Co., 37 Abs 457, 47 N. E. 2d 1015; Male v. Colgate Palm Olive Co., 14 Abs 119; 156 A. L. R. 479 and 29 O. Jur. 599-603 (Sec. 129, Negligence) .

There is nothing in the petition which purports to claim that either the bottle or its use was “inherently’ or “imminently” dangerous. Furthermore, neither the bottle nor its use as alleged are of such character that the Court could take judicial notice of any inherent or imminent danger. Therefore, applying the rules pronounced in the above authorities, and considering the other allegations in the second cause of action, we are of the opinion that the allegations here attacked do not allege negligence on the part of the defendant. Both branches of defendant’s motion are sustained. Leave granted to amend within rule.


author: By GUERNSEY, PJ.

text:
    WARD, Plaintiff-Appellant, v. LEAGUE FOR JUSTICE et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21628.
    Decided February 27, 1950.

      A. L. Kearns, Cleveland, for plaintiff-Appellant.
    Kiefer, Waterworth, Hunter & Womer, Cleveland, for defendant-appellees.
    (GUERNSEY, PJ, of Third District; HUNSICKER, J, and DOYLE, J, of Ninth District sitting by designation.)
   OPINION

By GUERNSEY, PJ.

This is an appeal upon questions of law, from a judgment of the Court of Common Pleas of Cuyahoga County, Ohio, in an action pending therein wherein the appellant, Courtney D. Ward, was plaintiff, and the appellees, League for Justice, a corporation, and others, were defendants.

The action is one for damages for libel.

In his petition, the plaintiff made the following material averments, to-wit:

He is a member of the American Federation of Labor, a labor organization consisting of affiliated labor unions throughout the United States of America; that he is the Secretary of the Painters District Council No. 6 in the city of Cleveland, an affiliate of the Ohio State and American Federations of Labor.

He is a citizen of the United States of America; that he has been affiliated with labor unions for many years past; that he has at all times prior to the publications hereinafter complained of enjoyed a good reputation as to character, loyalty to the United States of America, to the labor movement and to his fellow unionists.

He is not a Communist, nor was he at any time herein mentioned a member of the Communist Party.

He earns his livelihood and means of sustenance from his employment as Secretary of the Painters District Council No. 6 in the City of Cleveland and that said position is an elective one, subject to election by the free and popular vote of the members of the Painters Union.

The defendant, League for Justice, is a corporation duly organized and existing under and by virtue of the laws of the State of Ohio; that the defendant, John P. Moran is the director and the directing head of the said corporation, the League for Justice, and that he, the said John P. Moran, formulates the policies of the said corporation and is the editor of a certain pamphlet, printed for and on behalf of himself and the defendant corporation and others, entitled “LEAGUE FOR JUSTICE INFORMATION FOR AMERICANS,” and that said pamphlet has a wide and extensive circulation in the City of Cleveland and elsewhere throughout the State of Ohio, and the United States of America.

The defendants, Burt W. Hannon and Frank B. Hannon, d. b. a. Lakeside Printing Company, are a partnership and are in the printing and publishing business, and are the printers and publishers of the pamphlet hereinbefore set forth.

On or about June of 1948 the defendants, in their said pamphlet, published of and concerning the plaintiff, words in substance as follows; to-wit:

That the plaintiff, Courtney D. Ward, “is one of the most active and treacherous Communists in Ohio and uses the prestige of an AFL official as a cloak to conceal his treacherous activities.”

“That he led the attempt to force AFL officials to join Stalin’s World Federation of Trade Unions,” which had been established by Stalin as a Communist transmission belt to supplement the Comintern and enable him to gain control of all labor unions to use to destroy governments; that plaintiff attended as an AFL delegate, a meeting in London on February 15, 1945, called by the Communists to perfect organization of the WFTU established by Stalin.

That plaintiff was given a bundle of money which he said amounted to fifteen hundred dollars at Communist Party headquarters in New York to finance his campaign for election to the office he now holds.

That while Hitler and Stalin were buddies and we were providing England and France with war supplies for their war with Hitler, Stalin ordered his rats to sabotage our production and the Communist party formed the American Peace Mobilization to do the job and ordered the comrats to go to Randalls Island, New York, on April 5, 1941, for instructions and that plaintiff was one of the instructors and a conference chairman.

That Stalin wants friendly relations, he says, so the Communist Party formed the American-Soviet Friendship Council to double-talk Americans into permitting Stalin to dictate the terms, and plaintiff was a promoter of the Cleveland branch.

The Communist Party ordered its top scum to form the Civil Rights Congress to assert the civil rights of Communists, and plaintiff was a founder representing the AFL.

The Joint Anti-Fascist Refugee Committee was formed by the Communist Party to smuggle Jew Communists into the United States. Plaintiff was a founder.

Ella Reeve Bloor, an old-time she-comrat rabble rouser, had so long and faithfully served the party that it gave a banquet in her honor at New York in June, 1947. Top comrats, including Ward, the plaintiff, attended and paid homage.

The aforesaid printed and published words of and concerning this plaintiff are wholly false and untrue; that the said words were known to the defendants to be false and untrue; that the said words were printed and published by the defendants with actual malice toward the plaintiff, that the said words were printed and published of and concerning the plaintiff with the intent and for the purpose of injuring the plaintiff in his reputation and in his position as Secretary of the Painters District Council No. 6 and as a member of the trade unions and of injuring plaintiff in his feelings.

There is no averment of special damage.

To this petition the defendants filed a general demurrer which was sustained by the Common Pleas Court upon the ground that the words published were not libelous per se, and there being no averment of special damage, an action in libel was not maintainable. The plaintiff, not desiring to further plead, the court then rendered judgment dismissing plaintiff’s petition. This is the judgment from which this appeal is taken.

Plaintiff-appellant assigns error in that the judgment is contrary to law for the reason that the words published were libelous per se and he is entitled to recover from the defendants without averment of special damage.

It is the established law of Ohio that in suits for slander, words, to be actionable without averment and proof of special damage, must come within one of the following classes:

1. Words importing an indictable offense.

2. Words tending to prejudice one in his office or calling.

3. Words involving moral turpitude of such a character as to tend to his exclusion from society.

Holloway v. The Scripps Publishing Company, 11 Oh Ap, page 226, at page 229.

Hollingsworth v. Shaw, 19 Oh St 431. Davis, by his next friend v. Brown, 27 Oh St 326.

It is the equally well settled law of Ohio that—

“Whatever charge will sustain a suit for slander where the words are merely spoken, will sustain a suit for a libel, if they are written or printed and published, and many charges, which, if merely spoken of another, would not .sustain a suit for slander, will, if written or printed and published, sustain a suit for libel. Words of ridicule only, or of ■contempt, which merely tend to lessen a man in public esteem, or to wound his feelings, will support a suit for libel, because of their being embodied in a more permanent and enduring form; of the increased deliberation and malignity of their publication, and of their tendency to provoke breaches ■of the public peace.”

Watson v. Trask, 6 Ohio 531-533

If the “tendency of the publication” being malicious, “is to degrade and lessen the standing” of the person concerning whom the publication is made it is libel.

Tappan v. Wilson, 7 Ohio 190

“Although the matter published might not, without averment and proof of special damage, be actionable, if only ■spoken, yet if published, and it be of a character, which, if believed, would naturally tend to expose the person concerning whom the same was published, to public hatred, contempt, or ridicule, or deprive him of the benefits of public ■confidence or social intercourse, such publication is a libel, and an action will lie therefor although no special damage is ■alleged.”

