author: Newman, J.

text:
    The Buschman Co. v. The Garfield Realty Co.

      Landlord and tenant■ — ■Extension of term — Parol agreement — Repudiation — Notice by landlord — Leases.
    1. A parol agreement made by a landlord and tenant in possession under an existing lease, prior to the expiration of such lease, for a tenancy in futuro from and after the original term, may be repudiated by either party before the same has been validated by possession taken thereunder.
    2. Notice by the landlord to the tenant, after the parol agreement has been made, that he desires possession of the premises at a time prior to the time fixed for the tenancy by the parol agreement, is a repudiation of such an agreement.
    (No. 15525
    Decided December 11, 1917.)
    Error to the Court of Appeals of Cuyahoga county.

      ■ This case originated in the municipal court of Cleveland. In its statement of claim defendant in error alleged that on or about August 1, 1913, it leased, in writing, to plaintiff in error, a certain storeroom in what is known as the Anisfield Building, in the city of Cleveland, for a period of two years, commencing on the first day of August, 1913, and extending to and including the 31st day of July, 1915, plaintiff in error to pay a rental of $10,000 for the first year and $12,000 for the second year, payable in equal monthly installments in advance. It was alleged that plaintiff in error had held over and had remained in possession of the premises after the expiration of said lease to the 15th day of August, 1915, and, contrary to the terms of said lease, had refused to pay the amount due defendant in error for the period August 1, 1915, to August 15, 1915. There was a prayer for judgment in the sum of $500 with interest.
    In its amended statement of defense, set-off, and counterclaim, filed by plaintiff in error, it admitted its tenancy of the premises described until August 1, 1915, and then denied each and every other allegation contained in the statement of claim.
    Plaintiff in error by way of set-off and counterclaim alleged that on or about April 21, 1915, defendant in error extended said lease expiring August 1, 1915, for a further period of eight months, or until April 1, 1916, upon the same terms and conditions, and that relying thereon plaintiff in error made no efforts to secure another location. It was alleged that defendant in error, in violation of the rights of plaintiff in error and its contract and agreement extending to April 1, 1916, had leased a portion of the premises to The Graves & Laughlin Company, and that thereafter, on May 11, 1915, defendant in error had served notice upon plaintiff in error to vacate said premises on August 11, 1915, and that on August -, 1915, had served upon plaintiff in error a three-days notice to vacate the premises. It was.then alleged that by reason of the wrongful acts of defendant in error in leasing a portion of said premises to other parties and violating its contract and agreement with plaintiff in error, and by reason of said notices, plaintiff in error was compelled and forced to hurriedly engage another location at a much larger rental and to make hasty preparations for removal and incurred large expense in doing so and suffered a loss of trade and damage in consequence thereof. It was further alleged that plaintiff in error vacated said premises on August 11, 1915, in compliance with the notices from defendant in error, and that in order to do so it was compelled to and did expend $1,000 and suffered additional damage in the sum of $2,000. The prayer of plaintiff in error was that the statement of claim of defendant in error be dismissed and that plaintiff in error be given judgment in the sum of $2,500, and that the same be set off against any claim of defendant in error.
    In the reply of defendant in error it was admitted that on or about May 11, 1915, it had leased a portion of the premises to The Graves & Laughlin Company and that on August —, 1915, it had served notice upon plaintiff in error, and it admitted further that on August 11, 1915, plaintiff in error had vacated said premises. Each and every other allegation and averment contained in the set-off and counterclaim was denied.
    The case was submitted to the municipal court upon the pleadings and the evidence, without the intervention of a jury, and the court found in favor of defendant in error on its statement of claim in the sum of $478.48 and against plaintiff in error upon its set-off and counterclaim. ’ A motion for a new trial was overruled and judgment rendered against plaintiff in error in the amount found due. Error was prosecuted to the court of appeals and the judgment of the municipal court was affirmed. Upon application of plaintiff in error the court of appeals was directed to certify its record to this court.

      Messrs. A. A. & A. H. Bemis, for plaintiff in error.

      Messrs. White, Johnson, Cannon & Neff, for defendant in error.
   Newman, J.

The written lease entered into between the parties in this case expired on the 31st day of July, 1915. It is admitted that defendant in error, on the 11th day of May, 1915, notified plaintiff in error that it desired possession of the premises occupied by it on the 11th day of August, 1915. It appears from the record that plaintiff in error occupied the premises until August 14, 1915. The municipal court made a finding against plaintiff in error on account of the use and occupancy of the premises during the period August 1, 1915, to August 14, 1915, in the sum of $478.48, to which finding no abjection seems to be made on the part of plaintiff in error. The alleged error which counsel urge as their ground for a reversal of the judgments of the lower courts is that the trial court rejected all evidence as to damages claimed by plaintiff in error in its statement of set-off and counterclaim filed in the municipal court. In this statement plaintiff in error predicated its right to a recovery of damages upon the ground that it had been wrongfully evicted from the premises. It claimed the right to the possession of the premises until April, 1916. This right was based upon what was alleged to have been an oral agreement entered into during the month of April, 1915, whereby plaintiff in error was to have possession of the premises for a period of eight months after the expiration of a written lease which expired July 31, 1915. The parol agreement was claimed to have been made at a time when plaintiff in error was in possession of the premises under a written lease. It is true that the landlord and tenant while the latter was in possession of the premises in question could have made a parol agreement before the expiration of the written lease for a tenancy of eight months to continue from and after the original term. But before such an agreement could have been binding the landlord at the expiration of the term of.the written lease must have acquiesced in the continued possession of the tenant' in pursuance of the oral agreement. Bumiller v. Walker, 95 Ohio St., 344.

The instant case was tried to the municipal court without the intervention of a jury. It was for the court to determine whether a parol agreement was actually made. There was a conflict of evidence, and the trial court was not requested to nor did it make separate conclusions of fact and law, and it may be that upon a weighing of the evidence the court found against the plaintiff in error on the question whether or not the parol agreement was. actually made. We cannot say there was no evidence which would warrant the court in reaching such a conclusion. This alone would defeat the right of plaintiff in error in the claim for damages made by it in its statement of set-off and counterclaim.

But assuming that a parol agreement had been made by the parties in April, 1915, it is uncontroverted that on May 11, 1915, the tenant was notified by the landlord that it desired possession of the premises on August 11, 1915. This is certainly inconsistent with the claim that the landlord assented to and acquiesced in the continued possession of the tenant after the expiration of the written lease in pursuance of the oral agreement. The establishment of this fact is necessary before a tenant can avail himself of the terms of a parol agreement such as is claimed to have been made in this case. Not only could the trial court have found that there was no acquiescence, but also that there was a repudiation of the agreement by the landlord, if any agreement was made. As was said in the opinion in Bumiller v. Walker, supra, either party may repudiate his own agreement before the same has been validated by possession taken thereunder.

While counsel for plaintiff in error in their pleading in the municipal court based their claim for damages solely upon the breach of the parol agreement alleged to have been made in April, 1915, yet in oral argument and in their briefs filed in this court they suggest that if plaintiff in error was not a tenant for eight months under the parol agreement, it nevertheless became a tenant from year to year by holding over after July 31, 1915, and was therefore wrongfully evicted from the premises in August of that year. The right to hold for another year after the expiration of the term of a written lease requires the assent of the landlord, either express or implied. By remaining in possession without any new arrangement the tenant is regarded as offering to take the premises for another year upon the terms of the tenancy which has just expired. The landlord may treat him as a tenant for a year at the same rent, upon the same terms and conditions of his prior occupancy, or as a trespasser, at his election. But if the landlord accepts rent or acquiesces in such holding over for a considerable time, his election will be regarded as made in favor of the tenancy. Gladwell v. Holcomb et al., 60 Ohio St., 427, and B. & O. Rd. Co. v. West, 57 Ohio St., 161.

But in the instant case there was no acceptance of rent by the landlord, and it is admitted that on the 7th day of August, 1915, seven days after the expiration' of the written lease, the landlord gave to the tenant notice to quit the premises as required by statute, after having on May 11 given notice in effect that he did not intend to prolong the tenancy for another year. The trial court could well have found from the evidence that the instant case did not come within the law announced in the cases we have just cited.

Our conclusion therefore is that there was no right on the part of plaintiff in error to continue in the possession of the premises, either for eight months, under a parol agreement, or for another year after the expiration of the written lease, on account of a holding over. It follows then that there was no wrongful eviction and the trial court was correct in refusing to consider any claim for damages.

