author: By NICHOLS, J.

text:
    STATE, Plaintiff-Appellant, v BRUNSWICK, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 18440.
    Decided December 1, 1941.

      CARTER, PJ, PHILLIPS and NICHOLS, JJ, of the Seventh District sitting by designation.
    Frank T. Cullitan, Prosecuting Attorney, Cleveland, Neil W. McGill and John P. Butler, Assistant Prosecuting Attorneys, Cleveland, for plaintiff-appellant.
    Kastriner, Schweid & Adams, Cleveland, for defendant-appellee.
   OPINION

By NICHOLS, J.

State of Ohio prosecutes this appeal on questions of law from the judgment of the common pleas court of Cuyahoga County, wherein that court sustained a demurrer to the first and third counts of an indictment returned by the Grand Jury against David Brunswick appellee, purporting to charge ap-pellee with the crime of blackmail under §13384 GC.

The demurrer was sustained by the lower court on the ground that no offense punishable under the laws of Ohio was stated in either count.

Upon call of this appeal for hearing upon oral arguments, on November 24, 1941, counsel for appellee interposed an oral motion to dismiss the appeal for failure to file brief as provided in §13459-3 GC, it being contended by appellee “that the Court of Appeals loses jurisdiction in a criminal case if the appellant does not file his brief within the statutory period” and “that jurisdiction can not be waived.”

It is conceded by appellee that its brief was not filed with the certified transcript of the record prepared by the clerk. The judgment of the lower court was entered June 9, 1941, the notice of appeal being filed within thirty days from that ‘date, and the assignments of error was filed July 9, 1941, but the brief of appellant was not filed until November 21, 1941.

If the requirements of §13459-3 GC with reference to the filing of brief by appellant is a jurisdictional requirement, then the motion of appellee must be sustained, as we agree that jurisdiction can not be waived or conferred by agreement of parties.

It is stated orally by counsel for appellant that the recognized practice in the Court of Appeals for the Eighth Appellate District of Ohio has established the rule that appellant’s brief may be filed at any time up to the date of assignment of the appeal for oral argument.

Rule X of the Rules of Practice of the Courts of Appeals of Ohio, as amended and effective under the Appellate Procedure Act of 1935 (50 Oh Ap XLIX) provides:

“The judges of the several districts may adopt such rules upon questions of practice or as to the time of filing briefs, as they may deem expedient.”

It thus appears that the practice established in the Eighth Appellate District should not be disturbed by this Seventh District Court, sitting in the Eighth District by assignment of the Chief Justice, unless we shall find that the failure to file briefs in accordance with the provision of §13459-3 GC, deprives this court of jurisdiction to hear the appeal. Concededly, the language of §13459-3 GC, unrelated to other provisions of the Appellate Procedure Act of 1935, is mandatory in form, in that it is stated therein that:

“The brief of the appellant shall be filed with the transcript and shall contain the assignments of error relied on in such appeal.”

It is claimed by appellee that where the Legislature has so fixed the time for filing the brief no rule of the court can alter the same. In our opinion, such claim fails to give consideration to other provisions of- the Appellate Procedure Act, which clearly indicates to this court that no appeal which has been duly instituted by the filing of the required notice of appeal should be dismissed upon purely technical grounds unless prejudice to the adverse party appears, such prejudice or lack thereof to be determined by the court in the exercise of sound discretion.

It is contended that our views upon this subject are at variance with the decisions of other courts of appeals, and we are referred to certain cases as being so in conflict with our decision upon this subject as to require cert&cation to the supreme court on the ground of such conflict. The cases referred to will be analyzed after calling attention to such related provisions of the Appellate Procedure Act as, in our opinion, require us to find that the requirement of §13459-3 GC, is not jurisdictional and that the seeming mandatory provisions of this section as to the filing of brief by appellant is in fact directory only, resting the matter of filing brief in criminal cases within the sound discretion of the court. This has been the rule adopted by the Seventh District Court of Appeals in both civil and criminal cases.

In our opinion many sections of the Appellate Procedure Act, other than those referred to in the “Comment” following §13459-3 GC (Page’s Ohio General Code) apply equally to criminal and civil cases and in giving construction to any particular section the whole Act (116 O. L. 104 et seq) must be considered.

We quote certain provisions of the Act; emphasizing such portions as emphasize the application of the Act to both criminal and civil cases:

Sec. 12223-49: “This act shall become effective on the first day of January, 1936, and shall apply to the proceedings in any action where the final order or judgment appealed from is rendered after that date.” 116 O. L. 104 (114), §1, Eff 1-1-36.

Sec. 13233-1: “The word ‘appeal’ as used in this act shall be construed to mean all proceedings whereby one court reviews or retries a cause determined by another court, an administrative officer, tribunal, or commission.”

2: “The ‘appeal on questions of law’ shall be construed to mean a review of a cause upon questions of law including the weight and sufficiency of the evidence and shall include all the proceedings heretofore and otherwise designated in the General Code as proceedings in error.”

0* # * ⅜ sjt * * * * )}

116 O. L. 104 (105) §1, Eff. 1-1-36.

Sec. 12223-3: “Every final order, judgment or decree of a court * * * may be reviewed as hereinafter provided unless otherwise provided by law, * * * .” 116 O. L. 104 (105) §1, Eff. 1-1-36.

Sec. 12223-4: “The appeal shall be deemed perfected when written notice of appeal shall be filed with the lower court * * *. After being duly perfected, no notice of appeal shall be dismissed without notice to the appellant, and no step required to be taken subsequent to the perfection of the appeal shall be deemed to be jurisdictional.” 116 O. L. 104 (105), §1, Eff. 1-1-36.

Sec. 12223-5: “The notice of appeal shall designate the order, judgment or decree appealed from and whether the appeal shall be on questions of law or questions of law and fact. In said notice the party appealing shall be designated the appellant and the adverse party the appellee, and the style of the case shall be the same as in the court of origin. The failure to designate the type of hearing upon appeal shall not be jurisdictional and the notice of appeal may be amended by the appellate court in the furtherance of justice for good cause shown.” 116 O. L. 104 (105) §1, Eff. 1-1-36.

Sec. 12223-21: “Appeals taken on questions of law shall be heard upon assignments of error filed in the cause or set out in the briefs of the appellant before hearing. Errors not argued by brief may be disregarded, but the court, in its discretion, may consider and decide errors which are not assigned or specified. Failure to file such briefs and assignments of error within the time prescribed by the court rules shall be cause for dismissal of such appeal. All errors assigned shall be passed upon by the court. * * * .” 116 O. L. 104 (109), §1, Eff. 1-1-36.

Sec. 12223-27: “A judgment rendered or final order made by a court of common pleas, * * * may be reversed, vacated or modified upon an appeal on questions of law by the court of appeals having jurisdiction in the county wherein the common pleas or other court of record is located, for errors appearing on the record.” 116 O. L. 104 (110), §1.

Secs. 13459-1 and 13459-2 GC, relating to criminal cases, remain as before the adoption of the Appellate Procedure Act of 1935.

Sec. 13459-3 GC, provides that “the proceedings to review such judgment or final order” in a criminal case “shall be by appeal which shall be instituted by filing notice of appeal with the court rendering such judgment or order and with filing a copy thereof in the appellate court where leave to appeal must be obtained. Upon filing the notice of appeal there shall be filed in the appellate court the transcript prepared by the clerk and any original papers received by him. * * * The brief of the appellant shall be filed with the transcript and shall contain the assignments of error relied on in such appeal. Within fifteen days thereafter, the appellee shall file its brief. All of such proceedings to review such judgments shall have precedence of all other cases in said reviewing court, and shall stand for hearing on the trial docket of said court from day to day until heard and submitted; provided that any special statutes regulating appeals in particular cases shall not be affected in any wise by this section.”

Sec. 13459-4 GC provides:

“Such appeal, unless otherwise provided, may be filed as a matter of right within thirty days after sentence and judgment. After thirty days from such sentence and judgment such appeal may be filed only by leave of the court or two of the judges thereof.” 116 O. L. 104 (117), §2.

From the language of the last quoted section, it clearly appears that the court of appeals has very broad discretion as to time in which appeal in a criminal case may be prosecuted; even two judges of the court of appeals may grant leave to file such appeal at any time after thirty days from sentence and judgment. It is not conceivable to this court that the legislature intended by the language used in §13459-3 GC to limit the powers of the court to extend the time for filing briefs in criminal cases and in the same legislative enactment provide that the court, or two judges thereof, could grant leave to prosecute an appeal in a criminal case at any time after thirty days from sentence and judgment. Surely the greater power would include the lessor. There would seem to be no logic in requiring the appeal to be dismissed for failure to file brief with the transcript, in view of the fact that the court, or two judges thereof, could immediately grant leave to file a new appeal in this case.

If §§12223-1, 12223-3, 12223-4, 12223-5, 12223-21, 12223-27 and 12223-49 of the Act do not apply to criminal cases, then the provisions of the General Code dealing with criminal cases are strangely silent with reference to the matters contained in these sections. If any one of these sections applies to criminal cases, then no argument exists in favor of excluding the provisions of any of them to criminal cases.

Keeping in mind the definitions of the words “appeal” and “appeal on questions of law” as set forth in §12223-1 of the Act, how can it be said that the provisions of §12223-21 of the Act do not apply to both criminal and civil cases? So applying the provisions of this section to criminal cases, it is seen that the appeal on questions of law in a criminal case shall be heard upon assignments of error filed in the cause or set out in the briefs of appellant before hearing; that errors not argued by brief may be disregarded by the court, but the court, in its discretion, may consider and decide errors which are not assigned or specified; that failure to file such briefs and assignments of error within the time prescribed by the rules of the court shall be cause for dismissal of such appeal.