State of Ohio v. Smily, 37 Oh St 30, at page 32, and cases from other jurisdictions there cited.

“Because of the obloquy and reproach connected with such .affiliations, it has been consistently held to be actionable in libel or slander to charge a person with being a Communist.”

Note, 171 A. L. R., page 710.

“And whether or not it is libelous per se to charge one with having political affiliations with, or being ideologically sympathetic to, or being a member of the Communist Party is to be determined in the effect of the statement upon the ordinary person of average intelligence in the light of the then public attitude towards Communism and those in political .and ideological fellowship with it.”

Mencer v. Chesley (1946) 186 Misc 877, 61 NYS 2nd 147, affirmed as modified in (1946) 270 App Div 1040, 63 NYS 2nd, 108.

It is libelous per se in 1945 to write of a man as a Communist. The current national attitude towards Communism is such that to call a man a Communist today, would, in the minds of many average and respectable persons, place the one so labeled beyond the pale of respectability and make him a symbol of public hatred.

Spanel v. Pegler (CCA 7th Illinois) 171 A. L. R. 699

In the case of Levy v. Gelber (1941) 175 Misc 746, 25 NYS 2nd 148, it was held: that to charge the plaintiff, an attorney, with being a Communist was libelous per se. There the court said that whatever doubt there may have been in the past as to the opprobrious effect on the ordinary mind of such a charge, recent war events and legislation made it manifest, that to call an attorney a Communist was to taint him with disrepute and in the light of the current (1941) public attitude a charge of Communism was libelous per se.

To the same effect are the holdings in the cases of Boudin, v. Tishman (1942), 264 App Div 842, 35 NYS 2nd 760, and Grant v. Reader’s Digest Association (1945) CCA 2nd NY, 151 F 2nd, 733. (Writ of certiorari denied in (1946) 326 US 797, 90 L. Ed. 485, 66 S Ct 492.)

In the petition in the instant case, the words alleged to. have been published not only charged the plaintiff with being one of the most active and treacherous Communists in Ohio, but also charged his affiliation with Russian Communism dominated and dictated by Stalin, and the doing of acts by him as the tool or stooge of Stalin and the Communist. Party, dominated by Stalin in furtherance of their objectives.

Under the authorities above mentioned, the published words, if believed, would naturally tend to expose the plaintiff, concerning whom the same were published, to public hatred, contempt and ridicule, and deprive him of the benefits of public confidence and social intercourse, and such publication is. therefore libelous per se and an action will lie therefor, although no special damage is alleged.

For the reasons mentioned, the judgment of the Common Pleas Court sustaining said demurrer and dismissing plaintiff’s petition will be reversed as being contrary to law, and' the cause remanded to the Common Pleas Court with instructions to overrule said demurrer, and for further proceedings, according to law.

HUÑSICKER, J, DOYLE, J, concur.


author: By CROSSLAND, J.

text:
    McCORMICK, Plaintiff, v. McCANN et al, Defendants.
    Common Pleas Court, Muskingum County.
    No. 37079.
    Decided April 27, 1950.
    Meyer, Johnson & Kincaid, Zanesville, for plaintiff.
    Porter, Stanley, Treffinger & Platt, Columbus, for defendants.
   OPINION

By CROSSLAND, J.

This case being heard on the question of whether or not to grant a temporary injunction on plaintiff’s application therefor after seasonable notice to defendants and their denial of plaintiff’s right thereto, the following facts are presented by the petition and upon the evidence, to-wit, plaintiff and defendant Ring Realty Company hold title to adjoining and contiguous lots, with an improvement on both consisting of two houses erected as one building of three original sections having a dividing or partitioning wall from the basement to the attic, a part of which from front to rear is brick and balance wood or lathe and plaster, with some open area beneath the roof, with two clothes closets on the second floor adjacent to each other of which the back of one and front of the other extends beyond said dividing or partitioning wall several inches over defendant’s property, with a door on the third floor rear opening through said wall into each part, rear third story dormer window partly in each half and a common roof, although the front of each such parts or portions are distinctly separate as to complete outward appearance, including separate porches and front walks thereto from sidewalk and street.

The evidence discloses that fifty-five years ago the two separately occupied parcels of real estate were owned by husbands of sisters, who, pursuant to a common plan between them, constructed the front section of said building, all of which was divided between them for separate dwelling purposes; that a line drawn through the middle of the house, front to rear, is the lot line between, and would further bisect exterior bricks front and rear; that said section of building then constructed was built with common funds with respect to the interior dividing wall and all necessary supports affixed and adjacent thereto, and that both portions-were used exclusively as dwellings until late 1946 or early 1947; that plaintiff purchased the east portion of said entire building in late 1946 or early 1947, and has since used it as-a doctor’s office in connection with the practice of his medical profession, the attendance thereat of medical patients, and as a dwelling house until April, 1949; and finally that defendant The Dunzweiler Construction Company began dismantling and demolishing the west portion of said building after its vacation some two or three weeks prior to this suit,, and after oral notice to plaintiff of its intention to do so.

Plaintiff complains that said actions of the defendants will cause great and irreparable damage and injury to plaintiff's premises and also to plaintiff in connection with the conduct of his profession therein, and that he has no adequate remedy at law.

Defendants propose to tear down and dismantle that portion of the west structure up to but not including any part of the dividing or partitioning wall, but which would expose an opening in the third story of the rear presently filled with approximately one-half of the aforesaid third story window and would likely open and expose the width and height of one said clothes closet and the entrance to said second clothes closet, and leave a generally uneven roof edge and front and rear brick wall as well as an unsightly and unfinished west. wall and a generally unsuitable and unsightly condition and appearance, although the east structure would otherwise remain presently intact.

“Though the term is sometimes used to designate a mere division wall, it has been said that, strictly speaking, a ‘party wall’ is one built at the joint expense of adjoining land owners and upon ground owned in common, so that each has an undivided interest in every part of the wall and the ground on which it stands.” (31 O. Jur. 2, Sec. 2, with footnote reference to Hieatt v. Morris, 10 Oh St 523.)

“To entitle a party to an injunction his right must be clear. It is said that no rule in equity is better settled than this. Injunctions are issued to prevent injury to clear rights, and the cases which will justify interference of this kind are those of clear, incontestable, well-defined rights.” (21 O. Jur. 1000-1, Sec. 13.)

What are the rights and liabilities of the respective parties in the circumstances and in the contemplation of what defendants intend?

In the case of Brucks v. Weinig, 34 Oh Ap 1, relied upon by plaintiff and under and upon the authority of which plaintiff’s claim is largely predicated and presented, the opinion of the court of appeals of this district on page 4 states:

“Whatever may be the law outside of Ohio, it is well settled in this state, in Hieatt v. Morris, 10 Oh St., 527, 78 Am. Dec., 280, that ‘the rights and liabilities of the parties’ to a party wall agreement ‘must depend upon the provisions of the contract between them and the principles of law applicable to those provisions.’ ” (Emphasis ours.)

In Miller v. Brown, 33 Oh St 547, the complaining party and plaintiff in the Common Pleas Court was Brown, who had a written agreement with Miller whereby unless the latter paid Brown $100, which he did not do, the east wall of the building constructed by Brown was to be his, with the further right of Brown to acquire the land under it owned by Miller by a stipulated payment, which Brown offered to make, and that accordingly Brown was entitled to damages for injury to his construction resulting from the action of Miller in eliminating four outside inches of wall foundation on Miller’s land, which weakened Brown’s structure by resultant, settling and cracking, the court holding that:

“An owner of ground, with whose consent an adjacent proprietor occupies a portion of his premises on which to build a joint wall, can not tear away such wall after a building has been erected thereon, upon the faith of his acquiesence in its location and construction.”

