
    Rottman v. Wernsing.
    
      Error proceedings — Findings and conclusions brought into record and journal by reference, when — Commission for sale of real estate — Statute of frauds affirmative defense, inapplicable unless pleaded by answer or demurrer— Section 8621, General Code (111 O. L., 10k) — Causes of action existing prior to statutory amendment not affected —Section 26, General Code.
    
    1. Judgment entry reciting “* * * was submitted to court and on finding of fact and conclusions of law by court and court being duly advised finds * * *” held to bring findings of fact and conclusions of law by reference into journal entry, and they may be properly considered by Court of Appeals.
    2. In action to recover commissions on sale of real estate, defense of statute of frauds, under Section 8621, General Code, as amended, 111 Ohio Laws, 104, is affirmative matter that should be set up by answer or demurrer, and, unless issue was made thereon, defense is inapplicable.
    3. Cause of action for commissions on sale of real estate accrued and existing prior to passage of amendment (.111 Ohio Laws, 104) to Section 8621, General Code, requiring such contracts to be in writing, was unaffected by statute, in view of Section 26, providing that no repeal or amendment shall affect causes of action existing at time of amendment or repeal, unless otherwise expressly provided in amending act.
    (Decided June 27, 1927.)
    Error: Court of Appeals for Hamilton county.
    
      Mr. Won. G. Meyer, for plaintiff in error.
    
      Mr. Walter K. Sibbald, for defendant in error.
   Hamilton, P. J.

The defendant in error, Henry Wernsing, brought suit in the municipal court of Cincinnati for commission on the sale of real estate. The trial was before the court, without the intervention of the jury, and resulted in a judgment in his favor against plaintiff in error, George F. Rottman.

On request of the defendant below, Rottman, the municipal judge made separate findings of law and conclusions of fact, which on leave were filed in the case.

RottmaiP prosecuted error to the court of common pleas. Werniing, defendant in error in the court of common pleas, moved to dismiss the petition in error, for the reason that there was no bill of exceptions, and that the separate findings of fact and conclusions of law were not contained in the judgment entry, nor journalized. The court of common pleas granted the motion, and dismissed the petition in error. From that judgment, error is prosecuted to this court, seeking a reversal of the court of common pleas, and of the municipal court. ^

The defendant in error here, Wernsing, moves to dismiss the petition in error, or, in the alternative, asks the affirmance of the judgment of the municipal court.

The procedure here is somewhat complicated by the ruling of the court of common pleas on the motion. If we should find the court of common pleas in error in sustaining the motion, proper procedure would require that the case be remanded to that court, with instructions to consider the case on the separate findings of fact and conclusions of law made by the trial judge. However, counsel for both plaintiff in error and defendant in error submitted and presented to this court the question of the error of the court of common pleas in sustaining the motion, and the merits of the case on the record. We therefore, on the agreement of counsel, have concluded in the interests of justice to consider the case both on the motion to dismiss and on the merits.

The defendant in error"on his motion to dismiss argues that there being no motion for a new trial, no bill of exceptions taken or filed herein, and the separate findings of fact and conclusions of law not being entered on the journal, there is nothing before this court to consider, and that the petition in error should be dismissed, and cites Sections 11563 and 11564, General Code, and the cases of Goyert & Vogel v. Eicher, 70 Ohio St., 30, 34, 70 N. E., 508, and Gildehaus v. Fidelity Building & Savings Co., 3 C. C., (N. S.), 598, 14 C. D., 110.

Without going into a discussion of the law presented by the movant, we are of the opinion that the separate findings of facts and conclusions of law are brought into the record and journal by reference, as shown by the judgment entry in the trial court.

The judgment entry recites:

“* # * Was submitted to the court, and upon finding of facts and conclusions of law by the court, and the court being fully advised finds * #

This would seem to bring the findings of facts and conclusions of law, by reference, into the journal entry, and they may properly be considered. However that may be, the cause having been submitted on the merits, we have considered the separate findings of facts and conclusions of law, made by the trial court, in deciding the case on the merits.

One of the questions argued by plaintiff in error, without specially designating the same, is that the conclusions of law and the judgment are not supported by the finding of facts.

There is sufficient stated in the finding of facts to support the judgment on the question of proof, and the judgment will not be disturbed on that ground.

The other question raised is that under the amendment to Section 8621, General Code, in 111 Ohio Laws, 104, this action could not be maintained, since there was no memorandum, or note, or writing, signed by the party, and it is argued that in order for claimant to recover in this action he is compelled to prove his agreement by written contract.

At the outset it may be suggested that the defense of the statute of frauds is affirmative matter that should be set up by answer or demurrer; neither of which was done in this case. The statute of frauds must be relied upon as a defense, and an issue made on that question, and, unless so made, such a defense is inapplicable. Ogden v. Ogden, 4 Ohio St., 182, 192; Woods v. Dille, 11 Ohio, 455.

But passing the question of the failure to make the statute an issue in the case, it is conceded that the cause of action sued upon accrued and existed prior to the passage of the amendment requiring such contracts to be in writing. This being true, the cause of action having accrued, under the provisions of Section 26, General Code of Ohio, the amendment could not affect the pending cause of action. Section 26 provides:

“* * * Nor shall any repeal or amendment affect causes of such action, prosecution, or pro-, ceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.”

The amendment to Section 8621, General Code, contains no language giving it a retroactive effect. This being true, under the decision of the Supreme Court in the case of State, ex rel., v. Huwe, 103 Ohio St., 546, 134 N. E., 456, Section 26 of the General Code protects the cause of action sued upon in this case, and it is not affected by the amendment.

Our conclusion is that the judgment of the municipal court was correct, and the cause will be remanded to the court of common pleas, with instructions to reinstate the petition in error, and to affirm the judgment of the municipal court.

Judgment accordingly.

Cushing, J., concurs.  