We call attention to the fact that §13459-3 GC, does not provide that the court shall dismiss the appeal for failure of the appellant to file briefs as therein set forth; nor does any other provision of the General Code require the appeal to be dismissed for such failure, or that the filing of the brief with the transcript in a criminal case is jurisdictional.

Surely it must be conceded that since the court of appeals, in its discretion, may consider and decide errors which are not assigned or specified, it can not reasonably be claimed that failure to file brief at any particular time prescribed either by rule of court or by statute shall necessarily work a dismissal of the appeal, especially in view of the provision of §12223-4 GC that “no step required to be taken subsequent to the perfection of the appeal shall be deemed to be jurisdictional-”

Nor is there any reason why less liberality shall be indulged in an appeal where the life or liberty of a person are involved than in one where civil or property rights are concerned; yet the construction we are requested by appellee to give to §13459-3 GC would render impotent an appeal by one convicted of an offense punishable by death or imprisonment, for such convicted person, in order to suspend execution of sentence, must file his notice of appeal; then, if strict application of the provision of the act is to be applied, he must file with his notice of appeal the transcript prepared by the clerk and with the transcript his brief. Of course, his bill of exceptions will not be available at that time, and every lawyer knows that a brief prepared before opportunity to examine the bill of exceptions is practically worthless.

That time for preparation of the bill of exceptions if necessary has been recognized by the legislature, since by §13445-1 GC, thirty days is fixed as the limit of time for filing same in a criminal case, and by §13573 GC, the notice of appeal, transcript and other papers may be filed without waiting to perfect the bill of exceptions, whereupon he may secure a stay of execution. In Long v State, 109 Oh St 77, 141 N. E. 691, the supreme court held the provisions of §11572a GC, apply to criminal cases. Certainly the appeal cannot be heard until the bill of exceptions is perfected and filed. By statute (§13445-1 GC) the bill of exceptions must be filed in the trial court within thirty days, and by rule of the courts of appeals may be filed within fifty days or at such later time as leave may be granted by the appellate court.

Construing all the applicable provisions of the appellate procedure act of 1935, we hold the requirement of §13459-3 GC with reference to filing brief by appellant is not jurisdictional and that this court in the exercise of sound discretion may grant additional time to file such brief, and further, that this court may consider the brief of appellant filed in this case in accordance with the rule established in the 8th Appellate District of Ohio.

The cases cited as being in conflict with our decision on this point are:

State v Jarcho, 65 Oh Ap 417, 30 N. E. (2d) 444, 19 OO 34, 30 Abs 645;

State v Parnell, 56 Oh Ap 77, 9 OO 235, 10 N. E. (2d) 18;

State v Bell, 52 Oh Ap 11, 2 N. E. (2d) 786;

In Re Estate of Arrowsmith, 54 Oh Ap 391, 8 OO 156, 22 Abs 77, 7 N. E. (2d) 826;

State v Jones, 33 Abs 330;

State v Link, 28 Abs 101;

State v Carmen, 31 Abs 330.

In not one of the cases cited has the Court of Appeals held that the failure to file brief as prescribed in §13459-3 GC, deprives the court of jurisdiction to hear and determine the appeal. It is true that in the case of State v Jarcho, supra, the Court of Appeals held that the provisions of §13459-3 GC, are mandatory, and in the opinion of Hornbeck J., it is said that the motion of the prosecuting attorney to dismiss the appeal will be sustained because the brief of appellant was not filed with the transcript. This statement as to the mandatory character of the language of that section and the power of the court to dismiss for failure to comply therewith is far from holding that because of such mandatory requirement the court had no jurisdiction of the appeal and had no other course than to dismiss it for such failure. Indeed, the court in that case proceeded to hear the appeal “examined this testimony in the light of the errors assigned” and became “convinced that no error prejudicial to the appellant is to be found in the proceeding.” To so find the court must necessarily have considered the brief of appellant though not filed in accordance with the provisions of §13459-3 GC. Such action of the court conclusively shows that the court did not find that the failure to comply with that section deprived the court of jurisdiction and is not consistent with any claim that the court may not, in the exercise of its sound discretion, determine the appeal on its merits. And this means, of course, that although the language of the section is in form mandatory, the requirement as to briefs is in fact directory only. No one disputes the power of the court, in the exercise of the discretion reposed therein, to dismiss the appeal for failure to comply with the provisions of the section relating to the filing of briefs, and we understand that certain of the courts of appeals, sitting in the cases above cited, have adopted the practice of dismissing the appeals in all cases where the briefs are not so filed, and other courts have adopted the same practice in civil cases where the briefs are not filed in accordance with Rule VII of the Rules of Practice in the Courts of Appeals (50 Oh Ap XLIX). Some cases refer to the practice as a rule of “stare deeises” in the particular court, State v Jones, supra. But in that case the court “examined the several assignments of error, the bill of exceptions and briefs,” and in fact only held as in State v Jarcho, supra, “that failure to comply with the section was a sufficient ground for the dismissal of the appeal.” To the same effect see: State v Smith, 33 Abs 612.

The Court of Appeals of the 7th District has just as consistently held that it will dismiss no appeal for failure to file briefs in accordance with rule or statute unless prejudice has resulted to the adverse party, and we think that is just what the legislature intended when it provided that no step in the proceeding after perfecting the appeal by the filing of the required notice of appeal shall be deemed jurisdictional.

State v Parnell, supra, merely holds that the appeal may be dismissed for non-compliance with the rule fixed by §13459-3 GC. The same is true as to the case of State v Bell, supra, the court expressly stating that it is not dismissing the appeal for failure to file brief in accordance with §13459-3 GC.

The case of In re: Estate of Arrowsmith, supra, does not involve the matter of filing briefs.

In State v Link, supra, the court did not dismiss the appeal for failure to file briefs in accordance with the section, but examined the questions urged, read the record, became “satisfied that there is no prejudicial error to the appellant to be found therein” and affirmed the judgment.

The matter of filing briefs is not considered in State v Carmen, supra.

The motion of appellee to dismiss the appeal is overruled, and the application for certification on the ground of conflict is denied.

Coming now to consider the merits of this appeal do the first and third counts of the indictment returned by the Grand Jury of Cuyahoga County against appellee set forth indictable offenses under the laws of the State of Ohio?

The first count of the indictment is as follows:

“That David Brunswick, on or about the 16th day of October, 1940, at the county aforesaid, unlawfully orally menaced and threatened Michael L. Osborne to do an injury to the property and the person of said Michael L. Osborne, with intent to compel said Michael L. Osborne to do an act against his will, to-wit: to refrain from constructing a building at 10828 Carnegie Avenue, Cleveland, Ohio and to refrain from opening, conducting and operating a floral business in said building at 10828 Carnegie Avenue, Cleveland, Ohio, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Ohio.”

It will be noted that the counts of the indictment are in identical language except as to the date of the commission of the alleged offense.

Sec. 13384 GC, under which the counts of the indictment were framed, reads as follows:

“Blackmailing: Whoever, with menaces orally or by written or printed communication, sent or delivered by him, demands of another a chattel, money or valuable security, or accuses, or knowingly sends or delivers a written or printed communication, with, or without a name, or with a letter, mark or designation, accusing or threatening to accuse, another of a crime punishable by law, or of immoral conduct, which, if true would tend to degrade and disgrace such person, or threatening to expose or publish any of his infirm-atives or failings, or to subject him to the ridicule or contempt of society, or to do any injury to the person or property of another, with intent to extort or gain from him a chattel, money or valabue security or a pecuniary advantage, or, with intent to compel him to do an act against his will, may be fined not more than one thousand dollars and shall be imprisoned in the penitentiary not less than one year nor more’ than five years.”

Counsel for appellee has given in brief and oral argument a very learned disertation upon the rules of construction claimed to apply to the language of this statute, and therefrom summarizes that “the indictment charges that the defendant U) ‘orally menaced’ and (2) threatened injury to the person and property of Michael L. Osborne with intent to compel him to do an act against his will.” We find that to be a fair construction of the language used in the indictment. The question then is — does such language state a crime embraced by the statute? The appellee contends that to be guilty of a crime by reason of oral menaces or threats within the meaning of the section, the defendant must have demanded of Osborne “a chattel, money or valuable security” and since the indictment does not so allege no crime is charged therein, it being reasoned that the word “demand” is a verb and that the objects demanded must be a “chattel, money or valuable security”; that the word “orally” as used is an adverb and the expression “with meances orally” qualifies only the words-“demands a chattel, money or valuable security.”

With this reasoning we do not agree, but hold that the use of the disjunctive word “or” as used in the statute requires the construction that the expression “with meances orally” qualifies as well the words “with intent to compel him to do an act against his will.” Given this construction and deleting such portions of the language used in this section as are clearly inapplicable to the situation attempted to be stated in the indictment, the statute reads;

“Whoever, with menaces, orally * * * threatening te * * * do any injury to the person or property of another * * * with intent to compel him to do an act against his will, may be fined not more than one thousand dollars and shall be imprisoned in the penitentiary not less than one year nor more than five years.”

Can this language be intelligently interpreted so as to definitely apprise the accused that he is charged with conduct prescribed by the legislature as constituting a crime, it being conceded that there are no common law crimes in Ohio?

A “menace” as defined by Webster, is the show of an intention to inflict evil. “Menace” is generally regarded as synonymous with “threat.” Lynch v People, 79 Pac. 1015, 33 Colo. 128.

“To menace is to act in a threatening manner, and any overt act of a threatening character, short of an actual assault is a ‘menace’.”

Cummings v State, 27 S. E. 177, 178, 99 Ga. 662;

Rossi v State, 68 S. E. 56, 58, 7 Ga. App. 732;

Price v State, 72 S. E. 908, 910, 137 Ga. 71;

Worley v State, 71 S. E. 153, 155, 136 Ga. 231.