The opinion of Judge Wright, on page 554, recites:

“Brown spent his money upon the wall which was to be for the benefit of both; Miller saw him do it, saw him put the foundation just where he did. He can not tear it away.”

In that case Miller was precluded from disadvantaging Brown, who had advantaged Miller at Brown’s own expense.

The opinion of the Ohio Supreme Court in the case of William Hieatt v. Nicholas Morris, supra, is well reasoned, and of persuasive and compelling force, the syllabus of which reads in full as follows:

“The declaration set forth that T. and H., owners of adjoining lots in the city of Cincinnati in 1831, being about to build dwelling houses upon their respective lots, agreed to and did build a partition wall on the division line of their said lots for the support of their said houses, without any express stipulation as to the continuance of said partition wall, which houses continued to be occupied by them and their respective grantees for more than twenty-one years, when the grantee of H., desiring to erect upon his lot a building adapted to its increased value, notified plaintiff, grantee of T., of his intention to take down his half of said wall for the aforesaid purpose, and upon his refusal to join in or permit such removal, the defendant took down his part of the wall, using proper care to prevent injury to the part of the wall standing upon plaintiff’s lot, and which, notwithstanding such care, fell down and was destroyed. Held, on general demurrer, that the facts above stated do not constitute a cause of action.”

The Supreme Court in its opinion, page 427, says:

“The agreement (to construct and the actual construction of a common partition wall for the support of both houses) did not contain any express stipulation as to the continuance or termination of such joint use of the wall; but the plaintiff insists that it conferred upon him a right to the use of the entire wall for the support of his building for all time, or at least, ‘until the wall should become unfit for its original purpose,’ and that neither party could take down his part without the consent of the other.”

On page 529 the court emphasizes the absence of an express stipulation as to duration, saying:

“The parties made no express stipulation as to the duration of the joint use and occupancy of the partition wall, as they well might and perhaps ought to have done. Can the court now do it for them; and if so, how long is it to endure, and when is it to terminate? Must there be mutual consent, or ruinous decay of the wall, before it is taken down, or may it be terminated by either, if his interest or convenience require it?”

The court further says, same page:

“In agreeing to construct the wall, the parties probably did not look to the future, but only to the present. Their arrangement had reference to the immediate use, rather than to the future availability of their properties, or the continued use would have been matter of express agreement, and not left to mere construction.” (Emphasis by the Supreme Court.)

And the Supreme Court, in determining that plaintiff had no cause of action, further commented on page 530 of its opinion:

“And we can not but think that the defendant, after reasonable notice to the plaintiff might, under the contract, remove his portion of the wall, using due and proper care to prevent injury to the plaintiff, in order to conform his improvements to the changes which time had wrought in the value and availability of the property.”

Under the heading “Change in character of locality and value of property,” 85. A. L. R., 293, editorial comment in discussion of recent cases, including S. S. Kresge Company et al., v. Garrick Realty Company, 245 N. W. 118, refers to the recognized authority of Hieatt v. Morris, supra;

“In the reported case (S. S. Kresge Co. v. Garrick Realty Co. ante, 283), where the development of the locality in which the party wall was situated rendered buildings of the size and type contemplated by the agreement for a party wall wholly inadequate to produce an income commensurate with the value of the land, the court said this change in conditions had the same effect as the destruction of the wall and buildings, viz, that it terminated the party-wall agreement, in the absence of an understanding as to the duration of the agreement. There is support for this view, also, in Hieatt v. Morris (1860), 10 Oh St, 523, 78 Am. Dec. 280, where it was sustained upon the theory that it was not within the contemplation of the parties to the agreement that they, or their successors, were bound to maintain the wall in order to carry out the agreement, even though it precluded them from taking advantage of a change in conditions which rendered an appropriation of the property to other uses profitable and desirable.”

The Ohio rule of the Hieatt case is recognized and not ■quarreled with by the 7th United States Court of Appeals in the very recent case of Carley v. Lawrence et al., 170 Federal Reporter, 2nd, 381, decided October 22, 1948, wherein, on page 383 of the opinion, specific reference is made to the Hieatt case, and, after stating the facts therein, said court, speaking of our Ohio Supreme Court, said:

"‘The court held that as the division wall was created by an agreement between separate grantors to the parties at bar no true party wall existed, and that the question of an existence of an easement depended upon a construction of the contract creating the wall. Finding no express stipulation as to the duration of the joint use in the contract, the court held that under the circumstances of the changed material conditions of the property, a reasonable construction of the contract was that no cause of action was stated.”

It will be noted, and not without some significance, that in the instant ease, plaintiff transformed part and later all of his building immediately after his purchase of it in 1946 from residence to business property, thereby indicating in his own use of property purchased by him for professional purpose and use a distinct and decided change in the former residential character of that particular neighborhood, as contrasted to its strictly residential character when the present building was constructed for two family dwelling purposes. The same present day circumstances making it no longer profitable or desirable to retain and maintain plaintiff’s property for use as a dwelling reasonably accounts for the election by defendants likewise to divert their land to improvement :for some other use, all in natural and logical keeping with the progressive trend of the times and the downtown business •expansion into former residential localities, no longer attractive or desirable as homes sites. That defendant’s apparent plans entail some other manner of improvement than remodeling of the present structure makes their right to the use and purpose of their choice and desire of improvement no less lawful and proper than that of plaintiff. Nor was there anything in the public or private knowledge of defendant’s property that purported to restrict or prevent other use. Parties purchasing real estate for investment purposes and uses should be able to depend and rely upon title examinations and existing laws to reveal whatever limitations or restrictions are asserted to prevent their free use in lawful, proper and progressive ways, whether for professional or ■commercial utilization and enhanced financial return, as well •as in the furtherance of civic progress and community betterment.

Where plaintiff may not be entitled to damages in an action at law because he lacks a right of action, as where his petition fails to state a cause of action, then a fortiori, he is not ■entitled to relief in equity, and his petition for injunctive relief necessarily fails, as there is no cognizable liability of the defendant, upon the familiar doctrine of damnum absque injuria; the detriment or loss suffered being a risk inherent in the situation or transaction assumed by the complaining party, a future possibility confronting plaintiff when he elected to purchase his property at the time he did so, further than knowing that his own contemplated use of it was itself a distinct departure from the original use intended and •served by the builders and first owners of the adjoining lots.

It is, however, in this case the view of this court that the harsh, even though not wrongful, results to plaintiff, while not entitling him to injunctive relief, and while within his legal contemplation, even though perhaps not actually before .realized, do merit the consideration of accomodation by defendants to the extent and in the respect that plaintiff may be enabled to have access to the temporary use of defendant’s land for the presence of workmen for the purpose of restoring ■or covering or otherwise giving such early and expeditious attention to the west wall of his building, roof, and as he may otherwise desire, consistent with defendant’s property use and -ownership to said present wall line and without affixing or attaching any burden upon or over defendant’s land excepting only as a temporary expedient in order to avoid undue hazard, damage or distress.

A temporary injunction is disallowed, accordingly, and the existing restraining order dissolved, insofar as it presently prevents and restrains defendants from proceeding in accordance with the announced purpose represented, to-wit, to* but not within the existing dividing or partition wall, and with freedom of opportunity to plaintiff to arrange for and; carry out, within a reasonable period of time, the corrective-measures above indicated.


author: By ROSS, PJ.

text:
    VILLAGE OF INDIAN HILL v. ATKINS et al.
    Ohio Appeals, First District, Hamilton County.
    Decided July 5, 1949.

