Opinion
No. 26953
Decided November 23, 1938.
Supreme Court — Dismissal — Nunc pro tunc entry not judgment from which appeal lies, when.
APPEAL from the Court of Appeals of Cuyahoga county.
On November 24, 1926, James Parmelee of Washington, D.C., entered into a trust agreement with The Union Trust Company of Cleveland, Ohio, under the terms of which agreement he transferred certain stocks, bonds and securities in trust to that company, with power to, "handle, manage, sell, invest, reinvest, transfer, assign, deliver, mortgage, pledge, make advances to or for the account of and deal with, the trust estate in such manner and form as to it shall seem wise, all statutory requirements or other limitations to the investment of trust funds now or hereafter enacted or prescribed being hereby expressly waived," but subject, however, to the direction of the settlor, in writing, or in the event of his incapacity, to that of his representative who was named. The settlor also reserved the power of revocation and substitution, and on March 26, 1929, by a modification of the trust agreement, withdrew certain shares of the capital stock of one corporation and substituted in lieu thereof shares of the capital stock of another company. The trust agreement further provided that it should terminate within 30 days after receipt, by the trustee, of written notice of the death of the settlor and that the corpus should pass to his estate for distribution in accordance with the terms of his will.
On April 19, 1931, James Parmelee died, without having changed his place of residence, leaving a will by which he bequeathed and devised his estate to relatives, friends and institutions.
A petition was filed by his executors in the Probate Court of Cuyahoga county to determine inheritance taxes due the state of Ohio the petition listing securities of a valuation of $1,415,313, upon which the court fixed the tax on the succession to the property held in trust, together with other property situated in Ohio, in the total sum of $44,790.02, with interest. Exceptions were filed by the trustees upon the grounds that the securities held at the date of death of decedent were not subject to the jurisdiction of the state of Ohio for inheritance tax purposes and should not have been included as constituting a part of the gross estate of the decedent for purposes of the Ohio inheritance tax. On hearing the Probate Court sustained the exceptions.
An appeal was taken by the Tax Commission to the Court of Common Pleas which affirmed the judgment of the Probate Court. The Tax Commission appealed to the Court of Appeals which, on November 2, 1936, affirmed the judgment of the Court of Common Pleas. No opinion was written by the two concurring judges of the Court of Appeals, but a dissenting opinion was rendered. A motion by the Tax Commission to certify the record was overruled on March 3, 1937, and an application for rehearing was denied on April 14, 1937.
A petition for certiorari was filed in the United States Supreme Court on July 14, 1937, and was granted on October 11, 1937, to the Court of Appeals of Cuyahoga county. The case was argued before the Supreme Court of the United States. A motion for a stay of jurisdiction was filed by the Tax Commission and granted by the Supreme Court, in order that the Tax Commission could "apply to the courts of Ohio for an amendment or a more specific statement or a certification to show appropriately the basis of its determination of the cause and to show that the federal question was briefed and argued before those courts and actually determined by the courts of Ohio." The Tax Commission filed in the Court of Appeals of Cuyahoga county a motion for a nunc pro tunc entry, which was granted by the court on January 31, 1938, the entry reciting that the judgment entered on November 2, 1936, was supplemented nunc pro tunc by the statement "that the majority of the court was of the opinion that the intangible personal property did not have a 'business situs' in Ohio and was not subject to inheritance tax under Section 5332 of the General Code and approved and adopted the opinion of the Probate Court of Cuyahoga county on this point and was, further, of the opinion that it was unnecessary to pass upon the constitutionality of the statute under the Constitution of the United States of America."
Reporter's Note — After the record was supplemented in the Supreme Court of the United States, the writ of certiorari was dismissed on May 16, 1938, because "the judgment sought to be reviewed rests upon a non-federal ground adequate to support it." Tax Commission of Ohio v. Wilbur, 304 U.S. 544, 82 L.Ed., 1518, 58 S.Ct., 1036.
Thereafter the Tax Commission filed a motion to certify and prosecuted an appeal to this court from the nunc pro tunc order of the Court of Appeals dated January 31, 1938. The motion to certify the record was allowed, but the motion to dismiss the appeal of right was sustained by this court. ( In Matter of Parmelee, 133 Ohio St. 519, 14 N.E.2d 772.)
Mr. Herbert S. Duffy, attorney general, Mr. A.F. O'Neil, Mr. Will P. Stephenson and Mr. W.H. Middleton, Jr., for the Tax Commission of Ohio, appellant.
Messrs. Squire, Sanders Dempsey, Mr. Howard L. Barkdull, Mr. Edwin H. Chaney and Mr. Harold T. Clark, for Rollin A. Wilbur et al., co-trustees, appellees.
The trustees, as defendants and appellees, have consistently contended that the nunc pro tunc entry of the Court of Appeals was not a "judgment" within the meaning of Section 2, Article IV of the Constitution of Ohio, and therefore is not subject to review by this court.
From the foregoing brief recital of facts it is apparent that the Tax Commission had a review by this court of the judgment of the Court of Appeals dated November 2, 1936, in which review the same questions were presented as are now sought to be submitted to this court.
The Court of Appeals, on the date last mentioned, entered its judgment, in which the rights of the parties were determined, and the nunc pro tunc entry of a subsequent date did not change the judgment of that court but merely gave reasons therefor.
If the procedure pursued by appellant in the present proceeding were to be approved, the number of times review might be had would be dependent upon the discretion of the Court of Appeals in granting an entry nunc pro tunc to explain or reexplain its reason for a judgment which had already been reviewed.
We are of the opinion that the nunc pro tunc entry was not a judgment from which an appeal would lie, and therefore the appeal should be dismissed.
Having dismissed the appeal, there is not before this court at this time the question whether the imposition by the state of Ohio of an inheritance tax measured by the value of the shares of stock of a decedent resident of the District of Columbia held in, trust by an Ohio trust company would violate the provisions of the Fourteenth Amendment to the Constitution of the United States where the assessment was made under Section 5331, paragraph 3, sub-paragraphs (f), (g), and Section 5332 of the General Code on the basis that such property had acquired a business situs and a commercial domicile in Ohio, or is to be considered taxable intangible personal property under Section 5331, 3rd paragraph (i). Appeal dismissed.
WEYGANDT, C.J., MATTHIAS, DAY, ZIMMERMAN, WILLIAMS, MYERS and GORMAN, JJ., concur.