Opinion
No. 29853
Decided July 12, 1944.
Actions — Legal or equitable — Determined by issues presented and relief required at time of trial — Municipality and property owner agreed upon damages from grade-crossing elimination — Mortgagee's action to require municipality to apply agreed sum upon mortgage — Chancery action triable to court — Mortgagee's rights or lien follow award — Mortgagee entitled to satisfaction in advance of mortgagor's other creditors — Mortgage security impaired by grade-crossing elimination — Mortgagee may require obligated party to pay award towards mortgage, when — Directed verdict for plaintiff — No facts establishing defense to cause of action for liquidated amount — Separate finding of facts and conclusions of law — Section 11421-1, General Code — Party against whom verdict directed not entitled to such finding, when.
1. Whether an action is equitable rather than legal and, therefore, triable to the court, is to be determined by the issues as presented by the pleadings and the relief required at the time of trial.
2. An action against a municipal corporation by the mortgagee of property damaged by such corporation as the result of a grade-crossing elimination project carried on by the corporation, to require it to apply on the payment or the reduction of such mortgage, such amount as has been agreed upon by the owner and the corporation as the amount of damage done to such property by reason of the prosecution of such project, not to exceed, however, the amount due on such mortgage, is a chancery action triable to the court.
3. Where mortgaged property is damaged by a municipal corporation in carrying out a grade-crossing elimination project, to such extent that the security of the mortgage is impaired, and there has been an award against the corporation to the mortgagor of such property for such damage, the mortgagee's rights in and lien upon the property follows the award and he may have the mortgage debt satisfied out of the fund represented by the award, in advance of other creditors of the mortgagor.
4. Where, in such case, the mortgagee is not made a party to an action to determine the damages to the mortgaged property by reason of a grade-crossing elimination project, the mortgage lien follows the fund and the mortgagee may require the party obligated to pay the award to apply so much thereof as represents the impairment of the mortgage security to the reduction or satisfaction of his mortgage.
5. A trial court may direct a verdict in favor of a plaintiff provided it assumes that all the facts claimed by way of defense and supported by evidence are true, but finds, nevertheless, that there are no facts proven which constitute a defense to a cause of action in which the right of the plaintiff to the amount claimed has been established.
6. Where, at the close of all the evidence, both plaintiff and defendant move for directed verdicts, the party whose motion is overruled may, by virtue of Section 11421-2, General Code, request and require the court to make a finding of facts separately from conclusions of law; but where the court sustains a single motion of one party for a directed verdict, the party against whom the verdict is directed cannot require the court to make such findings of fact separately from conclusions of law. In sustaining the motion to direct a verdict, the court does not decide questions of fact but only questions of law.
APPEAL from the Court of Appeals of Mahoning county.
This case is here on appeal by the defendant, the city of Youngstown, from a judgment of the Court of Appeals, affirming a judgment of the Court of Common Pleas in favor of the plaintiff in the sum of $47,000.
In September 1928, pursuant to a resolution of its council, the city of Youngstown commenced proceedings for the elimination of a railroad grade crossing at North Watt street. In order to carry out the project, it became necessary to raise the street level at the approach to an overhead bridge, resulting in a partial loss of access to a building owned by the Standard Plate Glass Company, hereafter designated as the glass company, situated on the westerly side of the street near the approach to the bridge, on which property the Mahoning Savings Trust Company, hereafter designated as the trust company, at that time, held a mortgage of $36,000 which was then overdue and unpaid.
On December 21, 1928, the glass company brought suit in the Common Pleas Court of Mahoning county against the city of Youngstown to recover damages resulting to its property by reason of the grade elimination. The city of Youngstown alone was made defendant. On December 28, 1928, the day the summons was returned, a jury was waived and a consent judgment was entered against the city in the sum of $51,000 comprising $16,000 as damages to the land, $31,000 for damages to the building located on the land, and $4,000 for damages to plaintiff's business. Other sums were agreed upon and allowed for readjusting the plaintiff's situation with reference to the property. This judgment was paid in full to the glass company the same day, December 28, 1928. The check of the city given to the glass company in payment of the judgment was deposited in the bank on the next day and the funds represented by this check were checked out of the bank by the glass company on January 2, 1929.
On May 1, 1930, the glass company went into receivership through the appointment of receivers by the Common Pleas Court of Allegheny county, Pennsylvania. The note had not been previously paid.