      Steer, Strauss & Adair, Cincinnati, for plaintiff-appellant.
    Henry M. Bruestle, James W. Farrell, Jr., Cincinnati, for defendants-appellees.
   OPINION

By ROSS, PJ.

This is an appeal on questions of law from a judgment of the Probate Court of Hamilton County.

Charles H. M. Atkins died April 14, 1947. His will was admitted to probate in the Probate Court of Hamilton County. Application was made by decedent’s son, Warner L. Atkins, to the Probate Court to fix and determine inheritance taxes. The son therein gave the decedent’s residence as Cincinnati. The taxes were found by the Court to have originated in the City of Cincinnati, and pursuant to law the Treasurer of Hamilton County was ordered to distribute one-half of the amount paid out of the estate to that city.

The proceeding upon which this appeal is predicated was commenced by the Village of Indian Hill. The purpose of the proceeding was to secure a reversal of the former order of distribution of the Probate Court, and an order distributing the one-half of taxes paid by the estate to the Village of Indian Hill. This is to be effected, so far as this proceeding is concerned, by direct claim against the City of Cincinnati, as for money had and received to the use of the petitioner. In view of the conclusions reached, the propriety of so attacking the recipient of the pro-rata share claimed by appellant is passed without comment or approval.

The prayer for relief was predicated upon the allegation that the decedent at his death resided and was domiciled in the Village of Indian Hill, and not the City of Cincinnati.

In the brief of the appellant, the Village of Indian Hill, it is stated “The City of Cincinnati answered and is the only party presently interested in the case.”

The court, upon request, made separate findings of fact, and conclusions of law, and entered judgment against the petitioner-appellant.

The inheritance taxes involved were based upon two types of assets of the estate — (1) intangibles, (2) personal property located within the limits of the Village of Indian Hill. This situation presents two independent questions, which will be considered separately herein.

The first problem concerns that illusive element — domicil.

From the evidence, it is clear that the decedent lived, yes, resided for some time prior to his death in a residence located in the Village of Indian Hill. This was his principal place of abode and all the incidents of residence attach to his life in the Village. The title to the property was held by a family holding corporation. The decedent occupied the premises with his wife and son. His wife died shortly after residence was taken in Indian Hill. The decedent and his unmarried son continued to remain in the family home until the decedent’s death. At the same time during this entire-period the decedent owned a large interest in a family hotel in the City of Cincinnati, known as the Vernon Manor, in which the decedent and his wife had lived for some time previous to moving to Indian Hill, and after a long permanent residence in a home in the City of Cincinnati which was. sold.

The decedent at various times stayed for varying periods, especially in the winter, in the Vernon Manor. No particular-room was reserved for his use. The Indian Hill home was. considered by all as the permanent residence of the son, and the decedent stated when the son married, he, the decedent,, would return to Cincinnati. The decedent did not always, use the Vernon Manor for temporary residence, but also, availed himself of the use of various clubs in the City of Cincinnati, of which Clubs he was a member. The decedent’s: business was located in Cincinnati. He was for many years, recognized as one of that city’s prominent business men and was active in its economic and social life up to the time of his death.

Now there can be no question regardless of any evidence-of residence in Indian Hill that the decedent expressed a continuing determination that Cincinnati was and should: continue to be- his domicil. He stated he made his money there and wanted a say in its government. He consistently,, without interruption, voted in the city. He said he wanted no part of the government of Indian Hill, and that he did' not like the way it was governed. In every way that the-decedent could, by declaration, he asserted Cincinnati was. his home.

The appellant village asserts that conclusive- facts against such determination constituting a bona fide legal domicil' are: (1) that the servants of the Indian Hill house were-hired, paid, and given instructions by the decedent; (2) that his stays in Cincinnati were prompted only by his: convenience; (3) that decedent repeatedly referred to the village residence as his home; (4) that he gave such residence when applying for ration books; (5) that decedent affirmed under oath in securing automobile and truck registration licenses that the Indian Hill home was his residence for such tax purposes; and (6) that other persons including his son stated that the Indian Hill home was his residence.

These facts present this question: Can one live or reside in one place and have a bona ñde intention that another place shall be his domicil?

The evidence in this case conclusively shows that the decedent did entertain a bona fide intention that the City of Cincinnati should be his domicil and entertained such firm resolve at the time of his death. The evidence is also conclusive that no specific spot in the City of Cincinnati was held by decedent as a permanent residence, unless a general attachment to and interest in the Vernon Manor may be considered so. For some purposes, the decedent even used his office in the City of Cincinnati as a reference for certain residence requirements.

Authorities pro and con have been cited, with the claim that they are dispositive of the problems here presented. Upon examination, in almost every case, it will be found that the question presented is whether the person involved could have entertained a bona fide intent of domicil in the presence of facts indicating the contrary. In the instant case, the evidence is overwhelming that the decedent did possess up to the time of his death a bona fide intent that Cincinnati should continue to be his domicil and even his home. It is also clear that decedent attached no permanence to his residence in Indian Hill and planned returning to Cincinnati as soon as his son .was married.

Do the facts presented prevent giving effect to such purpose and intent?

At the outset it is to be borne in mind that the decedent had a fixed domicil and legal residence in Cincinnati, and it is the contention of the village that decedent changed that legal residence and domicil and fixed Indian Hill as a new legal residence and domicil.

When a person’s legal residence is once fixed, as it was in the case of decedent in Cincinnati, it requires both fact and intention to change it. Denny v. Sumner County, 134 Tenn. 468, 184 S. W. 14, L. R. A. 1917A, 285. Section 17 Am. Jur. “Domicil,” Section 16, p. 599.

“In other words, to effect a change of domicil from one locality, state, or country to another, there must be an actual abandonment of the first domicil, coupled with an intention not to return to it, and there must be a new domicil acquired by actual residence in another place or jurisdiction, with the intention of making the last acquired residence a permanent home. Moreover, the acts of the person must correspond with such purpose. The change of residence must be voluntary; the residence at the place chosen for the domicil must be actual; and to the fact of residence there must be added the animus manendi.”

Part of the confusion in the appellant’s conception of the inferences to be drawn from the facts is apparent in its oversight that the decedent had a definitely established domicil in Cincinnati and that it is necessary that an intention to abandon that domicil must be shown as well as a more or less permanent residence in the Village. The intention to abandon Cincinnati is completely absent. The contrary is evident. See, also, Section 18. Id., p. 602, where it is stated:

“Inasmuch as one must always have a domicil somewhere and a domicil is not lost until a new one is acquired, a domicil once existed cannot be lost by mere abandonment even when coupled with the intent to acquire a new one, but continues until a new one is in fact gained. To effect the abandonment of one’s domicil, there must be choice of a new domicil, actual residence in the place chosen, and intent that it be the principal and permanent residence. This is merely another way of saying that there can be no change of domicil without the concurrence of act and intent.

“It is observed in another section of this article that the right to exercise certain legal rights may be lost by abandoning one’s residence or home, although the domicil itself is not lost.” See, also: Sections 22 and 23, Id., p. 604.

