author: By KOVACHY, PJ.

text:
    FIDELITY FINANCE COMPANY, Plaintiff-Appellee, v. HARRIS et, Defendant-Appellant, and nine other cases.
    Ohio Appeals, Eighth District, Cuyahoga County.
    Nos. 23409 to 23418, inclusive.
    Decided May 25, 1955.

      J. M. Costello, Cleveland, for plaintiff-appellee.
    Paul Mancino, Cleveland, for defendant-appellant.
   OPINION

By KOVACHY, PJ.

These cases are appeals from the Euclid Municipal Court on questions of law. In each, Appellant, Delbert S. Cohon, was summarily adjudged guilty of contempt of court and sentenced. The actions found to be contemptuous on his part are identical in each ease and consequently, but one of the cases' above listed, requires determination on our part to dispose of all.

We select the case of the Fidelity Finance Company v. Emory Harris. The essential facts before the trial court were the following:

On June 25, 1954, Appellant, Delbert S. Cohon, as attorney for .the Fidelity Finance Company, obtained a judgment by confession on a petition and answer based upon a promissory note and warrant of attorney signed by Emory Harris, together with an Order in Aid of Execution signed by the Judge.

Four documents, filed with the Clerk of the Court, contained affidavits purportedly signed by one, John Charleston, with jurats affixed oy appellant, Delbert S. Cohon, Notary Public. These were:

1. The Petition

2. A Military Affidavit

3. Statutory Demand certifying service on the debtor.

4. Aid of Execution.

On June 30, 1954, the Aid was served on the garnishee and on July 12, 1954, the proceedings in Aid of Execution were sustained.

On September 7, 1954, the Judge, on his own initiative, caused the following journal entry to be placed upon the records of the case.

“It having been brought to the attention of this Court that the name of one, John Charleston, appears on certain affidavits filed in this Court in'-the above entitled case; and it appearing that the garnishee, subject to order of the court, has paid certain monies of the defendant into court; and it further appearing that the identity and existence of the said John Charleston is in question; and that the legal entity of the plaintiff is not defined; this Court, therefore, orders said plaintiff and plaintiff’s counsel, Delbert S. Cohon; to produce the said John Charleston in open court on September 13, 1954, and show cause why the aid proceedings should not be dismissed, the monies released to the defendant, the judgment vacated and the cause of action dismissed. NOW THEREFORE, the clerk is directed to place this matter on the docket of the court for hearing at 9:30 A. M. on Monday, September 13, 1954. And the bailiff is directed to serve a copy of this order on Delbert S. Cohon, attorney for plaintiff, make due return thereof, and the costs of this proceeding to be taxed against the plaintiff. It is further ordered that all proceedings in this action be stayed until further order of the court. Order see journal.”

A hearing had in accordance with this Journal Entry resulted in the following entry appearing upon the Journal of the Court on November 22, 1954:

“This cause came on for hearing on the 16th day of September, 1954, upon order of the Court heretofore issued requiring in part, Delbert S. Cohon, attorney of record at the time of the taking of judgment in the within case, and the issuance of the various orders, to produce in open court one John Charleston whose alleged signatures appe'ar on the various pleadings and affidavits filed herein. Present were Delbert S. Cohon, with his attorney, Paul Mancino, Morris Blane, Esq., representing the plaintiff, and J. M. Costello, Esq. designated as Amicus Curiae by this Court, and his associates, Paul W. Dixon and James L. Ryhal, Jr. There were before the Court nine additional cases’ in which a similar order had been issued requiring Delbert S. Cohon to produce John Charleston in open court, and it was agreed by the parties that the testimony and the arguments submitted should be considered as if presented in each case. Testimony was taken and the cause was argued to the Court. The court finds that Delbert S. Cohon has not produced John Charleston in open court; that “John Charleston” is admitted by Delbert S. Cohon to be a ficticious name used by Delbert S. Cohon in the various pleadings herein; that Delbert S. Cohon is not able to identify the signer of any signature of “John Charleston” appearing on the various pleadings filed herein; that Delbert S. Cohon testified that at least some of the signatures were those of his office personnel who signed either upon direction of himself, or his clients; that Delbert S. Cohon has perpetrated a fraud upon this Court, and is guilty of contempt, and accordingly, the Court fines Delbert S. Cohon Fifty Dollars ($50.00), and sentences the said Delbert S. Cohon 'to ten (10) days in County Jail, said days to run concurrently with the ten (10) days sentence in the other nine cases on hearing on this date. The execution of the ten (10) days sentence in the County Jail will be withheld until 2:30 P. M. on December 2, 1954, and said sentence of ten (10) days in County Jail will be suspended if on or before 2:30 P. M. on December 2nd, 1954, the said Delbert S. Cohon is able to and does dismiss, with the consent and approval of the plaintiff, the within case with prejudice. The Court finding that the proof of service of statutory demand before attachment, and the affidavit for the attachment of wages in the within case were signed “John Charleston,” vacates the order of attachment, and orders the Clerk to return to the defendant the funds held under said attachment. And the Court finding that the verification of the petition is also signed “John Charleston” vacates the judgment entered thereon. Order see journal.”

Sec. 2705.01 R. C. provides:

“A court, or judge at chambers, may summarily punish a person guilty of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice.”

The word “court” in the field of law is a comprehensive term. It represents the judicial department of government which operates by the method of establishing a tribunal composed of one or more judges attended by proper officers and employees for the public administration of justice. The judge does not constitute the court. The court, in addition to the judge or judges, is composed of the jury, clerks, bailiffs and other attaches, together with the court room and other rooms and halls used for the conductance of the business of the court. When any part of the court is engaged in the prosecution of the business of the court, in accordance with law, the court is there present. (Chapter IX p. 95, National Lawyer’s Manual on Contempt by Edward M. Dangel.)

The Supreme Court of the United States in Savin, Petitioner, 131 U. S. 267, para. 2 of the syllabus stated the following:

“Attempting to deter a witness, in attendance upon a court of the United States in obedience to a subpoena, and while he is near the court room, in the jury-room temporarily used as a witness-room, from testifying for the party in whose behalf he was summoned, and offering him, when in the hallway of the court, money not to testify against the defendant, is misbehavior in the presence of the court.”

Beach Jr. v. Beach, 79 Oh Ap 397, para. 1 of the syllabus states:

“In a contempt proceeding neither place nor distance from the court determines whether the act complained of is done constructively in the presence of the court. ‘In the presence of the court’ is more than the idea of physical propinquity.”

The documents and papers here involved were a part of the procedural requirements of the case. They contained affidavits signed by a name that was ficticious and in turn was acknowledged by the attorney in the case as notary public who had full knowledge of the fact that such person did not exist.