We hold that the words “with menaces, threatening” are equivalent to the single word “threatens” whereby the clear meaning of the applicable portion of this statute is as follows:

“Whoever threatens orally to do any injury to the person or property of another with intent to compel him to do an act against his will, may be fined * * * .”

Thus we construe the language used in this indictment as stating identically as construed by counsel for appellee, differing only from such counsel in our conclusion that the word ‘orally’ applies not only to threats by one who ‘demands of another a chattel, money or valuable security’ but also applies to threats by one ‘to do any injury to the person or property of another.with intent to compel him to do an act against his will.’

As contrary to the views herein expressed, we are cited by appellee to the following cases:

Elliott v State, 36 Oh St 318;

Mann v State, 47 Oh St 557;

Ditzler v State, 4 C. C. 553, 2 C. D. 702;

Jones v State, 14 C. Rep. 363, 7 C. D. 716.

In Elliott v State, supra, we find nothing to support the' claim of appellee, other than the following excerpt taken from the opinion:

“If this were a charge of ‘threatening to accuse-’ the words, of the statute would seem to require that it should be in writing; * * *

This statement was mere obiter, not necessary to a decision of the case and, of course, was not carried into the-syllabus; and in our opinion is not binding upon any court.

In Ditzler v State, supra, the circuit court was unable to see why the supreme court should give such construction to the statute, but felt in duty bound to follow it, evidently losing sight of the rule that nothing said in' the opinion of the supreme court or even in the syllabus to a case is to be deemed binding unless necessary to a decision of the case in the light of the facts. 11 O. Jur. Courts §145, p. 798.

No one doubts the right to adopt the logic of any statement of the supreme court, but we confess ourselves unconvinced of any logic in the quoted statement, especially in view of the subjunctive clause which read: “But where accusation is directly made with the unlawful intent, whether verbally or in writing, the crime is complete.”

The word ‘orally’ was not used in the section at the time of the decision in Elliott v State, supra, although the court evidently understood that the legislature meant that by the use of the word ‘verbally’ to imply oral as distinguished from written threats. It is quite clear that verbal threats, meaning threats made by the use of words rather than by a show of force, may consist of either oral or written words. The amendment to the statute, substituting the word ‘orally’ for the word ‘verbally’ indicates an intention upon the part of the legislature to clarify the statute as embracing threats made by word of mouth or in writing with intent to cause another to part with a chattel, money or valuable security, as well as threats by word of mouth to do injury to the person or property of another with intent to compel him to do an act against his will. And in our opinion, it is logical that the legislature should so intend.

We find nothing in Mann v State, supra, which can possibly be construed as approving anything said by the court in Elliott v State, supra, as to necessity of any threat made with the prescribed intent being in writing.

The case of Jones v State, supra, is, to say the least, doubtful authority upon the questions here involved, as shown by the evident confusion of the court in attempting’ to interpret the language of the indictment and the unsatisfactory wording of the section under which it was drawn. As to the indictment in that case the court states that it ‘is very long and involved in its language and in some respects it is difficult to know exactly what it means — stripped of much of its verbage we understand its substance to be about this; * * *

In the statement of the court as to what it understood the substance of the indictment ‘to be about’ reference is made only to certain written instruments, to-wit, a filed affidavit and a copy of a warrant issued thereon. So its appears that the question of the sufficiency of an oral demand, accusation or threat was not involved. The court further stated that: “The statute on which this indictment is founded, Sec. 6830, Rev. Stat. is certainly very unskillfully drawn, and it is exceedingly difficult to form an opinion as to the proper construction to be placed on some of its provisions. It attempts to define what shall constitute the crime of blackmailing, and it is clear from its language that it may be,done in different modes and by different acts, and with the different intents, as stated in the section.”

The court states its conclusion that “there are two ways pointed out by either of which the crime may be committed” and proceeds to point out two such ways, but further states:

“It may be that such is not the grammatical construction of the language used, but we think it must have been the intention of the legislature so to provide.”

The court held the indictment good, in that the written affidavit filed with the Mayor accused Mrs. Urton with the crime of murder and was made with the intent stated. The •court further found that certain special requests of defendant to charge the jury should have been given, the failure to charge •such being prejudicial error, for which the court decided to reverse the judgment ‘if insisted upon by plaintiff in error.’

From the opinion it is impossible to determine whether there was, in fact, a reversal. We find nothing in this opinion which justifies the conclusion that to be guilty under the General Code provision as it now reads one must make menacing threats in writing, as distinguished from oral threats to do injury to the person or property of another with intent to cause him to do an act against his will.

In the case of McFarland v State, 14 Abs 367, it is held in the third paragraph of the syllabus:

“An indictment for extortion charging the accused with saying to a person mentioned in the indictment that if he acquiesced in the demand of the accused he would not be bothered, plainiy implies an intention to compel the person named to do an act against his will.”

The facts recited in the opinion clearly indicate that the defendant had made oral threats to certain barbers to the effect that their property and business would be damaged unless they joined a pretended organization of barbers, and thus were made with intent to compel the barbers to do an act against their will. Conviction was sustained.

“A threat which is a necessary element of the crime of blackmail has been defined as a menace of destruction or injury to person, character or property. It may be made orally or in writing. It may be done by inuendo or suggestion. Any language which conveys a threat with adequate clearness is sufficient. In some instances to ascertain whether language conveys a threat, it must be taken with the circumstances under which it is spoken and the relations between the parties must be considered.” 18 O. Jur., Sec. 16, p. 916.

It is observed that the indictment charges the accused with orally threatenting to do an injury to the person or property of Osborne with intent to compel him to do an act against his will, but the indictment goes further and describes the act sought to be compelled as being “to refrain from constructing a building * * * and to refrain from opening * * * a floral business in said building ⅜ * * .”

Although not urged by counsel for appellee as rendering the indictment on that ground insufficient this court has been concerned with the proposition as to whether threats to compel another to ‘refrain’ from doing certain things are sufficient to constitute a threat to compel another to do an act against his will. In one aspect of the language of this indictment, it would seem that the threats charged were merely with the intent to cause Osborne not to act rather than to do an act.

We have concluded, however, that when one is compelled by threats of injury to his person or property to do otherwise than he wills to do, except for such threats, he is thereby compelled to do an act against his will.

The indictment was sufficient to charge the defendant with the crime of blackmail, under §13384 GC, and it follows that the common pleas court erred in sustaining the demurrer to the indictment to the prejudice of the State of Ohio, for which error the judgment is reversed and the cause remanded for further proceedings according to law.

PHILLIPS, J, and CARTER, PJ, concurs.


source: Caselaw Access Project

author: By SKEEL, PJ.

license: Public Domain

text:
    GILLESPIE et, Plaintiffs-Appellants, v. LAKE SHORE GOLF CLUB, Inc., Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21568.
    Decided January 23, 1950.
    Chester K. Gillespie, Cleveland, for plaintiffs-appellants.
    James H. Nacey, Cleveland, for defendant-appellee.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law and fact from a judgment and decree for the defendant. The plaintiff by his petition prayed for a mandatory injunction requiring the defendant to permit the appellants to play golf on a golf course located at the corner of Lake Shore Boulevard and Eddy Road in the Village of Bratenahl, Cuyahoga County, Ohio.

The appellants are negroes and members of the African race, and complaint of discrimination practiced against them solely by reason thereof.

The golf course, for a number of years, had been under the control and management of Carmen Bill as a public course, said Carmen Bill leased the property and equipment from the “Mather Estates” until the end of the season in 1947 when it was acquired by “The Marine Company”. Mr. Bill then leased the course and equipment from the new owner.

In 1946 one of the appellants was refused the. privilege o'f playing on the course. He thereupon brought an action against Bill under the civil rights §§12940, 12941 GC. This action was dismissed when Mr. Bill agreed to extend the privileges of the course to the appellant and not to discriminate on the grounds of race or color.

The appellants continued to play each season thereafter until August, 1948. At this time the defendant, claiming to be a sub-lessee of the course from Mr. Bill, and claiming to operate said golf course as a private club, refused appellants the right to play golf on the ground that they were not members of the club. The appellants had made" application for membership as requested by defendant but membership was refused to them.

It is the claim of appellants that the course continued to be operated as a public course after it was assigned by Bill to the defendants and that the-said club was not a private club but that the new corporation defendant herein was, in fact, a subterfuge through which Bill attempted to avoid the legal consequences of discrimination in operating a place of public amusement.

There is no question from the record but that the Lake Shore Golf Club, as operated by Mr. Bill was a public course to which all persons, without discrimination because of race or color, could use the facilities of the course upon payment of the established charges and conducting themselves in a proper manner. The sole question presented is whether the incorporating of the club in July, 1948, and assigning the lease to the corporation by Mr. Bill changed the character of the course from a public course to a private club to which only members could go to enjoy the privileges of the golf course.

The president of the new corporation was of no help in attempting to show that after July 15, 1948, the date of the organization of the Lake Shore Golf Club, the operation of the golf course was transferred to it as a private club. In fact in one place he testified that:

“* * j- ⅛ boys who live there as I do, they pay the same as anybody else on the public course. The club members of the Lake Shore Country Club (the corporation operating the club house for residence purposes, which was leased and operated separate from the golf course) are residents such as I am, the same as anybody else on the golf course.” (Emphasis added.)