Before the glass company went into receivership, the trust company attempted to retrieve the money which had been paid to the glass company. Not being able to repay the money, the glass company placed with the trust company 477 shares of stock of an Ohio corporation as additional collateral. After some time this stock was disposed of and the proceeds applied on the debt of the glass company.
After the glass company had gone into receivership, the defendant city and the trust company, on November 10, 1932, entered into a written agreement whereby the trust company filed a preferred claim with the receiver of the glass company for the amount of the money due it on the mortgage. This contract recited the facts concerning the mortgaged indebtedness of the glass company to the trust company; the action of the glass company against the city and the award of $51,000 made against the city and paid by it to the glass company and not to the trust company on its mortgage; and the present action of the trust company against the city to recover the amount due the trust company from the glass company, "by reason of the elimination of said grade-crossing and the change of grade of North Watt street, without notice, and the consequent wrongful and unlawful depreciation of the value of the trust company's interest and security" in the premises affected thereby. The receiver denied the claim as a preferred claim but allowed it as a common-creditor claim and some dividends were received and applied on the claim of the trust company.
On July 26, 1932, the trust company, holder of the mortgage, brought this action against the defendant city to recover damages for the impairment of its mortgage security. The case was tried to a jury, resulting in a verdict in favor of the trust company for $7,000 on December 16, 1935. The verdict was vacated and a new trial granted. The case was again tried and on November 18, 1938, a verdict was rendered for the defendant city. Pending this action, the Mahoning Savings Trust Company in 1938 merged with the Mahoning National Bank, which latter company became by substitution the plaintiff in this action.
On November 19, 1938, a motion for new trial was filed by the plaintiff. While this motion was pending, this proceeding was, on motion, stayed pending the determination of an action which had been instituted by the trust company on December 10, 1934, to foreclose plaintiff's mortgage on the property in question. In that action the defendant city and several railroads were joined as codefendants. On appeal de novo in that action, the Court of Appeals dismissed the city and railroads from the action and this court overruled a motion to certify. A deficiency of $45,520.07 was found due the plaintiff but no deficiency judgment was entered.
Shortly after the foreclosure action above described was ended, the stayed motion for new trial in this action was heard and granted upon the ground of error in the charge of the court and in the admission of evidence, whereupon the defendant city appealed on the ground of abuse of discretion. This appeal was dismissed and the case went back to the Common Pleas Court for its third trial.
On September 22, 1941, by leave of court, the plaintiff bank filed its supplemental and amended petition in this action, praying for an accounting against the defendant city. In this supplemental and amended petition, the plaintiff alleges, in substance, that it is a corporation organized under the laws of the United States and is engaged in banking business in the city of Youngstown; that it is the successor of the Mahoning Savings Trust Company and became such by statutory merger under date of January 15, 1938; that on September 10, 1925, the Mahoning Savings Trust Company loaned to Frank E. Troutman and Ralph Dowell the sum of $36,000, for which they gave their note payable in one year with interest, and a mortgage on lot 412 in Youngstown securing the same, which mortgage became the first and best lien on the property in question; that subsequently this property was purchased by the glass company, a corporation, which assumed and agreed to pay the note and mortgage; that the glass company erected upon the premises in question a large brick building covering substantially all of the premises; and that the $36,000 borrowed from the trust company was used and consumed in the construction of such building.
The supplemental and amended petition further alleges, by way of recital, the facts relating to the proceedings of the city for the grade-crossing elimination project; to the action of the glass company against the city to recover compensation for damages to its property resulting in an award and its payment to the glass company by the city; to the mortgage foreclosure proceeding; and to the insolvency and receivership of the glass company, all as above set out, and further alleged that as a result of taking a portion of the mortgaged property and the misapplication of funds and the payment thereof to the glass company, and the resulting diminution of plaintiff's security, it has been damaged to the sum of $47,000; and that the plaintiff has demanded of the city that it apply the fund as a payment and in satisfaction of plaintiff's claim, but that the city has wholly failed and neglected so to do.
The prayer of the supplemental and amended petition is that the court take an accounting and determine the amount or balance still due the plaintiff upon the note so secured by mortgage; that the court shall deem and hold the plaintiff to have a good and valid lien on and in the fund of $47,000; that the court award to the plaintiff a judgment against defendant city commanding and requiring it to satisfy the balance of plaintiff's claim with interest; and that the court award such further judgment and relief against the city as in equity and good conscience the plaintiff may be entitled to in the premises.
