Rea v. Fornan

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtBARNES
Citation46 N.E.2d 649
PartiesREA v. FORNAN et al.
Decision Date12 March 1942

46 N.E.2d 649

FORNAN et al.

Court of Appeals of Ohio, Second District, Franklin County.

March 12, 1942.

Action by Ralph Rea against Margaret Fornan, Grace D. Backenstoe, Mary Meyer, and others for partition of realty and for an accounting by Grace D. Backenstoe, wherein Mary Meyer cross-petitioned. Grace D. Backenstoe died during pendency of the suit and the action was revived against her next of kin. From a judgment in favor of the plaintiff, the defendants appeal.-[Editorial Statement.]

Petition dismissed, and cause remanded for further proceedings.

Rehearing denied 46 N.E.2d 664.

Motion overruled, Ohio App., 46 N.E.2d 667. Appeal dismissed 140 Ohio St. 546, 45 N.E.2d 600 and 141 Ohio St. 476, 48 N.E.2d 1009.

HORNBECK, J., dissenting.

[46 N.E.2d 650]

Matthew L. Bigger, Ralph Henney, Alfred J. Henney, John A. Connor, John D. Connor, and Benj. F. Levinson, all of Columbus, for plaintiff-appellee.

R. W. Kilbourne, Harrison & Marshman, and Henry L. Scarlett, all of Columbus, for defendants-appellants.

BARNES, Judge.

The above-entitled cases are now being determined de novo by reason of separate appeals on questions of law and fact from the judgment of the Court of Common Pleas of Franklin County, Ohio.

By stipulation it is agreed that the transcript of docket and journal entries, original papers and transcript of evidence as filed in a single case may be considered as filed in each of the separate appeals without the necessity of making and filing separate transcripts, original papers, etc.

In effect, this means that the several appeals are consolidated and one opinion shall be determinative of each and all of the cases.

This is the second time this case has been in our court.

At a former term we reviewed a judgment of the Common Pleas Court, determining the issues in favor of one of the defendants and dismissing plaintiff's petition.

At that time we reversed the Common Pleas Court for the reason that the court made its finding and decree without permitting plaintiff to present its evidence upon a vital issue in the case. Before the cause came up for second trial the principal defendant, Grace D. Backenstoe, had deceased, and the action was revived against her next of kin.

The second trial resulted in a finding and judgment for the plaintiff and ordered a partition of the 17 tracts of real estate

[46 N.E.2d 651]

specifically described in the petition. Thereafter, the requisite steps were taken through which the action was carried to our court through separate appeals on questions of law and fact by certain defendants, all being similarly affected by the judgment of the trial court. As heretofore stated, the action was one for partition, but when the issues were finally joined the entire controversy resolved around the question as to whether or not Maurice Patrick Murnan and Grace D. Murnan, referred to in the petition as Grace D. Backenstoe, we were married at the time of Pat Murnan's death.

As against the defendant, Grace D. Backenstoe, plaintiff in his petition alleged that Grace D. Backenstoe, who claims some interest in the premises described in the petition, had been in possession thereof since the death of Pat Murnan, May 12, 1937, and during such time had collected the rents and profits therefrom without accounting, and will continue so to do unless otherwise ordered by the court. In the prayer of the petition it was asked that Grace D. Backenstoe be required to set up what, if any, interest she claimed in the premises, and that the same be declared void; that she be required to account for the rents and profits received by her; that a trustee be appointed and for other relief.

As against all other defendants the prayer was for partition.

Plaintiff's petition was filed February 28, 1938, and on March 31, 1938, Grace D. Backenstoe filed answer. The answer in substance averred that many years ago she was Grace D. Backenstoe, and under that name is made one of the defendants in the cause.

‘Further answering, this defendant says that she is the surviving spouse of one Maurice Patrick Murnan who died intestate on May 12, 1937, owning certain real estate; that said Maurice Patrick Murnan, deceased, leaving no parent surviving him and leaving only this answering defendant, Grace Murnan, as his surviving spouse, that as such this defendant is the only heir at law and next of kin, and by virtue of that relationship this answering defendant inherits from Maurice Patrick Murnan all of the real estate of which he died seized.’

In the prayer it was asked that plaintiff's petition be dismissed, etc.