The purpose of organizing the golf club corporation was said to be because Bill was unable to make a flnancia.1 success of the operation of the course after the Marine Company acquired the property, and demanded an increased share of the gross income. Yet, so far as the operation of the course was concerned, the record shows it continued under the direction of Mr. Bill in the same manner as before. He received all of the income and paid the help with his personal checks. There seems to have been no club dues and the only change suggested by the record is that people who came to play golf were asked to sign a membership card. Even this was not required in all cases as is instanced in the case of three witnesses, who testified that they went to the course after the appellants were refused the privileges of the club, on the supposed ground that they were not members, and without signing a membership card or any questions asked as to whether or not they were members, were given the right to play golf, upon paying the fee of seventy-five cents. Certainly these witnesses who were of the white or Caucasian race did not meet the obstacle of membership in seeking the right to play golf on the course.

The claim that the course was operated as a private club after the incorporation of The Lake Shore Golf Club Company, and the assigning of the lease by Bill to the corporation, is not supported by the record. The changing of the operation of the course from Bill as an individual to the corporation did not, because of the undisputed manner in which it was operated thereafter, change the course from a public course to a private club.

It requires no citation of authority that places of public amusement cannot discriminate between members of the public seeking the right to enjoy the facilities of such places of amusement, on the ground of race or color. To do so is a clear violation of the civil right sections of the General Code of Ohio.

A decree will therefore be entered for the plaintiffs. as prayed for. Exc. Order See Journal.

McNAMEE, J, HURD, J, concur.


author: By NEVIN, CJ.

text:
    UNITED STATES v UNIVERSAL MILK BOTTLE SERVICE, INC., et al.
    United States District Court, Southern District of Ohio, Western Division.
    No. 7399.
    Decided June 30, 1949.

      Robert H. Winn, Special Assistant to the Attorney General, Ray J. O’Donnell, United States Attorney, Cincinnati, Robert E. Marshall, Assist. United States Attorney, Sidney, for plaintiff United States.
    Robert N. Gorman, Cincinnati, for defendants Universal Milk Bottle Service, Inc., and others.
    Nichols, Wood, Marx & Ginter, John J. Luhrman, Cincinnati, of counsel, for defendant Matthews-Frechtling Dairy Co.
    Orville A. Troy, Kenneth D. Troy, Harry Kasfir, S. Arthur Spiegel, Cincinnati, for defendant Cooperative Pure Milk Ass’n.
    Michael Lacinak, Cincinnati, for defendant J. H. Berling’s Dairy ■ Products Co.
    Robert G. McIntosh, Cincinnati, for defendant Cedar Hill Farms, Inc.
   OPINION

By NEVIN, CJ.

At the April term, 1948, the Grand Jury of the United States District Court for the Southern District of Ohio (Western Division) returned an indictment (filed September 24, 1948) against the above-named defendants, charging them with having violated the provisions of Section 1, Title 15 U. S. C. A., commonly known as the Sherman Anti-Trust Act.

On October 12, 1948, the several defendants, each represented by its own counsel, filed motions -to dismiss the indictment for the various reasons and upon the various grounds set forth in each motion respectively. Separate motions were also filed on the same date for a “Bill of Particulars.”

At the same time, some of the defendants severally filed a motion “For Inspection of Documents” and on September 24, 1948, the Government filed an “Application for Order Impounding Certain Documentary Evidence.” The (several) motions for inspection of documents and the Government’s “Application” have heretofore been disposed of, in the one instance by agreement of counsel, and in the other by an order of the court.

The cause is now before the court, therefore, on the motions of the respective defendants to dismiss and for a Bill of Particulars.

I. The Several Motions to Dismiss the Indictment.

Briefs in support of and contra the granting of the motions to dismiss, as well as affidavits and documentary evidence have been filed and submitted. In addition, counsel have presented their views somewhat extensively by way of oral argument.

At the outset of the oral arguments, Judge Gorman stated: “Every defendant has filed a motion to dismiss and they are all practically upon the same ground, that is, that the indictment doesn’t state an offense against the laws of the United States and more particularly you might say on the ground that the indictment alleges a purely intrastate conspiracy but it does not show any substantial economic effect on interstate commerce. We contend that under the Sherman Act there must be a showing of a substantial economic effect on interstate commerce where it is alleged that only an intrastate conspiracy existed.”

Defendants further contend that the indictment runs counter to the Order of the Secretary of Agriculture and for that reason the Court has no jurisdiction; that there is no allegation of intent; that the indictment is contradictory and ambiguous to such an extent that trial on it would deprive defendants of their rights under the Fifth and Sixth Amendments; that it is wholly lacking in the clarity and particularity requisite to inform defendants of the nature of the cause as required by the Fifth and Sixth Amendments to the Constitution of the United States; that the motions to dismiss should be sustained because the indictment only charges a conspiracy to raise, fix and maintain the retail and wholesale price of milk in Hamilton County, Ohio, and that the indictment fails to state facts constituting a conspiracy to restrain interstate commerce in that the interstate commerce "‘comes to rest” and hence the continuing commerce is intrastate, and therefore, the commerce involved is purely intrastate.

The Government submits its argument and authorities based on what it terms as two “doctrines” under either one or both of which it asserts the motions to dismiss should be overruled insofar as they relate to or depend upon the premise either that “there must be a showing of a substantial economic effect on interstate commerce” or that the interstate commerce referred to in the Indictment “comes to rest.” These “doctrines” are (a) The “affecting commerce” or “affectation” doctrine and (b) The “flow of commerce” or “in commerce” doctrine.

(a) The' “Affecting Commerce” Doctrine.

In support of their contention that “there must be a showing of a substantial economic effect on interstate commerce where it is alleged that only an intrastate conspiracy existed” (which defendants assert is the fact here) all of the defendants rely upon the case of U. S. v. French Bauer, Inc., et al., D. C., 48 F. Supp. 260. That case arose in this District. Defendants submit that as it stands unreversed, it is binding upon, or at least, should be followed by this Court in its determination of the present motions.

With reference to the foregoing case, counsel for defendant, The Matthews-Frechtling Dairy Company, say: “There is, as Judge Ford said, no allegation of fact to indicate a direct and substantial restraint upon interstate trade. We, therefore, submit as controlling authority the case of United States v. French Bauer, Inc., et al., [D. C.], 48 F. Supp. 260. This decision by Judge Ford is, to our minds, unanswerable by the United States of America.”

.Counsel for defendant, The Co-operative Pure Milk Association, submit that the indictment does . not allege any fact or any act which directly or substantially affects interstate commerce or the avowed intention, purpose or necessary effect of which was the accomplishment of that result and that the court in the French Bauer case held that such allegations were absolutely necessary if the indictment was to stand as against a motion to dismiss, such as we have here.

Counsel for defendant, Cedar Hill Farms, Inc., after citing Industrial Association v. U. S., 268 U. S. 64, 45 S. Ct. 403, 69 L. Ed. 849, as bearing decisively upon the question of “Impact upon Interstate Commerce” or the “affecting commerce” doctrine adopts and approves (without further discussion) the arguments presented by Judge Gorman in his brief.

Counsel for defendant, The J. H. Berling’s Dairy Products Company, states that in his opinion “the indictment in The United States v. French Bauer case was more far-reaching and more in particular detail than the indictment now under attack,” and that upon the authority of that case “this (present) indictment should be dismissed.”

In the French Bauer case, French Bauer, Inc., and others were indicted for engaging in a price-fixing conspiracy in violation of the Anti-Trust Laws. The cause came on before the Court on a motion to quash the indictment, which motion the court sustained. In the course of the decision, the court stated, 48 F. Supp., at page 260: “The conspiracy charged in this indictment is directed to the fixing of prices upon fluid milk which is not moving or intended to move in interstate commerce. The authorities teach that the Sherman Anti-Trust Act, 15 U. S. C. A. §§1-7, 15 note, may reach such a conspiracy, but only if the acts charged are such as directly and substantially affect the commerce in the commodity between the states”, and' the court held that there were no factual allegations in the indictment before it sufficient to show direct and substantial impact upon interstate commerce.

It is agreed that the indictment in the instant case is identical with the one before the court in the French Bauer case, except that in the present indictment there has been inserted paragraph 24, which was not in the indictment in the French Bauer case. As to this, the record shows: “The court (addressing Mr. Winn, of Counsel for the Government) : I was interested first to know whether you agree with the statement that this indictment is identical, at least, to all intents and purposes, with the one before Judge Ford (in the French Bauer case), excepting the insertion of this paragraph 24.

“Mr. Winn: I think that is a fair statement. * * * i wouldn’t say the indictment was identical with the prior indictment except for paragraph 24. However, the indictment is to all intents and purposes—
“The Court: Is it true it is identical so far as any application of the law is concerned?
“Mr. Winn: I think it is identical with the 1942 indictment but for the provisions of paragraph 24.”
Paragraph 24 of the present indictment reads as follows: “24. Increases in prices charged by distributors in the Cincinnati Area for milk sold to consumers and other purchasers have had and have the effect of reducing the volume of milk purchased by said consumers and other purchasers, thus reducing the quantity of milk purchased by said distributors from producers in Kentucky, Indiana and Ohio.”

Defendants assert that this allegation is nothing more than a legal conclusion and that in law it adds nothing to the' indictment that was before the court in the French Bauer case; that even with this addition, the present indictment, does not charge an offense against any of the defendants.

The Government, on the other hand, submits that it is a factual allegation, that the factual statement is that the-increases charged by the distributors for milk sold to consumers have had, and have the effect of reducing the volume of milk purchased by such consumers and other purchasers “thus reducing the quantity of milk purchased by said distributors from purchasers in Kentucky, Indiana and Ohio.”'

Counsel for the government point out that the indictment in the Fench Bauer case alleged no effect upon interstate commerce as a result of an alleged intrastate conspiracy and urge that by the inclusion of paragraph 24 of the objeiction which the court found to the indictment in the French Bauer case is overcome.