Now the administration of justice depends upon the integrity of judicial proceedings and records. Falsification of either not only obstructs the due administration of justice but embarrasses the court as well and brings it into disrespect. The filing of papers with affidavits signed by a name that is fictitious is a fraud upon the court and constitutes misconduct in the presence of the court and as such is punishable by summary action as a contempt since it amounts to the falsification of the judicial process and an obstruction of the due administration of justice. Done by an attorney of the court, it is more reprehensible than by others; for it is an abuse of his office, a betrayal of his trust, a violation of his oath, infidelity to the court to which, and not to his client, his first duty lies and a profanation of the temple of justice.

(U. S. v. Ford, 9 Fed. (2) 990.)

The Supreme Court of Illinois in para. 3 of the syllabus In re Estate of Kelly, 366 Ill. 174 says:

“The act of an attorney in knowingly filing for probate a forged will and applying for letters testamentary constitutes a direct contempt, as the filing occurs in a place set apart for the use of a constituent part of the court and the fraud attempted is directed against the court itself.”

See para. 1 also.

We hold, therefore, that the Appellant, Delbert S. Cohon, was guilty of contempt of court in the presence of the court in filing the papers in this case containing affidavits procedurally required by law and signed by a name of a non-existing person and acknowledged by him as notary public, knowing such to be the case, and that the Judge of the Euclid Municipal Court was warranted in punishing him summarily upon learning of this misbehavior on the part of the Appellant.

We believe that our conclusion that the facts before the trial court-constituted direct contempt in the presence of the court effectively answers Appellant’s claims that:

(a) No citation of charges was filed.

(bJ No opportunity was given to appellant to defend any charges.

(c) No contempt was committed in the presence of the court

(d) No fraud had been committed in the presence of the court or upon the court.

The judgment of the Euclid Municipal Court is accordingly affirmed. Exceptions noted. Order see journal.

SKEEL, J, HURD, J, concur.


source: Caselaw Access Project

license: Public Domain

text:
    REAL PROPERTY ABSTRACT OF CHAMPAIGN COUNTY, OHIO, IN RE.
    Board of Tax Appeals.
    No. 27387.
    Decided November 2, 1954.
   OPINION

This cause and matter came on this day to be considered by the Board of Tax Appeals, Department of Taxation of Ohio, hereinafter referred to as the board, upon the abstract of real property for Champaign County, Ohio, filed herein by the auditor of said county, for the tax year 1954 as provided in §5715.23 R. C.

Upon consideration thereof, the board finds that under the provisions of §5715.24 R. C., it must make a determination as to whether the aggregate assessed value of the real property in this county, as placed thereon by the county auditor and as set forth in said abstract for the tax year 1954, is the true value in money of said real property and the various classes thereof in the townships, cities, villages, taxing districts, wards or other divisions of municipal corporations situated in said county.

The board further finds that it must make this determination by acting within the framework of Article XII, Section 2 of the Ohio Constitution which provides that “land and improvements thereon shall be taxed by uniform rule according to value,” and within the framework of the statutes which provide that all parcels of real property shall be assessed at their “true value in money.”

The board further finds that the aggregate value of real property in said county for the tax year 1954, as set forth in the abstract is $37,820,040.00 and that this value is in substantial compliance with the minimum requirement as determined by the board for the tax year 1954. This represents an increase of $453,040.00 over the $37,367,000.00 value contained in the abstract approved for this county for the tax year 1953

The 1954 abstract is approved upon the facts and information now before the board, but without in any way limiting the action of the board with respect to approving the assessed valuation of real property in this county for the tax year 1955, or any subsequent tax year, and is without prejudice to any right, duty, and authority which the board has under the provisions of §§5703.02 R. C., 5715.01 R. C., 5715.33 R. C. and 5715.34 R. C., to order and direct a reassessment of real property, or any class of real property in any district or subdivision, when in its opinion, such property has been unequally or improperly assessed, to the end that all classes of property in such county or districts of the county shall be assessed in compliance with law; nor is the approval of the 1954 abstract to be considered to be any limitation upon the fundamental duty of the auditor, as assessor of the real property in his county, to reassess and reappraise any parcel of real property or any class of real property, when in the opinion of the auditor, the individual parcel, or the parcels within any class, are not assessed at their true value in money.


author: By THE COURT.

text:
    RODGERS, Estate of, In re: MATHENY (Cash), Applicant-Appellee, v. NAPPI, Admr., Respondent-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5204.
    Decided December 13, 1954.
    Thomas W. Maxson, Columbus, for applicant-appellee.
    Carl Gaeton Nappi, Columbus, respondent-appellant, Administrator etc., for himself.
   OPINION

By THE COURT.

Submitted on motion of the applicant-appellee seeking an order dismissing the appeal for the reason that the same is not a final order.

The record reveals that the appellee filed an application’ in the Probate Court seeking an order instructing the appellant, who is the administrator of the estate involved herein, to prepare and file with the Board of Liquor Control all papers necessary to transfer the liquor license held in the names of the appellee and the appellant’s decedent, to the appellee. In response to said application the appellant filed a cross-petition seeking a dismissal of the appellee’s petition; that declaratory judgment be entered declaring the business, the assets and all appurtenances thereto to be the property of the decedent’s estate and that the applicant be required to account for the profits of said business.

The court made no finding on the cross-petition for an accounting, stating in the opinion as follows:

“The Court, at this time, has considerable doubt as to whether it has jurisdiction to entertain an action for an accounting between the deceased partner and the surviving partner, and for that reason makes no final order thereon. The purpose of this statement is to not preclude the filing of an action for an accounting in a court of general equity jurisdiction.”

The order appealed from provides:

“It is therefore ordered, adjudged and decreed that the Clerk of this Court pay to the administrator herein said sum of One Hundred ($100.00) Dollars; that the administrator deliver to the applicant the physical property of the Shamrock Grill and execute such papers as may be required by the Ohio Department of Liquor Control to effect a transfer of the liquor permit to the applicant.”

No jurisdictional or procedural questions are involved herein, but it is only the finality of the order with which we are concerned. The appellee cites Chamberlain v. Snyder, 7 Abs 233, in which it was held that an action which was properly in the nature of an interpleader was not appealable. In the cited case it was urged that the action was properly brought under §10857 GC, which section permits an administrator to ask the direction of the Court in matters respecting the estate, but the Court held otherwise for the reason that all of the necessary parties were not before it. This case is not similar to the case at bar for here we have all necessary parties to complete the adjudication of the subject matter. The fact that the Court did not pass upon the appellant’s request for an accounting does not affect the finality of the order it made. In Speidel, Admr., v. Schaller, 73 Oh Ap 141, the first paragraph of the syllabus provides:

“An order of a Probate Court determining the parties’ rights in all items of realty and personalty of an intestate’s estate that were described in a petition filed in such court, but reserving for future adjudication the issue of their rights in items of personalty disclosed by the answers to such pleading and at the trial, is a final order from which an appeal may be taken to the Court of Appeals.”

