Petition for Writ of Certiorari — Cochran v. Costill

Supreme Court brief1972

Ask Donna

What actually matters in this document.

Text

‘

”"

Binsin

No. : — ; ioe 1. . a" ve) Me.

OCTOBER TERM, 1971

VIRGIL E. COCHRAN,

Petitioner, -

- VS.

ROBERT G. COSTILL, et al.,

“Respondents.

PETITION FOR WRITS OF. CERTIORARI TO THE °

SUPREME COURT OF THE STATE OF OHIO, THE COURT

OF APPEALS FOR THE NINTH JUDICIAL DISTRICT FOR «

SUMMIT COUNTY, OHIO AND .TO THE COURT OF

COMMCN PLEAS OF SUMMIT COUNTY, QHIO . ‘e

‘ | ee

VIRGILE.COCHRAN .- « /

reigieie 3720 Alberta Drive _

eae, Norton, Ohio 44203

-In Proria Persona

In the Supreme Court of the United States ; |

\ TABLE OF CONTENTS. -

eat

Citations to Opinions Below ew sacs Se ee Or

Stelios 2 =F a a ea ee

- Questions Presented ............. a ee ae

~ Federal Constitutional Provisions .......... ; paseo: 4)

‘State of Ohio Constitutio. ial Provisions Sak ak eae Pere 3 ee

Statement of the Case rE eer a mare eae al

Statutes of the State of Ohio .. _. Ba iene eg eae eae

Notice of Trial Date Set. ..... . ee ee ers

.’ Reasons for Granting Writ. are ee re as cae

Conclusions. .--< . . . Pe ere ee See ota

Appendix ager ee elke a eR kw ete 3Q

Letter to Judge Powers ee ey oe Ks cue be ee eee |

Journal Entry in Court of pee Pleas . ie ee ere 31.

Journal Entry i in Court of Common Pleas... , pois BH,

Finding in Court of Common Heer Grup larnrans Da . 31 ke

‘Judgment Entry in Court of Common Pleas. :.......: 32 o

*. Opinion of — t of Appeals = a 34 ls

| | 37

—638

_Appeal as of Rigi Parca : : .. &

Order of the Supreme Court of Ohio Denying lining aN

7 Enumerated Items. Court Can Consider on Motion. for —

Summary Judgment i in Ee Moe oie re oc

a 5 .

ate

Be pte STATUTES

: . . é ;

R.C..1901.30(D) ...... Sey ee Oo eee PS

ee ee ee Sue. eB

R.C. 2309.36 ....... EP cet ke ae

I ae ta Se ee

Oe Me. 6 ei ok ne ee

IRIE a a oe a 5 -**

“RC. 231.041 2... eee ees 6 a ae

Eee ear ies re arena See _ 15

TABLE OF AUTHORITIES. \ ——

area “is . a oh \ as

Marris v. Ist Natl. Bank, 15 Ohio St.20164 .. "aes a : Ae 19

Raney v. Horshffarger 7 Ohio App. od 260 : aay Satidegs a 19°

~Aalyson v. Nationwide Mut. Ins. Co. 1. Ohio App, 2d 192 . * 20

* Bohn Alum and Bras v. Storm King Corp. 303 F. 2d 425 . ~ 20

Steiner v. Wertheimer 250-F. 2d POT4 6 ee ee eee . 2

Ha, Kentucky Bank 125 Ohio St. 359 eee “s .*. 22

Norwooid v. McDonald 142 Ohio St.299 . 2.0.0... 23

Wanzer v. Sélf 30 Ohio St.378 . 2.2.2. ee

ing v. Bishop 44 Ohio St-225 . oe. ee

Sullivan’. Cloud 62 Ohio App. 462 Boke ao as : arses na 24

~ Hudson v. Robinsgh 103 Ohio Meee Soe ee eke. .. 24

Manetta v.’Mutual Life Insurance Co. 94 Ohio App. 399 .... 25

Slick Air Way v. Reinert 114 Ohio App: 124... ....... 25

yee v. Republic Steel 32 Ohio Law ABS 29 # ae Ses

Kifty Third v. Cist 105 Fed. 2D 282°... 2. ge 26

‘i z

: fl

sosesnssiteteneienseunstnssiesiassespanesasinanntia Rt _ BEE nee

| a

Gibson's y. Shirirind ici lty Co. 25 Ohio Law ABS 260 Rese ae 26

Starr Co. » Columbia Brd. System 36 NE 2D 861 paige ahaa ae

+ City of Cinn. v Directors et al., 71 Ohio St.500° . 2... ue. 26

Tilleson’v. Scotdale 23 Ohio App. 399 ... : Se eae lates +, 26

Heller v. Stand Ace. Ins. Co. 161 NE 360 rik ; oe ee 26

‘ | Valley v. Elec Co. v. City of Toledo 273 US. 17, ee a 26 :

~ Balds v. Smith 114 Ohio App. 21 . eee ee eet - aye a7"

‘Horvath vy. Fisher Foods Ohio OPS 2D 113 wee pled yee

‘Hamlin v. McAlpine 175 Ohio St.517 . . : ‘ = : ; 2 +, OF

"Presta v. State Found. Co. 172 Ohio St. 28 Ow a 27

7. #

A ,

irene ep

- Ag 5 ea ; : ’ | VS. ;

Diss eK " oa ~ 7 - - +

det Disp adele Bad seri cath tra Pees Ee ee Cate.

‘In the Supreme Cowit of the United States

ae No. . BNE Sh So { :

- OCTOBER.TERM,.1971

> VIRGIL E:COCHRAN, -

Petitioner, fs _°

ROBERT G. COSTILL. et al... *!: Doc.

Respondents. |

oa ~~ == - ° ——$—_—_ —_-- =

_— — ¢ = = e . ———————

’ PETITION FOR WRITS OF CERTIORARI TO. THE’

“SUPREME COURT OF THE STATE OF OHIO, THE COURT

OF APPEALS FOR: THE. NINTH JUDICIAL DISTRICT. FOR

‘ SUMMIT COUNTY. OHIO AND TO THE COURT OF

scat dS PLEAS’ OF SUMMIT ne ai

Petitioner prays that writs of Certiorari issue to the Ohio

Supreme Court Case No. 71-395, to; the Courf of Appeals: ok

Ninth Judicial District of Ohio Case No, 6662 and to the court

of ‘Common Pleas of Summit County, Qhio Case No. 265187 -

‘+ for this cotirt to review their final orders and judgments.

¥ CITATIONS TO OPINIONS BELOW .:

s Arfinding under datelof Séptember 28,1970 of the court: :

of Common Pleas has not.been officially spsieal aie It is printe d,t

in Appendix A, infra, Ps 31.

The Judgment Entry of the Common Pleas Court under i

“date of October 5, 1970 that foJlowed the ie finding is.

printed i in Appendix A, infra, P.- 32 I

~~ Journal Entry under date of ‘April 11, 1969 of the |

Common /Pleas Court, of Summit County, Ohio is printed in |

fi .

icceilitae infga, ‘P. 31

_ An Opinion under date of April, 21, 1971 of the Court of

Appeals has not been Paced printed. tt is presented in

Appendix A, infra; P. :

The Judgment sas date of May 4, 1971 of the Court of

Appeals resulting. from the Opinion referred. to immediately

above is printed in Appendix A, infra, P. 37° .

The Order of the Supreme Court of Ohio Dated September

22, 1971, overruling petitioner's motion to certify the record

of the Court of Appeals is presented in Appendix “nr infra

?. a.

The order by the Supreme Court of Ohio dated September

22, 1971 dismissing Petitioner’s appeal as of right from the

' Court of Appeals is presented in Appendix A, infra P. 38

The Order of the Supreme Court of the State ef Ohio’

urider date of November 3, 1971, denying petitioner’s motiori

for rehearing is presented in Appendix A, infra, P.-38

, _ JURISDICTION

The judgment of the Supreme Court of the State of Ohio

was entered on September 22, 1971, Appsndix’A, infra. P. 35_.

The Supreme Court of Ohio on November 3, 1971 denied

petitionek’s motion for reliearing; Appendix A, infra P. 35

The jurisdiction of this court is invoked under section 23

U.S.C.A seetion 1257 (3), Rule 19 of the Supreme Court of the

United States. Columbia— v. Columbia—178 U.S. 475. 43 Le.d.

521, 19 ser.247, aff’g 43 sc 154, 20 se 1002.

Article III Section 2 of the Constitution of the United

States “‘The judicial powers shall extend to all cases, in law and

equity, arising under this Constitution, the laws-of the United

States, *** to controyersies between citizens of the same.

state"#ee, - ; -

» 8

a 7

e- 3

_ QUESTIONS PRESENTED FOR REVIEW

1. Has the petitioner — unlawfully deprived of his:

proper day in court and his right to trial by Jury because of

erroneous actions taken by the lower courts upon themselves in

considering this case a proper one for the rendering of a

summary judgment i in; in. favor of respondents?; _ &

2. Were the pe ees entitled to a summary judgment

in this. case, based solely upon the pleading as is required by

law, in order for a court to.render a summary judgment in?:

3. Was this case a proper one for summary judgment to

have been rendered in when there was nothing pleaded by either

party that was not duly oper. by the other party throughout

the trial court?:

4. Did the. Trial Court have jurisdiction to direct

attorney for respondents on March 20, 1969 the day this case

reached the court for trl: to file their motion for summary

judgment R.P.8.?; .

5. Did the: Trial Court have jurisdiction on March 20.

1969 to refuse as it did, to proceed with a jury trial of this case

- after it had been duly set and- had reached the court for tria!?.