It is to be observed here that the conflict is between two localities, two political subdivisions, that is, Cincinnati and Indian Hill. Each claim the domicil of decedent. It is not a contest involving two specific residences. In connection with the burden of proof it is stated in 17 Am. Jur., “Domicil,” section 86, p. 640:

“One whose right to affirmative relief depends upon establishing his domicil, or the domicil of another, in a given place has the burden of proof as to the issue. This proposition is fundamental. Although the duty of going forward with the evidence may shift from one party to another, the burden of proof as to the issue never shifts. This distinction must be borne in mind as explanatory of the many cases which state generally that domicil is presumed, prima facie, to be at that place where the party is shown to be or where he is resident and that the burden of proof is on the party who claims that the domicil is elsewhere.

“The rule is well settled that the burden of proving a change of domicil is on the person who alleges it. If a party’s right to affirmative relief depends on showing that his domicil has been changed, clearly the burden of proof as to the issue is on him. If, on the other hand, his right to relief depends on showing the continuance of domicil in a particular place, then a showing that he once resided in the place makes out a prima facie case. Residence being a continuous fact it is presumed to continue. The presumption casts upon the other' party the duty of going forward with the evidence to meet the prima facie case created thereby.”

It has been noted that the decedent frequently stayed at the Vernon Manor and sometimes at clubs, all in the City of Cincinnati. In this connection, a statement in 28 C. J. S. Domicile, §10b, p. 14, is pertinent:

“b. Duration.

“Apart from statutory regulation, no particular period of residence is required to establish domicile, and any residence, however short, will suffice when coupled with intent; without intent, residence, however long continued, will not establish domicile.

“Except as the rule may be affected by statutory regulation, no particular period of residence or specified length of time in a particular place is required in order to establish 'a domicile, but when coupled with the element of intent to establish a domicile any residence, however short, will be sufficient, even if it is but for a day or an hour. Although a long-continued residence in one place has been regarded, in some decisions, as strong evidence, or even a controlling circumstance, in determining the question of domicile, residence alone, however long continued, will not establish domicile or effect a change of domicile, in the absence of the requisite intention.”

These considerations justify the trial court’s conclusion that the decedent had never given up his domicil in Cincinnati, and that he intended to change his residence permanently thereto as soon as certain eventualities occurred.

Appellant contends that the language of §5348-14 GC, requires a finding in its favor, owing to the use of the word “resided”. A comparison of the several sections applicable to the subject of this section indicates that the legislature, as far as residents of this state are concerned, used the term as synonymous with domicil.

Sec. 5348-11 GC, provides for distribution of one-half of taxes to the political subdivision where the tax originates.

Sec. 5348-14 GC, has no application to the instant question. It must be presumed that the legislature knew the general law applicable to taxation and domicil as affecting the estates of decedents and used the term “originates” in the sense of domicil.

At the outset of this opinion it was stated two types of assets of the decedent’s estate were involved — intangible and tangible. It is the claim of appellant that §5348-13 GC, requires at least a pro rata share qn tangible assets to be allocated to the Village, and this seems to be true.

The city claims this issue was never raised in the trial court.

The appellant has transmitted to this court a copy of a letter sent the trial court in which tangible property was mentioned. This court is not cited to any point in the record in which this issue was raised and, therefore, can find no error in the action of the trial court in ignoring the same.

It may be noted in concluding that the provisions of §5348-13 GC, applying to distribution of taxes according to where the tangible assets are “physically located” indicates that it was in the opinion of the legislature necessary to differentiate the term “originates” when applied to physical assets. Certainly, taxes upon tangible property would naturally be considered to originate where physically located. The legislature, therefore, intended to eliminate the question of domicil suggested by the use of the term “originates” and' allocate taxes on tangible assets to their actual physical location, regardless of the domicil of the owner.

For the reasons given, the judgment of the trial court is affirmed.

HILDEBRANT and MATTHEWS, JJ, concur in syllabus, opinion and judgment.


author: By THE COURT. By MILLER, PJ.

text:
    MEYER, Plaintiff-Appellee, v. DUNIFON, Dir. DEPT. OF LIQUOR CONTROL, etc., Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4338.
    Decided August 18, 1949.
    Fred J. Reiners, Cincinnati, for plaintiff-appellee.
    Hon. Herbert S. Duffy, Atty. Geni., John J. Nolan, Asst. Atty. Geni., Columbus, for defendants-appellants.

      Decided March 6, 1950.
    Pred G. Reiners, Cincinnati, for plaintiff-appellee.
    Hon. Herbert S. Duffy, Atty. Geni., Charles T. Kaps, Asst. Atty. Geni., Columbus, for defendants-appellants.
   OPINION

By THE COURT.

This is a motion seeking an order staying execution of a judgment in the Common Pleas Court, ordering the appellant to issue a liquor permit to the appellee. The appellee is opposing the motion alleging that the delay in the issuing of the permit will cause an irreparable injury; that the loss of profits will be so indefinite and uncertain as to preclude a recovery. But on the other hand, the wrongful issuing of a permit may cause irreparable injuries to those whom the law seeks to protect.

This is a matter which rests within the sound discretion of the Court and which, we think, requires that the motion be sustained. It will be so ordered. .

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

No. 4338.

OPINION

By MILLER, PJ.

This is a law appeal from the judgment of the Court of Common Pleas reversing an order of the Board of Liquor Control which affirmed the action of the Department of Liquor Control in rejecting the application of the appellant for C-l, C-2, D-l and D-2 permits for the sale of intoxicating beverages under the laws of Ohio.

The record discloses that in October, 1947, the plaintiffappellee filed his applications with the Department for the above specified permits. The business was to be located in a building under construction; that in response to the application an inspection of the premises was made soon thereafter by an inspector of the Department who advised the plaintiff-appellee that he could not make the inspection required until he was “set up,” which meant that he was ready to operate a business meeting the requirements of the General Code. The plaintiff-appellee testified he then installed special equipment in the building which was worth approximately $8500.00; that sometime in January while this equipment was being installed the Pastor of a church located within 500 feet of his proposed place of business advised him that the church was going to object to the establishment of the business, but notwithstanding this proposed objection he completed the installation. On April 12, 1948, the plaintiffappellee received notice that his applications had been rejected for the following five reasons:

1. Proximity of the church.

2. Objection of the church.

3. Neighborhood objection.

4. Objection from Ministerial Association.

5. Not the type of neighborhood for permit premises.

The only error assigned is that the judgment is contrary to law. The Common Pleas Court under §154-73 GC was empowered to review the action' of the Board but not to substitute its judgment for that of the Board. Farrand v. State Medical Board, 151 Oh St 222. Since the Board of Liquor Control was the trier of the facts it possessed wide discretionary powers and its ruling may be reversed if it exceeded its authority or abused its discretion. It must be conceded that the objection by the church authorities to the issuing of these permits to be used by a tavern within 500 feet of the church constituted a valid objection if sustained under §6064-16 GC, which provides:

“Applications for regular permits authorized by this act may be filed with the department of liquor control at any time after this act becomes effective. No permit shall be issued by the department under authority of this act until fifteen days after the application therefor is filed; and no permit shall be issued by the department under authority of this act if the business specified to be operated in the permit applied for is to be operated within a distance of five hundred feet from the boundaries of a parcel of real estate having situated thereon a school, church, library or public playground, until written notice of the filing of said application with the department shall have been personally served upon the authorities in control of said school, church, library or public playground and an opportunity shall have been provided said authorities for a full and complete hearing before the director of liquor control upon the subject of the advisability of the issuance of the said permit; except in the case of an application from a permit holder for a permit of the same class for the same location.”