The order appealed from definitely and finally determines the right of the estate in the subject matter contained therein and it is therefore a final order.

The appellee has moved further, in case we determine the order to be appealable, that the appeal on law and fact be dismissed and the same be retained for determination on questions of law only. This branch of the motion is well taken for the reason that the order was not made in a chancery proceeding and only chancery cases are appealable on law and fact. This branch of the motion will be sustained. The law and fact appeal will be dismissed and the case retained for determination on questions of law only. The appellant will be granted leave to perfect the appeal in accordance with Supplement to Rule VII of this Court.

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

Decided February 11, 1955.

OPINION

By THE COURT.

Submitted on motion of the applicant-appellee seeking an order dismissing the appeal for the reason that no bill of exceptions has been filed, and in the alternative if the above motion should be overruled the appellee seeks an order affirming the judgment of the Probate Court.

An examination of the assignments of error discloses that a bill of exceptions is necessary to exemplify the errors complained of.

The motion is, therefore, well taken and the judgment of the Probate Court will be affirmed.

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


author: By BARTLETT, J.

text:
    MOORE, Plaintiff, v. DISTRICT 50 OF UNITED MINE WORKERS OF AMERICA, et, Defendants.
    Common Pleas Court, Franklin County.
    No. 190,228.
    Decided September 20, 1954.

      Graham,. Graham, Hollingsworth, Gottlieb & Johnson, Zanesville, for plaintiff.
    Jenkins, Williams, Wendt, Murray & Deeg, Columbus, for defendants.
   OPINION

By BARTLETT, J.

1. DEMURRER OF INDIVIDUAL DEFENDANTS TO AMEND PETITION SUSTAINED.

2. MOTION TO QUASH SERVICE OF SUMMONS FOR DISTRICT 50, UNITED MINE WORKERS, SUSTAINED.

L Demurrer of Defendants Nicholas A. Neagos, Charles A. Minozzi and Walter Orzoleck to the amended petition is upon the ground that this action was not brought within the time limited for the commencement of such action. While the petition alleges a conspiracy, the gist of the complaint or the essential ground thereof, is the assault and battery committed November 18, 1951. The averments as to the conspiracy are matters of inducement, which merely introduces and explains the essential ground or substance of the case. Phillips Code Pleading Sec. 192; 31 O. Jur., Pleading, Sec. 56, p. 592.

The petition in the instant case was filed and summons issued thereon, June 22, 1954. The right of action on an assault and battery is barred in one year under §2305.11 R. C, Such limitation is proper ground for a demurrer under §2309.08 R. C. Clearly, on the face of the petition the instant action was commenced more than one year after the alleged cause thereof accrued, i. e. the assault and battery.

It is urged by counsel for the plaintiff that cause of action is relieved from this limitation, by the saving clause of §2305.15 R. C„ which provides:

“When a cause of action accrues against a person, if he * * * conceals himself, the period of limitation for the commencement of the action as provided in §§2305.04 to 2305.14, inclusive, * * * R. €., does not begin to run * * * while he is so * * * concealed.” * * *

(Emphasis ours.)

The averment of the petition relied upon to come within the saving clause aforesaid is as follows:

“Plaintiff further says that immediately after the assault upon him the defendants further conspired to conceal from this plaintiff their participation in the assault upon this plaintiff.”

(Emphasis ours.)

The saving clause statute aforesaid refers to the person who “conceals himself” while the petition recites “conspired to conceal from this plaintiff their participation in the assault.”

In other words that statute has reference to the concealment of the whereabouts of the defendants while the petition avers concealment of their acts or conduct. Morris and Co. v. Cisler, 7 N. P. (N. S.) 142. “Statutes of limitation are vital to the welfare of society and are favored in the law.” Wood v. Carpenter, 101 U. S. 135; 25 O. Jur., Limitation of Actions, Sec. 2, p. 423. Exceptions in statutes of limitation in favor of persons under disability are construed strictly, and cannot be enlarged from considerations of apparent hardship or inconvenience. Powell et v. Koehler et, 52 Oh St 103; 34 Am. Jur. Limitation of Actions, Sec 189, p. 153.

It would require a stretch of the imagination to conclude that the averments of the petition bring the instant case within the saving clause statute and thus suspend the running of the limitation statute. Moreover the petition makes no averment that the alleged efforts of the defendants to conceal their participation in the assault were successful, or if successful, when plaintiff first discovered or learned of such participation.

The Court, therefore, holds that the petition does not state facts that warrant the plaintiff being given the benefit of the saving clause statute; and that as against these three individual defendants, the right of action of the plaintiff is barred by the limitation statute. The demurrer of these defendants to the amended petition is sustained.

The amended petition is identical with that of the original petition, as far as these three individual defendants are concerned. Harter, J, sustained a demurrer to the petition upon behalf of these same three defendants, on the fact that the petition showed on its face, the action was for assault and battery, and was consequently barred by the one year limitation of the statute for the commencement of such an action. This affords an additional justification for this branch of the court to sustain the demurrer to the amended petition.

“It is very evident that the simplest justice to our predecessors as well as the public, should prevent us from interfering with decisions deliberately made, merely because a difference of opinion might exist between them and us upon a doubtful and difficult question of construction.” Ranney, J, in delivering the opinion of the court, Kearney v. Buttles, 1 Oh St 362, 366; 11 O. Jur., Courts, Sec. 138, p. 786.

“The doctrine of stare decisis, however, comes into operation, and makes a court disinclined to overrule a former decision. It has been said to be a general rule and practice for a judge of1 the common pleas court to follow the former decisions of that court that are unreversed, even though made in a different case.” 11 O. Jur. Courts, Sec. 128, p. 774; Heintz v. Caldwell, 18 O.D.N.P. 725, 60 L. Rep. 45; Merrick et v. Merrick et, 57 Abs 49.

Since a demurrer has been sustained twice in this court on the ground that the plaintiff’s right of action is barred by the statute-' of limitations, as against the defendants Neagos, Minozzi and OrzoJeck, leave to plead further against such defendants is denied, and suit against them is ordered dismissed at plaintiff’s costs.

II. The demurrer of the defendant Daniel Sandy to the amended petition is sustained. A. The action was not brought within time limited for the commencement of such action. Sustained on- same grounds as heretofore set forth in sustaining such a demurrer by the three other individual defendants herein. B. Amended petition does not state facts which show a cause of action against this defendant. Sustained.

“The members (of a union) are not subject to either criminal or civil liability for the acts of the union or its officers as such unless it is shown that they personally authorized or participated in the particular acts.” Justice Murphy, United States v. White, 322 U. S. 694; Sweetman v. Barrows, 263 Mass. 349, 161 N. E. 272.

Leave to plead further denied. Suit against defendant Sandy dismissed at plaintiff’s costs.