6. Did the Trial Court have jurisdicfidn, to’ act as it did

on March 20, 1969 in issuing a verba tive of court to

respondents’ counsel tq file a motioy on April 4, 1969 for

ched

summary judgment: after the case ref the court for trial ©

R.P.8?: :

' 7. Is it possible that a Common Pleas court judge does

not ‘know as he pretended not to know that the 11th. day of

April, 1969 came before the 14th. day of April; 1969 R.P.9?:

3 8. ‘Was not the trial court obligated by law and for lack

of jurisdiction, to’ sustain and not overrule as.it did on R.P. 13

. petitioner’s motion of April 24, 1969 to strike the journal entry

of April 11,\.969 that granted leave to respogdents to file their

motion for summary judgment, and to strike the affidavit of

Attorney Mueller in support of the motion’ as not being timely

filed, since the case had been duly set for trial on March 20,"

1969 and reset for trial on April 14, 1969 R.P. 10, 11.7:

9. After reading record page 3,4.5,6,7,8, and 9 how can

it be said that this case was not set for trial and then unlawfully

. :

7 4

’ b

continued until Aprit 14, 1969 in order to give counsel for

wespondents an opportunity to file their motion for summary -

judgment; which was contrary to law?;

10. Did the trial court have jurisdiction, to apply, as it did

ex post facto rule 12 (C) of the new Ohio -rules of civil

procedure in the finding made in this case”; :

- - 41. Did the trial court have jurisdiction, on March 20,

1969, the day this case reached the court for trial after being

regularly set; to grant respondents leave to file a motion for

summary judgment as it did?; | |

12. Dia not respondents by their answer. raise new matter

‘namely res judicata and did not petitioner, in his reply, deny res

judicata; then was not the court required by law, which it di

not do, to find that there’ were genuine issues of material fact

. presentedgpy the pleadings for a trial by jury?;

13. Could the trial court lawfully as it did sustain the

sham motion of respondents for summary judgment where they

claimed res-judicata based. on another case where they did not

file-with their motion or in the case at bar; the case folder or at

least a copy of the petition of the case they claimed to be res

judicata?;

14. Did respondents prove res idicata in this case » tiy

filing a docket transcript of another case where the docket

transcript did not show that the causes of actions in. both cases

were for the same cause?; eS .

15. Js not the judge in passing ona motion for summary

judgment restricted to considering only what the summary

judgment statute of his State specifies that he ean consider on .

the hearing of the motion and. was the summary judgment

rendered in this ¢ase solely on matters that the-court was by °

statute prohibited from considering?;

16. Are not all of the. proceedings of the lower courts

contrary ‘to law and in violation of the petitioner’ s state and

federal constitutional rights?;

17. Is not the opinion of the Court of Appeals completely

dicta for the reason that the court, in writing said opinion,

based it ‘solely on cases other than this vaain case and on cases

that were not filed in this case?;

18. What relavancy do all the cases that the court of |

Ses

5 .

appeals" dug up that were never filed in this case, and based their

purported opinion on as they did in this case; have to do with —

this case-.when the court is strictly restricted on review to |

consider what the trial court ant before it and did ‘or should

have considered?,

19. Do, not the opinion and judgment of the Court of

Appeals in the | case at bar conflict with opinions and judgments

of other courts of appeals pronounced upon , the same

question?,

20. Was not the Court of Appeals obligated by both the

U.S. and the State of Ohio Censtitutions-to sustain instead of

overruling petitioner’s motion to certify its records to the

Supreme Court of Ohid for clarification of conflict in its

. judgment in the case at bar and that pronounced. upon the same

question by other courts of appeals of the state of Ohio?;-

21. Was not the Court of. Appeals as well as the state --

supreme court of Ohio required by law, the corX{itutions of

both the Unitéd States and the state of Ohio to reverse the trial

court in the case at bar?.

CONSTITUTIONAL PROVISIONS

The United States Constitutional provisions that are .

involved and that were’raised in the pleadings in the Commori

Pleas Court, by the first assignment of error to the Court of

Appeals and. on pages 27, 28 and 29, of the memorandum in

support of jurisdiction in the Supreme Court of the State of

Ohio are as follows to wit:

(A) Amendment IV. “The right of the people to be

secure in their person, houses, papers, and effects” eee; Under

this amendment, petitioner’s right to be secure in his papers and

effects has been violated for the reason that the action taken by

the lower courts has rendered his contract payers and his effects

thereof useless and he is no longer safe therein. .

| (B) Amendment VII. “In suits at common law, where

the value in controvercy shall exceed twenty dollars, the right

to trial by jury shall be preserved”; *** Under this amendment,

petitioner’s right to a jury trial was violated for the reason that

the amount in controvercy exceeded twenty dollars by far.

Petitioner: requested a jury trial and the aa court t tenes to

grant a jury trial. . :

required, nor cruel and unusual punishments

. inflicted”, *** Under this amendment, petitioner has had a great

deal of cruel and unusual punishment inflicted upon him for the ~

reason ‘that. the lower courts have been negligent in not

performing their duty as normal courts do and in not seeing ©

_ that petitioner’s rights were protected by law to have his

contract enforced: thereby causing him a great deal of physical .

and mental punishment by refusing hirh his. rights te—his

contractual funds. --—— mabe eras ‘

(D) Amendment XIII. “Neither slavery: nor involuntary

servitude, except as a punishment for crime whereof the party

‘shall have been duly convicted, shall exist within the United

States, or any place subject to their jurisdiction”, *** Under this

amendment, petitioner’s rights have been yiolated for the reason

- that he committed no nor was he convicted of any crime in.

slaving for the respondents, in completing what is known in the

field of: home: construction as the roughin or the rough work

that the lawful contract that is in question here provided for;

then: the lower- courts have subjected him to and enforced

involuntary servitudé upori him by their acts i@ not requiring

_ the respondents to perform on their part and pay the $1,500. as

the contract provided for.

(E) Amendment XIV, Section I.- “All persons born or -

naturalized in the United States, and subjects of the jurisdiction

thereof, are citizens of the United States and of the States

wherein they reside. No’ state shall make oy enforce any law

which shall abridge the privilege or immunity of citizens of the

United States;.Nor‘shall any state deprive any person of life,

liberty, or property, without -due process of law; nor deny to

any person within its jurisdiction the equal protection of the

laws”, Under this Amendment, petitioner’s rights, were violated -

for the. reason that his privilege and immunity was abridged by

the acts of the lower courts unlawfully enforcing a summary

judgmentsstatute law section 2311.041 of the Revised Code of

Ohio that was inoperative in this case since there were genuine

issues of material facts shown by the pleadings that prevented

-summary judgment — being rendered for respondents, as it

was; to wit: the answer presented new matter and the- reply

denied the new matter alleged in the answer.

. Petitioner’s rights were further. violated by the lower |

courts taking away from him his liberty to enforct his cane

. by a jury trial. \

¢ The contract in question here was and is_ ‘petitioner’ ss.

property and the lower. courts have taken its value from

__—_ petitioner and have given its value to respondents ‘Without due

‘process of law.

. (F) . Article I, Section 10, claus 1 “No state shall #** pass

_any_ ***° law imparing the obligation of contracts ***. Under

this section, petitioner’s rights were violated for the reason. that

‘his right and his day in court to enforce the provision of his. _

contract that the respondents pay him as they: agreed have been

impaired and denied to him by the unlawful interpretation ‘of

the summary judgment statute of the Revised Code of Ohio

Section 2311.041, by the Courts.

(G) Article I, Section 10, claus I and Article I, Section 9...

“No state shall *** pass any **# Ex Post Facto law,” Under this

section, petitioner’s rights were violated for the reason that on

July 1, 1970 the Ohio Rules of Civil Proceduré went into effect -

“which was a year and five months after the motion for summary

judgment and the motion to strike it was argued’to-the court,

the court made a finding wherein it applied Ex Post Facto

12(C) of said rules and found *** “that fhe said Rule 12(C)

" went into effect July 1, 1970, that the said Civil Rule 12¢C)

‘ takes priority over-the statute.”’*** ; when in fact said Civil Rule

12(C) does not in any way deal with summary judgments, but

instead it deals with motion for judgment on the pleadings.

(H) Article 6, Claus 2. “This Constitution, and the laws

of ‘tthe United States which shall be made in’ pursuance

thereof; *** shall be the Supreme law of the lagd; and the judges

in eyery state shall be bound thereby, anything in the

‘Constitution or laws of any state’to the contrary

notwithstanding.” Under this Article, petitioner’s rights to his

day in court, trial-by a jury, the benefits afforded him by law

and the benefits of getting his contractual funds have been

violated for the reason that the courts refused to be,-or to

3 ry

ead «

bound themselves to- the constitution oe the laws which were

gee

_,madein pursuance thereto.

(I) Article 6, Claus 3, “Al Judicial officers, both of

‘the United States and of the sevtral States, shall be bound by

oath or affirmation, to support this Constitution?’ *** Under

this Article, petitioner’s rights were violated for the reason that

the lower courts did not support the Constitution as they were

obligated to do in that they did not enforce the well settled law

provided for by the Constitution.

(J) Amendment V *** “‘Nor shall any person be ***

deprived of life, liberty, or property, without due process of ©

law;”. *** Under this section, petitioner’s rights were violated

for the reason that he was denied due process of law; by the.

court’s wrongfullyapplying the summary judgment statute to

this case when in‘ fact it was inoperative in that there were a

number of disputed i issues of material facts involved. ‘

. R e

OHIO CONSTITUTIONAL PROVISIONS. .