Judgment affirmed.

Nichols, C. J., Wanamaker, Jones, Matthias, Johnson and Donahue, JJ., concur.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    United Distillers Co. v. Zeisler.

      Courts of appeals — Jurisdiction — Error from common pleas court — Action originating in Cincinnati ntmdcipal court — Section 6, Article IV, Constitution, 1912.

    (No. 15639
    Decided December 11, 1917.)
    Error to the Court of Appeals of Hamilton county.

      Mr. Charles A. J. Walker, for plaintiff in error.

      Mr. H. P. Karch, for defendant in error.
   By the Court.

The plaintiff in error brought action against the defendant in error in the municipal court of the city of Cincinnati to recover the sum of $280, claimed to be due upon certain promissory notes executed and delivered to it by the defendant in error.

The defendant below, defendant in error here, as a defense, alleged a failure of consideration, and set up a counterclaim against the plaintiff. Judgment was rendered thereon in favor of the defendant. Error was prosecuted to the court of common pleas of Hamilton county, which reversed the judgment of the municipal court. Upon proceedings in error the court of appeals reversed the judgment of the court of common pleas and affirmed that of the municipal court.

The sole question presented here is whether the court of appeals has jurisdiction upon a proceeding ip error from the court of common pleas in a case which originated in the municipal court of the city of Cincinnati.

This court held in the case of Cincinnati Polyclinic v. Balch, 92 Ohio St., 415, that the jurisdiction of the court of appeals is conferred by the constitution, and that the legislature has no power whatever either to enlarge or limit the appellate jurisdiction of that court. Such jurisdiction is conferred by Section 6 of Article IV of the Constitution, and the court of appeals is thereby authorized “to review, affirm, modify, or reverse the judgments of the courts of common pleas, superior courts and other courts of record.” Under this provision every judgment of the court of common pleas, regardless of where the action originated, is reviewable by the court of appeals Such jurisdiction is not affected, nor is the right of a party aggrieved by the judgment of the common pleas to have that judgment reviewed by the court of appeals abridged, by reason of the fact that the municipal court of Cincinnati, wherein the case originated, is also a court of record by the specific terms of the act creating it.

It follows that the court of appeals had jurisdiction to review the judgment of the common pleas court in this case and its judgment is therefore affirmed.

Judgment affirmed.

Nichols, C. J., Wanamaker, Newman, Jones, Matthias, Johnson and Donahue, JJ., concur.


text:
    The State, ex rel. Bittikofer, v. Babst, Judge.

      Courthouses — Erection and control thereof — Building commission — County commissioners — Courts — Court rooms.

    (No. 15655
    Decided December 11, 1917.)
    Error to the Court of Appeals of Crawford county.

      Mr. Benjamin Meek, for plaintiff in error.

      Mr. Charles F. Schaber; Mr. W. J. Geer; Mr.. Frank Pigman; Mr. R. V. Sears and Mr. William C. Beer, for defendant in error.
   By the Court.

The county commissioners are required to provide a suitable place for holding the courts of a county, until a permanent seat of justice is erected.

Until such permanent seat of justice is erected, Section 2418, General Code, vests in the county commissioners discretion to determine what is a suitable place for holding the courts of the county. Their determination of that question will not be interfered with except for abuse of discretion.

The county commissioners are also authorized to provide a courthouse, when in their opinion it is needed. But in the erection of such permanent seat of justice, the county commissioners are not vested with authority or discretion to determine the character of the building that shall be erected, other than to fix the amount that shall be expended therefor. On the contrary, that authority is vested in a building commission, of which the members of the board of county commissioners are ex officio members. The four other members are appointed by the court of common pleas.

Where the amount proposed to be expended is less than $25,000, then this building commission shall consist of the members of the board of county commissioners, the clerk of the court, the sheriff, probate judge, and one person to be appointed by the court of common pleas. In either event, the plans, specifications, drawings and representations must be approved by this building commission, and not by the board of county commissioners.

After the building is erected, the county commissioners have no discretion or authority to deprive the courts of the use of any part of the building provided by this building commission for the administration of justice; otherwise the appointment of such a commission would be an idle performance.

The county commissioners are also authorized to provide suitable offices for the county officers, and this they may do, either in a separate building, or in the courthouse itself, provided the plans for a courthouse, including the offices for the county officers, .are approved by the building commission; and, while, under the express provisions of the statute, the county commissioners have full control over these offices, whether located in the courthouse or in a separate building, yet this, however, does not alter the fact that the primary purpose of the courthouse is to provide a permanent seat of justice. It is unimportant whether such seat of justice occupies the entire courthouse or a part thereof specifically assigned and designated by the building commission for the use of the courts in the administration of justice. The part so assigned is as much within the .control and jurisdiction of the courts as if the whole building were devoted exclusively to judicial purposes.

While the statutes provide for a building commission when other county buildings are proposed to be erected, nevertheless there is a clear distinction between such buildings and a courthouse.

The judicial power is a separate and independent department of government, and when a building is erected, and the whole or a part thereof is provided or assigned by the building commission to the use of this independent department of government, such building, or such part as may be so assigned, naturally and necessarily comes within the control of that department, otherwise a conflict of authority might seriously impede the administration of justice.

Undoubtedly the county commissioners have some jurisdiction or control over the entire building, but the extent of that jurisdiction and control is clearly defined by the statutes requiring them to furnish and maintain the building and provide light and heat therefor; but they cannot deprive this independent branch of the state government of the use of any part of a courthouse provided by the building commission for its purposes.

Whether this room in the Crawford county courthouse, marked “Chancery Court,” was or was not designated and set apart by the building commission for the use of the court, is a question of fact for the trial court. There is evidence in this record in support of the affirmative of this proposition. In fact, counsel for the relator in his brief says that this was probably done by the building commission, or by the architect with its approval. However, this court will not consider the weight of the evidence.

Judgment affirmed.

Nichols, C. J., Newman, Jones, Johnson and Donahue, JJ., concur.


text:
    The Berkey Farmers' Mutual Telephone Co. et al. v. The Sylvania Home Telephone Co. et al.

      Injunction — Dismissal of proceeding — Res ad judicata and conclusive— Subsequent action on bond — -Counts of appeals— Review confined to record — Substantial justice — Section 11364, General Code.

    1. In an action' for damages against the principal and sureties on an injunction bond, required by Section 11882, General Code, the dismissal of the petition in the injunction proceeding and the dissolution of the injunction are conclusive evidence that the injunction ought not to have been granted.
    2. In such an action, in the absence of fraud or collusion, the defendants are concluded by the judgment in the injunction proceeding and cannot reopen the questions which were the subject-matter of that proceeding.
    3. The court of appeals in reviewing a judgment of a common pleas court is confined to a consideration of the record presented to it and cannot, under the provisions of Section 11364, General Code, consider matters wholly outside the record, for the purpose of determining whether or not substantial justice has been done to the party complaining.
    (No. 15645
    Decided December 11, 1917.)
    Error to the Court of Appeals of Lucas county.
    This case originated in the common pleas court of Lucas county. It was an action for damages founded upon an injunction bond. Plaintiffs in error, in their second amended petition, alleged that on December 16, 1913, The Sylvania Home Telephone Company, one of the defendants in error here, 'brought an action in the common pleas court of Lucas county, and, on that date, obtained an injunction against plaintiffs in error, enjoining them from carrying on any portion of the work in the erection of a telephone plant of The Berkey Farmers'’' Mutual Telephone Company and from erecting pole lines and from operating a telephone systém or furnishing telephone service ■ to any patrons in Richfield and Sylvania townships, Lucas county, Ohio; that on the same day The Sylvania Home Telephone Company, with the other defendants in error here as sureties, executed an undertaking whereby they became bound unto plaintiffs in error in the sum of $1,000, being the amount fixed by the court to secure to plaintiffs in error all damages they might sustain if it were finally decided that the injunction ought not to have been granted. It was alleged that the injunction proceeding had been heard in the common pleas court and it had been decided by that court that the injunction ought not to have been granted, and the same was vacated and dissolved, and that upon an appeal being taken the court of appeals on February 20, 1914, made the same finding and vacated and dissolved the injunction. Plaintiffs in error in their second amended petition set out a statement of the various items of expense incurred by them and the damages they had sustained by the granting of the injunction, and there was a prayer for judgment in the sum of $851.60. Defendants in error in their answer admitted that The Sylvfinia Home Telephone Company had obtained an injunction against plaintiffs in error, that they had executed an undertaking, and that the court of appeals had dismissed the petition and dissolved the injunction. They denied each and every other allegation contained in the second amended petition. The case was tried to a jury and resulted in a verdict for plaintiffs .in error in the amount claimed, with interest. A motion for a new trial was overruled and judgment was rendered on the verdict. Defendants in error prosecuted error to the court of appeals and that court reversed the judgment of the common pleas court and rendered final judgment in favor of the defendants in error. Upon application of plaintiffs in error the court of appeals was directed to certify its record to this court.