III. The motion of the defendant, District 50, United Mine Workers of America that the summons for this defendant be quashed, is hereby sustained.

Regardless of the uncertainty and conflict of the decisions as to the right to sue a voluntary unincorporated association, such as District 50, United Mine Workers of America or liabilities if sued, the fact remains clear that plaintiff rests his right to sue this union, on the provision of §2307.21 R. C., which provides:

“When the question is one of a common or general interest of many persons, or the parties are very numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.”

This Court having sustained a demurrer to the amended petition and dismissed this action as against all of the other defendants, members of this Union, it follows that the statute in question has no application, and the motion to quash the summons for the Union must be and is sustained.

Entries accordingly with exceptions of counsel for plaintiff.


author: By HORNBECK, J.

text:
    KENNEY, Plaintiff-Appellee, v. SPICER FURNITURE COMPANY, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5004.
    Decided February 20, 1954.
    Thomas W. Maxson, Columbus, for plaintiff-appellee.
    Horace S. Kerr, Columbus, for defendant-appellant.
   OPINION

By HORNBECK, J.

This is an appeal on questions of law from a judgment in favor of the plaintiff and against the defendant, entered upon a verdict of a jury. At the conclusion of plaintiff’s case, defendant moved for a directed verdict which was overruled. A motion for new trial was overruled. The verdict of the jury assessed the amount of the recovery due to the plaintiff from the defendant at the sum of “Four thousand two hundred thirty and 81/100 ($4230.81) dollars, plus interest at six per cent, with interest accruing as follows:

December 31, 1946, $ 120.00

December 31, 1947, 591.86

December 31, 1948, 719.00

December 31, 1949, 941.62

December 31, 1950, 657.32

August 16, 1951, 1,201.00”

Nine errors are assigned, four of which relate to the verdict, that it is excessive, against the weight of the evidence, contrary to law, awarded under passion and prejudice; two of the errors relate to instructions to the jury; the fifth, the refusal to give specific charges before argument upon request of defendant; and, eighth, error in the general charge. The sixth and seventh, error in rejecting testimony offered on behalf of the defendant and in receiving testimony on behalf of the plaintiff, to the reception of which objection was made. Ninth, other errors upon the face of the record.

The pleadings of the parties are vital to some of the questions urged on the appeal. The plaintiff alleged that on or about August 20, 1945, under a verbal agreement, he entered the employ of the defendant, to work at its store located at 993 Mt. Vernon Avenue, Columbus, Ohio; that by the terms of that agreement, plaintiff was to be paid $60.00 per week, a minimum bonus of $250.00 per year, the sum of $120.00 per year for insurance, and certain commissions upon all sales made by or through the plaintiff herein; that by the terms of said verbal agreement, it was to continue from year to year with the expressed provision that as long as the plaintiff was connected with the Spicer- Furniture Company his salary would, from time to time, be increased. It is alleged that during the year 1945, plaintiff was paid per the verbal agreement; that on April 1, 1946, defendant increased plaintiff’s salary to $75.00 per week and paid plaintiff a bonus and commissions for that year, as provided in the oral agreement; but for that year and thereafter, to the date of the filing of the petition, he has failed to pay the $120.00 allowance on insurance as provided in said agreement. It is further averred that on or about December 15, 1947, defendant agreed to increase plaintiff’s salary to $125.00 per week and make said increase retroactive to January 1, 1947, and thereafter, in each succeeding year hereinafter mentioned, the defendant agreed to pay plaintiff a salary of $125.00 per week under the following arrangement: plaintiff to receive partial payment in the amount of $75.00 per week and $50.00 to be retained by the defendant until March or April of the following year, at which time, from the balance due plaintiff, defendant deducted the commissions earned by plaintiff through the year 1947. Plaintiff says that for the year 1947 defendant did refuse and still refuses, as per his oral agreement, to pay the plaintiff the minimum bonus as agreed upon in the amount of $250.00, along with the sum of $120.00 for insurance; that during the year 1948, and the year 1949, the defendant failed and refused to pay this plaintiff the minimum bonus, the insurance, and deducted commissions earned during those years from the earnings plaintiff should have received under the verbal agreement. On January 1, 1950, defendant increased the payments received weekly by plaintiff to $100.00 per week but withheld the balance under the same arrangements as above stated. Plaintiff further says that during the year 1950, defendant paid this plaintiff a bonus but failed and refused to pay the insurance and again deducted commissions earned by plaintiff from the total earnings plaintiff should have received for that year.

Plaintiff says that during the year 1951 the defendant has paid to this plaintiff three thousand five hundred twenty and 13/100 ($3,520.13) dollars, which payments include partial payment on salary under the above arrangement herein stated and the commissions earned by plaintiff herein to the date of August 2, 1951.

Plaintiff says that on August 2, 1951, defendant terminated the services of the plaintiff in violation of his oral agreement. And, although plaintiff has demanded payment of the amount due him under the terms óf the verbal agreement, defendant fails and refuses to pay him. Although plaintiff was able and willing to continue his part of said verbal agreement, defendant refuses to let plaintiff do so.

Plaintiff avers that there is due and owing him the sum of six thousand four hundred forty and 96/100 ($6,440.96) dollars, for which, with interest, he prays judgment.

The answer admits the corporate capacity of the defendant, that Charles F. Spicer is president of that corporation, admits a verbal agreement by which the plaintiff was employed by the defendant to work at its store at a salary of $60.00 per week and a bonus of $250.00 per year and the sum of $120.00 for insurance. That this contract was made on or about the 20th day of August, 1945; that the defendant has kept and performed the agreement. It admits that on April 20, 1946, it increased plaintiff’s salary to $75.00 per week and that in December, 1947, it increased the plaintiff’s salary to $125.00 per week. Further answering, defendant says that the employment of the plaintiff by the defendant was oral, that the plaintiff was employed upon a weekly salary, and at no time employed either by the month or by the year. The defendant generally denies other allegations.

For a second defense, defendant avers that although the plaintiff agreed to devote his time and attention to the interest of the defendant company during business hours, he violated that agreement by absenting himself from defendant’s place of business on numerous occasions as much as three hours a day.

For a third defense, the defendant avers that under the agreement, plaintiff was to assist the defendant in building good will for its business; that its customers were to be treated with consideration and courtesy and that plaintiff violated that agreement by insulting defendant’s customers and causing them to cease dealing with the defendant. And that because of the conduct as set up in the second defense and the third defense and because of his inefficiency, it became necessary for the defendant to discharge the plaintiff from his weekly employment. The reply is a general denial that plaintiff was employed on a weekly salary, denies the second defense, that he was unnecessarily absent from defendant’s place of business and denies the third defense.

