Opinion

Norwood v. McDonald

  • 142 Ohio St. 299
  • 142 Ohio St. (N.S.) 299
  • 27 Ohio Op. 240
  • 52 N.E.2d 67
  • 1943 Ohio LEXIS 365
Court
Ohio Supreme Court
Filed
Dec 8, 1943
Status
Published
Author
Turner
On the bench
Hart, Matthias, Zimmerman, Williams, Weygandt, Turner, Bell
Cited by
326 cases

Overruled by Grava v. Parkman Township, 73 Ohio St. 3d 379 (1995)

disagreeing with a contention that, under the facts of the case, the case be dismissed on basis of res judicata and observing that "[t]he most accurate test for deciding if two cases are based on the same cause of action is whether different proof is required to sustain them"

How later courts described this case

  • disagreeing with a contention that, under the facts of the case, the case be dismissed on basis of res judicata and observing that "[t]he most accurate test for deciding if two cases are based on the same cause of action is whether different proof is required to sustain them"
  • paragraph one of the syllabus

Written by the judges who cited it.

Later courts went against this

  • Overruled by Grava v. Parkman Township, 73 Ohio St. 3d 379 (1995)

    52 N.E.2d 67 (1943), overruled on other grounds by Grava v. Parkman Twp., 73 Ohio St.3d 379 , 653 N.E.2d 226
    Ohio Supreme CourtAug 30, 19955 citing opinionsRead it
  • Criticized by Lesher v. Lavrich, 784 F.2d 193 (1986)

    As this court noted in Eckhardt, while Norwood has been criticized, see IB Moore's Federal Practice, f 0.410[1] at p. 358 (2d Ed.1982), it remains the law of Ohio. See, e.g., Migra v. Warren City School District Board of Education, 104 S.Ct. at 899; Duncan v. Peck, 752 F.2d at 1139; Johnson's Island, Inc. v. Board of Township Trustees, 69 Ohio St.2d 241, 431 N.E.2d 672, 674-75 (1982).
    Court of Appeals for the Sixth CircuitFeb 18, 1986Read it

The opinion

Turner, J.,

dissenting. We dissent because we are of the opinion that appellant had but one cause of action growing out of a single right of action. The right of action claimed by appellant in both the trust and ejectment cases was his primary right to recover the fee simple title to certain real estate.

Under appellant’s claimed facts he had two remedies —one equitable and one legal. He could have asked for relief under both theories in a single cause of action. He elected to proceed in chancery alone thereby abandoning his legal remedy in the event that his equitable cause was

entertained.

The fact that he lost in chancery does not change the situation, although had the court refused to

entertain

his petition for equitable relief there would have been no eletítion for the simple reason that he had no equitable cause to try.

Again, had appellant brought his action to declare a trust during the lifetime of Ada L. McDannold and lost and then after her death had brought his action in, ejectment on the theory that the title had descended to him as surviving spouse, there would have been no inconsistency and no occasion for the application of the doctrines of election, estoppel or

res judicata.

After the death of Ada L. McDannold, plaintiff had two remedies for the vindication of his single claimed

*324

right but not two causes of action. The recovery sought in both cases was the fee simple title to the same real estate. The excuse given in argument for the procedure was that appellant sought through the trust case to avoid the inheritance and estate taxes. Such claim necessarily admits that there was a deliberate and not an accidental election. Appellant gambled and lost. The judgment of the Court of Appeals should be affirmed.

Weygandt, C. J., concurs in the foregoing dissenting opinion.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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