      Messrs. Marshall & Fraser and Mr. Thad. S. Powell, for plaintiffs in error.

      Mr. Edward H. Ray,, for defendants in error.
   Newman, J.

In the answer filed by the defendants in error in the .court of common pleas it was admitted that an injunction had been granted in favor of The Sylvania Home Telephone Company, that a bond had been executed, and that the petition for the injunction had been dismissed and the injunction dissolved by the court of appeals. The common pleas court took the position that the only question in the case was as to the extent to which plaintiffs in error had been injured by reason of the issuance of the injunction.

The court of appeals in reversing the judgment of the common pleas court, and in rendering final judgment in favor • of defendants in error here, made the following finding: “The court finds that there is error apparent upon the record in the proceedings of said Court of Common Pleas to the prejudice of the plaintiffs in error in that, on the pleadings and record no legal foundation can exist upon which the judgment for damages entered in favor of defendants in error in this action can rest, and that substantial justice was not accomplished in the entry of a judgment for defendants in error and in that substantial justice under the provisions of Section 11364 can only be accomplished, by a final judgment in favor of plaintiffs in error.”

The reason for holding that no legal foundation existed upon which the judgment for damages in the action on the injunction bond could rest is not given in the journal entry. But in its opinion the court of appeals say that in view of the judgment of the supreme court in The Ashley Tri-County Mutl. Tel. Co. v. The New Ashley Tel. Co., 92 Ohio St., 336, decided July 2, 1915, the plaintiff in the injunction suit, The Sylvania Home Telephone Company, o.ne of the defendants in error here, was entitled to an injunction and that its order made in 1914 dissolving the injunction was erroneous. The court of appeals in effect set aside and vacated the judgment rendered by it in a separate and distinct proceeding had two years before, and permitted the defendants in error to relitigate the question of the right to the injunction. We may assume for the purposes of this case that the same questions were presented in the Ashley case, supra, as were presented in the injunction proceeding in which the bond sued on in the instant case was given, that both cases called for a construction of the same section of the General Code, and that the court of appeals had placed a construction upon that section in 1914 different from that placed upon it by this court more than a year afterwards. Would these facts, had they been properly a part of the record in the case for review, have warranted a reversal of the judgment and a rendition of final judgment in favor of the defendants in error?

Under the provisions of the statutory bond upon which the action before us here was founded, the defendants in error obligated themselves in the sum of $1,000 to pay plaintiffs in error the damages they might sustain by reason of the injunction in the action, if it were finally decided that the injunction ought not to have been granted. As we have seen, it was admitted by the answer that the injunction had been issued, that the bond had been given, and that the injunction had been dissolved by the court of appeals. It seems to be well settled that the dissolution of an injunction is conclusive that it was wrongfully issued. We do not know upon what theory the court of appeals could reopen the questions which were the subject-matter of the injunction suit, and, two years after the injunction had been dissolved, make inquiry as to whether or not the injunction was properly issued. The common pleas court was correct in limiting the inquiry by the jury to the amount of damages sustained by plaintiffs in error on account of the wrongful issuance of the injunction. Cummings, Kenney & Co. v. Mugge, 94 Ill., 186; Landis v. Wolfe, 206 Ill., 392; Dowling v. Polack, 18 Cal., 625; Swan v. Timmons, 81 Ind., 243; Andrews v. Glenville Woolen Co., 50 N. Y., 282; Fullerton v. Poole, 9 Wyo., 9.

In the case before us the principal and sureties on the injunction bond were made parties defendant. The language used by Owen, J., in Braiden v. Mercer, 44 Ohio St., 339, 343, is pertinent here: “An undertaking in an injunction proceeding is conditioned to secure the party enjoined the damages he may sustain if it be finally decided that the injunction ought not to have been granted. It has never been supposed that the sureties in an action against them could be heard to say that they were strangers to the injunction proceeding and that the decision of the court that the injunction ought not to have been granted should be disregarded and that question again litigated.” In other words, the rights and liabilities of the parties to the injunction bond, the obligees on the. one hand and the principal and sureties on the other, were fixed when it was finally determined that the injunction ought not to have been granted. The effect of the holding of the court of appeals was that a subsequent decision rendered by the supreme court in a like injunction suit between different litigants vacated and set aside the judgment rendered by the court of appeals, thereby annulling the established rights of plaintiffs in error and relieving the defendants in error of all liability on the injunction bond.

In State, ex rel. The Sylvania Home Tel. Co., v. Richards et al., 94 Ohio St., 287, decided May 29, 1916, one of the defendants in error here, The Sylvania Home Telephone Company, applied to this court for a writ of mandamus to compel the court of appeals of Lucas county to certify the record in the injunction proceeding to this court, its application being based upon the ground that the judgment of that court of appeals was in conflict with judgments pronounced upon the same question by the courts of appeals of Delaware and Morrow counties. The judgment of the court of appeals of Delaware county was the judgment affirmed by this court in the Ashley case, supra, and was affirmed before the application for the writ of mandamus was filed. The writ was denied for the reason stated in the second proposition of the syllabus. It is said in the opinion, at page 295: “It must be kept in mind that in each case the jurisdiction of the courts is invoked to adjudicate the rights of the parties in that particular controversy; and when a judgment has been rendered in due course by a court of final jurisdiction the parties should not be left in doubt as to its finality or be led to speculate on the possibility that a different court in a controversy between different parties may afterwards differently decide the legal questions involved. It frequently happens that a court of last resort overrules a reported decision formerly made by it, but no one would contend that the overruling operated to open afresh the controvery disposed of in the overruled case.”

It is equally true that where a court of appeals renders, a judgment and subsequently the supreme court in a case between other litigants involving the same question renders a different judgment, the court of appeals cannot open up the judgment ithe case decided by it and have relitigated a matter that had been finally disposed of. In Michael v. American Natl. Bank, 84 Ohio St., 370, it was held that where a cause has proceeded to trial and final judgment, a court of equity will not vacate or open up the judgment and grant a new trial of the same issue determined in the former hearing, in the absence of fraud or undue advantage by the prevailing party. No claim is made here that there was fraud or undue advantage, and if a court of equity cannot interfere, as was held in the Michael case, it certainly cannot be seriously contended that in an action at law for damages on an injunction bond theré is any authority for opening up the judgment rendered in the proceeding where the injunction bond was given.

In the journal entry in the court of appeals it is recited that “substantial justice was not accomplished in the entry of a judgment for defendants in error and in that substantial justice under the provisions of Section 11364 can only be accomplished by a final judgment in favor of plaintiffs in error.” We are at a loss to see how the provisions of that section can be extended to cover a case such as we have here. It is provided in that section that in case the reviewing court shall determine and certify in its opinion substantial, justice has not been done to the party complaining as shown by the record such reviewing court shall proceed as provided in Section 12272, General Code, which section authorizes a reviewing court to render such judgment as the court below should have rendered, or remand the cause to that court for such judgment. But it is to be noted that the absence of substantial justice must be shown by the record, and this presupposes that the record discloses some error.' It certainly was not contemplated that a reviewing court might reverse a judgment or render final' judgment in a case where the record itself is free from error. The only issue that was, and the only issue that could have been, submitted to the jury in the instant case was as to the amount of damages sustained by plaintiffs in error. The matters upon which the court of appeals based its. judgment of reversal and final judgment, as we have endeavored to show, would not warrant such action on the part of the court even though such matters were presented by the record. As a matter of fact, they were not so presented, and the court of appeals is confined to a consideration of the record before it and cannot consider matters, outside of it and enter a judgment of reversal or final judgment upon the theory that substantial justice has not been done.