It will be noted that 'this section permits the issuing of the licenses under the conditions here existing, but only after notifying the church authorities and affording them an opportunity for a full and complete hearing before the Director. The record discloses that such a notice was never served upon the church authorities but they did voluntarily enter their objection by filing petitions containing more than 200 signatures. Now may the plaintiff-appellee be heard to complain because of this irregularity? We are of the opinion that the statute was enacted solely for the benefit of the organizations enumerated therein and not for the applicant. This being true he cannot be injured by such procedure. The plaintiffappellee urges, however, that had the Department of Liquor Control notified the church of the pendency of the application, within a reasonable time, their objections would have been seasonably made and he would have been saved the unnecessary expense of equipping the place for a business which he could not engage in; that the defendant’s inspector encouraged him to make the installations and now to deny the permits would work an injustice upon him. The trial court held that substantial justice had not been done this plaintiff-appellee and that said order constituted an abuse of discretion on the part of the Director of the Department of Liquor Control. .This order ignores completely the giving of any consideration to the church for whose benefit §6064-16 GC was enacted. The record discloses that a full hearing was had before the Board and the presumption is that the Board gave favorable consideration to the objections and in so doing we cannot say there was an abuse of discretion. The actions of the inspector in encouraging the applicant to complete the project could not be binding upon the Department to issue the permits and the doctrine of estoppel has no application. The power to grant permits for the sale of intoxicating beverages is vested solely in the Department of Liquor Control. Sec. 6064-8(2) GC. It also has authority to promulgate rules and regulations with reference to applications for and the issuance of permits. Sec. 6064-3 GC. Acting under this authority Regulation No. 24 was adopted and filed with the Secretary of State, which provides:

“Excepting class F permits, no permit shall be issued by the department until after inspection of the premises by the Enforcement Division and until after a report thereof shall have been filed with the department.”

Under this regulation the director was not authorized to issue the permits until the premises had been inspected which could not be effectively done until the building was completed and the equipment required by §6061-15 GC was installed. This section provides that D-l and D-2 permits may be issued to the owner or operator of a hotel or restaurant licensed pursuant to §843-2 GC. The record discloses that at no time while the application was pending was the restaurant in this building in operation. It must be in operation at the time the permit is applied for and issued. See Mocilnikar, dba, etc., v. Board of Liquor Control, et al., 84 Oh Ap 266.

We are of the opinion that the plaintiff-appellee is in error in assuming that the church would immediately raise its objection upon being notified of the application by the Director. Sec. 6064-16 GC does not make such a requirement. This section merely requires that the church authorities shall be granted an opportunity for a full and complete hearing before the permits are granted. Therefore if the objections were made at the hearing they would have been seasonably made. The record discloses that the objections made by the church were substantial and' therefore supported the ruling of the Department. Under such circumstances the Board did not abuse its discretion. The judgment of the Common Pleas Court is reversed and the ruling of the Board is ordered affirmed.

HORNBECK and WISEMAN, JJ, concur.


author: Per CURIAM:

text:
    STATE, ex MORINGSTAR, Plaintiff-Relator, v. GIBBS et, etc., Defendants-Respondents.
    Ohio Appeals, First District, Butler County.
    No. 965.
    Decided December 3, 1949.
    Ben Worcester, Middletown, for plaintiff-relator.
    Fred J. Schatzmann, Middletown, for City of Middletown.
   OPINION

Per CURIAM:

This is an action in mandamus and a case coming within the original jurisdiction of this court, and is so filed. The purpose of the action is to compel the respondents to reinstate the relator in his position as Chief Engineer of the Water Works Department of the City of Middletown, Butler County, Ohio, from which he was discharged April 20, 1949, by the respondents constituting the Commissioners of the City of Middletown.

The relator is within the classified service of the City.

Due notice was given relator of his discharge and he filed with respondents an “explanation” requesting a hearing. No hearing was given relator by respondents after such explanation was filed with them, nor do the statutes require that such a hearing be given. Sec. 486-17 A GC. Rule XVII, Section 1 of the Rules of the Civil Service Commission of the City of Middletown conforms to the terms of the statute.

The relator, within time, duly filed an appeal with the Civil Service Commission of the City. The respondents failed to send the written explanation filed by relator with respondents, to the Civil Service Commission, as is required both by the statute and the Rules of the Commission.

A full hearing was conducted by the Civil Service Commission, in which relator appeared and testified fully as to the charges of dereliction of duty made against him. Evidence was presented tending to sustain such charges, although such evidence lacked a desirable definiteness specifically applicable to the charges preferred by the respondents.

The transcript of the evidence and conclusions of the Civil Service Commission are before the Court as a part of the record presented to it on oral hearing.

It is the claim of the relator that the Civil Service Commission in its finding and entry did not sustain the charges filed, but placed its decision sustaining the discharge of relator upon the ground that he did not appear before the Commissioners of the City of Middletown for explanation of his conduct.

In such decision and entry of the Civil Service Commission appears the following statement:

“There was no showing of evidence that the dismissal from service created an intolerable hardship for Mr. Moringstar. This is also supported by his neglect to appear before the City Commission for explanation of his conduct which had extended to him a period of seven days for such explanation.”

Other statements in the record appear to justify the conclusion that the Commission was satisfied that the dismissal of the relator was justified by his conduct.

It is stated in the finding and entry of the Civil Service •Commission:

“After due consideration of evidence presented at the hearing of C. T. Moringstar, Appellant, for reinstatement in the position of Chief Engineer of Water works Department, it is the unanimous judgment of this Commission that the ■action of dismissal from service by the City Commission was justifiable and is hereby affirmed.”

A fair interpretation of this language is that the charges preferred were sustained. Although, again, the language used lacks a desirable definite application to the specific charges. However, it does appear that a basis for the affirmance of the action of the Commissioners of the City was the fact that the Relator had neglected to appear before them. The relator requested this privilege. It was never granted him and he was not required to wait until the last minute to file his appeal before the Civil Service Commission. He did wait a reasonable time. In addition, it is to be again noted that the Commissioners are not required to give the employe such hearing.

It is true that the relator was given a full opportunity to present his case before the Civil Service Commission and made no issue of the failure of respondents to file his explanation with the Civil Service Commission. The explanation made by the relator at the hearing before the Civil Service Commission might well be considered ample defense to the charges made against him. This court cannot, however, weigh the evidence so presented.

On the other hand, the written explanation of the relator was not sent to the Civil Service Commission by the respondents, and it is evident that the absence of this explanation must have had a bearing upon the consideration of the appeal, since the neglect of the respondents is erroneously charged by the Civil Service Commission against the relator.

It might be under some circumstances that a mere failure to file the explanation with the Civil Service Commission would not be so prejudicial as to require reinstatement of the employee.

In addition to the foregoing Rule XVII, Section 1 of the Rules of the Civil Service Commission provides:

“NOTICE OF DISMISSAL. The discharge of a permanent employee other than at the end' of a probationary period shall not' become effective until the appointing authority shall have first served upon such employee a written notice of discharge which shall contain one or more reasons or grounds, for discharge together with such specifications of facts as will enable said .employee to make an explanation and place him fairly upon his defense, and shall have filed with the Commission a copy of such notice of discharge together with the explanation, if any, made by the employee.”

It is stated at the beginning of the rules that the word “Commission” when used in the Rules refers to the Civil Service Commission unless otherwise specified.

Obviously, this Rule XVII, Section 1 was ignored, both by the appointing authority and the Civil Service Commission. By such rule it is apparent in the instant case that the discharge was not effective for any purpose.