-The state of Ohio constitutional questions that. are

involved and were raised by pleadings in the Common Pleas

Court, by the first assignment of error to the Court of Appeals

and on pages 27, 28 and 29 of the memérandum in support of

jurisdiction in the appeal to the Ohio State Supreme Court in

this case‘are to wit:

Article I, Section 16: All courts ‘shail be open, and every

person, for any injury done him in his land, goods, person or

reputation shall have remedy, by the court of law, and shall

have justice administered without denial or delay, suits may be

brought against the State, in such courts and in such manner, as

is provided for by law. Petitioner was denied his remedv-by the

| courts in that they denied him. his day ii in court and a. jury trial.

STATEMENT OF THE CASE .

Petition@and respondents on July 12, 1962 entered irito a”

_ written divisible contract whereby petitioner would supply

labor and material nécessary to build a two (2) ‘room addition

onto respondents’ home for the sum of $3,000. The contract .

provided that respondents would pay one half of the contract’

price ($1,500.00) to petitioner when the roughin portion of the

work was completed, and the balance of the contract price

($1,500.00) when the finish portion of the work was

completed. .

Petitioner. performed on his part and completed the

roughin part of the addition that the first portion of the

contract provided for. Then respondents djd and have ever since

refused to pay to petitioner $1,500.00 as Agreed. ~

On November 24, 1962, petitioner sued respondents in

form of ex delicto in AKron Municipal Court Case No. 396399

for the first portion O&KMthe contract and on July 24, 1964 the .

case was dismissed by thAcourt without prejudice.

On April 29, 1966,: petitioner suéd again in the Akron

Municipal Court Case No.. . 433879 to. vacate the aforesaid order

of dismissal and to reinstate.the dismissed Case No. 396399; in

the same petition that. is in Case No. 433879. Petitioner also

sought. damages from respondents and their attorney, Joseph P.

Mueller: that he alleged occurred in the yea of 1964.

Case No. 433879 was not contested other than.3 months

after the respondents Were in default for answer; without leave

of court they filed the following motion, on July 29, 1966:

“Comes now the Defendants, by and through their attorney,

and move the Court to strike the two (2) Journal Entries filed

on the 18th day of July, 1966, for the following reason: |

Plaintiff and Defendants herein had agreed to submit their

respective entries, over-ruling the Motion and Supplemental

Motion of the Plaintiff, to the Court for the Courts

consideration, and in the event that the Court approved neigher |

of said entries, the Court would then file its own.entry; that the

Court being unaware of said agreement, signed said entries at

different times, although said entries were filed for record on

| aah same day.

«/e

‘

—

o” .

eee ae eae ,

ar = .-

The Defendants further move the Court‘and 1 respectfully moves”

that Case No. 433879, Municipal Court of Akron be

consolidated with the prior case referred to as being Case No.

396399, Akron Municipal Court, and the entire matter be

submitted to the original Court for: hearing said Case No.

396399, Akron Municipal Court.” | )

. > -

This motion was dismissed on February 23, 1967, and as a

result of the court over-ruling petitioner’s motion for a default |

judgment; an appeal was taken‘on July 29, 1966, to the Court _

of Appeals of Summit County, Ohio Case No. 6158: and as a

result ofthe appellate court dismissifig’ the appeal and stating | ‘

that it was remanding the matter back to the trial court: on

January 17, 1967, a notice of appeal was timely filed’ to the

Supreme Court of Ohio Case No. 40756 for an order for the

Court of Appeals to certify its records. to that court. The

- motion to certify was denied, but white the mofion, to certify ©

wag pending, attorney for respondents did voluntarily pay the

money damage sought in Case No. 433879, on February 23.

1967 by purporting to render a judgment in Akron Municipal

Court against respondents as on default for the alleged money

-damage only thate occurred- in 1964, but the purported

judgment did not reinstate Case No. 396399 that was based on

the written contract of 1962 nor has there been any further:

action taken on the cause of action that was dismissed wi “out

prejudice in Case No. 396399 other than the Common Pleas

Court Case No. 265187 which is the case at bar, which was filed

on August 4, 1967, based solely upon a written contract -

between the same parties but for a different cause of action

than was Case No. 433879 that occurred in- 1964 even though

’ the same parties are involved. The causes of actions are for

different things therefore are not res judicata to each other:

The lower courts cannot substitute the aforesaid cases for

the’ cause of action in the case at bar. sr,

On August 4, 1967, petitioner, after his attempts to collect

in the Akron Municipal Court were unsuccessful on the written

' contract of on July 12, 1962, brought this within action on the

contract dated July 12, 1962. Petitioner alleged he had supplied

_all material and labor necessary to complete the erection and

construction of the first portion of ‘the: contract: ThE

respondents on August 10, 1967, demurred on grounds that ,

“there is another action pending between the same parties for

the same cause: said action having béen filed in the Commcn _

Pleas Cour County, Ohio, being styled. Case: No.

261953.” This demurrey¥ was overruled on October 10, 1967; on

November 30, 1967, respondents answer admitting the

allegations of ‘the petition and that they .had received’ the

roughin addition onto their home they alleged res judicata in

. the Common Pleas Court Case No. 261953, which case was for

_ the finish or second portion, of the contract of July 12, 1962. :

They also allege res judicata in the Akron Municipal Court’ Case -

No. 433879, yr srs is for causes of actions other than this

within Case No?7)265187. Petitioner’s. reply .on December 22,

1967, to the answer denied res judicata existed and-denied the

cause of action in this case was. the same as that in Case No.

433879 and case no. 261953. - 7

_ After‘ the issues were made up for over one year, petitioner —

on December 4, 1968, with notice to’ respondents’ attorney,

filed written request for trial. Trial date was set for March 208 -

1969, as per copy of.the trial notice in the appendix: the court

refused -tq proceed with the trial as it was set for on March 20, -

“1969; but instead; continued the trial until April 14, 1969, in

order ts give counsel for respondents an opportunity to file

their motion for summary judgment, as*they admit R.P. TH

11,12 and 13..., ws F

On April 11, 1969, said Common Pleas Court approved the

following Journal Entry in this case: © * ee rt

-* “on oral motion of the defendants and each of them, ‘and

so that they can comply with a’ prior verbal directive of

this court; the court being fully advised in the premises,

rane the defendants and each of them are hereby granted leave

to file their. motion for summary judgment in the within

** ‘matter instanter.” : ee

__.. Petitioner objected to the court granting leave to file the

* motion for Summary judgment on grounds that the court was

without jurisdiction to grant such leave after the case had been

set for trig! on March 20, 1969, and reset for trial on April 14,

1969. On — 24, 1969, ‘petitioner filed a written motion “to.

_strike. the iaaiaal entry of April 11, 1969, giving leave to file

‘ the motion for summary judgment, to’ strike the motion of

| respondents for summary judgment and to strike the affidavit

- of Attorney Mueller. in. support thereof; ‘this motion was

. overruled R.P- 13; On April .24, 1969, petitioner filed his-

- affidavit in opposition to the motion’ for summaty judgment on

April 25, 1969, reeord page 17. The court took. same ‘under |

advisement and a year and five months later, on September 28,

1970, made a written finding. for’ summary. judgment for

_ respondents. In the mearitime, on July. 1, 1970, tlfe new Ohio

rules of Civil Procedure went into effect. The court based its

finding i in chief on rule 12(C) and made it ex post, facto; instead

of gn the law as it was some 17 months prior at the time the

_ Matter was submitted:to the.court: ;

Eventhough respondents did not file the folder or a copy

’ of the petition of the case they’ claimed to be res judicata in;

they only. filed a transcript, of the court docket in case no.

° 433879:.in support of their motion for summary judgment, but -

the transcript shewed only: that a judgment had purportedly —

been rendered at’a time when the court -was without jurisdiction

to make further orders in the case’and did not show that, the ©

causes of aetions in case no. 433879 were for the same cause of

action as the case at bar. An appeal was taken to the Court of

Appeals from the order tendering — eae in favor

_ of réspondents.

, ‘On April 21, 1971, the court of appeals ‘made an erroneous

finding based completely on other causes that it had had before

_ if. some two years before and that kad no relevancy. to this

within matter that’ was‘ properly before the court. This

“erroneous finding was journalized on May 4, 1971. To which,

an appeal was taken to the Supreme Court of Ohio for the court

of appeals tp certi'y its records as a result of errors committed °°

by the appellate court in its’ opinion of qn April 24, 1971. Said —

opinion is based solely upon actions that were not before the

- court in this instant matter and on actions that are not a part of

_ or have any bearing on this instant matter and on cases that

were not filed in this action.:

Said opinion refers entirely to cases that have been .

dismissed without - ‘prejudice and are therefgre. nothing more

° e sa * . r

’

13 atk eet ee

‘than dicta conversation by the court: and to their opinion of.

about ‘two years prior in Case no. 6163 that hageno bearing on ©

this instant matter, .and to the finding of the Common Pleas

/ Court which. ‘as baséd solely.-upon the Appellate court’s .

opinion in Case . 6163 of some two years prior and has no .

bearing on ‘the instant matter. It j is apparent ‘that the court did-

_* got consider the eleven briefed assignments’ of error other than .

to see that the tast one was No. II in | this: case.

. STATUTES OF THE OHIO ‘REVISED’ CODE THAT “ARE ,

INVOLVED ARE ‘TO WIT: | oe

1901.30 (1609). ‘Appeals.