To this supplemental and amended petition, the defendant city filed its amended answer in which it substantially admits the facts alleged in the amended and supplemental petition, but denies liability.
As a second defense, the defendant recites the facts relating to the proceedings for the grade elimination, the action of the glass company for damages and the payment to it by the city of a judgment in such action in the total sum of $51,000 as damages to the property; but alleges that this payment was made with the knowledge and consent of the trust company, original mortgagee; and that the plaintiff is therefore barred from prosecuting this action.
As a third defense, the defendant alleges that the plaintiff has never attempted to take judgment on the note secured by the mortgage or to issue execution on the property of the makers, by reason whereof, it claims the plaintiff is barred and estopped from maintaining this action against the city of Youngstown.
As a fourth defense, defendant alleges that the glass company had given plaintiff 476 shares of stock in an Ohio corporation as additional security for the payment of plaintiff's loan, but that it never attempted to sell the stock, and kept it for a number of years until it became worthless by reason whereof the plaintiff is barred and estopped from maintaining this action.
As a fifth defense, defendant alleges that there were publications made in Youngstown newspapers concerning the legislation of the city for the grade elimination and concerning the action of the glass company against the city for damages; that the plaintiff knew or should have known of such proceedings, but failed and neglected to become a party in such lawsuit so as to claim damages to its mortgage security; and that by reason thereof the plaintiff is guilty of laches and estopped and barred from maintaining this action.
As a sixth defense, the defendant alleges that the trust company or the plaintiff bank had an agreement with the officials of the glass company that the judgment obtained in the action against the city would be applied on the mortgage of the glass company to the plaintiff; that due to such agreement, the plaintiff failed to become a party to such action or set forth its interest in the premises; and that the interest of the plaintiff bank was thereby fully satisfied.
As a seventh defense, the defendant alleges that prior to its settlement with the glass company, the law director of the defendant city informed the president of the plaintiff bank of the terms of the settlement with the glass company and the amount to be paid to it; that the president on behalf of the bank consented to the payment to the glass company; that the plaintiff at no time requested such sum be paid to it to the extent of its mortgage nor protested against the payment of the sum to the glass company; and that by reason thereof, the plaintiff is estopped and barred from now claiming the money from defendant.
As an eighth defense, the defendant alleges that the plaintiff acquired the note and mortgage by way of assignment, in a statutory merger, with full knowledge of the condition and infirmities of the mortgaged property at the time it acquired it; that plaintiff has no status to maintain its action against the defendant for any impairment of security pre-existing such assignment; and that plaintiff's petition does not state a cause of action against the defendant.
As a ninth defense, the defendant alleges that the plaintiff, as mortgagee in possession, has allowed the mortgaged property to fall in disrepair and deteriorate in value, thereby impairing the marketability of the property to the injury of the defendant.
As a tenth defense, the defendant pleads the four-year statute of limitation as a bar to the action and prays that the petition be dismissed.
A reply was filed to the amended answer.
The case came on for trial to the court and jury, and at the conclusion of all the evidence, the defendant made a motion for a directed verdict in its favor. Thereupon, the plaintiff made a like motion for a directed verdict in its favor, whereupon the defendant withdrew its motion and requested the court to submit the matter to the jury. The court sustained plaintiff's motion and directed the jury to return a verdict in favor of the plaintiff in the amount of $45,520.07 with interest at the rate of six per cent from June 23, 1941, the verdict as returned bearing date of October 2, 1942.
A motion and amended motion for a new trial were filed by the defendant, and also a motion for judgment notwithstanding the verdict. A motion was filed by the plaintiff for judgment on the verdict. The court overruled defendant's motions for a new trial and its motion for judgment notwithstanding the verdict and sustained plaintiff's motion for judgment.
The defendant appealed to the Court of Appeals on questions of law, which court affirmed the judgment in favor of the plaintiff.
The case is now in this court for review, a motion to certify the record having been allowed.
Messrs. Harrington, Huxley Smith, Mr. C. Kenneth Clark and Mr. Fred J. Heim, for appellee.
Mr. John A. Willo, Mr. John W. Powers, directors of law, Mr. I. Freeman and Mr. Homer E. Carlyle, for appellant.
