Barlow v. Winters Natl. Bank

Full title: BARLOW; DAULTON, ADMX., APPELLANT v. THE WINTERS NATIONAL BANK TRUST CO.…

Court: Court of Appeals of Ohio

Date published: Dec 8, 1944

75 Ohio App. 392 (Ohio Ct. App. 1944)

62 N.E.2d 351

Opinion

No. 1794

Decided December 8, 1944.

Court of Appeals — Conflict case — Certification to Supreme Court — Judgments controlled by same statute, but issues decided were different.

Where the judges of a Court of Appeals find that a judgment upon which they have agreed is controlled by the same section of the General Code as were the judgments of two other Courts of Appeals in two other cases, the judges will sustain a motion to certify the record of the case to the Supreme Court for review and final determination on the ground of conflict, even though the question decided differs from that adjudicated in such other two cases.

ON MOTION TO CERTIFY: Court of Appeals for Montgomery county.

Mr. Joseph L. Lair, for appellant.

Messrs. Estabrook, Finn McKee, for appellee, Lillian M. Barlow.

BY THE COURT.

This matter is submitted on motion of appellant to certify the record in this cause to the Supreme Court for review on the ground of conflict of its decision with that of another Court of Appeals in the state of Ohio.

It is claimed that our judgment is in conflict with the decision in Shearn v. Shearn, 60 Ohio App. 317, 21 N.E.2d 133, Court of Appeals for Coshocton county, and with the decision in Fee v. Linthicum, 26 Ohio Law Abs., 590, rendered by the Common Pleas Court of Wood county, and affirmed without opinion by the Sixth Appellate District Court of Appeals.

Although the question decided in the instant case differs from that which was adjudicated in the above cited cases, the principle on which our judgment rests is in conflict with the judgments pronounced in those cases. If there is a different theory upon which our judgment may be supported, we did not pursue it in our decision.

The construction placed on Section 10504-55, General Code, controlled the judgments in all three cases. This section has been amended since the decisions in Shearn v. Shearn and Fee v. Linthicum, supra, but not materially as to the questions involved in this case. The courts deciding the former cases did not, however, have the benefit of Section 10503-5, General Code, effective August 22, 1941, upon which we placed much reliance for the judgment reached in the instant appeal.

We, therefore, sustain the motion to certify our judgment as in conflict with the judgment of the Courts of Appeals in the cited cases.

Motion sustained.

HORNBECK, P.J., and GEIGER, J., concur.