(D) When an appeal has: been determined or dismissed by

the reviéwing court, thé clerk of such. court shat} immediately

after: the time allowed by law for‘the commencement of.

proceedings to appeal the: judgment of. said reviewing court, if

such proceedings-have not been commenced, transmit to the

clerk of the municipal court all of the original papers and ;

pleadings | in 1 the case,’ and issue.its mandate to said clerk.

2305. 06 (11221). Contract i in writing.

Except as provided in section 1302.98 of the Revised

_. Code,.an action upon ‘a specialty or an agreement; contract, or’ }

promise in writing shall be brought : within fifteen years after the

_* cause thereof accrued. ¢129 vS5. Eff. 7-1-62)

2309. 36 (11338). Proving and pleading judgment.

In pleading a judgment, or other détermination of a court,’

or of an officer of special jurisdiction, it is sufficient to state -

vat such judgment or determination was given or made. If such |

allegation is controverted, the party pleading must establish, on

the trial, the facts conferring pices

2311 02 (11377). Issues defined.

Issues arise on the pleadings where a fact or conclusiort of

law is maintained by.one party and controverted by the other. .

- They are of two Kinds: :

(A) _ Issues of law;

_‘ . (B) Issues of fact. — > eo

2311.03 (11378). Issue of face *

- An issue of facts arises: @

(A) Upon a-material allegation in the petition denied by

the answer; 7 PN ;

(B)” Upon a counterclaim or new matter. presented in the

« answer and denied by the reply: ;

be considered as controverted by the adverse party without

‘further pleading. sieett

2311.04 (11379) (11380). Trial of issues.

Issues of law must’ be tried by the court, unless referred as

provided in sections 2315.26 to. 2315.36, inclusive, of the

Revised Code. issues of fact arising in aétions for the recovery

of money only, or specific real or personal property, shall be

tried by a‘jury, unless a jury trial is waived, or a reference is .

ordered as proveded in such sections. Serre are

~ All other issues of fact shall -be tried by the court, subject"

to.its-power to order any issue to be tried by a‘jury, or referred.

2311.041 Summary judgment..

Summary jydgment may be granted™in a civil action as *

-provided in this section. —

(A) A party seeking to recover upon a cause of action or

counterclaim or to obtain a declatory judgment. or > party

against whom a cause of action or counterelaim is asseried or a

declaratory judgment is~sought, may, at any time after the

action is at issue,-move with or without supporting affidavits for

~ asummary judgment in his favor upon all or any part thereof. .If

- the aetion, has been set for pretrial, a party may file a motion

for summary judgment only with leave of the court. After the

action has beef set for trial such a motion may only be filed

with the consent of all the parties to the action.

(B) ~Fhe-hearing on a motion for summary judgment shall

not be less than ‘ten days after date of the filing thereof.

Notice of the filing and the date of the hearing of such motion

15 -

shall be given b& certified or registered mail, or personally, to

the opposing party or his counsel of record at least five days

prior to the hearing, unless waived. The adverse party prior to

the day of hearing may file Opposing affidavits. Summary

Judgnfent shall be rendered forthwith if the pleadings,

depositiors, answers to interrogatories, written admissions of

the genuineness of papers, or documents, affidavits, transcripts

of evidence in the pending case, and written stipulations of fact.

_ if any, previously filed in the action, show that there is no

* genuine issue as to any material fact and that the moving party

" is-entitled to judgment as a matter of law. No evidence or

. Stipulation may be considered except as stated in this section. A

summary judgment shall not be rendered unless it appears from

the pleadings, depositions, answers to interrogatories, written

admissions of the genuineness of Papers or documents,

affidavits, transcripts of evidence in the pending case, and

written stipulations of fact, if any, previously ‘filed in. the -,

action, and only therefrom, that reasonable minds can come to

but one conclusion and that conelusion is adverse to the party

against whom the motion for summary judgment is made; the

party against whom the motion for simmary judgment is made

is entitled to have such pleadings, depositions, answers to

ihterrogatories, writtén admissions of the genuineness of papers

or documents, affidavits, transscripts of evidénce in the pending

case, and written stipulations of fact construed most strongly in

his Cavor. A summary judgment, inierioéutory in character, may

be rendered on the issue of ‘liability alone although there is a

gehiuline issue as to the amount of damages. ,

* (C) If on motion under this section s,mmary judgment is

not rendered upon the whole case or for all the relief asked and

a trial is necessary, the court at the hearing of the @otion, by

examining the pleadings, depositjons, answers to interrogatories,

written admissions of the genuiness of papers or documents,

affidavits, transcripts of evidence _in the pending case, and

written stipulations of fact, if any, previausly filednin the action

and only thereftom, before it, shall if practicable a8tertain what

material facts exist without controversy and what material facts

are actually and in good faith controverted. The court shall

thereupon make an order on its journal specifying the facts that

16 —

5 s

are without controversy, including the extent to\which the

amount of damages or other relief is not in controversy, and ;

* directing such’ further. proceedings in the action as are just.

‘Upon the trial of the, action the facts ‘so specified shall bé

deemed established, and the trial shall be conducted

aceordingly. ‘ | ;

{(D) Supporting and opposing affidavits shall be made on

personal knowledge, shall set forth such facts as would be

admissible in evidence, and shall show affirmatively that the

affiant is competent to testify to the matters stated therein.”

Sworn or certified copies of all papers or parts thereof referred

to in an affidavit shall. be attached thereto. The court may

permit affidavits to be supplemented or opposed by depositions

or by further affidavits. When a motion for summary judgment

is made and supported as provided in this section, an adverse *

party may not rest upon the mere allegations or denials of his

pleadings, but his response, by affidavits or as otherwise

provided in this section, must set forth specific facts showing

_ that there is a genuine issue for trial. If he does not so respond,

summary judgment, if-appropyiate, shall be entered against him.

_ (E) Should it appear from the affidavits of a party

opposing the motion for summary judgment that he cannot for

sufficient reasons stated presented by affidavit facts essential to

_ justify his opposition, the/court may refuse the application for

judgment or may order a continuance to permit affidavits to be

- obtained or discovery to be had or may make such other order

as is Just. (131 v H 379. Eff. 11-5-65. 128 y 63)

2505.04 (12223-4). Appeal perfected. +

An appeal is perfected when written notice of appeal if

filed with the lower court, tribunal officer, or commission.

Where leave to appeal must be first obtained, notice of appeal

_ Shall also be filed in the appellate court. After being perfected,

no appeal shall be dismissed wihtout notice to the appellant,

and. no step required to be taken: subsequent to the perfection

of the appeal is jurisdictional. .

9 17

ten

NOTICE OF TRIAL .

COUNTY OF SUMMIT

AKRON, OHIO

COU RT OF COMMON PLEAS

JERRY POTTS

Assignrfignt Commissioner

Summit County, Ohio

This is to notify you that ies No. 265187 at

Virgil Cochran VS.- Robert Costill _

is set for trial on _____._ Thursday, March 20, 1969. ‘

You will therefore be governed accordingly, as this case

will be Sent into court on*this date at 9:00 A. M.. unless.a°

stipulation signed by the Presiding Judge and opposing Counsel

‘is presented before 11:00 o'clock on the day previous.

‘Thigrule will apply absolutely.

— ; ‘Very truly yours,

Assignment Commissioner.

ue) '

REASONS#¥OR GRANTING WRIT.

There is great current and — range public interest in the

powers and limitations of civil courts with respect to the

determination of summary ‘judgment disputes and particularly- .

so with the case at.bar involving a contract, sincé the welfare of

the entire United. States is dependent in some Way upon

contracts that effects all of the people, the rev ised code of Ohid .

and the case law thereunder. vs ®

The courts have enfringed upon petitioner’s right to his °

day in court before a ‘jury; the courts have in the case at bar”

stooped to a degree so low that*if their. absurd decisions are

allowed to stand the right to jury trial.in America involving

contracts is-in jeopardy of being lost and the very worst of the

. lower courts that might even be corrupt for their lawyer friends

will continue to destroy the American system of judicial

government; there have been wrongs knowingly committed .

against petitioner by the lower courts: now, how will they be

conenrene? Will it be by.the sincere efforts of this, the highest

18 —_

court of our land, to see that justice is done? Or will the

petitioner be forced to resort to some other method of

attempting to get justice? /

. Even though respondents did filedin the case at bar a

trans@ript of the docket in case no. 433879 that they claim:is

res judicata to the case at bar, said transcript of the docket did

not show that a judgment had ever been rendered on the case at

bar; for the reason that transcripts do not show in any respect

. any of the allegations of petitions of either case no. 433879 or

the case at bar; the court therefore could not a§ a matter of law

conclude that respondents were entitled to summary judgment

'- for the reason that the summary judgment statute, revised code

of Ohio section 2311.041 (B) reads **« -

“No evidence or stipulation may he considered except as

- stated ‘in ‘this section. A summary judgment shall not be

rendered unless it appears from the pleadings, depositions,

answers to interrogatories, written admissions of the

genuineness of papers.or documents, affidavits, transcripts of

evidence in the pending case, arid written stipulations of fact, if

any, previously filed in the action, and only therefrom, that

reasonable minds can come to but one conclusion and that

*cenclusion is adverse to the Barty against whom the motion for

summary judgment i is made;” *** -

In the case at bar, the trial court by the shabby treatment

“it extended to petitioner, the complete disregard for petitioner’s —

rights to have his contract enforced _by trial to a jury and the

complete disregard ‘for _its oath of office to uphold the ~~

Constitution of the United States and of the state of Ohio, its

complete disregard for the applicable law on summary

judgment, and its going beyond the scope of its jurisdiction in

‘rendering judgment for respondents was a complete departure

from the accepted and usual course of judicial proceedings on

summary judgment in Ohio for the reason that it did not follow

the state of Ohio statute law applicable.

