
    FAVORITE v FAVORITE et
    Ohio Appeals, 2nd Dist, Miami Co
    No 300.
    Decided Dec 22, 1932
    Joseph W. Sharts, Dayton, for plaintiff in error.
    Kerr, Kerr & Kerr, for defendants in error.
   KUNKLE, J.

The testimony in this case is very brief outside of the papers in case No. 25684 of the Court of Common Pleas of Miami County. The brief of counsel contains various citations of authorities in reference to contribution. These authorities are not disputed but, of course, the basis for á contribution must exist before the authorities become applicable. Counsel for plaintiff in error on the first page of his brief states that the money in question received was applied to the mutual benefit of plaintiff and defendants.

If this was supported by the testimony then the foundation for a contribution would exist.

Unfortunately, however, this is not supported by the testimony and the proceedings of the court in case No. 25684 sustain the contention of defendants in error. The papers in No. 25684 among other things show that all the persons in this proceeding were parties to No. 25684; that the defendants in error, Charles and Minnie Favorite in their pleading in that case set forth the fact that they were the holders of a note of $4500 secured by mortgage on the premises sought to be sold by the Building and Loan Association, said premises being in the name of George Favorite, the plaintiff in error; that the court in determining the issues in that case found that plaintiff in error was indebted to the defendants in error on the note set forth in the answer and cross petition in the sum of $4340 and interest. The final entry shows that the said premises were sold; that the lien of the Building and Loan was paid in full and there was paid to defendants in error on their second lien the balance of the money arising from the sale of said property and that a personal judgment was subsequently rendered in favor of defendants in error and against plaintiff in error for the deficit due on their claim against plaintiff in error in the sum of $1709.08.

The lower court found that the matters sought to be determined herein had been or could have been adjudicated in case No. 25684.

Our examination of the record in that case as well as the testimony in this court satisfies us that the finding' of the lower court was correct and there being no prejudicial error in the record herein, the judgment of the lower court will be affirmed.

ALLREAD, PJ, and HORNBECK, J, concur.  