But, finally, it is suggested by counsel for defendants in error, that, if this court should decide that the court of appeals did not have the right to enter final judgment, then that court should be directed to reverse the judgment on account of the several alleged errors which they set out in their brief and which were admittedly complained of by them in the court of appeals and presumably found not to have been well taken. We cannot agree with counsel that the admission of the evidence of which they complain and the so-called misconduct of the trial court warrant a reversal of the judgment of the common pleas court.

Judgment of the court of appeals reversed and that of the common pleas court affirmed.

Nichols, C. J., Wanamaker, Jones, Matthias, Johnson and Donahue, JJ., concur.


author: Jones, J.

text:
    Rothman v. Engel.

      Defenses — Res ad judicata — Judgment for breach of contract — Subsequent action to cancel agreement — Fraud and misrepresentation— Counterclaim —Failure to plead in former action.

    1. Facts that are strictly defensive, and which, if pleaded in an action at law, would state a good defense, do not constitute a counterclaim. And if the defendant does not avail himself of such defense, he will he barred from utilizing it in a subsequent suit.
    2. Where a party has sued for damages for breach of a written agreement for the exchange of realty and recovered judgment, in which suit the defendant interposed the single defense of nonownership of the property agreed to be exchanged, the defendant in that action cannot in a subsequent suit seek the cancellation of such agreement because his signature thereto was procured by fraudulent acts and false representations made by his adversary.
    3. In such a case the former judgment is a bar to the second action. The facts subsequently pleaded therein do not constitute .such a counterclaim as may be reserved for future action, but are strictly defensive, and were available as a complete defense in the law action.
    (No. 15397
    Decided December 18, 1917.)
    Error to the Court of Appeals of Cuyahoga county.
    On January 21, 1915, Rothman sued Engel for the specific performance of a contract alleged to have been entered into by the parties for an exchange of lands. Later, by an amended petition, the form of the action was changed to an action at law seeking to recover the sum of $1,000 as liquidated damages by reason of breach of the agreement. Engel answered, setting forth as her sole defense a denial that she owned the property which she had agreed to exchange. In that case judgment was rendered in favor of the plaintiff, Rothman, for the entire amount claimed, and this judgment was later affirmed by the court of appeals.
    Thereafter, on December 4, 1915, when Roth-man attempted to enforce his judgment by legal proceedings, Katherine Engel, as plaintiff, filed this action seeking to have canceled and annulled the contract upon which the former suit was based, upon the ground that the plaintiff’s signature thereto had been secured by fraud and false representations upon the part of Rothman’s agent in the transaction. These facts appearing in the petition the defendant, Rothman, demurred thereto generally. The demurrer was sustained by the common pleas court and judgment rendered in favor of the defendant on the demurrer. On appeal, the demurrer was again interposed to the petition, but was overruled by the court of appeals: That court heard the case, and found the foregoing facts and the further fact that plaintiff’s signature to the agreement in question was procured by fraud and by false representations made by Rothman’s agent. That court then canceled the agreement and vacated the judgment obtained by Rothman in the former suit, and enjoined its collection. The judgment of the appellate court is now sought to be reversed in this court,

      Mr. Frank C. Scott and Mr. Milton S. Koblitz, for plaintiff in error.

      Mr. Walter C. Ong and Mr. Robert J. Selzer, for defendant in error.
   Jones, J.

In the action at law seeking damages against Katherine Engel for breach of the agreement involved, the only defense specifically pleaded by her as defendant was that she did not own the property which she proposed to exchange under the agreement. It is now urged by her as a basis for a separate action that, in fact, the signature to the agreement was procured by the fraudulent acts and false representations of Rothman’s agent, which vitiated the alleged contract. It is not contended that these facts, if proven, would not have been a complete defense to the former action; counsel for the defendant in error concede that they would. But the contention now urged, and which was sustained by the court of appeals, is, that though Engel could have interposed that defense in the former action for damages, she had the election to permit judgment against her in the law case and reserve her defense as a basis for a counterclaim in a subsequent equitable action to cancel the agreement.

If the principle applied by the court of appeals be upheld, then, after foreclosure of a mortgage, or recovery of judgment upon a negotiable instrument, or after specific performance of a contract for the conveyance of realty, a defendant, in either of above mentioned cases, may reserve his defense of fraud as a basis of a separate action in a later proceeding.

Our code requires a defendant to set forth all of his strictly legal defenses to a suit brought against him, or be forever barred from urging one of them in a second suit between the same parties touching the same subject-matter. This court, with a possible exception of a single case hereafter referred to, has consistently maintained this principle in construing the procedural code provisions ' requiring submission and determination of all defensive matters in a single action. Public policy and natural justice require that circuity of actions shall yield to the repose of litigation. The facts pleaded by Engel in her present action would have been a complete defense to the former action against her for damages. She placed herself in the position of risking her case upon a single defense when she could have availed herself of another. That this cannot be done in this state has been repeatedly decided. Lacy v. Admrs. of Garard, 2 Ohio, 7; Covington & Cincinnati Bridge Co. v. Sargent, 27 Ohio St., 233; Swensen & Sears v. Cresop, 28 Ohio St., 668; Kunneke v. Mapel, 60 Ohio St., 1; Mengert, Trustee, v. Brinkerhoff, Sr., 67 Ohio St., 472, and Strangward v. American Brass Bedstead Co., 82 Ohio St., 121.

The defendant in error relies, as did the court of appeals, upon the case of Witte v. Lockwood, 39 Ohio St., 141. We are not now called upon to approve or disapprove the principle announced in that case. Whether the result in Witte v. Lockwood followed from the confusion of authority in Ohio, or from the fact that new parties were necessary to afford adequate relief, as intimated in the opinion, is not clear. If for the first reason, then the confusion has disappeared, as is shown in the syllabi of the last four cases cited. In Kunneke v. Mapel, supra, the syllabus states: “It is a principle of general application that a party defending is bound to set up all matters which are strictly matters of defense.” The evocation of equitable remedy is permitted where no adequate remedy can be had on the law side of the court. In this case the defense was strictly a legal one, and full relief could have been had by the defendant in the law action. It furnished no basis for a counterclaim of such character as could be reserved for future action. It was purely and strictly defensive. Let it be assumed that Engel in the former suit had pleaded the facts now relied upon in this suit, and had sought the affirmative relief of cancellation. Such facts if pleaded would not have constituted a counterclaim demanding equitable relief, in the absence of special facts disclosing impending wrong or future injustice to Engel, which would warrant the intervention of a court of equity. Quebec Bank v. Weyand et al., 30 Ohio St., 126.

Plaintiff in her petition does state that she has no adequate remedy at law, but this statement is a bald legal conclusion. In the absence of additional facts pleaded, calling for the exercise of the judicial powers of the chancellor, peculiarly requiring the cancellation, complete relief could have been had by defending the former action. The case of Quebec Bank v. Weyand et al., supra, in so far as it defines a counterclaim is similar to the instant case. That was a suit upon a promissory note. The defendants filed a cross-bill, seeking equitable relief upon substantially the same grounds that are urged in this case, that the note was without consideration and fraudulently held, and upon dismissal of plaintiff’s action the defendants insisted that their bill constituted a counterclaim demanding affirmative relief. The court there held that the cross-action was not a counterclaim, and that full relief could have been had on the law side of the court. Judge Scott, delivering the opinion, said (page 131): “If the issues of fact made by the pleadings were found by the verdict of the jury in favor of defendants, they would be entitled to a judgment in their favor, which would as effectually protect them from further molestation as would an order of cancellation by a court of equity.”

Facts that are strictly defensive, and which, if pleaded as a defense in an action at law, would operate to defeat the plaintiff’s right to recover, do not constitute a counterclaim. And if the defendant does not avail himself of such defense, he will be barred from utilizing it in a subsequent suit. The progressive evolution of our modern law, as exemplified in our code of procedure, should require a construction that is compatible not only with natural justice but with a promise of speedy determination of controversies between litigants. The term “counterclaim” as applied to the facts disclosed should not be so construed as to permit a litigant to try out his chances on a single defense, and, if defeated in that, later to spring a reserved defense upon his unsuspecting adversary, in a subsequent suit.

As the conceded facts appear both upon the face of the petition and in the finding of the court of appeals, it follows that the court erred in overruling the demurrer to the petition and in rendering judgment for the defendant in error. The judgment of the court of appeals is reversed, and judgment here rendered in favor of the plaintiff in error.