In the instant case, taking into consideration the failure of the Civil Service Commission to definitely pass upon the specific charges filed with them by respondents, the failure of such respondents to comply with the mandate of the statute and the rule of the Civil Service Commission, and the erroneous predicate included in the reasons for affirmance by the Civil Service Commission, placing the neglect of the respondents upon the shoulders of the relator, it must be concluded that the failure of the respondents to comply with the law was not only a mere dereliction of duty, required by the statute and rule, but vitally prejudicial to this relator.

This Court has frequently requested the respondents to> present a brief, but none has at this writing been filed, although ample time has elapsed in which to prepare and present same.

For the reasons given, the finding, judgment, and entry of the Civil Service Commission is set aside, and the prayer of the Relator for reinstatement and certification is granted.

ROSS, PJ, HILDEBRANT & MATTHEWS, JJ, concur.


text:
    FIELDS, Plaintiff-Appellant, v. FIELDS et al, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21768.
    Decided April 20, 1950.

      M. H. Dixon, Cleveland, for plaintiff-appellant.
    Irwin Greene, Cleveland, for defendant-appellee.
    (ROSS, PJ, HILDEBRANT and MATTHEWS, JJ, of the First District sitting by designating in the Eighth Appellate District.)
   OPINION

By ROSS, PJ.

An appeal upon questions of law and fact was originally filed from an order of the Court of Common Pleas of Cuyahoga County fixing alimony pendente lite. This appeal was reduced to an appeal upon questions of law.

An examination of the record is conclusive in showing that there was no abuse of discretion by the trial court in making the order from which such appeal was taken. This court has been informed that a motion to dismiss the latter appeal on the ground that no final order or judgment is involved was passed upon by the Court of Appeals of the Eighth District and the motion overruled. Such motion was not renewed before this Court. However, if this Court has no jurisdiction to entertain such an appeal, it becomes the duty of this Court sua sponte, to dismiss such an appeal.

It is the conclusion of this Court that it has no such jurisdiction for the reason that no final order or judgment was entered or rendered in the trial court. Jurisdiction on appeal may not be conferred by consent or waiver. The appeal upon questions of law must, therefore, be dismissed.

It is recognized in so holding that its conclusion is in conflict with the judgment of the Court of Appeals of the 9th District in the case of Taylor v. Taylor, 74 Oh Ap 191, and with the action of the Court of Appeals of the 8th District in the instant case, and this case will therefore be certified to the Supreme Court for such conflict. This Court reaches its conclusions for the following reasons:

An Act, being “An Act Concerning Divorce and Alimony” passed March 6, 1840, Chap. 305, Revised Statutes of Ohio, (1853) Curwen Vol. p. 602 was repealed March 11, 1853 and new provision made for this action. (Revised Statutes of Ohio, 1854, Curwen, Vol. 3 p. 2167, designated Chapter 1252.)

Under the former Act, jurisdiction was placed in the Supreme Court, in the latter in the Courts of Common Pleas.

In Curwen’s Revised Statutes of Ohio Vol. 3 page 1938 (1854) will be found an Act of the General Assembly passed March 11, 1853. This Act is entitled “An Act to Establish a Code of Civil Procedure.” Section 604 of this Act (page 2036 Curwen’s Revised Stat. Vol. 3) entitled “Code Not to Control Special Proceedings” provides that

“Until the legislature shall otherwise provide this Code shall not affect proceedings on Habeas Corpus, Quo Warranto or to assess damages for private property taken for public uses; nor proceedings under the statutes for the settlement of estates of deceased persons; nor proceedings under statutes relating to dower, divorce or alimony, or to set aside a will; nor proceedings under statutes relating to apprentices, arbitration, bastardy, insolvent debtors; nor any special statutory remedy not heretofore obtained by action; but such proceedings may be prosecuted under the Code, whenever it is applicable.” (Emphasis ours.)

Going back to Section 3 of this same Act (page 1939— Curwen’s Revised Statutes — Vol. 3, 1854) we find “Forms Abolished. The Distinction between actions at law and suits in equity, and the forms of all such actions and suits, heretofore existing, are abolished; and in their place there shall be hereafter but one form of action which shall be called a civil action.”

Sec. 512 of this same Act (page 2021 Id) is:

“Final Order Defined. An order affecting a substantial right in an action when such order in effect determines the-action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment is a final, order which may be vacated, modified or reversed as provided, in this title.”

It is clear, therefore, that under the Code so in effect in 1854, an action for divorce or alimony or both would have been considered special proceedings and an order made therein affecting a substantial right, such as an order for alimony pendente lite would have been a final order under Section 512, supra.

This Code of Civil Procedure took effect by its terms July 1, 1853. (Sec. 614 page 2040 Id.)

In Swan & Critchfield Statutes (1868) we still find the provision that the general provisions of the Code are not applicable to certain special proceedings, including divorce and alimony, until the legislature shall provide otherwise. (Swan & Critchfield Statutes 1868 Vol. II page 1131. Sec. 604)

It would seem that the view that actions for divorce and alimony were special proceedings under the Code of Civil Procedure of 1853 is sustained by Ex Parte James Collier, 6 Oh St 55, 60.

In 1878, the General Assembly passed an Act:

“To revise and consolidate the laws relating to civil procedure in courts of common pleas and superior courts, in district courts on appeal and also the laws relating to procedure in error, mandamus and quo warranto.”

This Act was Senate Bill No. 115, and will be found in Vol. 75 Laws of Ohio, beginning at page 597. Title I of the Act bore the heading: “Procedure in the Courts of Common Pleas and Superior Courts and in District Courts of Appeal.” The heading also carried designation of the following divisions:

“Heading Division I. General and Preliminary Provisions.

“ Division II. Commencement of Actions — Jurisdiction Issue.

“ Division III. Trial.

“ Division IV. Judgment.

“ Division V. Enforcement of Judgment.

“ Division VI. Provisional Remedies.

“ Division VII. Special Proceedings.

“ Division VIII. Repeals.”

Turning to the Heading Division VII, at page 726, Vol. 75 Laws of Ohio, under the title “Special Proceedings” the following Chapters appear (page 726 Id).

“Chapter 1. Amercement.

Chapter 2. Appropriation of Property.

Chapter 3. Arbitration.

•Chapter 4. Bastardy.

Chapter 5. Contempts of Court.

Chapter 6. Divorce and Alimony.

Chapter 7. Dower.

Chapter 8. Habeas Corpus.

Heading Chapter 9. Partition.

“ Chapter 10. Real Actions.

“ Chapter 11. Replevin.

“ Chapter 12. Sureties — Rights and Remedies of.

“ Chapter 13. Taxes and Assessments — Relief against illegal.

“ Chapter 14. To Change Name.

“ Chapter 15. To Contest Will.

“ Chapter 16. To Cure Certain Defects, Errors and Omissions.

“ Chapter 17. To Perpetuate Testimony.

“ Chapter 18. Water-Craft.

“ Chapter 19. Wreck-Masters.”

Now it appears from such category of actions that many other civil actions, in addition to action for divorce and alimony, now clearly recognized as not properly falling within the designation of “Special Proceedings” are included in this list such as “Partition” and “Replevin.”

This Act was incorporated in the Revised Statutes of Ohio (1879) as Sections 4947 et seq.

Revised Statutes, Section 6707 is the same as Section 512 Curwen’s Statutes 1854 (supra) and Divorce and Alimony are carried under Title I, Division 7 as Special Proceedings. Section 5689 et seq.