The court agrees with the Government’s contention that the allegations of Paragraph 24 are factual and are not mere legal conclusions. Under the familiar rule the facts as alleged are admitted, on the pending motions, to be true, for the purposes of this decision.

The “affecting commerce” or “affectation” doctrine was. first enunciated by Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23.

In Wickard v. Filburn, 317 U. S. 111, 63 S. Ct. 82, 87 L. Ed. 122, decided shortly after the French Bauer case, the court says, 317 U. S. at pages 120-123, 63 S. Ct. at page 87: “At the beginning Chief Justice Marshall described the federal commerce power with a breadth never yet exceeded. Gibbons v. Ogden, 9 Wheat. 1, 194-195, 6 L. Ed. 23 * * * It was not until 1887 with the enactment of the Interstate Commerce Act [49 U. S. C. A. §1 et seq.], that the interstate commerce power began to exert positive influence in American law and life. This first important federal resort to the commerce power was followed in 1890 by the Sherman Anti-Trust Act and, thereafter, mainly after 1903, by many others. These statutes ushered in new phases of adjudication, which required the court to approach the interpretation of the Commerce Clause [U. S. Const. Art. 1, §8, cl. 3] m the light of an actual exercise by Congress of its power thereunder. When it first dealt with this new legislation, the court adhered to its earlier pronouncements, and allowed but little scope to the power of Congress. United States v. E. C. Knight Co., 156 U. S. 1, 15 S. Ct. 249, 39 L. Ed. 325. ⅜ * ⅜ Not long after the decision of United States v. E. C. Knight Co., supra, Mr. Justice Holmes, in sustaining the exercise of national power over intrastate activity, stated for the court that ‘commerce among the states is not a technical legal conception, but a practical one, drawn from the course of business.’ Swift & Co. v. United States, 196 U. S. 375, 398, 25 S. Ct. 276, 280, 49 L. Ed. 518. It was soon demonstrated that the effects of many kinds of intrastate activity upon interstate commerce were such as to make them a proper subject of federal regulation. In some cases sustaining the exercise of federal power over intrastate matters the term ‘direct’ was used for the purpose •of stating, rather than of reaching, a result; in others it was treated as synonymous with ‘substantial’ or ‘material;’ and in others it was not used at all. Of late its use has been abandoned in cases dealing with questions of federal power under the Commerce Clause.”

In support of their contention that the indictment must show that a claimed intrastate conspiracy had a direct and substantial effect on interstate commerce, some (but not all) of the defendants cited and relied upon U. S. v. Women’s Sportswear Manufacturers Association, D. C. Mass., 75 F. Supp. 112. As to this Judge Gorman states: “Briefly, our principal point is that a purely intrastate conspiracy is alleged, and not an interstate conspiracy. Under the law an intrastate conspiracy can only be prosecuted under the Sherman Anti-Trust Act when there is a showing that the intrastate conspiracy had a direct and substantial effect on interstate commerce. Facts must be alleged setting forth the impact on interstate commerce and not merely conclusions of law. First, this indictment does not show such a direct and substantial effect as is necessary to base a valid charge. Such allegations are essential it has been held in many cases, including the recent one of United States v [Women’s] Sportswear Mfrs.’ Ass’n., D. C. Mass., 75 F. Supp. 112, decided December 10, 1947, and now on appeal to the Supreme Court of the United States.”'

Other counsel, notably counsel for the Co-operative Pure Milk Association, assert that they at no time relied upon the Women’s Sportswear case, saying: “We believed that the case was clearly distinguishable at the time when the ruling was adverse to the Government and we still feel that the casé is distinguishable now that the courts have decided in favor of the Government.”

The District Court in the Women’s Sportswear case held that the prayer for injunction and other relief should be denied, with judgment for the defendants.

In the course of its decision, the court stated, 75 F. Supp. at pages 117-118: “In summary, there is no evidence of any intent on the part of the defendants, who had no direct and immediate connection with or control over interstate commerce, to burden interstate commerce. There was no evidence of any direct and immediate restraint upon interstate commerce resulting from the defendants’ activities, from which an illegal intent can be inferred.”

That is the way the case stood at the time the briefs and arguments were submitted in the instant case. Since that time, the Women’s Sportswear case has been decided by the Supreme Court of the United States and by that court, reversed. U. S. v. Women’s Sportswear Mfg. Ass’n, 336 U. S. 460, 69 S. Ct. 714.

In its opinion, the court, 336 U. S. at pages 463-464, 69 S. Ct. at page 715, say, among other things: “It seems clear tthat the intent and effect of the agreement is substantially to restrict competition and to control prices and markets. * * * Thg trial court appears to have dismissed the case chiefly on the ground that the accused Association and its members were not themselves engaged in interstate commerce. This may or may not be the nature of their operation considered alone, but it does not matter. Restraints, to be effective, do not have to be applied all along the line of movement of interstate commerce. The source of the restraint may be intrastate, as the making of a contract or combination usually is; the application of the restraint may be intrastate, as it often is; but neither matters if the necessary effect is to stifle or restrain commerce among the states. If it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze.”

If, as alleged in Paragraph 24 of the indictment the conspiracy with which the defendants are here charged results in “reducing the volume of milk purchased by said consumers and other purchasers thus reducing the quantity of miiir purchased by said distributors from producers in Kentucky, Indiana and- Ohio” then there can be no question but what “it is interstate commerce that feels the pinch.”

The indictment herein specifically states (Par. 27) that the defendants conspired to raise, fix and maintain prices; that (Par. 28) they agreed upon and fixed prices; that they agreed to uniform discounts and allowances to wholesale purchasers; that they adhered to the prices and discounts agreed upon; that (Par. 24) increases in prices have had the effect of reducing the quantity of milk purchased by defendants from producers in Indiana and Kentucky; and that (Par. 30) the conspiracy has had the effect of restraining trade and commerce in milk among the several states.

Price fixing is illegal per se. U. S. v. Socony-Vacuum Oil Co., 310 U. S. 150, 60 S. Ct. 811, 84 L. Ed. 1129. The fixing of prices as alleged in the indictment necessarily operates as a direct and substantial restraint on the interstate commerce herein involved and in the indictment referred to.

“Substantial economic effect on interstate commerce” does not mean the effect on a specific amount of interstate commerce. It does not run to the quantity that is involved, though in some given case that might be an added factor to be taken into consideration.

As claimed by the Government in argument, the interstate commerce involved may be ever so small. It is not the substantial quantity; it is the substantial effect on interstate commerce. The question is not how much money may be involved or how little the price to the purchaser may be affected.

As stated by the court in the Filburn case 317 U. S. at page 127, 63 S. Ct. at page 90: “That appellee’s own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial. National Labor Relations Board v. Fainblatt, 306 U. S. 601, 606 et seq., 307 U. S. 609, 59 S. Ct. 668, 83 L. Ed. 1014; United States v. Darby, supra, 312 U. S. (100) at page 123, 61 S. Ct. (451), 461, 85 L. Ed. 609, 132 A. L. R. 1430.”

Basing its conclusion on the allegations of the indictment presently before it, the court is of the opinion and so finds that it does allege facts, even assuming, a “purely intrastate conspiracy”, (as claimed by defendants) to show a “substantial economic effect” on interstate commerce and upon the ground, asserted by all of the defendants, that it does not, their respective motions to dismiss are each and all not well taken, and should be overruled.

(b) The “Flow of Commerce” or “in Commerce” Doctrine.

The Government contends that the sales by the defendants occur in the course of interstate commerce, saying: “The flow of fluid milk from producers in Kentucky and Indiana through the defendants to consumers in the Cincinnati Area, described in the indictment, is a continuous day by day flow. Being ' a perishable commodity, fluid milk cannot be stored or warehoused until a ready purchaser happens along. Immediate sale is essential. It is obvious that the milk on hand must be sold and delivered each day by the distributors to make room for the milk going through the defendants' plants on the following day. Since ‘commerce among the states is not a technical legal conception, but a practical one, drawn from the course of business’ (Swift & Co. v. U. S., 1905, 196 U. S. 375, 398, [25 S. Ct. 276, 280, 49 L. Ed. 518]), it. would seem that the mere description of the flow of milk establishes its interstate nature until it has been delivered by the distributors to consumers in the Cincinnati area. The pertinent decisions of the Supreme Court fully support this view. Swift & Co. v. U. S. supra. * * * The intention and expectation of a seller and a buyer that the commodity sold would be shipped in interstate commerce is a valid test in determining whether or not the sale is a transaction in interstate commerce, even though completed before the actual physical interstate transportation occurs. U. S. v. Reading Co., 226 U. S. 324, 367 [33 S. Ct. 90, 57 L. Ed. 243]; Lemke v. Farmers’ Grain Co., 258 U. S. 50, 53, 54 [42 S. Ct. 244, 66 L. Ed. 458]; Interstate Natural Gas Co. v. Federal Power Commission, 331 U. S. 682, [67 S. Ct. 1482, 91 L. Ed. 1742]; Mandeville [Island Farms] v [American] Crystal Sugar Co., 334 U. S. 219 [68 S. Ct. 996, 92 L. Ed. 1328]. * * * Sales of milk by producers in Kentucky and Indiana to the defendant distributors are made with the intention and expectation of both parties that the milk would be transported to Ohio and there immediately sold by the distributors. The price to be paid to the producers by the distributors depends upon the amount of that milk which is resold by the distributors to wholesale and retail customers in Ohio, and the price is not determined until after that resale. The resale in Ohio is as integral a part of the interstate commerce as is the sale by the’Kentucky and Indiana producers to the distributors.”