Judgment reversed, and judgment for plaintiff in error.

Nichols, C. J., Wanamaker, Matthias and Johnson, JJ., concur.

Donahue, J., concurs in the first paragraph of the syllabus, but dissents from the second and third paragraphs and from the judgment.


text:
    Adams v. Donovan et al.

      Building restrictions — "Residence purposes only” — -Uniformplan —Injunction—Covenants omitted in deed — Notice to purchaser — Evidence to enforce covenants.

    (No. 15409
    Decided December 18, 1917.)
    Error to the Court of Appeals of Cuyahoga county.

      Messrs. Ulmer & Bernstein and Mr. M. P. Mooney, for plaintiff in error.

      Messrs. Baker, Hostetler & Sidlo and Mr. J. A. Fogle, for defendants in error.
   By the Court.

Where a general plan of uniform restrictions has been adopted by the owners of an allotment, and such a plan publicly and generally advertised, and the owners covenant that all sales of lots in that allotment will be made subject to these restrictions, which restrictions shall be for the protection of every other person who may become the owner of a lot in that allotment, as well as the grantors, such restrictive covenants may be enforced by injunction.

Before such restrictions can be enforced against a purchaser whose deed does not contain such restrictions, it must clearly appear by the evidence, that there was such a general plan of uniform restrictions upon all the lots in the allotment; that the deeds for lots in such allotment uniformly contained such restrictions; and that the purchaser had knowledge of such general plan of uniform restrictions at the time he purchased his lot.

Where it appears from the evidence in a suit to enforce restrictions not contained in his deed, against a purchaser of a lot in an allotment, that 79 lots out of a total of 143 lots in the allotment contained no such restrictive covenants in accordance with the plan of uniform restrictions averred in the petition, an injunction will be refused, regardless of the fact that when some of these deeds were executed a private agreement was made between the owners of the allotment and the purchaser of the lot that when the purchaser conveyed the same to another person he would write into the deed of conveyance restrictions in conformity with the general plan.

Evidence that a lot owner in an allotment notified a proposed purchaser of a lot in the same allotment, that the use of the lot he proposed to purchase was restricted to single residence purposes only, does not sustain an allegation of the petition that the purchaser was notified before purchasing the lot of a general plan of uniform restrictions upon every lot in the entire allotment.

Such evidence does not charge a purchaser with notice that like restrictions are contained in the deeds of other purchasers of lots in the allotment, or that such restrictions are for the benefit of the owners of the other lots therein. Kiley v. Hall, 96 Ohio St., 374.

If, however, such notice were sufficient to put the purchaser upon inquiry, his examination of the deed records of Cuyahoga county would have disclosed that of the 143 lots in this allotment 37 had been conveyed to Annie B. Helwick, 27 to Don S. Helwick, 12 to I.I. Elworthy, 2 to Edward J. Gillespie, and 1 to Albert J. Labarge, by deeds containing' no restrictions whatever as to their use or the nature of the buildings that might be erected thereon, and that the deed to this lot in question from the owners of this allotment to his immediate predecessor in title contained the restriction that ‘‘said premises shall be used only for residence and mercantile purposes.”

There being no conflict in the evidence in reference to these facts judgment of the court of appeals is reversed, and judgment rendered for plaintiff in error.

Judgment reversed, and judgment for plaintiff in error.

Wanamaker, Jones, Matthias and Donahue, JJ., concur.


text:
    The State, ex rel. City of Toledo, v. Cooper, County Auditor.

      Municipal corporations — Home rule — Taxation — Limitation of levy— County budget commission — Qualification of members — Delegation of legislative power — Constitutional law — Smith one per cent. law.

    1. Municipalities that have adopted charters under Section 7, Article XVIII of the Amendments to the Constitution, adopted September 3, 1912, have not the absolute and unrestricted power to levy taxes for local purposes.
    2. The power of all municipalities to levy taxes may be limited or restricted by general laws. Such limitations or restrictions are warranted by Section 6, Article XIII, adopted in 1851, and by Section 13, Article XVIII of the Amendments adopted September 3, 1912.
    3. Taxation is a sovereign function. The rule of liberal construction will not apply in cases where it is claimed a part of the state sovereignty is yielded to a community therein. It must appear that the people of the state have parted therewith by the adoption of a constitutional provision that is clear and unambiguous.
    4. The Smith one per cent, law (Sections 5649-2 to 5649-5f>, General Code) does limit the power of municipalities to levy taxes, and is not repealed by any provision of the present Constitution, but is continued in force by Article XX of the Schedule to that instrument.
    5. The state has. authority to- appoint administrative agencies not only to levy but to supervise and adjust the levies between its taxing units; and Sections 5649-3b and 5649-3c, General Code, creating the budget commission and defining its duties, are not a delegation of legislative power.
    6. The fact that, under said budget-commission law, the members of such commission may not be actual residents of a taxing unit, does not render the law void. The state authority is supreme in that regard unless restricted by the Constitution.
    (No. 15755
    Decided December 18, 1917.)
    In Mandamus.

      The petition contains the following statement of facts: The city of Toledo adopted a charter on November 3, 1914, in which was included the power “to assess, levy and collect taxes on all property which the city may lawfully tax for general and special purposes,” etc. On July 23, 1917, the city council adopted an ordinance fixing the amount of the annual budget and levy for municipal purposes, interest and sinking fund for the ensuing year. The total levy for such municipal purposes, interest and sinking fund indebtedness created by vote of the city council was 5 mills; the total levy for interest and sinking fund indebtedness created by vote of the city electors, and also for university purposes, was 3.12236394 mills; and a further levy was made for health epidemic funds and emergencies under Sections 4450 and 4451, General Code, amounting to .12126967 mill. A certified copy of the ordinance was delivered to the county auditor, who, though requested to do so, refused to place such a levy upon his tax list.
    The relator seeks a writ of mandamus compelling the county auditor to comply with the request of relator. There is no allegation in the petition disclosing that the levies above named were presented to the budget commission for its supervision and final action, in connection with the budgets of other taxing districts, nor is it alleged that the levies aforesaid, together with the levies of other taxing districts involved, excluding levies for sinking fund and interest purposes, do not “exceed 10 prills on each dollar of the tax valuation” in the taxing district of which Toledo is a part. Because of the absence of these allegations, the respondent, through the attorney general, challenges the sufficiency of the petition by a general demurrer.

      Mr. Harry S. Commager, director of law; Mr. John A. Garver, assistant director of law, and Mr. Allen J. Seney, for relator.

      Mr. Joseph McGhee, attorney general; Mr. Wm. J. Ford and Mr. C. D. Laylin, for respondent.
   Jones, J.

The contentions of the relator are as follows:

. First — That under the home-rule provisions of the Constitution (Sections 3 and 7, Article XVIII) chartered municipalities have the absolute power to levy taxes for municipal purposes, which cannot be limited by any act of the general assembly, and that the provisions of the Smith one per cent, law are inapplicable to such municipalities.

Second — That if such power may be limited by general laws, the sections of the law relating to the 'budget commission (Sections 5649-3b and 5649-3c, General Code) do not in fact limit the power of a chartered municipality to levy taxes; and, furthermore, that these sections substitute a taxing authority in lieu of the municipal body and therefore are an unconstitutional delegation of legislative power.

Third — That the Smith one per cent, law has in effect been repealed as to chartered cities, because of its inconsistencies with an absolute taxing power granted to such cities by the home-rule provisions of the Constitution, and is not continued in force under the saving clause contained in Schedule 20 of the Constitution adopted in 1912.

In so far as the statutory and constitutional provisions involved here are germane they are referred to in the course of this opinion. What is now popularly known as the “Smith one per cent, law’* comprises Sections 5649-2 to 5649-5b, inclusive, General Code.

Section 5649-2, General Code, provides that, with certain exceptions, the aggregate levy in any county, township, city, village, school district or other taxing district, for the fiscal year, shall not exceed for all purposes 10 mills on each dollar of the taxable property in any taxing district.

Section 5649-3a, General Code, provides that the fiscal officers of each taxing district therein named shall submit annual budgets to the county auditor, and, except in certain cases therein contained, also provides interior limitations of taxes which may not be exceeded, — for counties, 3 mills; for municipal corporations, 5 mills; for townships* 2 mills; and for school districts, 5 mills.

Section 5649-3b, General Code, designates the personnel of the budget commission, which is to consist of the county auditor, county treasurer and prosecuting attorney.