Prior to the first trial in the Common Pleas Court counsel for plaintiff and some of the claimed defendant heirs duly took the deposition of Grace D. Backenstoe at her then residence known as Graceland, and located on North High Street, Worthington. At the time this deposition was taken Grace Murnan was sick in bed with what proved to be her last sickness. Her counsel presented to the court a medical certificate from her attending physician to the effect that she was not physically able to attend the court hearing. However, no postponement of the hearing was requested on this account.

Following her death and the revivor of the action, several of the new defendants, claiming to be heirs of Grace Murnan, filed answers. These several answers restated the substance of the answer of Grace Murnan and in addition they contained a general denial of plaintiff's petition. It will be noted that the answer of Grace Murnan did not contain a general denial of plaintiff's petition. We mention this at this time since it is urged that the state of the pleadings controls the question of burden of proof. This question will be discussed more fully later in the opinion.

On February 24, 1939, Mary Meyer, a claimed direct descendant of Maurice Pat Murnan, filed an answer and cross-petition which, in addition to the requested partition of the 17 different tracts of real estate described in the petition, also described and asked partition of the North High Street 71-acre farm, known as Graceland.

The cross-petition also asked for the appointment of a receiver, setting out that since the death of Grace Backenstoe her executor had been collecting the rents and profits from all the real estate referred to in the petition and cross-petition. At the time of the filing of the cross-petition by Mrs. Meyer the recorded title to Graceland was in the name of Grace Daugherty Murnan, the deed therefor being from Maurice Pat Murnan to Grace Murnan, his wife, dated March 17, 1922, but not recorded until after the death of Pat Murnan. It was the claim of the cross-petitioner that it had not been delivered prior to the date of death of Pat Murnan.

The latter had acquired the property in 1919 by purchase.

While we are on the subject of the show place known as Graceland, we might say that the evidence relative to the execution and delivery of the deed from Murnan to his wife, Grace Daugherty Murnan, is amply supported, and therefore we need give no further consideration to this particular

[46 N.E.2d 652]

tract of land sought to be brought in for partition under the cross-petition.

However, following the filing of the cross-petition the trial court appointed a receiver for the 17 tracts in the person of R. W. Kilbourne, who at the time was also acting as the executor of the Grace Daugherty Murnan estate.

With this brief history of the issues joined under the pleadings we now come to a consideration of these factual issues with the attending procedural questions. By stipulation of counsel it was agreed that a transcript of the testimony taken before the trial court, supplemented by such additional testimony as either side might desire to present, either as depositions or in the form of depositions, including identified exhibits, should constitute the evidence in our court. For convenience it was again agreed that this evidence would be divided into four volumes: Volume I, consisting of 292 pages, was the evidence presented to the trial court; Volume II, containing 172 pages, plus exhibits, and containing testimony of 14 persons on behalf of appellants; Volume III consisted of additional testimony of appellants taken by depositions at different times and described as Detroit, Michigan, depositions and Cleveland depositions; Volume IV contained identified exhibits of former volumes and two depositions, one by plaintiff and the other by defendant, taken at Flagstaff, Arizona, being the testimony of Miss Mary P. Lewis, present clerk of courts of Flagstaff, Arizona, and also the extended testimony of some other witnesses.

It at once becomes apparent that the reading of this mass of testimony is a laborious task. However, we have waded through it and read every word of it. The briefs of counsel are very helpful in that they have brought to our attention the pertinent court decisions not only in our state, but also in sister states, and in addition have at length copied excerpts from the testimony of practically all the witness. Several briefs also contain indexes, but we are sorry that we are unable to compliment this effort. If there is anything we dislike it is making up an index in alphabetical order. What we desire is topical headings and thereunder references in chronological order. If counsel are interested in what the court thinks is the most helpful form of brief we would refer them to Rule VII of our court.

Before we take up an analysis of the evidence it is proper to determine the controverted questions of ‘burden of proof’.

It is the claim of plaintiff, since there is no dispute that the petition correctly lists the blood relatives of Pat Murnan and the degree of kinship, that the claim of Grace Murnan and her privies that she was the widow of Pat Murnan constitutes an affirmative defense and therefore the burden would be upon her to establish that she was his widow. On the other hand, it is the claim of defendant in this court (although not very...

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