191 N.E. 837 | Ohio Ct. App. | 1934
Daisy Elliott Macdonald, plaintiff in error herein, on the 28th day of July, 1930, transferred seventy-eight shares of the capital stock of the Citizens Commercial Bank of Waynesfield, Ohio, to her husband, R.D. Macdonald. R.D. Macdonald had been the owner for some time of twenty shares of stock in said bank, and was a member of the board of directors.
On the 1st day of August, 1931, I.J. Fulton, Superintendent of Banks of the state of Ohio, took over for liquidation, pursuant to Section 710-89 of the General Code, the Citizens Commercial Bank of Waynesfield, Ohio, and thereby became vested with full title and possession of the property and assets of the bank.
The assets of the bank, exclusive of the amount which might be realized by reason of the double liability of the stockholders, are insufficient to pay its liabilities, and it becomes necessary to collect the full amount of the superadded double liability on said stock to apply upon the payment of the obligations of the bank.
Suit was commenced in the Court of Common Pleas of Auglaize county, Ohio, by the Superintendent of Banks against Daisy Elliott Macdonald, alleging that prior to July 28, 1930, the defendant was the owner of seventy-eight shares of the capital stock of said bank, and that on said date she transferred to her husband, R.D. Macdonald, her said seventy-eight shares of said stock with knowledge of the impending failure of said bank. The defendant Daisy Elliott Macdonald denied that the bank was insolvent at the time, or that she had any knowledge or thought of the impending failure of said bank.
The case was first tried before Judge Copeland and a jury, and a verdict was returned for the full amount *225 claimed. Motion for new trial was filed and overruled, and error was prosecuted to the Court of Appeals.
There were a number of assignments of error, including error in the admission and rejection of evidence; error in refusing special requests to charge before argument; error in the charge; error in refusing to submit special interrogatories; and error in that the verdict was against the weight of the evidence and contrary to law.
In that error proceeding, the court made the following finding which was included in its mandate: "Find error in overruling motion for new trial on the ground that the verdict and judgment are contrary to law, in that the verdict is not sustained by any evidence tending to prove knowledge on the part of plaintiff in error, within the purview of Section 710-75, General Code of Ohio. Judgment reversed at costs of defendant in error, verdict set aside, new trial awarded and cause remanded for execution, a new trial and further proceedings according to law. Exceptions saved."
After the cause was remanded it was again tried before a jury and this trial also resulted in a verdict in favor of the plaintiff for the full amount claimed. Motion for new trial was filed and overruled and judgment entered on the verdict, and this error proceeding is brought to reverse this judgment.
Upon a careful examination of the records submitted to this court in both proceedings in error, we find that the evidence and exceptions are substantially the same, except that in the bill of exceptions in this proceeding in error there is the testimony of a witness who was not a witness on the first trial, tending to show knowledge on the part of the plaintiff in error, at the time the transfer of stock was made, of the impending failure of the bank. And but for this difference and variance in the special requests to charge, and in the special interrogatories, the same questions of fact and *226 law are presented and the same assignments of error are made in this proceeding in error as were made in the former error proceeding.
While in the mandate of this court in the former error proceeding there is a finding of error in overruling motion for new trial on the ground that the verdict and judgment are contrary to law, in that the verdict is not sustained by any evidence tending to prove knowledge on the part of plaintiff in error, the legal effect of that decision was to hold all assignments of error to be not well taken except the one stated in the mandate as the basis of its judgment of reversal. Bechtol
v. Ewing, Admr.,
However, this court in this proceeding in error is not barred from reviewing the question whether the verdict is against the weight of the evidence, as the decision in the former error proceeding, being based on a finding that the verdict was not sustained by any evidence on one of the issues — which is independent of and inconsistent with a decision that the verdict was against the weight of the evidence — precludes any presumption that such question was considered and decided adversely to plaintiff in error in the former proceeding.
Except as to variances that may exist in the requests to charge before argument, and in the requests for submission of special interrogatories in the first and second trials, there is left only one question to be determined by this court in this proceeding in error, and *227 that is whether the verdict, taking into consideration all the evidence, including the additional evidence submitted on the second trial, on the question of knowledge, is against the weight of the evidence or contrary to law.
As the additional evidence referred to tends to show knowledge on the part of plaintiff in error, which there was no evidence tending to show on the first trial, and which was the only respect in which the verdict in the first trial was contrary to law, it is clear that the verdict in the second trial is not contrary to law, and on examination of the whole record we do not find that the verdict is against the weight of the evidence.
The special requests to charge before argument were not offered as separate and independent propositions of law, so that in contemplation of law they were offered as a series. A number of these requests, particularly requests Nos. 1, 2, 8, 9, and 10, do not state correct propositions of law applicable to the facts of the case, and consequently it was not error for the court to reject all such requests. 2 Ohio Jurisprudence, pages 1008 and 1009.
The requests for the submission of special interrogatories to the jury were not offered separately, and a number of such interrogatories, particularly interrogatories Nos. 1, 2, 4, 5, 6, 7, 8, 9, and 10, do not require answers which establish ultimate material and determinative facts or probative facts from which an ultimate material fact may be inferred as a matter of law, and are consequently defective. 2 Ohio Jurisprudence, pages 1070 to 1074, inclusive.
As in contemplation of law such special interrogatories constituted a series, through failure to request separate submission, all the interrogatories must stand or fall together, and, some of the interrogatories being defective, it was not error for the court to refuse all *228 of them. Klein v. Goldstein, 14 C.C. (N.S.), 586, 29 C.D., 534.
Holding these views, the judgment of the lower court is affirmed.
Judgment affirmed.
GUERNSEY, J., and RICHARDS, J., of the Sixth Appellate District, sitting in place of CROW, J., concur.
