Summary
In County of Summit ex rel. Mohler v. Yacobucci (1975), 41 Ohio St.2d 110, 70 O.O.2d 200, 322 N.E.2d 890, the Supreme Court of Ohio expressly held in paragraph one of the syllabus that the written interrogatory provisions of Civ.R. 49 are only applicable to jury trials.
Summary of this case from Cummings v. GroszkoOpinion
No. 74-26
Decided February 12, 1975.
Court procedure — Verdicts — Civ. R. 49 — Not applicable, when — Trial to court without jury — Civ. R. 52 — Findings by court — Provisions not complied with, when — Bureau of Inspection — R.C. 117.09 — Time of examinations — R.C. 117.10 — Report of examination — Action brought thereon — Court may not order continuation of report.
1. Civ. R. 49 relates to a general verdict returned by a jury and written interrogatories submitted to the jury by the court, together with written answers to such interrogatories accompanying a general verdict. Civ. R. 49 is not applicable to cases tried by the court without a jury. (Civ. R. 49 construed.)
2. When questions of fact are tried by the court without a jury, the submission of written interrogatories does not satisfy the provisions of Civ. R. 52 and will not be deemed a request for the court to state its findings of fact separately from its conclusions of law. (Civ. R. 52 construed.)
3. Where R.C. 117.09, requiring an examination of public offices, at least every two years, has been complied with, a court, hearing a civil action brought pursuant to R.C. 117.10 and based on the report of examination, has no authority to order the continuation of such report, and a Court of Appeals order to this effect is in error.
APPEAL from the Court of Appeals for Summit County.
This action was brought under favor of R.C. 117.10 and 117.11 by the prosecuting attorney of Summit County in the Court of Common Pleas against Frank P. Yacobucci, Summit County clerk of courts, appellee herein, and his bonding company, Fidelity and Deposit Company of Maryland. The action is the result of a report of examination conducted by the Bureau of Inspection and Supervision of Public Offices, pursuant to R.C. 117.01 et seq. The report of examination disclosed a shortage in the accounts of the clerk of courts amounting to $173,151.38 for the period of March 1, 1966, to May 31, 1970.
A certified copy of the auditor's report was filed in the case, as provided by R.C. 117.11. Appellee waived his right to a jury trial in accordance with Civ. R. 38(D) and the court tried the questions of fact. On March 7, 1973, the court entered judgment against appellee and Fidelity and Deposit Company of Maryland, for the sum of $173,151.38 and the costs of the action.
On May 4, 1973, appellee filed a notice of appeal in the Court of Appeals. The Court of Appeals, on November 7, 1973, reversed the judgment of the Court of Common Pleas and remanded the cause to the trial court for the stated purpose of securing completion of the audit and for such further proceedings as the trial court should determine necessary.
The Court of Appeals predicated its reversal on the failure of the trial court to answer appellee's interrogatories requesting a breakdown, by individual years, as to each of the three accounts kept by the clerk of courts, showing liability within that particular department of the clerk's office; and on the failure of the trial court to admit additional evidence of a continuation of the audit from June 1970 to December 31, 1972, when Yacobucci left office as clerk.
The cause is now before this court pursuant to the allowance of appellant's motion to certify the record.
Mr. Stephan M. Gabalac, prosecuting attorney, Mr. William E. Schultz and Mr. John F. Lenehan, for appellant.
Messrs. Hershey, Browne, Wilson, Steel, Cook Wolfe, Mr. David R. Wilson and Mr. Terrence J. Steel, for appellee.
I.
Appellant, in his first proposition of law, contends that it is not error for the court to refuse to answer written interrogatories posed by one of the parties when questions of fact are tried by the court without a jury pursuant to Civ. R. 52. We agree.
Civ. R. 52 provides that "[w]hen questions of fact are tried by the court without a jury, judgment may be general for the prevailing party unless one of the parties in writing or orally in open court requests otherwise * * *" before judgment entry or within seven days after the announcement of the court's decision, whichever is later. This rule was not invoked by appellee.
When questions of fact are tried by the court without a jury, the submission of written interrogatories does not satisfy the provisions of Civ. R. 52 and will not be deemed a request for the court to state its findings of fact separately from its conclusions of law.
Civ. R. 49 provides for the court's submission of written interrogatories to the jury at the request of any party prior to the commencement of argument, but does not authorize the submission of interrogatories to the court sitting as the trier of facts.