Section 5649-3c, General Code, provides that the county auditor shall submit to the budget commission the annual budgets of the fiscal affairs of the taxing districts for examination and ascertainment of the total amounts proposed to be raised therein. This section then provides as follows: “If such total is found to exceed such authorized amount in any township, city, village, school district, or other taxing district in the county, the budget commissioners shall adjust the various amounts to be raised so that the total amount thereof shall not exceed in any taxing district the sum authorized to be levied therein. In making such adjustment the commissioners may revise and change the-annual estimates contained in such budgets, and may reduce any or all items in any such budget, but shall not increase the total of any such budget, or any item therein. The budget commissioners shall reduce the estimates contained in any or all such budgets by such amount or amounts as will bring the total for each township, city, village, school district, or other taxing district, within the limits provided by law.”

After such supervisory action the budget commissioners are required to certify their • action to the county auditor for the purpose of placing the levies upon the county tax list.

While the petition alleges that the city has complied with the law in its initial levy -for municipal purposes, there is no suggestion therein that this levy, together with the levies of the other taxing districts, will not exceed the aggregate 10 mills for county, city, township and school district purposes.

If the city of Toledo is exempt from the operation of the budget commission sections of the law, the inevitable conclusion would follow that under the operation of this law other taxing districts would be affected and serious consequences might ensue. Neither does the petition allege the submission of the municipal budget to the budget commissioners, but, as hereinbefore stated, rests its case upon the legal basis that the Smith one per cent, law does not apply to a city that has adopted a charter.

The home-rule provisions of Sections 3 and 7, Article XVIII of the Constitution, adopted September 3, 1912, authorize chartered municipalities “to exercise all pozvers of local self-government Indisputably these provisions are hazy and ambiguous, ánd it is unfortunate that the members of the constitutional convention did not more fully define the powers of local self-government committed to chartered cities, and thus relieve the courts” from exercise of wide discretion and from never ending appeals for construction of this constitutional clause; and likewise relieve the judicial department of the government from the criticism too often made that it has exercised the power of framing a constitution — a power that has been lodged solely in the people.

It must be conceded that the provisions above named confer upon chartered cities powers that are not only purely local and purely municipal, but purely governmental. Taxation has always been recognized as a power of sovereignty. It is a function that is vital to the state, keeps it alive and prevents its dissolution. The state as the imperium must concern itself with all its agencies, not only its municipalities, but also its counties, townships, villages and school districts. The sovereign people of the state may yield a part of its sovereignty'by a constitutional provision; but whatever rule of construction may otherwise apply, wherever the contention is made that the state has yielded to a community a part of the sovereign power, the rule of liberal construction does not apply, but it must clearly and unambiguously appear that the state has done so by apt words contained in its constitution. The power of taxation in every form, the power of eminent domain, the power to establish court's of record or conciliation and to define their jurisdiction,' these -may be so employed by chartered cities as to affect only their own people, and, thus considered, seem local in character. But it does not follow that the home-rule sections above named endow municipalities with such powers, nor with the powers now claimed here. Especially is this true if consideration be given to other express provisions of the constitution.

In this case counsel for relator make the bold claim “that there is no limit upon the powers of municipalities that have adopted charters, in the levy that they may make of taxes” for purely municipal and governmental purposes. If sustained,- this would indirectly affect not only the state’s power to tax, but would affect taxing districts lying without chartered cities. If the city of Toledo has the absolute power now claimed for it, even the ability of its own citizens to respond to ' the necessities of the state and some of its subdivisions might be seriously disturbed.

If the Smith one per cent, law is inconsistent with the provisions of the present constitution, the law is void. The fallacy underlying the contention of the relator is the claim that the foregoing sections of the Constitution are dominant and control the levy of taxes in chartered municipalities. Counsel seem to overlook the fact that the submission and adoption of these sections were synchronous with the submission and adoption of the following constitutional provisions relating directly to the power of municipalities to levy taxes and incur debts. Section 13, Article XVIII, under the head of “Municipal Corporations,” is as follows: “Laws may be passed to limit the power of municipalities to levy taxes and incur debts for local purposes, and may require reports from municipalities as to their financial condition and transactions, in such form as mky be provided by law, and may provide for the examination of the vouchers, books and accounts of all municipal authorities, or of public undertakings conducted by such authorities.” (Adopted September 3, 1912.)

This section of the Constitution was not only adopted at the same time the home-rule sections were adopted, but it explicitly and pointedly controls the subject-matter of municipal levies and municipal debts. Where, on that subject, the home-rule provision is wholly ambiguous, this is clear and precise. Expressum facit cessare taciturn.

Counsel for the relator admit that the latter portion of Section 13, Article XVIII, may apply, but claim it does not control the municipal power of a chartered city to levy taxes. It is not easy to follow the line of this argument inasmuch as both clauses are contained in the same section of the Constitution; but, it might be asked, of what efficacy would the latter portion of that section be, requiring municipal reports of financial conditions, if it was not the intention of the section to make it effective by delegating to the general assembly the power to limit municipal levies for local purposes ? The latter clause of the section merely supplements the former, and has but a single purpose in view — to make effective that which is expressed in the first clause of Section 13, Article XVIII. If there was any doubt about the construction to be given to this whole section, it is clarified by the official explanation of the constitutional convention submitted to the people of the state when the section was adopted. This explanation was printed and sent broadcast over the state under the title “Municipal Home Rule.” It is as follows: “To the general assembly is explicitly reserved the authority to limit the power of cities to levy taxes and incur debts for local purposes, to control elections, to examine into the financial condition and transactions of all municipalities.”

The view here taken is therefore reinforced by the construction placed upon that section by the members of the constitutional convention. This explanation was signed by its president and secretary. Evidently the people of Toledo by the adoption of the charter possessed the same view. For instead of granting the general power to levy and collect taxes on all the property therein they qualified that power by the word “lawfully” in the provisions of the charter above named. This could have been done with no other purpose than that of conferring the power of taxation which the cities of Ohio theretofore possessed; and the word “law fully” used in the charter recognized the limitation upon that power contained in the constitution and laws of this state.

The Smith one per cent, law, so called, including its budget commission feature, was in force prior to the adoption of the constitutional amendment now under consideration. For, long before, the people of the state had limited the financial power of municipalities to levy and incur debts. The Constitution of 1851 contained the following provision (Section 6, Article XIII) :

“The general assembly shall * * * restrict their [cities and villages] power of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent the abuse of such power.”

The restrictive power to levy taxes and incur debts in that provision of the constitution has in no wise been modified by the later adoption of Section 13, Article XVIII, above referred to. Although the Smith one per cent, law substantially as it is now was adopted prior to the adoption of the Amendment of 1912, it has not been repealed by any provision of the present constitution. The law is consistent with and in entire harmony with the constitutional provisions relating to the levying of taxes, and is specifically kept in force by virtue of Section 20 of the Schedule adopted on September 3, 1912, which provides that all laws then in force not inconsistent with the amendments shall continue to be in force until amended or repealed.

It is also contended that the delegation by the legislature to the budget commissioners of the power to adjust the tax rates among the various taxing districts is a delegation of legislative power. Of course the same argument would apply as to this constitutional feature whether the municipalities were chartered or unchartered.

But is it a delegation of legislative power ?

The legislature, under the law involved, has placed certain limitations upon the taxing districts of the state. These limitations are purely legislative. It has also provided for an administrative and ministerial body for the purpose of ascertaining the facts concerning various budgets submitted, with a discretionary power to revise the tax rates in certain districts. It is evident that this can be done only through an administrative agency after an ascertainment of facts prerequisite to administrative action. This is in no wise a delegation of legislative power, and in that respect the appointment and official action of the budget commissioners do not violate the organic law. (France v. State, 57 Ohio St., 1, and Fassig v. State, ex rel., 95 Ohio St., 232.) Theretofore independent taxing functions were employed through other agencies, such as county commissioners, city councils and other administrative public bodies.

The administrative power here conferred is similar to that delegated to various commissions, both state and interstate, which are charged with the power to fix rates. The granting of this and similar powers by legislative bodies to officers with administrative functions has generally been held not to be a violation of the constitutional provision relating to the delegation of legislative power. 6 Ruling Case Law, page 180.