Although the plaintiff relies in part upon an original verbal contract which contract is admitted, it develops that upon request of the plaintiff the defendant sent to plaintiff a memorandum of the agreement and its terms. Plaintiff did not at any time suggest any error or omission in the memorandum. Insofar as there is any difference between the averment of the pleadings as to the meaning of the contract and the written statement as to the terms of the contract, the latter must be accepted. This confirmation of the verbal agreement provides for salary as set out in the petition, under paragraph (2) it is further provided:

“In addition to the above weekly salary, the Spicer Furniture Company agrees to pay a minimum bonus of two hundred fifty and no/100 ($250.00) dollars for the year 1945.”

At this juncture, it will be observed that this agreement as to the minimum bonus is only specific for the year 1945.

“(3) And due to the fact that Mr. Kenney will suffer a loss of one hundred and twenty and no/100 ($120.00) dollars per year, which amount he will be compelled to pay over and above the low rate extended by group insurance of Ohio Fuel Gas Company, (his former employer), this amount is to be paid at the end of the year in addition to the above mentioned bonus.”

“(4) Mr. Kenney is to receive a commission on sales made directly through his personal efforts which includes sales made to relatives, friends, acquaintances, or any other sales made because of Mr. Kenney’s being connected with our organization.”

The amounts of these commissions are then set out in paragraph 5. Then follows:

“The above proposition is for 1945 but in 1946 and thereafter, as long as F. H. Kenney is connected with the Spicer Furniture Company, it is my desire and intention to increase the income of F. H. Kenney, providing results of his efforts and profits of the'Spicer Furniture Company justify an increase or increases.”

The terms of this last paragraph could have been observed by the defendant, independent of the payment of any bonus or commissions subsequent to the year 1945, if the amount of income accruing to the plaintiff increased in the years succeeding 1945. The fact that sums were paid to the plaintiff as bonus in any year succeeding 1945 and 1946 does not require the conclusion that they were paid pursuant to the obligation of the confirmatory letter. Bonus normally is a gratuity over and above regular salary. It also clearly appears that for each year succeeding 1945 the plaintiff did receive an increase in income. Of course plaintiff relies, in the main, on a later oral contract to support his claim for payments over and above his stipulated salary.

There is no controversy as to the salary of $60.00 per week for the year 1945. There is no claim of any money due plaintiff for the year 1945. It is not disputed that on April 1, 1946, plaintiff’s salary was increased to $75.00 per week and he was paid that amount during the year and also a bonus and commissions. It is contended, however, that the $120.00 allowance on insurance was not paid for that year. The jury in its verdict allowed that claim. It is evidenct from a check dated February 1, 1947, for the sum of $120.00, payable to plaintiff and indicated to be “reimburse insurance” and endorsed by him, that the insurance was paid .for the year 1946, and the jury’s verdict to that extent is clearly in error.

Although the books of the defendant do not set up the increase to $125.00 per week until March, 1950, retroactive to January 1, 1950, the defendant does not deny that there was to be an increase to $125.00 per week, effective, not on January 1, 1947, but on January 1, 1948.

Plaintiff testifies that on or about the 15th day of December, 1947, at a luncheon meeting between him and Mr. Spicer of defendant company, he agreed

“that if I would stay, he would increase my salary $50.00 a week and leave the rest of the agreement as it was, as to commission and insurance.”

Continuing, he said:

“Well, at that time, I reminded him that he had never paid me any insurance except for the first year, and that I had not gotten my commission business for 1947, so I told him I just wasn’t interested. I did not feel I had been treated fairly and I wasn’t interested and, at that point in lieu of my promising to stay on as a satisfactory employee of The Spicer Furniture Company, as a final gesture, he offered to make it $50.00 per week retroactive to January, 1947.”

It may be observed that the plaintiff was in error in his statements that he had not received his commissions for 1947 because the record is clear that they had been paid to him periodically throughout the year, and that he had not received his insurance. The plaintiff does not say that when Mr. Spicer agreed to make the $50.00 per week additional retroactive he was to pay anything more than the $50.00 additional. However, from the petition it is evident that the contention is that plaintiff was to receive the $50.00 per week additional retroactive to the first of the year 1947 together with commissions, insurance, and bonus. The testimony of the plaintiff inferentially supports his claim that he was to have commissions and insurance in addition to his salary of $125.00 per week, but there is no proof he also was to have an assured bonus.

Mr. Spicer denies that he agreed to make the increased payment to plaintiff retroactive for the year 1947. He admits that he had a conference with the plaintiff at a luncheon and does not deny that it was at the time fixed by the plaintiff. There is considerable uncertainty in his testimony as found at pages 150-151 of the record because of objections and observations of counsel, but from- the bottom of page 151 and a few succeeding pages, it may be said that the defendant, while admitting an increase to $125.00 a week, insisted, as found in his answer at page 152, that the plaintiff was to be paid

“at the rate of one hundred and twenty-five ($125.00) dollars a week, which equals $6,500.00 a year, and it included all other items such as has been paid in the few years previous to that in the way of bonuses, commissions and insurance, this took care of all of Kenney’s demands.”

“Question: And from that time on, he operated on that basis on in?

Answer: Yes, absolutely.”

The books are so set up as to show that the defendant did compute the salary upon the basis of increase in weekly payments to plaintiff for the whole of the year 1947. This payment was made early in 1948. Succeeding the conversation of December, 1947, and for the whole of the year 1947 and for the years 1948, 1949, 1950 and 1951, commission payments were made at regular intervals by way of separate checks to plaintiff. No explanation is made by Mr. Spicer or anyone in the employ of defendant company as to the reason for the continuation of these commission payments in the manner shown on the books succeeding the agreement of 1947.

Mr. Spicer testified that the plaintiff was paid every cent due him on the basis that the salary increase was to be in full for the years 1948, 1949, 1950 and 1951. Employees of the defendant company other than Mr. Haggerty had no specific recollection as to the agreement of December, 1947. Mr. Haggerty, general manager of the defendant company, at the store where plaintiff worked, says that after discussing the financial arrangement between Mr. Kenney and Mr. Spicer he made a notation on January 31, 1948, in regard to the salary of Mr. Kenney, as follows:'

“Mr. Kenney’s total salary to be $6,500.00 which is to include commissions, draw $75.00 a week, balance to be paid at the end of the year.”

This testimony was admitted without objection.

The fact which probably weighed the heaviest against the contention of the defendant is the manner in which it set up its books showing the amounts and nature of the payments to the plaintiff. Had the books reflected the contract to be as testified by Mr. Spicer, there would have been no necessity for notations during 1947 and every year thereafter, of payments by separate checks for commissions. The itemization of the subject matter of these payments is somewhat inconsistent with the theory of a flat sum as total salary and are not explained, and the increase in salary was made retroactive to January 1, 1947, as stated by plaintiff.