The Government asserts that the Interstate Commerce alleged in paragraphs .21, 22, 23 and 25. of, the indictment, is the flow of interstate commerce which was originally intended to and does continue through the processing plants of the defendants and their distributors, to the stores and to the purchasers and consumers of milk and that such a price fixing conspiracy affecting the price of milk at wholesale and retail, as here alleged, is a conspiracy in connection with the flow of that commerce and is per se, a violation of the Sherman Act. ' ,

In the course of the oral argument, counsel for the Government stated “I am basing my appeal to this court to uphold this indictment under the commerce theory more on the cases that have been decided since the French Bauer decision than anything else” and in this connection, counsel cited U. S. v St. Louis Dairy Co., D. C. 1948, 77 F. Supp. 853, and U. S. v. Happy Valley Farms, Inc., et al., decided by the district Court of the Eastern District of Tennessee on July 20, 1948. Later, counsel called attention to Standard Oil Co. v. Federal Trade Commission, 7 Cir., 1949, 173 F. 2d 210.

In its decision in the St. Louis Dairy case, the court states, 77 F. Supp, at page 859: “We are not unaware of the apparent conflict in our conclusion with that of the District Court for the Southern District of Ohio in United States v. French Bauer, Inc., D. C., 48 F. Supp. 260. * * * The French Bauer opinion apparently disagrees with the rule, as we understand it, that price-fixing is per se a violation of the Sherman Act.”

In the Standard Oil case the court say [173 F. 2d 213]: “It is not disputed that the petitioner is engaged in commerce, but it is vigorously insisted that commerce ended at the River Rouge plant and the bulk plants in the Detroit Area and that the petitioner’s transactions from there on were wholly intrastate. With this we are unable to agree. The break that occurred at River Rouge was a break in transportation but not in the constant stream of commerce that flowed from the Whiting Refinery to the petitioner’s customers in Michigan. * * * The modern concept of commerce is one which gives full sweep to the commerce clause of the Constitution within the limits of the implementing statute, a liberal view of the Congressional purpose as expressed in the statute, and a realistic view of what business is doing as it moves across State lines to accomplish its purpose. The late cases support the view that the petitioner’s operations are in commerce from the refinery to its customers. Walling v. Jacksonville Paper Co., 317 U. S. 564, 63 S. Ct. 332, 87 L. Ed. 460; Binderup v. Pathe Exchange, 263 U. S. 291, 309, 44 S. Ct. 96, 68 L. Ed. 308; Mid-Continent Petroleum Corporation v. Keen, 8 Cir., 157 F. 2d 310, 314; Republic Pictures Corporation v. Kappler, 8 Cir., 151 F. 2d 543, 545, 162 A. L. R. 228; Walling v. American Stores Co., 3 Cir., 133 F. 2d 840.”

Defendants insist that the cases relied upon by the Government do not support its claim that sales to consumers in Hamilton County, Ohio, are interstate commerce and that the Government’s “in commerce” argument “is not sustained by the decisions.”

Counsel for defendants point out in some detail wherein, in their opinion, the cited cases are distinguishable from the instant case, saying: “The Government cites Swift & Co. v. United States, 196 U. S. 375, [25 S. Ct. 276, 49 L. Ed. 518]. That decision is based on the fact that the cattle which were shipped in from various states to the Chicago stockyards had not come to rest in Chicago but were still in the stream of interstate commerce because there was an ‘expectation’ that the meat would continue on its interstate journey and would be sold in states other than the State of Iillinois. The word, ‘expectation’, is the language of the Supreme Court in the opinion. The decision is based on the fact that it was expected that the cattle would continue on their interstate journey. * * ⅜ In the instant case the Government is not trying to ‘reach back’ to steps ‘prior’ to the transportation; instead it is trying to reach ahead to steps after the transportation. It is trying to reach a processed article at a time when there is no purpose of transporting the product in interstate commerce,” and further that the recent (Standard Oil) case, for the reasons which they assign, is “not applicable.”

The court, however, agrees with the claim of the Government that today’s practical concept of interstate commerce dictates that commodities in interstate commerce remain in that status until they reach the point where the parties originally intended that the movement should Anally end. If, as contended by the Government, the distribution and sale of milk at wholesale and retail by the defendants is in interstate commerce, or is an integral part of the interstate Aow from the farms of Kentucky and Indiana producers to consumers in Ohio, the point where the parties originally intended that the movement should end, then there can be no doubt but that the conspiracy of the defendants to Ax prices at which such sales shall be made constitutes a violation of the Sherman Act.

The Government is correct in its contention that a “practical concept” of interstate commerce must and does lead to the conclusion that the distribution of milk in the Cincinnati area both from the standpoint of time and continuity is so closely and directly related to the interstate Aow of milk and so much an inseparable part thereof as to bring this alleged conspiracy within the condemnation of the Sherman Act.

In view of all the foregoing, the court is of the opinipn and so Ands that both upon reason and under the decisions, the Government’s “Aow of commerce” or “in commerce” argument is sound and sustained. Under this “doctrine” also, therefore, the indictment is immune as against defendants’ motions to dismiss.

(c) Other Grounds Asserted by Defendants in Support of Their Motions to Dismiss.

As heretofore stated, in addition to their contention that “under the Sherman Act there must be a showing of a substantial economic effect on interstate commerce, where it is alleged that only an intrastate conspiracy existed” defendants set out other grounds on which they submit their motions to dismiss should be sustained.

In his brief (pages 2-3) Judge Gorman says: “Secondly, milk purchased by dealers or handlers from producers is regulated by the provisions of order No. 65 promulgated by the Secretary of Agriculture under the Agricultural Marketing Agreement Act of 1937, 7 U. S. C. A. §601 et seq. This court is required to take judicial notice of that Order No. 65, which is attached to the motion to dismiss. Under that Order No. 65 the Secretary of Agriculture so regulates milk, exempting the price paid to producers from the provisions of the Sherman Anti-Trust Act, that an examination of the order will show that the statements in paragraph 24 of the indictment are palpably false and untrue. * * * In addition, the indictment fails in several other respects to state an offense. There are inconsistent averments which if given an ordinary construction rebut the inference that an offense was com-mited.”

In this connection, defendants insist that the court does not have jurisdiction to consider the charges made in the present indictment because of the order of the Secretary of Agriculture, claiming that the action upon the part of the Secretary of Agriculture “cannot be impeached or infringed upon in these proceedings” and that any “challenge to the finding of the Secretary of Agriculture must be addressed to him.”

Defendants contend that the Government is here asking “the court to intervene in a field which has already been preempted by the Secretary of Agriculture — a field reserved for him by Congressional Act.”

As asserted by the Government, according to the foregoing claims of the defendants, the order of the Secretary of Agriculture serves as a buffer which insulates the defendants from any possibility of violating the Sherman Act. This is not, and cannot be true.

It is true, as the Government points out, that the stated purpose of the order is to “insure” an adequate supply of milk, but nothing contained in the indictment is inimical to, or runs against, or attempts to impeach or infringe upon this order.

The order affects and relates to prices paid to the producers, and has nothing to do with prices charged by distributors to wholesale and retail customers. These prices should be determined by competition and not by conspiracy.

The charge in the instant case is a conspiracy to fix prices, contrary to the Sherman Act. Nothing in the order or the Act upon which the order is based authorizes or grants immunity from the Sherman Act for a conspiracy to fix prices of fluid milk sold at retail and wholesale in the Cincinnati area.

The Secretary of Agriculture has authority to determine and adjust minimum producer prices so as to promote and provide for an adequate supply of milk, but he has no authority to take any action concerning a conspiracy to increase distributors’ selling prices, with a resultant lessening of demand for fluid milk.

The court has jurisdiction of this cause.

Finally, defendants claim that the indictment is wholly lacking in the clarity and particularity requisite to inform them of the nature of the charge made against them.

The indictment pleads the charge in sufficient detail to inform defendants that they are charged over a two year period, which is the period referred to in the indictment, with having “engaged in a combination and conspiracy to raise, fix and maintain prices for the sale in the Cincinnati area of milk produced in the States of Kentucky, Indiana and Ohio, which combination and conspiracy in fact has been, and is now, in restraint of the herein before described trade and commerce.”

In the case of U. S. v. Happy Valley Farms, Inc., (herein-above referred to) the indictment was couched in practically the same language as the one here under consideration.

In that case in response to the same contention as here asserted by defendants, the court made the following statement: “Suffice to say, the indictment is adequate, both as to form and substance. It states adequately the venue of the crime charged, as being within the jurisdiction of this court. The crime is adequately alleged to have been a continuing conspiracy. The criminal participation of the defendants is sufficiently averred in the indictment. The elements of the crime are not only charged substantially in the language of the statute, but the means whereby the conspiracy is and has been formed and carried on and the details thereof adequate to identify the specific combination and conspiracy, and to enable the defendants to prepare for trial, and to protect them against a new prosecution in event of an acquittal, are likewise all set forth with particularity and definiteness. ‘Now, specifically, the indictment is not vague and indefinite; it is not duplicitous. As I say, it clearly charges a restraint of interstate trade and commerce, and an offense under the Sherman Act’.”

The foregoing statements are applicable in the instant case and the court adopts the language there used, as its decision on the question of lack of clarity and particularity in the indictment. The indictment under consideration is neither vague nor indefinite.

Upon consideration of the motions of the several defendants to dismiss the indictment, the Court is of the opinion and so finds that each of the motions is not well taken and that each and all of them should be, and they are each and all, overruled.

II. Motions for Bill of Particulars.

Motions were filed on October 12, 1948 by and on behalf of each of the several defendants for bill of particulars. It is claimed by defendants that a bill of particulars should be granted to enable them to prepare for trial; to sustain a plea of former jeopardy, and in order that “the ends of justice and orderly procedure may best be served.”

It is a well established rule that it is not the function of a bill of particulars to provide evidence, nor will such a bill be ordered where the information sought is within the knowledge of the defendants, or is information which they have equal opportunity with the Government, to discover.