Before discussing other issues, it should be determined whether this action against the defendant city by the plaintiff as mortgagee of property damaged by the city as the result of a grade-elimination project carried out by it, to require it to apply on the payment or reduction of such mortgage, such amount as has been agreed upon by the owner and the defendant as the amount of damage done to such property by reason of the prosecution of such project, not to exceed, however, the amount due on such mortgage, is a chancery action triable to the court; or, if not a chancery action, whether the trial court erred in directing a verdict for the plaintiff as mortgagee of such property for a sum equal to the impairment of its mortgage security, but not in excess of the amount agreed upon by the owner of the property and the defendant city as the damage done to such property by the grade-elimination project prosecuted by the city.
While this action in the first instance may have been one for damages for the impairment of plaintiff's mortgage security, it is important only to ascertain its present character as determined by the issues made under the amended pleadings upon which the rights of the parties were finally adjudicated at the time of trial. Taylor v. Brown, 92 Ohio St. 287, 110 N.E. 739; Nordin v. Coulton, 142 Ohio St. 277, 51 N.E.2d 717.
Much, important to the rights of the parties, had transpired before the filing of plaintiff's supplemental and amended petition and before the time of trial. In 1928 the city of Youngstown had adopted legislation providing for the grade elimination on North Watt street. In December of that year the glass company, as owner of the property in question, instituted its action for damages resulting to its property by reason of the grade-elimination project. The mortgage of the trust company, predecessor in interest to the plaintiff, was then a matter of record and was in default. The city of Youngstown alone was made party defendant. Neither the plaintiff glass company nor the city of Youngstown sought to have the trust company made party defendant. By agreement with the defendant, the city of Youngstown, judgment was entered in favor of the glass company in the sum of $47,000 representing the agreed damage to the property. The city of Youngstown held the money, a portion of which was contributed by the railroads, and upon payment of that judgment, it became invested with all easements and necessary rights in the property. Within 10 days after that suit was entered against it, and within one day after judgment was entered against it by its consent, the defendant paid the entire sum to the glass company. Later the property was sold under foreclosure, subject to the rights acquired by the city, and the proceeds of the sale were applied on the mortgage, leaving a definitely determined balance still due and unpaid thereon.
The validity of the proceedings taken by the city for the purpose of carrying out the grade-elimination project are not now questioned. The regularity and validity of the action of the glass company against the city for damages and the action of the trust company to foreclose its mortgage on the property, subject to the rights acquired by the city, do not present any issues for determination in this action because the judgments in those actions have long since become final.
Under the amended pleadings in this case and the facts developed under them as above recited, this action on its third trial is clearly one to subject the funds in the hands of the city, representing the diminished value of the mortgaged property, to the satisfaction of the unpaid balance of the bank's claim so far as sufficient for that purpose, after crediting upon such mortgage the funds derived from the foreclosure sale of the remainder of the property. As in the case of taking property incumbered by liens under the power of eminent domain, the mortgage lien in this case, under the principle of equitable conversion, attached to the fund, and the city thus acquiring the property, became a resulting trustee responsible for the proper distribution of such funds. State Avenue Loan Building Co. v. Spiegel, 131 Ohio St. 488, 3 N.E.2d 412.
The rights of the mortgagee under the circumstances of this case are stated in 18 American Jurisprudence, 868, Section 235, as follows:
"It is a general and well-established rule that, when mortgaged property is taken by eminent domain, or damaged to such an extent that the security of the mortgage is impaired, the mortgagee's rights against the land follow the award, and he may have the mortgage debt satisfied out of that fund in advance of other creditors of the mortgagor, if he takes the burden upon himself of enforcing his rights in that regard. * * * The view obtaining in a majority of jurisdictions is that, where mortgaged land is taken or damaged in eminent domain proceedings, the mortgagee is entitled either to the whole of the award made for the condemned land, or to a share thereof to the extent of his interest or damage. Thus, where the whole of the mortgaged land is taken in the proceedings, the mortgagee is entitled to the entire award or at least to so much of it as is necessary to satisfy the mortgage indebtedness. Where only a part of mortgaged property is taken, the mortgagee is entitled, generally speaking, to only so much of the award as is necessary to compensate him for his interest in the part taken. On the ground that the lien of the mortgage is a property right, it has been held that, even when a mortgage is only a lien, the mortgagee may recover compensation directly from the condemning party, although the mortgagor has already been paid the full value of the land. * * * If the mortgagee seeks in equity to follow the damages awarded, he must show that the property was so damaged as to be worth less than the debt secured." Citing Fidelity-Philadelphia Trust Co. v. Kraus, 325 Pa. 581, 190 A. 874, 110 A. L. R., 538. See Union Joint Stock Land Bank of Detroit v. Hurford, 53 Ohio App. 116, 4 N.E.2d 276; State Avenue Loan Building Co. v. Spiegel, supra.