That the members of the budget commission may not be members of the municipality involved, is a feature that does not invade any provision of the constitution. We have many administrative bodies in this state whose members are not residents of the various local units administered, and in the absence of express provision of the constitution denying this administrative policy the state is supreme, not only in the scheme of taxation, but also in the selection of the agencies that are chosen by the state to enforce it.

It therefore follows, since the city of Toledo is subject to the limitations of the Smith one per cent, law, that it must comply with its provisions, and subject itself to the supervision of the budget commissioners of Lucas county, and, in the absence of allegations in the petition disclosing such compliance, that pleading is rendered insufficient as against the general demurrer. The demurrer therefore is sustained and the petition dismissed.

Demurrer sustained.

Nichols, C. J., Newman, Matthias, Johnson and Donahue, JJ., concur.


author: Donahue, J.

text:
    Chilcote, Guardian, v. Hoffman et al.

      Wills — ■ Who may contest ■ — "Person interested" defined — Decease of devisee — Heirs or representatives may contest, when — Survivor and limitation of actions.

    1. A person interested, within the meaning of Section 12079, General Code, is one, who, at the time of the commencement of an action to contest a will, has a direct, pecuniary interest in the estate of the putative testator, 'that would be impaired or defeated if the instrument admitted to probate is a valid will.
    2. Where a person, who, in the absence of a valid will, would have a property interest in the estate of the deceased, dies intestate before the time limited for the bringing of an action to contest the validity of an instrument admitted to probate as the last will and testament of the deceased, and without having brought, or by his conduct estopped himself from bringing, such action, the right to bring the same passes with his pecuniary or property interest in such estate, as incident thereto, to his personal representative or heirs a't law, under the statutes of descent and distribution.
    (No. 15663
    Decided January 15, 1918.)
    Error to the Court of Appeals of Van Wert county.
    John Hoffman, a resident of Van Wert county, Ohio, died on the 29th day of March, 1911.
    On the 11th day of April, 1911, an instrument purporting to be his last will and testament, bearing date of August 4, 1910, was admitted to probate by the probate court of Van Wert county, Ohio.
    John Hoffman left surviving him a widow and seven children.
    On the 2d day of December, 1912, Anna Chilcote, one of the children of John Hoffman, died intestate, leaving surviving her Jesse Chilcote, her husband, and two minor children — John Chilcote, age six years, and Goldie Chilcote, age two years.
    On the 1st day of March, 1913, the probate court of Allen county, Ohio, appointed Jesse Chilcote guardian of John and Goldie Chilcote, minors.
    On the 7th day of March, 1913, Jesse Chilcote, as guardian of John and Goldie Chilcote, the minor children of Anna Chilcote, daughter of John Hoffman, deceased, filed a petition in the common pleas court of Van Wert county, averring that the paper writing admitted to probate is not the last will and testament of John Hoffman, deceased, and praying that the same be set aside and held for naught.
    An issue was made up as provided by the statute, and submitted to the jury upon the evidence. A verdict was returned finding that the instrument admitted to probate was not the last will and testament of John Hoffman, deceased.
    Upon motion, the common pleas court granted a new trial, for the reason that all persons interested were not made parties to the suit.
    On May 23, 1916, an amended petition was filed, to which amended petition the defendants filed a demurrer. On the 16th day of December, 1916, the court sustained this demurrer, for the reason that “the plaintiffs have no legal right to bring or maintain an action to contest the will of John Hoffman.” The plaintiff not desiring to plead further, his petition was dismissed with costs.
    Error was prosecuted in the court of appeals, which court affirmed the judgment of the common pleas court; and this proceeding is brought in this court to reverse the judgment of the court of appeals affirming the judgment of the common pleas court.

      Mr. Dan R. Tripplehorn, for plaintiff in error.

      Mr. S. E. Walters and Messrs. Dailey & Hoke, for defendants in error.
   Donahue, J.

In support of the judgment under review, it is contended:

First. That under the provisions of Section 11235, General Code, the right to contest a will does not survive the death of the person entitled to bring such action.

Second. That a person authorized to contest the validity of a will by civil action in the common pleas court, under the provisions of Section 12079, General Code, must be a person interested in the will at the time it is admitted to probate.

Section 11235, General Code, provides that:

“In addition to the causes which survive at common law, the cause of action for mesne profits, or injuries to the person or property, of for deceit or fraud, also shall survive; and the action may be brought notwithstanding the death of the person entitled or liable thereto.”

In construing this statute, the court of appeals said in its opinion in this case:

“A will contest is a proceeding unknown to the common law, and the right could not, therefore, be a cause of action which would survive at common law.” . .

It is wholly unimportant whether a will contest is or is not a proceeding unknown to the common law, for the principles of the common law readily adapt themselves to the changing nature of human affairs. Flandermeyer v. Cooper, 85 Ohio St., 327.

The language of Section 11235, General Code, is sufficiently clear and comprehensive to include all causes of action that survived under the rules and the principles of the common law, regardless of the fact that the common-law court was not the forum in which to bring such action.

Under the rule of the common law, the only causes of action that do not survive the death of either party are causes of action ex delicto. The right to contest a will is not a cause of action ex delicto, but comes clearly within the class that survives the death of either party, under the rule and the reason of the common law.

If there were any doubt whatever as to the proper construction of Section 11235, General Code, that doubt is wholly removed by Section 11397, General Code, which provides that:

“Unless otherwise provided, no action or proceeding pending in any court shall abate by the death of either or both of the parties thereto, except actions for libel, slander, malicious prosecution, or for a nuisance, or against a justice of the peace for misconduct in office, which shall abate by the death of either party.”

At common law all pending actions abated by the death of either party, regardless of the fact that the cause of action might survive. Where the cause of action did survive, it was necessary to bring a new action.

The purpose of this section of our code is to prevent the useless annoyance, delay, cost and expense of bringing a new action where the cause of action survives. Certainly it was not the legislative intent that a pending action should not abate by the death of a party, where the cause of action does not survive his death. Such a construction would render the statute ridiculous. A pending action cannot survive the cause of action upon which the action itself is predicated.

Under the clear and unambiguous provisions of this section, if Anna Chilcote in her lifetime had commenced an action to contest this will, or such action had been commenced by some other interested person and was pending at the time of her death, it would not have abated by reason of her death, but could have been revived, as provided in Section 11402, General Code, in the name of her personal representative or successor in interest. If the cause of action did not survive Anna Chilcote, a revivor of the pending action would be a vain and useless performance and the statute providing that such an action shall not abate by the death of either party a colossal legislative blunder.

It is the duty of a court, however, when possible to do so, to construe a legislative enactment so as to give intelligent purpose to its provisions. There is no construction that will give such intelligent purpose to this statute other than the construction that the cause of action does survive in all cases where a pending action does not abate by the death of either party.

That this was the intention and purpose of the legislature is clearly evidenced by subsequent sections in the same chapter relating to revivor of actions, in which sections, particularly Sections 11399 and 11400, General Code, the right to revive is predicated upon the survival of the cause of action.

In the state of Washington, the statute (Code Section 193) specifically provides that no action shall abate by death of the party, if the cause of action survive. In the case of Ingersoll, Admr., v. Gourley, Exr., 72 Wash., 462, the plaintiff in an action to contest a will died while the action was pending, and upon motion to revive the court held:

“The right to contest a will survives to the heirs or personal representatives of the heir of a putative testator, under Rem. & Bal. Code, §1307, conferring the right to contest on ‘any person interested.’"

In the case of Burnett v. Milnes et al., 148 Ind., 230, it was held:

“A husband and daughter of a devisee who dies after commencing an action to set aside, for fraud, a judgment refusing to admit the will to probate, have such interest, as the heirs of such plaintiff, as make them proper parties plaintiff after her death.”

In the case of Burnett v. Milnes et al., 148 Ind., (1 N. Y.), 214, it was held:

“Where a party, claiming an estate by inheritance, files a bill for the purpose of setting aside a will, and dies pending the suit, his devisee may file an original bill in the nature of a bill of revivor and supplement, and if his rights as devisee be admitted or established, he will be entitled to the benefit of the proceedings in the original suit.”

The same conclusion was reached in the case of Van Alen, Exr., v. Hewins et al., 5 Hun, 44.

It is clear for other reasons, however, that this cause of action does not come within that class and character of causes of action which under the rules of the common law do not survive the death of either party, regardless of whether it existed in favor of or against the deceased.