It appears from the briefs and arguments in support of the respective motions for bill of particulars, that all of the defendants’ requests are for data or information that fall within the foregoing rule.

Upon consideration of the motions for bill of particulars, together with the allegations of the indictment itself, the court is of the opinion and so finds that defendants motions for “Bill of Particulars” are each and all not well taken and that they should be and they are, each and all, overruled.

The court has caused to be entered in this case appropriate orders overruling the motions to dismiss and the motions for bill of particulars with regard to each and all of the defendants respectively.

      . All told, there are thirteen defendants. Judge Gorman and his associate counsel are counsel for nine of the defendants, to-wit: Universal Milk Bottle Service, Inc., The Coors Brothers Company, The J. Weber Dairy Company, H. Miller Dairy Co. Inc., The J. H. Fielman Dairy Company, G. H. Berling, Inc., H. Woebkenberg Dairy Co., The Hyde Park Dairy Company, and Cincinnati Milk Exchange.

      . No opinion for publication.

      . No opinion for publication.


author: By BUCKLEY, J.

text:
    POST, In re: POST et, Proponents-Appellees, v. BOWDEN, Exceptor-Appellant.
    Ohio Appeals, Seventh District, Ashtabula County.
    No. 477.
    Decided March 19, 1949.
    Richard C. Rose, Theodore E. Warren, Ashtabula, for proponents-appellees.
    Beach & Warner, Cleveland, Pontius & Barsky, Ashtabula, for exceptor-appellant.
   OPINION

By BUCKLEY, J.

This cause is submitted to this court on questions of law, the assignments of error contending that the Probate Court of Ashtabula County erred in refusing to permit appellant to be exceptor to the fourth and final account submitted in the testamentary trust created under the will of Warren A. Post by the executors of Bernice A. Post, deceased, who was also trustee under the testamentary trust referred to above.

The assignments of error set forth in the brief of exceptor-appellant are as follows:—

“That said Probate Court erred in granting the objection of the co-executors of the testamentary trustee, Bernice A. Post, to the introduction of evidence in support of his (this Guardian’s) objections and exceptions to the Fourth and Final Account filed by said co-executors in said testamentary trusteeship.
“In that said Probate Court erred in holding that this appellant, said Guardian, was not a proper party and had no legal standing to file objections or exceptions to the accounting in said testamentary trusteeship.
“That said Probate Court erred in holding that the exceptions of this appellant, Guardian, were not proper or valid exceptions to the accounting in said testamentary trusteeship.
“That said Probate Court erred in approving the Fourth and Final Account of the trustee’s co-executors in said testamentary trusteeship.
“In that said Probate Court erred in ordering the exceptions of this appellant-guardian to be stricken from the records.
“Said Probate Court erred in holding that appellant’s wards were not beneficiaries under the testamentary trust created under the will of Warren A. Post.
“Said Probate Court erred in rendering judgment against this guardian-exceptor.”

For the purpose of this appeal the assignments of error may be reduced to the following: First, said guardian and two minor children are not proper parties to file exceptions to said account. Second, said exceptions are not proper and valid exceptions in law or equity.

In the consideration of these assignments of error this court is only concerned with the first of these, to-wit: Said guardian and two minor children are not proper parties to file exceptions to said account. We believe the second assignment of error should not be considered at this time as the exceptions were not considered by the probate court, inasmuch as the probate court in deciding that the exceptors were not proper parties received no evidence and did not consider the exceptions filed against the fourth account.

In considering this appeal the following facts are pertinent to a decision in this matter. Warren A. Post died testate on or about the 10th day of November, 1923, and was survived by his wife, Bernice A. Post; his sons, Allen A. Post and Warren A. Post, and his daughter Marian Post Bowden. His will was admitted to probate in the Probate Court of Ashta-bula County, and the decedent’s widow, Bernice A. Post, was appointed and qualified as executrix thereunder. Warren A. Post’s will provided as follows:—

“ITEM II. To my wife, Bernice A. Post, I give, bequeath* and devise one-third of the total remainder of my estate to> be hers absolutely and in fee simple.
“ITEM III. All of the then remainder of my estate, after Item II is satisfied, I give, bequeath and devise to my said wife, Bernice A. Post, as executrix, hereinafter named, in trust, to be held and used by her upon the following trust: I give, bequeath, and devise to my said wife the net income from said remainder of my estate so long as she shall remain unmarried; and should said income at any time fall below Twenty-Five Hundred Dollars ($2500.00) per year, my said executrix is authorized, in the exercise of her discretion, to use so much of the principal of said remainder as will bring said yearly income up to Twenty-five Hundred Dollars-($2500.00).
“ITEM IV. I direct that if my said wife shall remain single she shall have the right and authority to dispose by her last will and testament of the property covered by Item III; but if under such condition she should die intestate, or in case she should remarry, then and in either of such cases, I direct that said property shall pass absolutely and in fee simple in equal shares to those of our children who shall be then living.”

Items V, VI and VII of the will of Warren A. Post are not pertinent to this appeal and are therefore not set forth.

The estate of Warren A. Post was fully administered; ■Bernice A. Post was duly appointed trustee of the remaining property, but filed no inventory setting forth specifically the assets held by her as trustee. Three trustee accounts were filed by said Bernice A. Post as trustee under the will of Warren A. Post. The last of said accounts, labeled for the purpose of identification here as account number three, was filed on or about September 29, 1930.

On the 21st day of March, 1947, the said Bernice A. Post died testate, and her last will and testament was admitted! to probate by the Probate Court of Ashtabula County, Ohio.

The power of appointment given to the said Bernice A. Post under Item IV of the last will and testament of the said Warren A. Post was exercised by the said Bernice A. Post in her last will and testament as follows:—

“ITEM 3. All the rest, residue and remainder of my estate including property, if any, under my control and subject to disposition of this Will under provisions of the Will of my late husband, Warren A. Post, I give and bequeath as follows: to-wit:
One-third to my son, Allen A. Post;
One-third to my son, Warren A. Post;
One-sixth to my granddaughter, Nancy Sue Bowden, and
One-sixth to my grandson, David Norman Bowden, should either of said grandchildren not be living when legacies herein are payable, then the legacy provided for such deceased grandchild shall pass to the surviving grandchild. Should neither of said grandchildren be living when legacies herein are payable, then all property covered by this Item 3 shall pass to my said two sons in equal shares.
“ITEM 4. I hereby nominate and appoint Allen A. Post and Warren A. Post, my sons, to be the executors of this, my last will and testament, and I request that no bond be required of my said executors.”

The last will and testament of Bernice A. Post is dated the 26th day of July, 1946.

At the time the third account was filed in the trust created under the will of Warren A. Post there remained in the trust estate the sum of $24,950.00.

Allen A. Post and Warren A. Post, sons of the deceased Bernice A. Post, qualified as executors of the estate of their mother, and as such executors filed a fourth and final account in the trust created under the will of their father, Warren A. Post, of which their mother, Bernice A. Post, was the trustee.

It is admitted that Marian Post Bowden, daughter of Warren A. Post and Bernice A. Post, died survived by her husband, David J. Bowden, and two minor children Nancy Sue Bowden and David Norman Bowden, who through their father, David J. Bowden, guardian, are the exceptors to the fourth account filed in the Warren A. Post trust.

It is the opinion of this court that the probate court erred in sustaining a motion of the appellees-executors that the appellant-exceptor was not a proper party to file exceptions to the fourth and final account in the trust created under the will of Warren A. Post.

It is the contention of the appellees that the excepting grandchildren are not beneficiaries under the trust created ■under the will of Warren A. Post in that they received their rights by virtue of their nomination under the last will and testament of Bernice A. Post in the exercise of her power of appointment as set forth in her last will and testament.

It is the opinion of this court that this conclusion is not sustained under the law of the State of Ohio. Under the last will and testament of Warren A. Post the living children of Warren A. Post received a contingent remainder subject to be divested by the exercise of the power of appointment granted to Bernice A. Post. Bernice A. Post did exercise the power of appointment granted to her and by the exercise thereof confirmed Warren A. Post and Allen A. Post as re-maindermen and beneficiaries as to two-thirds of the remaining trust property, and also nominated Nancy Sue Bowden and David Norman Bowden, her grandchildren, as beneficiaries under the trust created by the will of Warren A. Post, deceased, to the extent of the remaining one-third of the trust estate.

There can be doubt but that under the last will and testament of Warren A. Post, a trust was created for the benefit of the two sons as contingent remaindermen. Had the power of appointment not been exercised, the two sons, as the only living children of the said Warren A. Post, would have been remaindermen with a vested remainder and would have been entitled, as such, to be exceptors to the fourth and final account filed in said trust. They would be the beneficiaries under the last will and testament of Warren A. Post, deceased. However there was a power of appointment exercised by Bernice A. Post, and the exercise of this power divested one-third of the remaining trust estate from the remaindermen, Warren A. Post and Allen A. Post, and vested it in the children of the deceased daughter. It seems obvious, therefore, that had the power of appointment not been exercised by Bernice A. Post the remaindermen, sons, as absolute beneficiaries, would have been entitled as such beneficiaries to file exceptions to the fourth and final account in the trust. It should follow that the grandchildren, the nominees under the power of appointment, should have a similar and like privilege to file exceptions to the final account inasmuch as they, by the exercise of the power of appointment became vested with the same privileges and rights as the beneficiaries under the will of Warren A. Post would have had if the power of appointment had not been exercised.

Wills v. Cowper, 2 Ohio Reports 124, wherein the court says: “A person in whose favor the power has been executed, takes in the same manner as if the instrument executing the power had been contained in that given it. * * * He makes his title under the power itself; and, for many purposes, the act -of the trustee, executing the power, is in equity, considered as the act of the party creating the power.”