The courts generally hold that where the mortgagee is not made a party in the appropriation proceeding, the lien follows the fund and the mortgagee may have it applied upon the mortgage debt. 2 Lewis on Eminent Domain (3 Ed.), 947, Section 523; State Avenue Loan Building Co. v. Spiegel, supra; Bellows v. B., C. M. Rd., 59 N.H. 491; Omaha Bridge Terminal Ry. Co. v. Reed, 69 Neb. 514, 96 N.W. 276; Calumet River Ry. Co. v. Brown, 136 Ill. 322, 26 N.E. 501, 12 L.R.A., 84.
In view of the foregoing discussion, this court is of opinion that where, as here, the damage to the property has been adjudicated and the damages reduced to a definite fund, the mortgagee may pursue his remedy in equity, and follow the fund, but only to the extent of the fund. Undoubtedly, he is not bound by the award or settlement to which he was not a party, and may sue in an action at law for damage to his security which in no event could exceed the value of the property taken. But he may also, as an alternative, accept the award and follow the fund in equity, in which event, he cannot recover more than the award.
Viewing this action as it was ultimately tried, it seems clear that it was a chancery action triable to the court, and the plaintiff was therefore entitled to the judgment awarded it unless its right of recovery was barred or limited by one or more of the defenses set out in defendant's answer, or unless the decree was vitiated by errors occurring in the trial. Being a chancery action as to the main issue, the court was privileged to try and determine all other incidental issues.
Under the first defense the only possible claim that could be made relates to various credits which were made on plaintiff's claim, and an examination of the record fails to disclose any error made by the court in the determination and application of credits.
The second defense asserts that the money was paid to the glass company with the knowledge and consent of the trust company. However, the record shows that the trust company had no knowledge that an action had been brought by the city to fix the damages to the property and did not know that a judgment had been awarded to the glass company until after the judgment was paid. The only attempt to show knowledge or consent of the trust company to the payment by the city to the glass company was through an incidental conversation between the law director of the city and the president of the bank before the action for damages was brought, before the merger of the trust company and the bank, and before the bank was the owner of the claim. The essential part of the testimony of the law director representing the city, was as follows:
"Q. Now I wish Mr. Armstrong in your own words you would tell the court and jury what you said and what Mr. Rowland said, fixing the date as near as you can and the time of the conversation? A. Well the time of the conversation was during the pendency of the negotiations for settlement of the amount. * * *
"Q. All right now Mr. Armstrong will you proceed? A. I can't tell you the conversation, I don't remember, I can only give you the fact that Mr. Rowland and I met in the lobby of the bank. He asked me some question about the progress of the negotiations. We talked for a minute or two and went on. That was all that happened. I don't remember what he said nor what I said.
"Q. But you do have a definite recollection do you Mr. Armstrong that you did talk with Mr. Rowland about the negotiations between the city of Youngstown and the Standard Plate Glass Company relative to a settlement of the Standard Plate Glass Company's claim growing out of the Watt street widening project? A. That was the subject of our conversation.
"Q. And that took place before the money was paid by the city of Youngstown to the Standard Plate Glass Company by check dated December 28, 1928, and marked here as defendant's exhibit two? A. Yes, sir.
"Q. Mr. Armstrong was the amount of the settlement mentioned during the course of that conversation? A. No amount mentioned as I recall, there was anything mentioned except his inquiry as to the state of the progress of the negotiations and as I recall it I told him about what the situation was at that time. * * *
"Q. Was there anything said about any mortgage or anything of that kind? A. No." (Italics ours.)
This testimony fell far short of proving the allegations made by the defendant in its amended answer. Furthermore, in the absence of express authority by the board of directors of the bank, its president would have no authority to release the bank's claim or to consent that it be paid to another. No such authority was shown.
As to the third defense, the undisputed evidence is that two of the original makers of the note and mortgage had died without leaving any estate, and the other two had no property. Besides there was no obligation upon the bank to follow the makers on their personal liability, to recoup its claim. City of Toledo v. Brown, 130 Ohio St. 513, 200 N.E. 750.