If this were such a cause of action, then if the sole legatee or devisee named in a will should die the right to contest the will would die with him. Certainly this is not the law of Ohio. The death of the sole legatee or devisee, or of all of them, if there be more than one, cannot defeat the right of an heir at law or other interested party to bring and maintain such an action. If, then, the right to contest a will survives the death of the party liable thereto, it necessarily follows that it must survive the death of the party in whose favor it existed, unless, under our statutes, the right to contest the validity of a will is not a property right but merely a personal privilege, conferred by statute on a particular person, that perishes with the death of that individual.

Section 12079, General Code, provides:

“A person interested in a will or codicil admitted to probate in a probate court, or court of common pleas on appeal, may contest its validity by a civil action in the common pleas court of the county in which such probate was had.”

A “person interested,” within the contemplation of this statute, undoubtedly means a person who has such a direct, pecuniary interest in the devolution of the testator’s estate, as would be impaired or defeated by the will, or be benefited by setting it aside. Bloor v. Platt et al., 78 Ohio St., 46.

One who has a mere sentimental but no pecuniary interest cannot bring or maintain a suit to contest the validity of a will. It is therefore clear that this is a property right and not a mere personal privilege. This question, however, is no longer an open one in Ohio. In the case of Bloor v. Platt et al., supra, this court held that “A judgment creditor of an heir, who has obtained a lien by levy on property, which in the absence of a will would be the property of the debtor heir by descent, is a person interested in the will or codicil, within the meaning of Section 5858 Revised Statutes [Section 12079, General Code], and therefore has legal capacity to prosecute an action .to contest the validity of an alleged will disposing of such property to a person other' than such heir.”

To the same effect is the doctrine announced in the case of Savage v. Bowen, 103 Va., 540, in which case it was held that “The grantee of a sole heir at law may file a bill against the devisees under an alleged will of an ancestor to contest the validity of the alleged will.”

In the opinion in that case, it is said, at page 543 : “George L. Savage, as heir of Ann C. Savage, would have had the right to impeach'the will, and no reason is perceived why those claiming under and through him are not entitled to his rights in that respect.”

Assignees of legatées may also contest. Thompson on Wills, Section 518, and Borland on Wills, Section 74.

In the case of the Estate of Engle, 124 Cal., 292, it was held that the assignee of a part of the interest of a nonresident sole devisee was a person interested in the will within the meaning of that term as used in Section 1323 of the Code of Civil Procedure of that state.

In the case of Bowers v. M’Gavock, Admx., 114 Tenn. (6 Cates), 438, it was held that the heirs and distributees of an heir, cannot contest where the heir had refused to do so and sought the execution of the will. This conclusion was reached, however, upon the principle of estoppel, the court recognizing the right of the heirs and distributees of the heir of the putative testator to maintain such an action in a proper case.

It is admitted in this case that the children of Anna Chilcote have a direct pecuniary interest in the estate of John Hoffman, deceased, if the instrument admitted to probate is not a valid will, and that they had such interest at the time of the commencement of this action. It must also be admitted that if this action had been brought by an heir at law of John Hoffman, after the death of Anna Chilcote, these children would have been interested persons within the meaning of that term as used in Section 12080, General Code, and necessary parties to the suit. Had such a suit been brought, and an issue made up under the order of the court as provided by statute, they would have been entitled to a determination of that issue by a jury, although nominally defendants to the suit. Walker v. Walker, 14 Ohio St., 157.

It is insisted, however, that they were not interested persons at the time the will of John Hoffman was admitted to probate, and for that reason cannot maintain this action. Section 12079, General Code, contains no such words of limitation, and we perceive no reason why a court should read that language into this statute.

The supreme court of Illinois, in construing a statute very similar to our own, held that an action to contest a will cannot be brought by any person who was not directly and pecuniarily interested in the estate of the deceased person at the time of the probate of the will of the decedent. (Storrs v. St. Luke's Hospital, 180 Ill, 368.) This construction has been followed by some of the lower courts of this state.

The reasoning in support of this conclusion, however, apparently overlooks the primary fact that the right to contest a will, conferred by the statutes upon one who has a direct and pecuniary interest therein, is a property right, and not a mere personal privilege. Village of Cardington v. Admr. of Fredericks, 46 Ohio St., 442, and Bloor v. Platt et al., supra.

This is a remedial statute, and must receive a liberal interpretation.

It is conceded that had Anna Chilcote died after the death of John Hoffman, but prior to the time this instrument purporting to be his will was admitted to probate, these children would be interested parties at the time of the probate, within the contemplation of Section 12079, General Code; yet in such event, their interest in John Hoffman’s estate would not be different in any respect than it was at the time they commenced this action. True, the statute of limitation commenced to run during the lifetime of Anna Chilcote. It is also true that she might have estopped herself and all persons claiming under and through her from bringing an action to contest this will. Nevertheless, at the time of her death, her heirs succeeded to whatever rights and interest she had in this estate, including the right to bring and maintain an action to contest the will of John Hoffman, deceased. As her successors in interest, they are “persons interested” in his will, within the meaning of the statute.

In In re Siebs' Estate, 70 Wash., 374, the will of Dorothy Drury Siebs was admitted to probate May 5, 1902. Her sole heir, William C. Drury, was then alive. He died six years later. George W. Drury, the heir at law of William C. Drury, brought an action to contest the will of Mrs. Siebs seven years after its probate, and ten months after the death of his father William C. Drury. He sought to avoid the statute of limitation (one year) by averring the insanity of William C. Drury Upon this issue the court held against him; but on the question of his capacity to commence and maintain the action the court held that he had “such an interest in the will of Mrs. Siebs as to enable him to maintain a contest thereof.”

In In re Langevin, 45 Minn., 429, it was held that a judgment creditor of the heir at law is an interested person within the meaning of the statute of that state providing that “all persons interested” might contest the probate of a will.

In Estate of Baker, 170 Cal., 578, it was held that the statutory right conferred by Section 1327 of the Code of Civil Procedure of that state upon “any person interested” to contest a will within one year after it has been admitted to probate “gives to the original possessor of that right a chose in action which is assignable and which survives his or her death.”

This court held in the case of Sears v. Steinhelfer, 89 Ohio St., 163, that, “Where the devisee of real estate transfers it after the probate of the will by which it was devised, the grantee is an interested person within the meaning of Section 12080, General Code, and is a necessary party to an action subsequently brought to contest the validity of the will.”

The language of Sections 12079 and 12080, General Code, is substantially the same. In the former section, the words “a person interested” are used. In the latter section, the words, “other interested persons.” These words are identical in meaning.

This court in the case of Sears v. Steinhelfer, supra, has construed this language in Section 12080, General Code, to mean a person interested at the time the action to contest a will is commenced. .Certainly the same words in a statute relating to the same subject-matter and originally a part of the same act (75 Ohio Laws, 781) should not receive a different construction.

It is insisted, however, that an action to contest a will is in the nature of an appeal from the order of the probate court admitting the will to probate, and that a person who is not interested at the time the appeal could be taken would not be an interested party within the meaning of this statute.

Whatever may be the nature of this action, it is not an appeal, but an independent civil action, so denominated by the statute itself, and the defendants must be brought into court by process, as in other civil actions. Bradford v. Andrews et al., 20 Ohio St., 208.

It may.possibly have been the purpose of this statute to avoid such contingency by providing an independent action instead of an appeal; yet, undoubtedly, the more important purpose of the statute is to afford the parties their constitutional right of a trial by jury, and this would not have been accomplished by providing for.an appeal.

An appeal may be taken from an order of the probate court refusing to admit a will to probate, but the questions heard upon such appeal are the same as the questions presented to the probate court,' and must be heard and .determined by the common pleas court without the aid of a jury.

If upon such appeal the common pleas court orders the will admitted to probate, then, if it is desired to contest the will, an independent action must be brought in the common pleas court, although it (is the same court that upon appeal ordered that the will be admitted to probate. This is sufficient to show that this action is not in fact in the nature of * an appeal, or in any respect analogous thereto, notwithstanding the fact that courts have made use of that expression in cases wherein the distinction between an appeal and an independent action was not in issue and in no wise important in the disposition of the questions involved.

For these reasons the judgment of the common pleas court sustaining the demurrer, and the judgment of the court of appeals affirming the same, are reversed, and the cause remanded.

Judgments reversed, and cause remanded.

Nichols, C. J., Wanamaker and Johnson, JJ., concur.

Matthias, J., not participating.