It then appears that there was a clear issue as to the agreement covering the year 1947 and until plaintiff left the employ of the defendant, as to the amount that he was to be paid for his services, his testimony being that he was to be paid at the rate of $125.00 per week, an amount equal to $6,500.00 per year, plus commissions on sales and refund for insurance. The defendant contends that the sum total of all that plaintiff was to receive was $125.00 a week which would have amounted to $6,500.00 per year and that this sum was paid. We have discussed the facts at considerable length to test the assignments that the verdict and judgment are contrary to law and against the weight of the evidence. Manifestly, they are not contrary to law and it is evident that there was testimony which the jury had a right to believe, to support a general verdict for the plaintiff.

The third assignment is that the Court erred in rejecting testimony offered by the defendant. Appellant does not discuss this assignment in its briefs and therefore, we do not. And the same situation is true respecting the fourth assignment, that the Court erred in admitting testimony on behalf of the plaintiff, to which the defendant objected.

The fifth assignment is directed to the refusal of the Court to give two special charges before argument, upon request of the defendant. The second defense has been characterized as absenteeism; the third defense is plaintiff’s lack of consideration for defendant’s customers.

The special charges were to the effect that if the jury found either of these defenses established, that they should return a verdict for the defendant. The charges were not sound in law because, if true, they would not constitute a bar to plaintiff’s recovery for whatever sum was due him under his contract with defendant when he left his employment. The plaintiff had been retained as an employee of defendant company from August, 1945, until his discharge in 1951, and during all of that period, his services had been accepted.

These defenses were available as pleaded and would have been available' to the defendant as against damages for breach of contract only without special pleading on its general denial upon the issue whether or not the discharge of the plaintiff was justified. The Court did not err in refusing to give these special charges.

It is averred that the Court erred in its general charge to the jury in not defining the “duty of agent to principal” and in not defining “compromise.” The first contention is not well made. There was no error of omission in the charge as given in the respect in which it is challenged.

Upon the claim as to compromise, the appellant is not in position to urge any error. Plaintiff attempted to introduce a letter from the defendant to the plaintiff in which was enclosed a blank check, the subject matter of the letter was an amount of money which defendant was willing to pay to plaintiff and write into the check upon his release of defendant from any further obligation. The defendant objected to the reception of the evidence upon the ground that it was an offer to compromise and the Court sustained the objection. It may be doubtful if it was an offer of compromise but defendant having asserted and maintained its position in the trial court cannot now urge in this Court that such action was error on the part of the trial judge. Hiller v. Shaw, 45 Oh Ap 303; Willett v. Rowekamp, 58 Oh Ap 465; Sprung v. E. I. duPont de Nemours, 30 Abs 278.

It is also claimed that the Court should have sustained defendant’s motion for a directed verdict because Mr. Spicer and other witnesses for the defendant stated that the plaintiff had been paid in full. This overlooked the fact that the plaintiff testified otherwise and had corroborative circumstances to support his contention.

It is urged that the Court erred in failing to charge upon the question of accord and satisfaction. Accord and satisfaction was not pleaded. This is necessary, Bates Pleading and Practice, Vol. 2, Sec. 900. Even if accord and satisfaction had been pleaded, there is nothing to support it. No one of the checks was marked as “payment in full”, as contended, and thus received under circumstances indicating intention to accept them as full payment. Nor was there any dispute between the parties when the checks were given and accepted, an essential of the defense of accord and satisfaction. We find no prejudicial error in the general charge of the Court.

An exception is noted to the conclusion of the trial judge that upon the facts developed, there was a certain sum of money due the plaintiff for the year 1951. This assumption was well made because upon the record, plaintiff had not been paid in' 1951 the amount that was due him for the period during which he had worked, even upon the contract as it was conceded to be by the defendant.

Although the petition alleges a contract from year to year between the parties, the evidence will not support any recovery on this allegation. If it could be said that the contract was from year to year it would, in probability, be from August, the month when plaintiff went to work, until August, when he severed his connection with defendant. So that, even upon plaintiff’s own theory of a yearly contract, the full year of his service had expired when he left. There is no proof of any specific loss to plaintiff in damages. So that the claim as to a yearly contract and as to the special charges applicable thereto is of no moment.

The jury, accepting the testimony on behalf of the plaintiff, had the right to conclude that for the year 1947 and each year of the employment thereafter the defendant was obligated to pay to the plaintiff the sum of $125.00 .per week, plus commissions and refund for insurance,

The verdict in this case is unusual in that it sets forth not only the total amount of the allowance but also separately the sum awarded to plaintiff for each year, with interest, beginning in 1946 and up to and including 1951. We test these amounts in view of the conclusions which the jury had a right to draw from the evidence.

Allowance for December 31, 1946, was $120.00. We have heretofore indicated that there is no support for this finding.

The allowance for December 31, 1947, was $591.86. The total of net commissions for that year was $339.09. To that may be added $120.00 refund for insurance, and interest which total is in excess of the amount awarded by the verdict.

The December 31, 1948, allowance was $719.00. The commissions for this year were $292.26 together with the $120.00 refund would total $412.26. Interest on this sum, $176.16, or a total sum allowable of $588.42. The jury allowance is in excess by $130.58.

Up to December 31, 1949, the allowance of the jury was $941.62. The commission payments for that year were $479.83; with the refund for insurance, $599.83; interest, $123.39; a total of $732.22. The jury’s finding was in excess of the proper amount by $218.40.

The year ending December 31, 1950, the allowance was $657.32. The commissions for that year were $631.84, together with insurance would be $751.84. It is manifest that this allowance is not excessive.

For the year 1951, ending August 16, 1951, the jury allowed $1201.00. The total amount which was due the plaintiff for the 31 weeks he had worked in 1951, at $125.00 per week, was $3875.00. He had been paid a total of $3520.13. This left a balance of S354.87 that clearly was unpaid when plaintiff left his employment. If, to that you add the $503.62 commissions for the year, together with $70.00 pro rata share of refund on insurance, and interest, the total would be $885.09. The award of the jury for this year is excessive by $227.77.

The jury’s verdict is excessive by. the sum of $696.75. The correct amount of the verdict should be $3534.05.

If the plaintiff will remit all of the verdict and judgment over the sum of $3534.05, the judgment will be affirmed in that amount If not, the judgment will be reversed and the cause remanded for a new trial.

WISEMAN, PJ, and MILLER, J, concur.


author: By McBRIDE, J.

text:
    STATE ex HECK, Prosecuting Attorney, Plaintiff, v. GRILLOT et, Defendants.
    Common Pleas Court, Montgomery County.
    No. 108508.
    Decided October 13, 1955.
    Mathias H. Heck, Prosecuting Attorney by John P. McHugh, Ass’t., Dayton, for plaintiff.
    Charles P. Pfarrer, Dayton, for defendants.
    See original temporary order in 71 Abs 170.
   OPINION

By McBRIDE, J.