There was no evidence to support the defendant's fourth defense. The evidence is that the bank made efforts to sell the stock in question and could secure no buyers. The fifth so-called defense neither states facts sufficient to constitute a defense, nor was there substantial evidence adduced to support it. There is no evidence in the record to sustain the claim set out in the sixth defense. The claim made in the seventh defense has been reviewed and disposed of under the claim made under the second defense. The so-called eighth defense is not only demurrable, but there was no evidence to support it. The same is true as to the ninth defense.
The tenth and last defense pleads the four-year statute of limitation. Even if the date of filing of the glass company's action against the city on December 21, 1928, wherein the damage to the property was determined through a consent decree, be taken as fixing the time when plaintiff's cause of action arose, this action was within the four-year limitation, having been instituted on July 26, 1932.
Besides, it is questionable whether plaintiff's cause of action arose until after the suit in foreclosure had been terminated. If upon the sale of the remainder of the mortgaged property there had been proceeds sufficient to satisfy plaintiff's claim, it would have no right of action. This action may have been prematurely brought, and as a result it was halted until the foreclosure action was completed and the credit of the proceeds of the sale applied to plaintiff's claim. Then, for the first time, the extent of the liability of the defendant was fixed. There is no merit in this defense.
The defendant makes complaint that the trial court erred in directing a verdict for the plaintiff. The court may direct such a verdict provided it assumes that all the facts claimed by way of defense and supported by evidence are true, but finds, nevertheless, that there are no facts proven which constitute a defense to a cause of action in which the right of the plaintiff to the amount claimed had been established. Satterthwaite v. Morgan, Jr., 141 Ohio St. 447, 48 N.E.2d 653. The evidence failed to support the claimed defenses of the defendant, and the court did not err in directing a verdict for the plaintiff. If the question as to the amount of damage done to the property had been an open one, the trial court could not properly have directed a verdict in favor of the plaintiff. But since the amount of damage done had been determined by the owner of the property and the defendant, and for the purpose of its claim accepted as correct by the plaintiff, the court was justified in directing a verdict for the amount of damage not to exceed the amount of the agreed settlement or award. The defendant cannot complain as to the amount of the verdict since there was no substantial dispute as to the amount of plaintiff's claim, and since the amount of the verdict was within the amount of the award to which it had agreed.
The defendant complains of the measure of damages adopted by the court. If this had been an action at law for damages for the impairment of security the measure would naturally be the difference in the value of the property before and after the improvement, but not to exceed the amount of the mortgage. But since the defendant agreed with the glass company that the damage to the property was $47,000, it is not in a position to contend that the impairment of plaintiff's security was less than that amount when the mortgage claim was in a greater amount. On the other hand, the plaintiff may waive any greater claim of damage and accept the amount fixed by the defendant and the owner of the property. It then becomes a matter of accounting and other evidence was not necessary.
The defendant claims that the trial court erred in refusing to make in this case a finding of facts separately from conclusions of law. While this was an equitable action for accounting, procedurally it was tried to a jury as an action at law. The defendant, at the close of the testimony, moved for a directed verdict. The plaintiff made a similar motion for a directed verdict in its favor. By this procedure the court was called upon to decide the case on questions of fact, in which event, the defendant was entitled to have the court make a finding of facts separately from conclusions of law. Levick v. Bonnell, 137 Ohio St. 453, 30 N.E.2d 808.
But when the plaintiff moved for a directed verdict, the defendant immediately withdrew its motion to direct a verdict and requested that the case go to the jury. The court then directed a verdict for the plaintiff and in so doing it did not decide questions of fact but determined, as a matter of law, that defendant's uncontradicted evidence did not entitle it to a judgment. Bauer v. Cleveland Ry. Co., 141 Ohio St. 197, 47 N.E.2d 225. After motions for a new trial were overruled, judgment was entered on the verdict as in an action at law. Under such circumstances, the defendant could not require the court to make a finding under Section 11421-2, General Code, as requested. Bauer v. Cleveland Ry. Co., supra. The defendant has not been deprived of a full review of the record in this case, and in view of the fact that the matters under consideration have been in controversy for more than 15 years, the case should not now, in the absence of prejudicial error, be remanded for the purpose of having the court make a finding of fact and separate conclusions of law.
This court finds no prejudicial error and the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS and BELL, JJ., concur.
WILLIAMS, J., concurs in paragraphs one, five and six of the syllabus and in the judgment.
ZIMMERMAN and TURNER, JJ., dissent.