In Matter of Trust of Howald, 65 Oh Ap 191, it has been held:—

“When this power has been exercised by the donee. of the power, the appointee takes an interest to the amount appointed under the trust, and not under the will of the donee.”

In 16 O. Jur., Page 482, Paragraph 101, a contingent remainder is defined as one where “the right to the estate as well as the right to the possession of such estate is not only deferred to a future period, but is dependent on the happening of some future contingency.”

In this case the sons, Warren A. Post and Allen A. Post, were contingent remaindermen whose right to the possession of the estate was subject to the possible exercise of the power of appointment set forth in the will of Warren A. Post granting Bernice A. Post the right to dispose of the balance of the trust estate in a manner different from that provided in the will. In other words, by the exercise of the power of appointment and nominating beneficiaries other than the sons, who were the living children of Warren A. Post, Bernice A. Post could divest the remaindermen of their beneficial interest. Bernice A. Post did exercise the appointment and thus brought into being the only contingency which prevented the remaining trust estate from wholly vesting in the surviving children of Warren A. Post. There can be no doubt but that if the power of appointment had not been exercised the living sons of Warren A. Post would have every right to become exceptors to the last account filed herein; and for this reason it seems obvious that the nominees under the power of appointment became remaindermen in the same sense that the surviving sons of Warren A. roso would have been had not the power of appointment been exercised.

In Donley’s Adm’rs v. Shields, 14 Ohio Reports 359, the tnird syllabus sets forth “where land is bequeathed by a husband to his wife, to use during life, with power to devise the same on her death to whom she pleases, and the wife devises the same, her devisee takes the estate disincumbered by her debts”.

This principle of law seems to sustain the conclusion that the wife, the holder of the life estate interest under a trust, loses all interest in the same at the moment of death, and that her nominees under the exercised power of appointment, receive the balance of the trust estate. This is also set forth in a later decision of the courts of Ohio as the same is set forth In Matter of Trust of Howald, 65 Oh Ap 191, 18 O. O. 386.

vides as follows:—

In the Howald case, cited above, the fourth syllabus pro-

“The donee of a general, unrestricted testamentary power of appointment may subject the estate appointed to the payment of her debts by stating in the appointing provision that ‘this bequest is subject to all by debts’. In such case the trustee of the appointed property, instead of paying the debts of the donee directly, should pay to her executor an amount sufficient to comply with this provision, but no other portion of the appointed property shall be regarded as a part of the donee’s estate, and, where the will of the donee directs that all her just debts should be paid out of her estate, the personal estate of the donee must be exhausted in the payment of her debts before calling on the trustee for a contribution out of the appointed property.”

This statement of the court provides that in the exercise of the power of appointment it is possible for a donee of the power to charge the trust estate as she sees fit, but that in the absence of such a charge the life estate of the donee ceases and the trust estate continues solely for the benefit of the nominees under the power of appointment, who then become absolute beneficial remaindermen under the trust and entitled to be exceptors to any account filed therein.

The appellees argue that inasmuch as the last will and testament of Warren a. Post provides “I give, bequeath, and devise to my wife the net income from said remainder of my estate so long as she shall remain unmarried; and should said income at any time fall below Twenty-five Hundred Dollars ($2500.00) per year, my said executrix is authorized, in the exercise of her discretion, to use so much of the principal of said remainder as will bring said yearly income up to Twenty-five Hundred Dollars ($2500.00)”; that said widow in the period from 1930 to 1947, 17 years, by exercising the right to use principal to bring the income up to $2500.00 per year, would have more than consumed the entire principal balance of $24,000.00. This is a purely speculative conclusion upon the part of the appellees and in no way sustained by the facts in this case.

In the first place, as disclosed by the transcript, Bernice A. Post was the possessor of an independent estate, and since the use of the principal of the trust estate was in her discretion, it is as reasonable to conclude'that she did not use the principal of the trust estate as to conclude that she did. In fact, it is more reasonable because when Bernice A. Post executed her last will and testament in 1946 from the phraseology of her will she implied that there was a balance in said trust estate.

Under the laws of the State of Ohio the following duty is imposed upon fiduciaries as to the filing of accounts, to-wit, §10506-34 GC:—

“Within nine months after his appointment, every executor and administrator shall render an account of his administration, and in like manner shall render further accounts at least once each year thereafter. Every other fiduciary shall render an account of the administration of his estate or trust at least once in each two years. An account shall be rendered by any fiduciary at any time or times other than heretofore mentioned upon order of the court at its own instance, or upon the motion of any person interested in the estate or trust for good cause shown. Every fiduciary shall render a final account within thirty days after completing the administration of the estate or the termination of his trust, or within such other period of time as the court may order.
“Every account shall include an itemized statement of all receipts of the fiduciary during the accounting period, and of all disbursements and distributions made by him during such period, verified by vouchers or proof, together with an itemized statement of all funds, assets and investments of the estate or trust known to or in the possession of the fiduciary at the end of the accounting period, and shall show any changes in investments since the last previous account. The accounts of testamentary trustees shall, and the accounts of other fiduciaries may, show receipts and disbursements separately identified as to principal and income.”

Had the trustee, Bernice A. Post, performed the duty imposed upon her by the above statute' there could have been no question as to her use of the principal of the trust estate to bring the income from the trust estate to the •designated $2500.00 limit set forth in the will of Warren A. Post. Her voucher in such amount would have been conclusive that she had in her discretion exercised her right to use the principal of the trust estate to supplant any deficiency in income. Inasmuch as she did not perform this duty imposed upon her by the statute, it is fundamental that she •did not in her discretion use such principal. This is sustained by the making of her last will and testament in 1946 in which she exercised the power of appointment granted her under the will of Warren A. Post to dispose of the balance •of the trust property.

Sec. 10506-38 GC, provides that:—

“Any person1 interested in an estate or trust may file exceptions to an account or to matters pertaining to the execution of the trust. All exceptions shall be specific and shall he reduced to writing. Exceptions shall be filed, and a copy thereof furnished to the fiduciary by the exceptor, not less than five days prior to the hearing on the account. The court .for cause may allow further time to file exceptions. If exceptions are filed to an account the court may allow further time for serving notice of the hearing upon any person who may be affected by an order disposing of such exceptions and who shall not already have been served with notice of the hearing in accordance with §10506-37 GC.”

It is the opinion of the court that the exceptors, nominees •under the power of appointment exercised by Bernice A. .Post in her last will and testament are remaindermen and beneficiaries under the trust created under the last will and testament of Warren A. Post; as such are entitled to be heard as exceptors to the final account filed in said trust; to have their rights determined on the basis of a hearing ■of such exceptions; and that the Probate Court of Ashtabula County, in sustaining a motion to exclude them as such •exceptors to the fourth and final account in the trust under the will of Warren A. Post, erred and this appeal from such finding sustained.

The judgment of the probate court is therefore reversed, and this matter is therefore remanded to the Probate Court •of Ashtabula County for consideration of the exceptions filed therein by the appellant herein.

PHILLIPS, PJ, NICHOLS, J, concur.


author: By WISEMAN, J.

text:
    MOUNTS, Plaintiff-Appellant, v. ECLIPSE MOTOR LINES, INC. et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4273.
    Decided October 13, 1949.
    John P. Moloney, Russ Bothwell, Columbus, for plaintiff-appellant.
    Hamilton & Kramer, Columbus, for defendants-appellees.
   OPINION

By WISEMAN, J.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Franklin County, Ohio, sustaining a motion to quash service of summons and dismissing the action against the Eclipse Motor Lines, Inc.

The exhibits in the form of affidavits presented to the trial court in support of the motion to quash cannot be considered by this court, as there is no bill of exceptions. The affidavits are attached to the transcript of the docket and journal entries and original papers. The affidavits being used in proof of an issue of fact are not a part of the record, even though filed with the clerk. Such affidavits should have been brought upon the record in the form of a bill of exceptions. Langan v. Kessinger, 23 Abs. 392; Simes v. Dayton-Xenia Ry. Co., 24 Abs. 595; Willett, Admr., v. N. Y. C. Rd. Co., 73 Oh Ap 59, 54 N. E. (2d) 317; Vol. 2 O. Jur. pp. 593, 641.

A factual issue being presented, in the absence of the bill of exceptions, the regularity and the validity of the judgment is presumed. We regret that the record is not properly prepared to present the more important question raised in the briefs.

Judgment affirmed.

MILLER, PJ, and HORNBECK, J, concur.


author: By FESS, J.

text:
    STALEY, Appellant, v. KREINBIHL et al., Exrs., Appellees.
    Ohio Appeals, Third District, Hardin County.
    No. 376.
    Decided February 14, 1949.
    Roy Warren Roof, Kenton, for appellant.
    Paul T. Mahon, Kenton, Oren E. Dickason, Lima, for ap-pellees.
   OPINION

By FESS, J.

On November 6, 1948, plaintiff filed a notice of appeal from this court to the Supreme Court of Ohio from a judgment entered in this court after a trial de novo herein. On the same day, but after the filing of plaintiff’s notice of appeal, the defendants filed a notice of cross-appeal in this court to the Supreme Court. Plaintiff filed a motion to strike the notice of cross-appeal from the files for the reason that no statute or rule of this court provides for the filing and perfecting of cross-appeals from this court to the Supreme Court. However, the right of appeal can be determined only by the court or tribunal to which the appeal is sought to be taken. State ex rel. Cleveland, A. & C. Ry. Co. v. Glasgo, Aud., 105 Oh St, 225, 137 N. E., 35. The motion to strike is therefore overruled without prejudice to the plaintiff to raise the question in the Supreme Court.

Motion overruled.

CONN, PJ, and CARPENTER, J, concur.