It appearing to the court from an inspection of the premises, the report of the Sheriff and statements of the parties that the defendants have elected and have not since September 1st, 1955, accepted, deposited, burned or buried garbage or household trash and do not intend, to accept such material in the future; that the City of Dayton is unable at this time or in the immediate future to accept or dispose of either burnable or non-burnable industrial refuse created in Dayton; that as a result of the former order the volume of refuse disposed of at the South Dayton Dump was reduced by two-thirds on September 1st, 1955. thereby substantially reducing the nuisance, and it further appearing that controlled industrial burning will be necessary in this community for an indefinite time;

Therefore,

Until further order of the court, it is hereby ordered that a temporary injunction be, and the same is hereby granted, restraining the defendants, and each of them, from accepting, depositing, burning, burying or permitting others to deposit, dump, burn, bury or otherwise in any manner dispose on the premises the following materials:

A.GARBAGE AND TRASH

Garbage and trash or materials of any kind from residential sources other than building materials and burnable household furniture;

Garbage and food wastes from bakeries, restaurants, groceries, hotels, cafeterias, lunch rooms, and any place where food is prepared, sold or served.

B.DANGEROUS MATERIALS

Inherently dangerous liquids, materials and substances which require professional disposal methods or techniques.

C.NON-BURNABLES

Rubber, plastics, and linoleum; paint, ink and tar cans and containers; paints, oils, fly ash, tars, and roofing; tar base or impregnated paper and tar base or impregnated boxes; and similar black smoke and odor producing materials may not be accepted or deposited unless separated and deposited WITHOUT BURNING in one or more separate locations on the premises at a safe distance from the burning operation.

Such materials must be used exclusively for filling and compacted and covered with earth, sand, gravel, plaster, broken cement or similar solid materials at or about the end of each week’s operation. The cover must be sufficient to form a cell to prevent spread of fire. This operation is described as a land “cover” as distinguished from a “sanitary landfill” operation such as is required in the county for garbage and trash under the disposal regulations recently adopted by the Montgomery County Board of Health.

D.BURNABLES

The defendants may, subject to applicable statutes, ordinances or regulations, burn other commercial and industrial products and refuse which can be practically consumed by open fire.

Burnable industrial loads may include paper cups, paper napkins, waxed milk containers and plates from which all food has been removed, however, if such material is mixed in a non-burnable load, such load may be accepted and deposited only if the entire load is disposed of as provided under Item C and covered with earth the same day.

“Burning down” of refrigerators, stoves, automobiles and other metal products in open dumps for the purpose of removing paint and enamel produces dense smoke and odors. The court has requested a survey and classification of all industrial products and refuse and related methods of modern disposal. Pending completion of such a report and as a matter of public necessity, the court recognizes open burning of such materials in suitable areas providing garbage and household trash is not accepted, burned or buried on the premises.

The entire disposal area must be supervised during business hours and when burning and so fenced or enclosed that vehicles cannot enter except during business hours.

The defendants shall furnish each regular customer with a copy of this order, containing in bold type instructions to the effect that all refuse of commercial or industrial origin must be segregated into four classifications: Garbage, burnable, non-burnable and inherently dangerous substances, as herein defined. Also that no garbage, household trash, or inherently dangerous substances of any kind may be accepted, burned or buried.

Continuing jurisdiction is expressly reserved by the court. The sheriff is directed to enforce this order pursuant to §3767.24 R. C.


author: By MILLER, J.:

text:
    FAZEKAS, Plaintiff-Appellant, v. HARAKAY, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2301.
    Decided November 9, 1954.
    Mathias H. Heck, Dayton, for plaintiff-appellant.
    Bradley Schaeffer, Dayton, for defendant-appellee.
   OPINION

By MILLER, J.:

This is a law appeal from the judgment of the Common Pleas Court rendered in favor of the defendant. The action is one for libel, the material allegations of which are set forth in the petition as follows:

“That said defendant well knowing the premises, and maliciously intending to injure this plaintiff, on or about the 30th day of April, 1953 and on the 1st day of May, 1953, and at other times prior thereto, spoke and published of and concerning this plaintiff in the presence of diverse good people the false, malicious, defamatory and scandalous words following, to-wit:

‘that she is dirty — drunk—untidy; that she ought to be ashamed, cancer is eating her up,’

and further defendant on such occasions has accused her of damaging defendant’s property, and defendant continually agitates and worries plaintiff.

“That said defendant did on or about May 1, 1953 in the afternoon thereof, called the Police Department of the City of Dayton, Ohio, and falsely accused plaintiff of picking defendant’s tulips.”

The record reveals that a request was seasonably made for a separate finding of facts and conclusions of law. The court had previously announced the same in a written opinion, but the conclusions were not made under separate headings. The court thereupon adopted the opinion as a separate finding of law and fact, which the appellant urges does not meet the requirements of §2315.22 R. C. A distinct separation is not required when the conclusions may easily be determined from the court’s findings. Powell v. Powell, 74 Oh Ap 335; Holmes v. Hrobon, 93 Oh Ap 91, by this Court.

It is next urged that the court erred in basing its decision, in whole or in part, upon the statute of limitations, when the defendant had neither pleaded nor attempted to prove such a defense. The record reveals that in delving into the history of the differences between the parties to this action certain words were published by the defendant which were libelous per se, but which had been some ten years prior to the date set forth in the petition and were different from those alleged therein. It is true that the statute of limitations is an affirmative defense, and must be pleaded, but the allegations contained in the petition charged that the libelous statements were made within one year prior to the commencement of the action. Hence under the pleadings the statute of limitations could not properly be invoked, sincé the petition did not charge this matter as being libelous, and no amendment was sought to conform the pleadings to the evidence, it did not tend in any manner to prove the allegations set forth in the petition and was not admissible for this purpose. The court therefore did not err in refusing to give it consideration. The court properly ruled that the proof did not establish that the utterances of the defendant were libelous per se, and that special damages were required to be proven, no such proof being offered.

We have examined the entire record and are of the opinion that the judgment is not against the manifest weight of the evidence. We find none of the assigned errors well made, and judgment will be affirmed.

WISEMAN, PJ, and HORNBECK, J, concur.


author: By PHILLIPS, J.

text:
    ZUKOSKI, Plaintiff-Appellee, v. TOM’S EXPRESS, INC., Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3710.
    Decided October 21, 1954.
    Peter B. Betras, Youngstown, for plaintiff-appellee.
    William E. Pfau & William E. Pfau, Jr., Youngstown, for defendant-appellant.
   OPINION

By PHILLIPS, J.

The sole question presented to this court by defendant’s appeal on questions of law from the judgment of the court of common pleas entered upon a jury verdict returned for defendant are whether the trial judge erred prejudicially to defendant by granting plaintiff a new trial, and whether the order appealed from is a final appealable order.