In an Act passed by the General Assembly, February 14, 1910, the First General Code of Ohio came into existence. By such codification an entirely different classification of actions and proceedings was adopted. By reference to the Titles of Part Third (the same as now in force) it will be found that under “Title IV — Procedure in the Common Pleas Court” that Division II covers “Civil Actions;” that Division VII covers “Special Actions;” and Division IX covers “Special Proceedings” and that under “Division VII — Special Actions” Chapter III is devoted to “Divorce and Alimony” commencing with Section 11979. Under “Division II — Civil Actions” it is provided that—

“An Action is an ordinary proceeding in a court of justice-involving process, pleadings and ending in a judgment or decree by which a party prosecutes another for the redress, of a legal wrong, enforcement of a legal right or the punishment of a public offense-.”

This definition obviously includes both civil and criminal actions and prosecutions.

Under this Division appear: Chapter 1, dealing with the-“Form of Action;” Chapter 2, dealing with “Parties to Actions;” Chapter 3 providing where the action shall be brought; Chapter 4, covering the “commencement of the action” and Chapter 5, relating to “Pleadings.”

Although Division VII, Chapter 3, dealing with Divorce and Alimony, has many separate provisions as to pleading, process and parties, on the other hand many provisions of Division II, Civil Actions are directly applicable to actions of Divorce and Alimony as for instance, service upon the defendant when a minor, §11291 GC; the provisions for service by publication, §§11984-11292 GC; provisions as to Lis Pendens, §§11300, 11301 GC; provisions as to “Pleadings” §11302 et seq GC; the provisions as to “Trial,” §11376 et seq GC; provisions as to dismissal of an action; §§11247, 11249, 11250, 11252, 11322 GC, dealing with minors as parties.

Sec. 11586 GC was applied in Caprita v. Caprita, 145 Oh St 5, 10, where Smith v. Smith, 103 Oh St 391, is cited to the same effect in an action for divorce.

In Weeden v. Weeden, 116 Oh St 524, the Supreme Court applied the law in a divorce and alimony action applicable to ordinary actions. On page 528 of the opinion it is stated:

“That certain special statutory provisions do govern in divorce cases alone is an elementary proposition of law, and also it is elementary that matrimonial actions are neither in a precise sense actions at law nor suits in equity, but are statutory actions in which both jurisdiction and practice depend on the statute. However, it is the general rule that where the statute is silent, practice usually follows the rule in equity (19 Corpus Juris 22, Sec. 23), under which rule the contention of plaintiff in error would be overruled. Since the enactment of Article IV, Sec. 6 of the Constitution, in its present form, and since the interpretation of that article by this court in various adjudications relating to divorce actions we feel that the specific question here presented is no longer open, and that we are not compelled to resort to the rules of general divorce practice in other states to sustain our position. Plaintiff in error’s entire contention falls because judicial decisions do exist providing procedure for the review of a divorce case.”

It seems apparent therefore that the legislature although recognizing that certain causes had certain peculiar features requiring allocation under the title “Special Actions” that still such causes were considered to be what is generally denominated as an action which is the term used in §12223-2 GC. It is also apparent that the legislature definitely removed the actions of “Divorce and Alimony” from the limitations found in the earlier statutes applicable to such actions, and designedly removed them from the classification of special proceedings, as formerly covered. It is also to be here noted that such change had occurred before the adoption of the 1912 Amendment to Art. IV, Section 6 of the Ohio Constitution which became effective the 18th day of January, 1913. Hence, it must be presumed that the framers of the 1912 Amendment of Art. IV. Sec. 6 of the Ohio Constitution in using the term “judgments” therein must have had before them the changes in the allocation of actions for Divorce and Alimony from the category of “Special Proceedings” to “Special Actions.”

In Chandler & Taylor Co. v. Southern Pacific Co. 104 Oh St 188, the Supreme Court in the first paragraph of the syllabus stated:

“The term (judgment) comprehends all decrees and final orders rendered by a court of competent jurisdiction and which determine the rights of parties affected thereby.” (Emphasis ours.)

It must be apparent that an order for temporary alimony or alimony pendente lite does not determine the rights of the parties to the action. Such order is subject to modification at- any time and, as indicated by its nature, is inherently temporary and of a wholly provisional nature. If in the absence of an abuse of discretion, courts entertaining actions for divorce and alimony, either or both, were to be faced with appeals upon questions of law when such orders were made, the beneficial results following the provision for such relief would be greatly limited.

The identical question is considered in 2 O. Jui. “Appellate Review” (Pt. 1) Section 116 page 237, where it is stated that an order pendente lite has been held to be a final order. The only decision cited is that of King v. King, 38 Oh St 370, decided in 1882, when, as pointed out .hereinbefore, the law definitely placed this action as a “Special Proceeding” referring to 75 Ohio Laws 749, supra.

In Ruthrauff v. Ruthrauff, 15 Oh Ap 214, it is stated in the opinion at page 217:

“It is admitted that the allowance of temporary alimony is a final order which may be reviewed on error.”

Citing: Reed v. Reed, 17 Oh St 563, and King v. King, 38 Oh St 370, which cases were predicated upon the then existant law definitely classifying “Divorce and Alimony” as Special Proceedings.

In Taylor v. Taylor, 74 Oh Ap 191, the Court cites no supporting authorities for its conclusions.

In Maxwell v. Maxwell, 7 Abs 7, apparently the appeal was. from a judgment in contempt as well as from an order for alimony pendente lite. In any event, no authority is cited in support of the contention that such an order is sufficient to support an appeal on questions of law. The only case cited in the opinion is Weeden v. Weeden, 116 Oh St 524, supra, is authority for placing an action for divorce and alimony in the category of ordinary actions.

In Brady v. Brady, 47 Abs 73, the Court again relying on the early Ohio cases takes for granted that an order allowing alimony pendente lite is a final order, and cites also Ruthrauff v. Ruthrauff, 15 Abs 214, considered supra, and Thomas v. Thomas, 18 O. C. C. (n. s.) 368, in which the Court cited no authority for its conclusion sustaining an appeal from an order pendente lite.

The case of Smith v. Smith, 25 Oh Ap 321, a Nisi Prius-decision is not helpful. It presents an embarrassing situation in that apparently from the statement in the opinion this. Court sustained an appeal on questions of law and affirmed an order for alimony pendente lite. It is gratifying to remember that the refusal by the Supreme Court of a motion to certify in this case is not conclusive as to their opinion upon the subject of the motion.

In the case of Book v. Book, 59 Wyoming 429 and reported with an elaborate footnote in 167 A. L. R. 352, the Supreme Court of Wyoming had before it the identical question (among, others) herein presented. It appears that the Wyoming statute defining a final order is pro tanto identical with our own, §12223-2 GC. That court held a divorce and alimony action was not a special proceeding.

This Court takes note of King v. King, 38 Oh St 370 at page-357 (A. L. R.) of the opinion, and that that case was predicated upon the provisions of the Ohio Act in 75 Ohio Laws 726. Apparently the change made in 1910 by our General Assembly was not brought to the attention of the Wymong Court. That ■Court also notes the case of Reed v. Reed, 17 Oh St 563 (564) which merely places the action of alimony by reason of the ■early law as a special proceeding not amenable to general law by virtue of the excluding statute hereinbefore set out.

This Court is in full agreement with the conclusions of the .Supreme Court of Wymong in construing the law now similar to our own. In the note the cases pro and con upon this ■question are collected.

This Court considers this question of sufficient importance to justify consideration by the Supreme Court and advances this reason for what is possibly an over-extended opinion.

An entry may be presented dismissing the appeal on questions of law and providing for certification because of conflict as hereinbefore noted.

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