Prior to the adoption of the Civil Rules, requests for special findings of fact and conclusions of law were governed by statute. In Cleveland Produce Co. v. Dennert (1922), 104 Ohio St. 149, this court construed former G.C. 11470, analogous to Civ. R. 52. That section provided:
"When questions of fact are tried by the court, its finding may be general for the plaintiff or defendant, unless, with a view of excepting to the court's decision upon questions of law involved in the trial, one of the parties so requests, in which case, the court shall state in writing the conclusions of fact found separately from the conclusions of law."
The court, in Dennert, determined that, when a party requests a separate written statement of the conclusions of fact, and, as an aid to the court, submits special written interrogatories for that purpose, it is the duty of the court as part of its judgment to make answer to all interrogatories involving the ultimate facts of the controversy and all probative facts from which the ultimate facts can be inferred. The court held that the provisions of G.C. 11470 conferred a substantial right and were mandatory, but noted that the interrogatories were submitted to the court subsequent to a proper request for special findings pursuant to the statute.
In Cox v. Cox (1929), 34 Ohio App. 192, the Court of Appeals for Butler County very properly held that the propounding of interrogatories to a court sitting without a jury was not synonymous with a request to make separate findings of fact and conclusions of law pursuant to G.C. 11470, and, in the absence of such a request, the court did not err in refusing to answer the interrogatories.
In the present case, the appellee made no request for separate findings of fact other than the submission of written interrogatories. In the absence of such a request, the interrogatories were insufficient to invoke the right provided by Civ. R. 52. Appellee failed to comply with the provisions of Civ. R. 52 within the time period provided by the rule, and the trial court properly refused to answer appellee's interrogatories.
II.
Appellant's second proposition of law relates to the judgment of the Court of Appeals that "* * * in fairness to all concerned, there should be a completion of the audit up to the time Frank P. Yacobucci left his employment as Clerk of Courts of Summit County."
The Court of Appeals based this judgment upon the fact that the audit beginning in 1966 was arbitrarily terminated as of June 1970. The court stated that the appellant admitted that it did not make an audit of the clerk's office at least once every two years, as required by R.C. 117.09, and, therefore, did not comply with the law.
The Court of Appeals felt that, if the audit were continued up to the time the appellee left office in 1972, more credits in the accounts of the clerk would be discovered, reducing his liability.
That judgment, we feel, is based upon conjecture and is unsupported by law or any evidence in the record.
Mr. Russell Rouch, a state examiner with the Bureau of Inspection and Supervision of Public Offices, testified that the clerk's office is currently undergoing an examination and audit for the period of June 1, 1970, through December 31, 1972, the date upon which appellee left office. The record also indicates that the clerk's office was the subject of a continuing examination for the period beginning March 1, 1966, and continuing through May 31, 1970. R.C. 117.09 requires only that an examination be made at least once every two years. The record does not indicate any failure to examine the clerk's office for more than a two-year period.
R.C. 117.09 reads:
"The Bureau of Inspection and Supervision of Public Offices shall examine each public office, department, or agency at least once every two years, except that the offices of judges of county courts shall be examined at such times as the bureau determines. On examination, inquiry shall be made into the methods, accuracy, and legality of the accounts, records, files, and reports of the office, whether the laws, ordinances, and orders pertaining to the office have been observed, and whether the requirements of the bureau have been complied with. Each examination shall cover the period beginning with the termination date of the period covered in the most recent audit."
R.C. 117.10 requires the institution of civil actions based upon a certified copy of the report of examination by the Bureau of Inspection and Supervision of Public Offices, where such report indicates an illegal expenditure of public funds, unaccounted for or uncollected public money which is due, or any public property converted or misappropriated. R.C. 117.11 provides further, in part, that a certified copy of any portion of such report is prima-facie evidence of the truth of the allegations of the petition.
A consideration of those statutes convinces this court of the intention of the General Assembly to base the civil actions provided in R.C. 117.10 on the report of examination and to limit the allegations and the period for which an officer may be found liable to that covered by the examination and the audit. There is no statutory provision requiring the continuation of an examination or audit beyond its termination date.
For the foregoing reasons, we reverse the judgment of the Court of Appeals and reinstate the judgment of the Court of Common Pleas.
Judgment reversed.
O'NEILL, C.J., HERBERT, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.