About 1:00 A. M. on the morning of December 4, 1952, plaintiff was operating an automobile in a southerly direction and defendant’s agent was operating a tractor and two trailers in a northerly direction on Market Street Extension in Boardman Township, Mahoning County, Ohio.

The operators of the respective vehicles and their witnesses testified that at the time the vehicles collided each driver was operating his respective vehicle legally on his right hand side of such highway, and that the operator of the other vehicle crossed the center line thereof causing a collision of such vehicles and damage to plaintiff’s vehicle.

The trial judge granted plaintiff a new trial “on authority of 39 O. Jur. 935” for “unreasonable repetition and overemphasis of Durden of proof in his “general charge.”

Assuming, but not deciding, that the sustaining of ■ plaintiff’s motion for a new trial was a final appealable order, and reviewing the charge of the trial judge we concur in his finding that in his general charge he unreasonably repeated and overemphasized the burden of proof to plaintiff’s prejudice, and conclude there was no error nor abuse of discretion upon the part of the court in granting such motion for new trial.

The judgment of the court of common pleas is affirmed.

GRIFFITH, PJ, NICHOLS, J, concur.


author: By HORNBECK, J:

text:
    FOX, Admr., Plaintiff-Appellee, v. HOLCOMB et, Defendants-Appellants.
    Ohio Appeals, Second District, Darke County.
    No. 730.
    Decided March 31, 1955.
    Howard G. Eley, Greenville, for plaintiff-appellee.
    Paul W. Younker, Greenville, for defendants-appellants.
   OPINION

By HORNBECK, J:

This is an appeal on questions of law from an order of the Probate Court authorizing and directing the plaintiff-administrator to sell real estate of his decedent to pay debts of the estate. Two errors are assigned. One, refusing to dismiss the petition; two, the judgment is against the law.

The petition was in the usual form, and after the formal averments set out that there were debts of the estate in excess of the value of the personal property, part of which was $850 set off for a year’s allowance to the widow. The total debts were alleged to be $1,770.96 The defendants answered, admitting the formal averments and generally denying the other allegations of the petition, which is tantamount to a denial that there were any unpaid debts against the estate. The answer further avers that an action is pending in the Common Pleas Court, Darke County, seeking partition of the real estate upon which all defendants but plaintiff herein (who was served with summons), had voluntarily entered their appearance and that the action was filed on March 1, 1954, several days prior to the filing of the petition to sell real estate to pay debts. Plaintiff replying sets out in more detail the amount of personal property and debts appearing and the amount of exempt property selected by the.widow of decedent. Further, replying, plaintiff refers to six accounts filed by him as administrator and asserts that they disclose that there is an existing valid debt of the estate to Alice Fox, deceased, of $588.10, representing the balance due her, and admits the pendency of a partition suit in Common Pleas Court.

The court in making the order found the allegations of the petition to be true. There is nothing in the record to refute the averments of the petition that there are debts of the estate far in excess of any personal property.

A bill of exceptions is filed in the case, consisting of professional statements of counsel which are not in the form of stipulations, and various accounts filed by the administrator.

The contention of appellant is two-fold: (1) That the Common Pleas Court, by reason of the partition suit, had acquired jurisdiction of the subject matter which was prior to and exclusive of any jurisdiction of the Probate Court in the instant ease, and (2) That the cause of action of plaintiff was barred by the six-year statute of limitations, §2305.07 R. C. This latter defense was asserted by an amendment to the answer.

Upon the first error assigned the authorities are specific and uniform against the contention of appellant. Stout et v. Stout et, 82 Oh St 358, first syllabus:

“The right of an administrator to subject the lands of his intestate to the payment of the debts of the estate is superior to the right of the heirs at law to have partition of such lands.”

Retterer v. Retterer et, 20 Abs 393; Allen v. Million, 35 Abs 13, this Court; Burrier v. Kiefer et, 90 Oh Ap 571.

Upon the second assignment, that the right of action in the administrator is barred by the statute of limitations, appellant cites: Lang v. Strome, Admr., et, 12 O. C. C. N. S. 161, which case comments favorably on Kemper v. Appolo B. & L. Co., 5 O N. P. N. S. 403.

These cases support the contention of appellant that the liability of the administrator to pay the debts of his decedent is created by statute, and requires the application of the six-year statute of limitations which begins to run against an action to sell real estate when the administrator learns that the personal property of decedent is insufficient to pay his debts, §2127.02 R. C. If we follow these holdings the order appealed from must be reversed. Our Supreme Court, in Taylor et, v. Thorne, Admr., 29 Oh St 569, and Lafferty v. Shinn, 38 Oh St 46, hold as announced in the first syllabus of the former case, that:

“As between the estate of a deceased debtor and the creditors thereof, the statute of limitations does not run against their claim, after they have been presented to, and allowed by, the executor or administrator.”

The court here found that there were debts due creditors of decedent other than his widow, and that allowances made to her, yet unpaid, exceeded the personal estate of decedent. The allowances made to the widow particularly for her support are in the same category and status as approved claims against the estate. Sec. 2127.02 R. C.

It is interesting to note that in Taylor v. Thorne, supra, the administrator did not institute his action to sell the real estate of his decedent until 20 years after his appointment. The widow and the heirs set this up as a defense against his action and also that all the debts and claims, to pay which the plaintiff sought an order to sell the property, had long since been barred by the statute of limitations. The court held against this defense, and in the opinion Judge Boynton said that the statute had no application to the case; that the right to maintain an action on claims against an estate presented to and allowed- by the administrator is prohibited, and that, therefore, there is nothing in such cases for the statute to operate upon.

The court in Kemper v. Apollo B. & L. Co., supra, distinguishes it from Taylor v. Thorne by saying that in the latter case the action to sell real estate could not have been brought' sooner because the widow of decedent had a homestead in the realty sought to be sold. But this was not the basis of the Supreme Court’s holding, as clearly disclosed in the opinion and carried into the first syllabus, heretofore quoted.

Another reason is asserted by appellee to prevent the application of the statute of limitations, viz: that there have been payments upon the debts owing the widow at times within six years prior to the action to sell the real estate to pay debts.

This claim need not be established if we are right in holding that the statute of limitátions did not run against the allowed claim against the estate. If we are in error, the appellee fails because the statute will have run against the administrator. However, the status of the claims of the widow, whom the administrator must protect as a creditor, argues strongly against the theory that the statute of limitations should operate at all.

It is contended that the court erred in awarding compensation to the administrator for services performed with respect to property other than the personal estate, §2113.35 R. C.

There are two reasons why we cannot support this contention: One, the record does not show exceptions to the approval of the accounts of the administrator wherein compensation was claimed. Two, we cannot determine from the accounts that the compensation was not awarded within the authorization of the statute.

No assignment of error is established. The judgment will be affirmed.

MILLER, PJ, and WISEMAN, J, concur.