The ingredients required by the statute were not present to

. support the judgment rendered for respondents: revised code .

"section 2311.041 allows the trial court

Judge, upon- motion for summary judgment to consider

’ only the following evidence

, 19

. o

Pleadings.

Depositions.

Answers.

Written admissions of the genuineness of papers or

documents.

Affidavits: 5

Transcripts of evidence in the pending case.

'. Written stipulations of fact. Not only does Section

2311.041 Revised Code enumerate the items which

must be in writing, but it provides further that they be filed

previous to ‘the hearing on the motion and provides further that

“No evidence.or stipulation may be considered except as stated

in this section” The foregoing enumerated items were not

present in this instant case which precluded The —

rendering a summary Judgment for defendants,

Morris v..First ieuereee Bank and besa! Co. 15 Ohio St. 2d. 164.

Ae Pe N

There was nothing ‘hist the petition, answer, reply or

affidavits of either party that were not disputed by the other _

party. Therefore, this was not a proper case for. summary

judgment to be rende ~i im; for the reason that in the case of: |

Rainey v. Horshbarger 7 Ohio App. 2d 260 on page 265-the

court-said “ona motion by Defendant for summary judgment

**s his affidavit must set forth evidentiary facts showing the

sufficiency of his defense. He must-make out a clear case gn the

undisputed ‘material facts presented on the record’’; *** In this

case, respondents themselves did not file affidavits but their

lawyer filed his own which was false in that he ‘did not: file in

the case at bar, as his affidavit said he did, the folder or the

original papers of th@ case he claimed was res. judicata to the

case at bar; yet, the trial court judge loved that type of conduct

on the part of Attorney Mueller for respondents. The’affidavits

of Mueller did not set forth evidentiary facts and their contents —

would not have been permissable in evidence on the trial,

further they were denied by plaintiff's affidavit: that charged

Mueller among other things with. “attempting to convert the. °

sum stated in the. petition to his own use; in making false

statements in 4(C) of his affidavit; charged that case no. 396399

and 433879 had 5 on bearing, on the case at bars.

= >,

ee ete e

; ee he ™/

Paragraphs 11 and 13 or petitioner’s affidavit in opposition

to the motion for judgment are incorrect for the reason that

* Mueller. lied in his affidavit. Paragraph 5 when he stated «++

“and in the official file of the court which is ‘submitted by thes

- defendants herein” *** He did not at any time submit or offer

said official folders in case no. 433879 to the court. in the case

at bar; petitioner’s affidavit charged that “the Akron Municipal

Court did not have on. the 23rd. day of February 1967

Jurisdiction to make any lawful findings and orders in its case

no. 433879”; and also -charged that “Attorney Mueller by:

fraudulent acts-and collusion on his part get the honorable ~

Judge Riddle to sign a purported order in an effort to defeat

other claims against Mueller and respondants by this -

petitioner”. The fact.that Mueller was. charged with fraudulent

acts, collusion and conversion of funds in petitioner’s affidavit

. + in opposition to Mueller’s affidavit presented a question of fact:

my respondents’ summary judgment should be reversed in light

f. ‘Aalyson vy. Nationwide Mutual Ins. Co. 1 Ohio App. 2d 192

arnt the court held by reason of the i insurance co. adjuster’s-

interference in the case presented a material fact for a jury to

determine; which was the same identicle situation as in the sae

at Dar excepi the interference was by respondents’ Attorney~

“ Myetler which had-the same effect on this petitioner-as the

a juster’ s interference had on the plaintiff in the Aalyson case.

' Petitioner’s affidavit also charged the substance contained

in the affidavit of Mue ler “was “whotely immaterial,

‘incompetent and has no bearitg onthe case at bar. and is

‘nothing ‘more than conclusions df the pleader.” In the case at

bar, the courts ‘had: only affidavits subniitted by counsel for -

respondents and petitioner ‘from which conflicting inferences

can be drawn, in Bohn Alum. and Brass Corp: v. Storm King’

Corp. 303 F.2d 425 gt P. 427; The affidavit of Storm King was .

* challenged by Bohn the ‘same. as Mueller’s affidavit was

| ‘challenged on the ground “it contained conclusions of ultimate

fact and law” *** and conflicting inferences could be drawn

from the affidavits; the western division granted a motion for

summary judgment; but the U.S. Court of Appeals Sixth Circuit

reversed.the judgment by reasons of the conflicting inferences

and the affidavits contained conclusions of ultimate facts.

™. - 6. DEAE GY Bathe

ty | ene eos ae

a 1 oe

There were many facttial issues raised by the petition,

answer and reply in the ‘case at bar, and the respondents’

motion for summary judgment was sustained without a finding

that there were no issues of material facts, hence the record -

does not. present solid basis of finding based on litigation or —

uncontradicted facts or reviews of appellate courts with respect: m

to legal issues involved, that should preceed review by court of |

"appeals of judgment rendered, hence cause should be remanded

that factual situation might. be fully ‘developed through- usual

‘trial procedure instead of summary judgment proceeding’ and

in the light of Steiner'y Wertheimer 250 F. 2d at P 574.

| The cause at bar was brought in case no. 396399 and was

‘dismissed without prejudice; case nce. 433879 was brought to

vacate the dismissal and to reinstate case no. 396399 and in-the

same petition of case no. 433879 damages were sought for

contracts allegedly entered into in 1964 for $1,780. as the

appellate court states; however, the appellate court is at error in

holding case no. 433879 was contested in the trial court;

petitioner received the amount of the alleged damages in case

no. 433879 that occurred in 1964 but the judgment. did not

reinstate case no. 396399 that ‘was for the 1962 contract;

Subsequently the cause of action that was dismissed et sat Ne

prejudice in case no. 396399 was brought in the court of F

common pleas case ho 265287 which is-the case at bar.

The Court of Appeals is at error in holding that *** ‘as of

the date on which the motion for summary judgment was filed,

no. trial date had been specifically established” for the reason

that R.P. 6 and 7 of the record certified to this court clearly

show that the trial date was changed from the 20th. day of

‘March. 1969 til the 14th. day of April‘1969 and that the motion

for summary judgment was filed ‘April 11, 1969 without

petitioner’s consent, which violated the revised code of Ohio

Section. 2311.041 (A) in that petitioner at no time gave his

consent for respondents to file said motion. ¢

Upon the appeal to.the Court of Appeals, the Appell

court’s gpinion and judgment was even more absurd than the

trial coun in that the Appellate court departed even further

than the tria court did; from the. accepted and usual course of

judicial proceedings; thereby sanctioning a complete departure -

sn eo Ue

by the trial ¢ ourt and the heeiiee court went to cases other

than the case at barzand based their opinion on them instead-of

_ on the case at bar that they were nsusane to be reviewing the

trial court’s judgment. in.

e trial court erroneously found that the cause of action

in case no. 433879 was the same identical cause as is the ease at

bar for the reason that-the petitions in each case did‘not state

‘the same cause of action and the trial court in the ease at bar

did -not at any time have before it the petition or a copy thereof °

-. in case no. 433879 that respondents claim is res judicata to the

' case at bar. Since case no. 433879 was filed in-a different suit, it

: py not constituté a reentrance of appearance hack into the

. dismissed case no. /396399, Hays v-Kentucky Bank 125 Ohio

St 3890 7

The burden ‘of: proving that there were no issues of

material fact. raised by the pleasings was upon reSpondents’ .

‘Rukauina v. N.Y. Cent. R. D-Co.d Ohio App. 2d 48; Revised

~ Code of Ohio Sec. 2309.36 nor ablish on the trial or

hedring of their motion their @aim of res judica or any fact |

conferring the court’s jurisdiction in case no. 433309 on the

23rd. day of. roeny 1967, and _ judgment should be

, reversed. ;

- Petitioner raised many material facts-in the case at bar by

his reply; Ohio Revised’ Code Section 2311.02 “‘issues arise on

the pleadings where a fact or conclusion of law is maintained by

- one party and controverted by the other; they are of two kinds. -

* (A) issues of law (B) issues of fact.’

Ohio Revised Code 2311.03 “‘an issue of “fact ites: (A)

‘upon a material allegation i in the petition denied by the answer;

(B) upon a counterclaim or new matter, presented in the answer

and denied. by thé reply; (C) upon material new matter in the

reply, which is to be considred as controverted by the adverse

party without further pleadings”; petitioner’s reply raised

material facts both by way of. dinisk and new matter.

_ In addition to the federal constitutional; revised code of.

Ohio Sec. 2311.04 reads *#* “issues of fact, arising in actions fgr-

the - ‘recovery of money only, 2or specific real or personal

property, shall be tried by a jury, unless a jury trial is waived.”

**s petitioner did not waive his right to a jury trial i in the case at

23 Ct foe oa

bar and the trial court could not render the judgment it did for

respondents. © oe ewe ee

The transcript of the docket in case no. 433879 did show

that a judgment purportedly was rendered at a time when the

- court did not have jurisdiction of the case but it did not shéw

the cause of action if that case was for the same thing as is the

case at bar. In the case of "Vorwood v- McDonald 142 Ohio St.

299 is the well séttled rule as to Ohio‘law on res judicata and

estoppel to wit: as # hs

1. A final judgment or decree rendered upon the smerits,

without fraud” or collusian, by a court of competent |

’ jurisdiction is, conclusive of rights, questions and facts in.

issue as to the parties and their ‘privies, and is a complete

bar to any subsequent action on the same claim or cause of

“action between the parties or.those in privity with them.

