Barlow v. Winters National Bank & Trust Co.

62 N.E.2d 351, 75 Ohio App. 392, 31 Ohio Op. 150, 1944 Ohio App. LEXIS 374

Opinion

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-anotner 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.