2. A judgment or decree in.a former action does not bar a.

J subsequent action where the causes of attion are not the

same, even though spe action relates to the same subject

. matter. ey j ae . e

- 3. A point or a fact which was actually and directly in issue

in a former. action and was there passed -upon and””-

determined by-a court of competent jurisdiction may not

be drawn in question in any future action between the

same parties or their privies, whether the éause of action ip a

‘the two actions be identical or different. |; Sei

4. Where a ‘judgment js relied on by way of evidence as *

conclusive per se between the Parties in a subsequent suit, .

it must appear by the record of, the former suiL that the ~ ,

"particular controversy sought to be precluded was thereir .

actually or necessarily tried and determined. . >

_ 75. To render a former judgment. an absolute bar to a

oN subsequent suit embracing the same matter in controversy,

\. “the former judgment miist. be specially ‘pleaded and

be proved. A failure or neglect to so plead and prove such

\ __-._ \farmer adjudiéation constitutes a waiver of the defense of

wes res judicata. . eee ; ey £

6. While all claims of right embraced’ in a single cause of °

action must .be prosecuted simultaneously, a litigant

’. def,

a .

-eannot be required to snieetns simultaneously i ina single

action multiple causes of action, even though they relate »

a“ "to the same subject matter.

7. The rule that a judgment is conclusive, not only as-to what

"was determiffed in the action but as to all issues which

properly might have been determined therein, is limited to-

cases involving, a single cause of action.

A dismissal of an action without prejudice in Municipal *

Court. does not. bar. the plaintiff from-refiling the-same action in

the Court of Common Pleas within.the statute of limitatdons.

_« Wanzer v Self, 30 Ohio St. 378.

pa . +. King v. Bishop 44 Ohio St. 225

eo ‘Ohio revised Code Sec..2305.06

Where an action filed in a Munici ipal Come. seeks contracts ;

entered into in 1964 contracts, but without reinstating the ~

_ 7 previous dismissed case; the previous. dismissed case ‘on contract °

“between the same parties dated July 12, 1962, can be brought ~:

in the Court of Common Pleas within 15 years from the date -

the.obligation under the contract became due.

Ohio revised Code, Sec. 2305. 06

A journal entry sieeietios to make .new orders. in’a case:

‘im the Trial Court -is-void for lack of the court’s-jurisdiction,

where it is signed .by attorney for defendants and a judge of the

Trial Court only without a hearing and notice to the plaintiff

and placed of record in the Trial Court seven months after the --".

aie action- had" been: appealed to the Court of Appeals and

‘e therefrom to the Supreme Court and while the appeals were still °

ec, pending.

ae; Ohio revised Code Sec. 1901 .30:.(D) .

s : ~ Ohio revised Code Sec.-2505.04..

. Norwood v. McDonald 142 Ohio St. 299

syllabus 1,2,3,6,7,8 and 9.

Letter to Hon: Judge Powers, Akron. Municipal Court ”

Sullivan v. Cloud et al., 62 Ohio App. 462.

Hudson v. Robinson 103 Ohio App. 375.

¢ : tae i

25 * ‘ ; j f

The summary judgment statute is inoperative in cases where a

material allegation is maintained in the petition and the answ

’ presents new niatter and Were the new matter, igdenied in the

a natler iy

reply, -since the pleadings themselves’ preserit questions of* :

- material, facts; it is prejudicial error for the courts to apply the

cummary judgment statute and deny the parties the right to’ ’ °

have their claims determined by a jury.

Plaintiff's feplyrtn this instant case ee eae ,

“Ohio revised Code Sec. 2311.02 |

Ohio: revised’ Cade Sec> 2311.03

Ohio revised Code Sec. 2311.04 See ee NOT er

" Ohio revised Code Sec. 2309.36 Pn ae ;

- Ohio revised Code Sec. 2311.041. °° a

‘Somermir v. First National Bank 170 Ohio App. 2D 136

‘Manette v..Metropolitan Life Insurance Co. 94 Ohio App. 399

Slick Airways V. Reinert 114 Ohio App. 124°. ae

Bowen Aluminum v. Starm King 303 Fed. 2D 425. .

‘Common Pleas Courts are without jurisdiction on the day

a case reaches it fdr trial to grant leave to file a’ motion for

summary judgment in the action; since the. only period of'time -

_ during the pendency of an action that is discretionary with the |

court to grant leave to file a-motion for ‘summary judgment is

_ during the time from, which the action has béen.set for pretrial

up to the pre-trial hearing only. And a bill of exceptions is not —

mandatory .te prosecute error on appeal Where the record »

clearly shows that such leave of Court ‘was granted on the day

-- the case- reached the courtroom for trail:. and where it ‘is

admitted by counsel on hearing their motion t at it was filed

with both verbal and written leave of Court grafted on the day

_ the case had reached the Courtroom fo trail. R.P. 6,7 and 8.

This Court has never before.decided this question before in any °.

_ case and it ought to be settled: ee ae .

Ohio Revised Code Sec. 231,1.041 (A)

This instant cause of Action has at no time ever had a

judgment rendered on it by any court and the law and this

court will’ not allow the respondants to receive full. benefits -.

under the contract and escape their liability.to pay the sum that

. aera

* .

vite aa*

. ay

they agreed to pay in the contvacs

Jensen v. Republic Stee! 32 Ohio law ABS 29

-Pifth-Third union Trust Company y. Cist 105 Fed. 2D, 282

. Gidbons v. Schriritd Realty Co., 25 Ohio law ABS 260 —

- Starr Co. v..Columba Brd..System, 36 NE 2D 861

City of Cincinnati v. Directdrs et al., 71 Ohio St. 500_

Tilletson et al v..Scettdale 23 Ohio APP-399

Meller v. Standard Acci, Ins. Co. 161 NE 360

Valtew Blec. Co. v. City of Téledo 273 US. $7

in * passe on "this appeal it was prejudiesal error ‘nt

ronirary to law for the Coury of Appeals fo Say eee “in the

‘ate "% of pnt) evidence to thf oyntrary, it Is presumed that the

action of the court, in ing the continuance, was for “9

* cause and hot an sbuse of discretion. As of the date on wh

the motion for sommary judgyPent was filed: no tral date had

been specifi ally est *blished therefore, the filing of suche

motion was -—proper.” When in truth and in §act if the court

would have looked to the “original -paperst“and the bill of

exqegtions im this case -that was properly before the court

: insted of to all, of the other cases it dog up and brought inte

- «it's opinion they would have seen that the continuance was

granteg on the day’ the case, coached the courTom, fot trial on 3

* March QO. 1969. for the sole purpose of giving counsel | i

defendams an opportunity to fe their potion for sumyG .

, ludzment and the-court instrutted them to file the moyen « a ee

* April 4, 1969 since on Match 20, 1969, the court contifiued re ara

maiter.till April 14, 1969 and the record flearly shows these.

‘facts as well a5: counsel for defe ndants admitted these same

~ facts at the hearing of the-motion inf the bull of exceptions on -, :

pages 6,7.8.9,10 and 11; : .

Nor . shall. the “Appellate Court state iw its purported -

_ Opinion in this matter eee “the finding of the trial court that ae

the <laim set forth in ihe petition had been previoushy’

'; adjudicated and ahat the ‘judgment rendered in the Akron ;

+ “Municipal Court, in favor of the Plainuff (Cochran) on the ;

claim, had*been paid in full, comports with the finding of this .

. court in Case No. 6163." How can 9 finding in ‘Case No. 6163 —

have any — on this | instant action? ‘When the cause P of

27 ;

i Case No. 6163 is for thee last portion and this Case

~ No. 6662 i€for the first portion of a wrigten divisible contract _

‘dated July 12, 1962 and the Akron Municipal Court Case No. -

433879 was for written and oral contracts that were entered .

into during 1964 between the parties therein. :

Petitioner's must pay for the roughin portion of the ‘

_ room addition they received under the contraet:

'.Boldsv.Smith114Q APP21.

Horvath vy. Fisher Foods. 26 O OPS 2D 113

Rainey v. Hershburger 7) } APP 2D 260

Hamlin v. McAlpire Co. 175 Ohio St.517.

Peesta ¥. State Foundry Co. 172 Ohio St. 28 =‘ -.

Petroff v. Comm. Freight 82 Ohio Law ABS 433

‘Ohio Revised Code Sec 2311041.

Rossen v. Hochwalt,]2 Ohio APP 2D 129. -

21 Ohie Juri 2D. Evidence Sec. 60. *

«”

“CONFLICT

The Court of Appeals has reridered a decision in conflict

with decisions of other courts of appeals on the same matter to —

ae In the Rajney case T Ohio App. 2d4'360 on P. 361 the court

“In her reply plaintiff. detiies eee the duty to make a

os does not arise until and unless the motion is supported

y documents as pyovided by that section, showing prima facie

that there is no genuine issue as to anv material fact and that

* the moving party is entitled to judgment a a matter of law e¢e

. one not responding does in po manner lewen the defendapt s

eduties as set forth in 49 Corpus Juris Secundumn 418.

- "Judgments. section 225 B: on a motion by *defendant for

summary judgment dismissing the complaint hes affidavit must

set forth evidentiary facts showing the sufficiency of “he

defense. He must make out a clear case on undisputed materza!

facts presented on the record in the case eee”. See also, Corpus

Juris. Secundum 420. Judgments Section 225 C. The principle

of law has been followed in all cases On summary judgments tm

‘Ohio which number in the thousands, except in the case at bar

and the lower courts have refused to follow the usual course ol

judicial proctdure in it.

° The Coun of 7? of Hancock County. Ohio find ~

ee ee |

is ; : ‘ —s : Pee ‘4

peer e error in the Common Pleas Court in the Rainey ene

- and reversed the summary judgment; yet, the Summit County

Court of Appeals in the case at bar and on the same

circumstances pretended to. find no error” prejudicial tg

petitioner which isin conflict with the Rainey case, the Morris

_ case supra and thousands of other cases.

The doctrine of res judicata applies only to an adverary”

proeeedings and only when the same issues and the same parties,

or their privies are involved.

The State ef Ohio Supreme Court's order disminting the

| appeal as of right “For the reason that no substaritial

constitutional question exists herein” and its order overruling

petitioner.s motion’ for rehearing was erroneous in light of the

many constitutional questions raised in the law as set-out supra

“and was a -womplete departure from the acceptgd and usual

proceedings and sanc tioned a departure by both®@he Court of -

Appeals and the trial court so. far as to call for an exerc ise of -

this court’s power of supervision, expecially since there are five

other cases pending in some of the lower comrts that are sure to

reach this court for the reason that said lower courts have in

‘some way giten the petitioner’ the same shabby treatment. as

they gave him in the case at bar. .

No better statement depicts and supports petitioner ’s.

position than that contained.in-the Norwood case P. 299- 300

and the Morris case P. 154- 155 supra ®

- > CONCLUSIONS |

For the foregoing reasons, we submit that the decisions of

i.e lower courts have failed to accept and apply the principles

established by this court .and all courts in Ohio including

previous decisions of their own that are still standing and are

appliable law ‘or summary judgment . procedure. “The

prounouncement by the lower courts, in departing from the

“fundamental principles, if permitted to stand, will lay the

cornerstone for the beginning of the end of the rights of every

* citizen’ to his day im court, their right to trial by jury in civil

cases for amounts over $20., the right to have and own

contracts, to enjoy .contracts whereby no state shall pass any

law impairing the obligations of contracts and wiil mean the loss .

“ 29

of the five other pending cases wherein the lower courts are

* Gonying the petitioner his day in’ court. :

Since the issues hére presented are so srevelent” in n other

cases throughout the United States and therefore of great public

interést and importance, we believe that it is of sufficient

weight as to merit the attention of this court. We urge this court

to note probable jurisdiction and to gant this petition for writs

of certiorari. :

_ Respectifully nobehineed

_ Virgil. E. Cochran ;

In propria persona

* 3720 Atberta Drive

/ Norton, Ohio 44203

30 ”

APPENDIX.

; - Filed in the Akrgh

1 -* Municipal Court

4 . February 8, 1967

; -Virgil E. Cochran

: ak, ; _ 3720 Alberta Dr-

Barberton, Ohio .

The Honorable Judge Thomas M. Powers + a.

166 South High Street -

Akrom. Ohio 44308

February 2, 1967

Dear Hbdnorabie Sir:

iter/is to inform you that a Motion in Case >

4ad875 titled Virgil E. Cochran -vs. Robert G. Costif et al

has been set for a hearing in your Court on February 15,

<967 and 1 wish to further bring to your atténtion that

this case. is being appealed from the Court of Appeals on

jnto the Supreme Court of the State of Ohio so you may

eovern your Court aceordingly.

Seg " Virgil E. Gpchran .

CC: Mailed to - are

Joseph P. Mueller and-

James C. Seminaroti

Sincerely yours,

a 31 /

JOURNAL ENT RY IN THE COURT OF COMMON PLEAS vad

SUMMIT COUNTY, OHIO.

- (Filed October 23, 1967.) -

This cause came on to be heard by the Coun upon the

' Demurrer of the Defendants to the Petition of the Plaintiff filed

herein. And the Court, after consideration’ of the Demurrer

. together with the arguments of counSel, for the Defendants and

of Plaintiff on his behalf, the briefs of both parties filed herein:

finds the Demurrer of the Defendants is not well taken and the

JOURNAL ENTRY IN THE COURT OF COMMON PLEAS OF

SUMMIT COUNTY, OHIO:

(Filed April 11, 1969.)

“On oral motion of the Defendants and each of ak and

so.that they can comply.with a prior verbal directive of this

Court, the Court being fully advised in the premises, the —

Defendants and each of them are hereby granted leave to file

their motion for summary judgment in the within matter. .

instanter:”’ er : e

__NQfINDING IN THE COURT OF COMMON PLEAS OF —

SUMMIT COUNTY. OHIO.

(Filed September 28, 1970.)

This matter came on to be heard op defendant's motion |

for a summary judgment: The plaintiff objects to the hearing of -

this mOtion because of Section 2311.041 A which states. that °

after the action has been set-for trial motion for judgment may

only be filed with consent of all the parties to the action.

The Court finds that although the case had: been set for.

trial, the case was thereafter postponed to a later date and as of

- April 11, 1969, which was the date of filing defendant’s notices, -

- no trial date had been specifically established.

The Court further finds that Rule 12(C) provides that such

motion may be filed at any time so as not‘to delay trial after

the pleadings are closed. The Court finds that this new. rule

which took effect July 1, 1970, takes priority over the previous

statute, but in ahy event the statute itself was not violated.

Vv.

The Court further finds -the motion’ was" filed with the

‘leave of Court.

Coming now to the motion. for ‘lela the Court finds °

that the claim set forth in the pefition is on a contract dated ie

July 12, 1962. The Court finds that the identical claim is set —

forth in Cases Numbered 396399 and 433879 of the Municipal

Court of Akron and that said claim has been duly: adjudicated -

by journal entry in case number 433879 of the Municipal Court

of Akron,.that judgment was rendered for plaintiff, in a latter

case in the amount of $1,780.00 and that judgment was paity

and satisfied in full. "fi ;

The Court does not find on thes papers and transcript filed

from the Akron Municipal Court a record of such pay ment, but . -

‘the affidavit of Attorney ‘Mueller states that such sum was s paid

and theré is no affidavit to contradict-that.

The Court finds therefore that -the matters “claimed in

plaintiff's petition in this case, that.is Common Pleas Number.

265187, have been completely adjudicajed and judgment paid

in full. There is, therefore, nothing further to be determined in

this case and summary judgment is- rendered in favor of the

defendants and against the plaintiff. .

Exceptions granted.

Defendant's attorney shall furnish journal entry and

- submit same to the plaintiff for signature before filing. If

plaintiff refuses to approve the entry, the defendant shall give -

three days notice to the plaintiff as to the date of presentation

of such entry to this Court and shall then present same to the

Couff for signature.

Costs shall - assessed agains the plaintiff.

: " , “Evan J. Reed; Judge

om,

_ JUDGMENT ENTRY IN THE COMMON PLEAS COURT OF

SUMMIT COUNTY, OHIO

' (Filed October 5, 1970)

This matter came on to be heard on Defendant’s motion

for summary judgment and the objection of the Plaintiff to the

‘hearing of said motion on the ground that Section 2311.041 A,

Revised Code, was violated herein for the reason that such a

weothin 1 may be filed only with consent of all atlas: once an.

“2

action has been set for trial. e

The Court finds that although the. within action had been

“set for trial, the trial was thereafter postponed to a later date,

and onthe date of the Defendant’s motion, to-wit: April 11,

1969, no trial date had been specifically establishéd. ”

The Court further finds that .Rule 12(C), Civil Rules of -- °

Practice, provides for the filing of such a motion at any time so

Idng as such filing does not delay trial once the pleadings are

closed, that the said Rule 12(C) went into effect July 1,1970,

that the said e 12(C) takés priority over the statute

* ” aforesaid, and that!in any event said statute has not in fact been

violated herein. -

The Court finds further that the within motion was filed

by ‘the Defendant with leave of the Court.

‘Coming now to the Defendant’s motion for summary

judgment; thé Court finds that the claim set forth in the-

petition of the Plaintiff is on a contract dated July 12, 1962,

that the identical claim is set forth in Cases Numbered 396399,

and. 433879 ofthe Municipai Court of Akron, and that. said

“claim has been duly adjudicated by journal entry -in case . ,

-number 433879 of the said Municipal Court. of Akron, that

judgment was rendered for the plaintiff in the latter case in the

amount of $1,700.00, and that said en was paid and

satisfied'in full.

*The Court does not find on the papers and transcript filed

from the said Akron Municipal Court a record of such payment,

but the affidavit of Attorney Joseph P. Mueller. states that such

sum was paid and there is no. affidavit to. contradict such

statement.

‘Fhe Coust therefore finds that the, moktors claimed in

Plaintiff’s petition in the within cause, that is in Cause Number

265587 in the Court of Common Mens. have been completely

adjudicatéd and judgment paid in. full, so that there is nothing

further to be determined in this case and summary judgment

‘should be, and it hereby is, rendered i in favor of the Defendants

and against the Plaintiff.

Plaintiff is granted his exceptions, and Plaintiff shall pay ;

the costs a gi is so ORDERED, ADJUDGED. and .

' DE@REED-

OPINION OF THE COURT OF APPEALS OF .

_ SUMMIT COUNTY, OHIO “

- (Argued March 24, 1971.), os

_f Decided April ai, 1971. 1.) f

" - =\VRETOR, J.

- In 1962, plaintiff, Virgil. E. Nites (appellant herein),

filed an action in.the Akron Municipal Court (No. 396399),

against the defendants, Costill, on a written contract wherein he”

agreed to btild an ‘addition to ‘the Costill home: The written

contract called for a “complete price of*$3000.00; '» payable

whén the work is roughed in and the bhlance on the comfletion

of the job.” The amount sued for was $1500 for the “roughed | :

in” portion of the work. That case was.dismissed, Appeal was -

taken to this Court {case No. 5550) and subsequently dismissed.

_ Thereafter, Cochran filed another action in the Akron

Municipal Court’( No. 433879) against the same defendants, and

_,Joseph Mueller, their attorney, to:vacate the dismissal and to ‘

reinstate case No. 396399, and to award Cochran « judgment in,

the amount of $1780, and costs. . 4

_ * Case No. 433879 was contested in the triaf,court, and,

after an appeal to this court (case No. 5851), and a remand to

the: Akron Municipal Court, adfidgment was renderethon behalf

of Cochran for the sum of $1780, and costs.

| However, before the judgment fo $1780 was rendered in

-Akron Municipal Court, Lochran filed ‘suit in the Courl<.

Common ‘Pleas of-Summit County (case No. 261953), seeking”

- to recover, from the Costills, money claimed due under’two

alleged separate contracts; one in writing and the other oral. In

this case, Cochran alleges that hé entered intasthese. contracts”

with the Costills for labor and materials used to improve the’

home in which the Costills live (the same home referred to in

the other two cases). In the course of one of the hearings on

one of many motions: filed in this case, Coehran said, .in

referring to the judgment” rendered in case No. 433879 of the

Akron Municipal Court, that he had received the amount of

"Cochran. From that order, he appealed. to this. court tease No.”

6163). ° :

. : _ -

- re.

‘igs . -

a -

- .

‘

documdy CEigh aE Sy RNA DS Liat Tew int Sa Ota heiCA Boies eas

38 ne

. eo?

This court held:

“It is thus apparent that Cochiran brought an action

on the written contract for that portion of the money due

for the roughed-injpart of the addition to the house and he ~

: has received his money for such work. He’ now says.that~ (

Tithe trial ‘court “was in error in-rendering\a summary .

judgment _against him in, the instant case; since he has. sued

for the second- half of the work, and for additional work

-done under an oral contract which “was a separate and |

distinct cause of,action. - - ee \ &

. ““As to the cause of action for the work dowe under

the oral contract, we think the trial” caurt was in error fox

rendering a summary judgment against. Cochran— That

" matter had not been heard or otherwise disposed of in the

action numbered 433879 in the Akron. Municipal Court =.

T6 dismiss that cause of action js contrary tolaw. ~—- - « 3

“Our next problem ‘concerns the Aause of action

based upon the claims arising out of the w “ge contract.

is this <gntract divisible? *** Has the plai . by*filing his

action in the Akron Municipal. Court, wived the right to

proceed in the Common Pleas Court on a written contrac v?

*** (Emphasis supplied).

Hoiding that thé contract was Ee mer not entire, this

court reversed the judgment, saving:

“It is admitted that the Costills’ are living in their 3

house and the addition theret6 built by Cochran. They had

been sued for the roughed-i -n_ work and have paid for. it.

_ Whether there is a defense to the claim for the balatice™

due, we do not know, bi at least, that claim has not been”

adjudicated largely pecause of: a technicality of

interpretation. Under the tircumstances herein, we believe

_ that the trial court Was ‘in error when it concluded that this.

contract wasentire. The granting of summary judgment is —

reversed as contrary to law, and the cause is reversed and

remanded to the trial court for further proceedings not:

inconsistent with this opinion. * (Emphasis. supplied).

That case is still pending. ° : Sy

; | A ree 30

_ Prior to’ the decision of this court in: case No. 6163,

’ Cochran: filed another action in the. Court of Common Pleas af

Summit County (case No." 265187) against the Costills for

‘$1500 for the “roughed in” portion of this same contract: This

case was dyly set for trial and then continued, after which the

defendants filed a motion ‘for summary judgnient, which was

~ «granted by the tal court. That court-fotind that + ‘the matter:

Claimed in, plain{iff’s petition in. the within cause (case: No.

265187) have been completely adjudic ated and paid in full so

that there is nothing further ¢o be deterinifed in this case and

Summary judgment should be, and + ‘hereby. is, rendered in

~ favor of defendants and against the, lai itt.” +8 Bs

It is from this judgment that ¢ ran appeals, setting fo. ch

‘eleven grounds of err6r. In Substance e, Cochran contends that”

the court erred in granting’ the Costills a coMinuang e once the

e case had been set for.trial and, thereafter; permitting them to

‘filé a: motion-for’ summar y judgment without his .consent:

_ Revised‘Code 2311-041 (A). 2-0 iene

We have examined cotfectvely all ofthe errors claimed, in

-, . the dight of the recor

.¢ .: tothe rights of Cochran. - ay

~ .. the : absence of any evidence .to .the contrary, itis

_ presumed that: the action of the court, in granting the

» cantinuance, was for good calise and nc& an abuse of disc ‘retion

‘

filed, no trial daté had been spec ifically established. Therefore,

\ the filing of such a motion’ was proper. see

Thé findjng of the trial court that the. pra set forth j in 5 the

petition had been: previously adjudicated, and thatthe judgment

efore us, and we firid rfone prejudicial |

‘Ag of the date on which the motion for summary judgment Was :

a. rendered_in the Akron Municipal Court, in favor of the plaintiff.’

“(Coe hran) on that claim, had been paid in full, comports with’

thé finding of this” court in case No. 6163. ,

4 Finding no.error prejudicial to the appellant, Cochran, the

judgment i is affirmed.

‘DOYLE, P.J.;and BRENNEMAN, J., concut.

* Judgment affirmed. Eft Wan? ea 70!

: Common Pleas ‘Court _

: ; :

~e Le

7OURNAL ENTRY IN THE COURT OF APPEALS OF

‘SUMMIT COUNTY. OHIO ;

art ee (Filed May 4,.1971. . .

- This cause came’on to’ he heard upon the notice of appeal

on questions of law of the said ___Virgil E. Cochran ee MEE

= : Pe ae Appellant _.__ herein,

togetlier hs a transcript of the docket or journal entries. of the i

the Common Pleas Court of Summit County and the Manicipat Court of Akron

——+- 9

and such - original papers,” or transcripts thereof; as - were,

“necessary for said appeal, filed therewith in the said - —_.___

_.the said said Virgil E. -cochran APCS Sts . Wherein 2 eae ae ote

oe 2 ~-the ‘said Wirgit E Coc hran

— ,

Stee eee eae ee eae Plaintiff

e and Robert G. Costill andiathdre: 1 W. Costili, hes wife 2 ee,

rave : EEE AR tok, ee “Defendant s

mentioned ‘and: referred .to in said notice of appeal, and wis

argued by counsel for appellees, and by appellant. . .

and. submitted to the Court.. : ea

Upon consideration: Ww lier the Court (aide that there i is

no_erroy, prejudic ial to. Appellant. Ny manifest upon the f face

" of the record in said onderSantNuiden nt of said Court of Cimon

Rieas and, in its opinion, substantial justice has been done tig the

party complaining, as shown by the rec ord of the pre eedings,

and the judgment, under review.

It. “is thereupon considered, ts edd. arid. siuied by this.

Court, that the judgment and proceedings of. the sais - ae

—__—__../__ in favor Of ‘the said Appellee

against the Appellant ._

‘reasonable, ee for this proc eeding.

. : « &

It, is firther ordered that a spec ial mandate be sent: to the

Sih Sas ks this-judginent

‘into execution.

~ Exceptions to esortaaae

par in eo opinion; substantial justice has been. done to the

party es ‘ shown by. the record of the proc eedings. ,

, be, and the same are hereby, in all*

- thinks affirmed: there being, in’ the: pinion of the’ Court,

sala

, *

_, JOURNAL ENTRY IN THE COURT OF APPEALOF

' SOMMIT COUNTY, OHIO

er aia .. (Filed June 14,1971.) « ~~

Viel E. Cochran, plaintiff (appellant), has filed 0 motion

_. J . 4 e

oT “Yor art otder determining: whether or not there is a comflict

Gee erg drach gah adr ngucamne harap: pao Mert

nimousty agreed on in this case on May 4, 1971, conflictr

with judgments pronounced upon the same question by other

courts of agpgals of other appellate districts of the state'of Ohio

The couit Yinds thet na codflict onic: Ged, further, that.

; ac tearing fo vequived to inte cust a tetcemnitien: on

‘| * It is, therefore, ordered that said fhotion bé, and’ it hereby

7, as, deabed.

"ee, Exceptions to plaincit (appellant j.

e ORDER OF THE “alee: COURT OF OHIO ~

ar “OVERRULING MOTION TO.CERTIFY

e September 22, 1971 ;

It is ordered by the Court that this motion is opertuled

ORDER OF THE SUPREME COURT OF OHIO ¢

RISMISSING APPEAL AS OF RIGHT.

September 22. 1971 .

This calise, bere ce afpepl as of right from the Court of

~- were County, was heard in the manner prescribed by

law, and, ng-motion to dismiss such appeal having beeh filed,

- the Court sua sponte dismisses the appeal for the reason that no-

2 evhatnatial-cehetiiationn| questi existe hepete.

oy “ORDER OF THE SUPREMEZOURT OF OHIO

=< . DENYING REHEARING eat te

ee , November 3, 1971

“1 is ordered! by whe court Rt rehearing in this_case "i

; “denied. e . * *

. -s : *

. . = nf

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.